Legacy of Violence
Any work on this topic must acknowledge that the problem of sexual violence is part of a history and continued reality of systemic violence against Indigenous Peoples.
– Interview with Yolanda Francisco-Nez, Executive Director, Restoring Ancestral Winds, May 2021
European/US colonizers forcibly relocated many Indigenous peoples from their land, committing widespread atrocities in the process. Killings on a massive scale, as well as disease and starvation, devastated the Indigenous peoples of North America. Gender-based violence against women by settlers was used as part of conquest and colonization. Violence against Native women is not confined to distant history, and has oftentimes been carried out with explicit intent by the US government, including forced boarding school for Native children and forced and coerced sterilization performed on Indigenous women. Other violence has been allowed to happen because of gross neglect by the US government, including sexual abuse of Native women and minors by Indian Health Service doctors. What’s more, Native women are murdered and go missing at incredibly high rates.
Human rights at stake
Indigenous women experience a broad, multifaceted and complex spectrum of mutually reinforcing human rights abuses. That spectrum is influenced by multiple and intersecting forms of vulnerability, including patriarchal power structures; multiple forms of discrimination and marginalization, based on gender, class, ethnic origin and socioeconomic circumstances; and historical and current violations of the right to self-determination and control of resources.
Victoria Tauli-Corpuz, United Nations Special Rapporteur on the Rights of Indigenous Peoples, Rights of Indigenous Women and Girls, August 2015
The steady and deliberate degradation of tribal sovereignty by the US federal government has exacerbated the epidemic of sexual violence against Indigenous women. The US’s failure to respect, protect, and fulfill Indigenous women’s rights has led to the high rates of sexual violence. A variety of human rights are at stake when the US fails to adequately prevent and respond to this epidemic of violence:
- the right to live free from violence;
- the right to equality and non-discrimination;
- the right to be free from discrimination on the basis of Indigenous status;
- the right not to be subjected to torture or other ill-treatment;
- the right to liberty and security of person;
- the right to the highest attainable standard of physical and mental health;
- the right to obtain adequate reparation or satisfaction for damages suffered
Indigenous Peoples rights also have specific rights, these include:
- the right to autonomy or self-government in matters relating to their internal and local affairs;
- the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions;
- the right to self-determination;
- the right not to be subjected to forced assimilation or destruction of their culture;
- the right to participate in decision-making in matters which would affect their rights;
- the right to promote, develop and maintain their institutional structures and juridical systems or customs, in accordance with international human rights standards
The United States’ failure to respect, protect and fulfill the rights of Indigenous Peoples in the USA has exacerbated the crisis of sexual violence against Indigenous women.
Lost in the jurisdictional maze
I had a case where a woman called the police because her partner was beating her up and assaulting her, and as an advocate I was called along. When we got outside the door, all the various agencies were standing outside arguing about whose jurisdiction it wasn’t. They didn’t even want to take her in for a rape kit because it was her boyfriend. What? Because it’s his right? And that was their attitude. We did get her a rape kit, but she didn’t want to pursue the case, and I don’t blame her.
Interview with Juskwa Burnett, Advocacy for Tribal Families, March 2021
The USA has formed a complex interrelation between federal, state and tribal jurisdictions that undermines tribal authority and allows perpetrators of sexual violence against Native women to evade justice. Three main factors determine where jurisdictional authority lies in these cases:
- whether the victim is recognized as an Indian under federal law;
- whether the accused is recognized as an Indian under federal law;
- and whether the alleged offense took place in Indian country.
Since the publication of the original Maze report in 2007, several pieces of legislation have been passed with the intention of protecting Indigenous survivors of sexual violence:
- The Tribal Law and Order Act (TLOA) of 2010: TLOA required increased transparency from the Department of Justice regarding the rates at which federal prosecutors decline to take up a case in Indian country. TLOA also restored limited tribal sentencing authority so that tribes can impose sentences up to three years (up from previous limit of one year). However, it can be very costly for tribes to implement enhanced sentencing authority, and the increase itself means tribes can only sentence ANY offense, including sexual violence, to three years.
- The Violence Against Women Act (VAWA) Reauthorization of 2013: VAWA is a collection of funding programs, initiatives and actions designed to improve criminal justice and responses to violence against women in the US; it must be reauthorized every five years. The 2013 reauthorization allowed certain tribal courts to exercise “Special Domestic Violence Criminal Jurisdiction” over cases involving non-Indian perpetrators who commit acts of domestic violence within Indian country. While tribes implementing this program saw improvement in safety in their communities, this restored jurisdiction did not cover most crimes of sexual violence. Additionally, the program is extremely costly to implement and comes with cumbersome requirements, meaning for many tribes, it is out of reach, and it explicitly excluded tribes in Alaska and Maine.
- The Violence Against Women Act (VAWA) Reauthorization of 2022: The 2022 reauthorization of VAWA, signed into law March 2022, will allow for tribes participating in “special Tribal criminal jurisdiction” to prosecute non-Indian offenders for sexual violence again Native women, a major improvement from the 2013 VAWA program that excluded such crimes. VAWA 2022 also included Maine tribes and a pilot program to up to 5 Alaskan tribes a year to participate. But tribes will still have major sentencing restrictions, and barriers like cost of implementation and the cumbersome requirements of this program remain a barrier to meaningful change.
Instead of untangling the jurisdictional maze that federal Indian law has created, the USA has only incrementally chipped away at this issue.
Piecemeal legislation, even with good intentions, cannot begin to protect Native women from violence until the jurisdictional complexities within Indian country are resolved.
Failures of Policing
Someone goes missing, you go to the BIA, but they say ‘oh she was living down in town, you have to go to the city police’. So you go to the city police and they say ‘oh she is actually living out at her cousin’s in another county, you have to go there.’ And you go there, but she’s tribally enrolled, and the town says ‘oh she’s tribally enrolled, that’s a tribe issue.’ So now you have three half-finished reports on a missing girl, when every minute counts.
Interview with Juskwa Burnett, Advocacy for Tribal Families, March 2021
Police response to sexual violence against Native women is inadequate and serves as a major barrier to justice for survivors. Jurisdictional confusion and limitations on tribal police impede Native survivors of sexual violence from obtaining justice. A lack of resources for tribal police, poor interagency coordination and insufficient investigative responses have all had negative impacts on police response to sexual violence against Native women. Tribal law enforcement agencies in many areas still do not have adequate resources or training to be effective; many tribal law enforcement agencies, like other services for Indigenous peoples, continue to be at the mercy of annual or other short-term funding.
Inadequate Healthcare and Support Services
Through communication with our tribal advocacy and law enforcement partners, we learned that often American Indian/Alaska Native victims first call the local IHS [Indian Health Service] clinic in search of post sexual assault care. IHS would refer them to urban locations sometimes two or more hours away. Referral facilities would commonly report being unable to conduct the exam and send the victim on to yet another facility. A lot of victims just give up.
Interview with Kim Day, Forensic Nursing Director, International Association of Forensic Nurses, April 2021
Native women who survive sexual violence are not guaranteed to receive adequate and timely sexual assault forensic examinations (including a rape kit), which are vital for a successful prosecution. This failure is caused in part by the federal government’s severe underfunding of the Indiean Health Service (IHS), IHS understaffing and staff turnover, a lack of clarity within the IHS on the availability of rape kits or trained professionals who can administer the exam, and policies resulting in major geographical gaps in post-rape care. Many healthcare facilities are too far away or closed when the survivor needs care. Even if a woman can get to a facility, a rape kit may not be available or there may not be qualified staff available to administer it. Survivors must often face the emotional and logistical difficulties of seeking non-Indigneous care, where they will not receive culturally-appropriate care and may face prejudiced and racist treatment.
Prosecutions Declined, Justice Denied
Unless it’s a winnable case, prosecutors are just declining them. What message does that send to a community that wants to make a change? [It says] you can do this to me and there will be no consequences. We tell our children: just avoid that house. We tell our women: don’t go out after dark.
Interview with Tami Truett Jerue, Executive Director, Alaska Native Women’s Resources Center, March 2021
The federal, state and tribal justice systems in the USA are not responding adequately to Native survivors of sexual violence. The US government has interfered with the ability of tribal justice systems to respond to crimes of sexual violence through underfunding, prohibiting tribal courts from trying non-Indian suspects for most crimes of sexual violence and limiting the custodial sentences which tribal courts can impose for any one offense. When jurisdiction falls to federal or state authorities, and cases are pursued through the federal or state court system, Native women are often denied access to justice: many cases are not pursued, or federal or state authorities do not adequately coordinate with tribal authorities. Since 2013, both the total funding for US Attorney’s Offices in Indian country and the number of attorneys responsible for Indian country prosecutions has decreased by 40%. Survivors are often left with no justice, and perpetrators can continue to commit crimes with impunity.
The US federal government has an obligation under binding international treaties and the trust responsibility between tribal nations and the federal government to ensure the rights and well-being of Native peoples are protected. Amnesty International is calling on the US government to take the following steps to end sexual violence against Native women.
- The US Congress should recognize the inherent concurrent jurisdiction of tribal authorities over all crimes committed on tribal land, regardless of the tribal citizenship of the accused, including by legislatively overriding the US Supreme Court’s decision in Oliphant v. Suquamish.
- All law enforcement officials should ensure that reports of sexual violence are responded to promptly, that effective steps are taken to protect survivors from further violence and that impartial and thorough investigations are undertaken.
- The IHS and other health service providers should ensure that all Native survivors of sexual violence have access to adequate, timely and comprehensive sexual and reproductive health care, including sexual assault forensic examinations, without charge to the survivor and at a facility within a reasonable distance.
- Prosecutors should thoroughly and impartially prosecute cases of sexual violence against Indigenous women and should be sufficiently resourced to ensure that the cases are treated with urgency and processed without undue delay.
- Congress and federal and state authorities must make available long-term, predictable and adequate funding for tribal law enforcement and justice services, for IHS and tribes that administer their own health services and for culturally appropriate support services.