Righting a wrong on tribal land

The Violence Against Women Act, which provides a broad array of protections to victims of sexual violence, never should have been allowed to lapse in 2019. Thankfully, that wrong has been righted as part of the larger spending bill recently passed by Congress. Within it is a reauthorization of the act along with five years of funding.

But there's more that's especially important to the nation's Native American tribes. The legislation rights a historic and grievous wrong against them. After 44 years, the bill restores the authority tribes have long needed and sought to prosecute nonmembers who commit acts of sexual violence against Native women, children and men on tribal land.

Minnesota Sen. Tina Smith, chief author of the provision that restores those rights, said the 1978 Supreme Court decision, Oliphant vs. Suquamish Indian Tribe, stripped tribal courts of their ability to prosecute non-Indians.

"Telling sovereign nations they had no criminal jurisdiction was such a serious blow to tribes," Smith said. The damage caused by Oliphant has been real and enduring. The years since that decision have seen a growing epidemic of violence against Indigenous women. The statistics are horrifying.

According to the Justice Department, Native American women are two to three times more likely to experience violence, sexual assault or stalking. More than a third are raped in their lifetimes. More than 55% are victims of physical violence by an intimate partner, according to the Justice Department. A 2010 U.S. General Accountability Office study showed that U.S. attorneys declined to prosecute 67% of sexual abuse and related cases committed on tribal land. Some 96% of victims described their attacker as non-Indian, according to a 2016 National Institute of Justice report.

When the Violence Against Women Act was updated in 2013, a portion of prosecutorial authority was restored, but it was limited to domestic and dating violence. Other crimes of sexual violence such as rape, stalking and sex trafficking remained out of bounds for tribes.

"We needed a fuller remedy," Smith said. "It was already long overdue." She noted that Minnesota has been at the forefront of a yearslong push by organizers and tribal leaders to restore those rights. In a bipartisan effort, Smith teamed up with Republican Sens. Lisa Murkowski of Alaska and Joni Ernst of Iowa.

The Bois Forte Band of Chippewa has said it plans to become the first tribe in Minnesota to start the process to receive prosecutorial authority. Bois Forte is in a particularly vulnerable situation. Minnesota is among a handful of states that fall under Public Law 280, a 1953 law that shifted jurisdiction for criminal and civil cases from the federal government to state governments without consent from the tribes. The states also were not given additional funding to expand criminal justice authority on tribal lands. That left many of Minnesota's tribes to rely on the often limited resources of local county prosecutors.

But Bois Forte is one of just two tribes in the state that are not part of Public Law 280. Bois Forte Chairwoman Cathy Chavers said that "on our reservation, state law does not apply. This is federal land." While the tribe has a good relationship with St. Louis County, she said, "often their hands are tied because we're not part of the county.

"If non-Indians break the law here, we can tell them to leave the reservation and charge them with trespassing if they came back," she said. "But that's about it unless we get federal investigators involved. You can imagine how often that happens. A case that we think is very big sometimes doesn't seem as big to the U.S. attorney."

In preparation, Chavers said, "We're doing things like updating our tribal codes. We also needed to find a way to expand our jury pools to include non-Indians. If it were an all-Native jury, that would not be giving full representation for the accused." The funding in the bill, she said, will be a welcome resource to help a severely underfunded tribal court system.

"This has been a great victory for Native women and for tribes," Chavers said. "So we can finally prosecute these offenders, as any sovereign nation should be able to do. We can now have justice. It's been a long time coming."