On July 14, the Senate Indian Affairs Committee held a hearing, “Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters.”
Thomas Perrelli, associate attorney general at the Department of Justice (DOJ), testified about the epidemic of violence against Native women and made recommendations that would close the “major legal gaps” that cause violence against women to be unaddressed: “First, the patchwork of federal, state, and tribal criminal jurisdiction in Indian country has made it difficult for law enforcement and prosecutors to adequately address domestic violence – particularly misdemeanor domestic violence, such as simple assaults and criminal violations of protection orders. New federal legislation could recognize certain tribes’ power to exercise concurrent criminal jurisdiction over domestic violence cases, regardless of whether the defendant is Indian or non-Indian. Fundamentally, such legislation would build on what this committee did in the Tribal Law and Order Act [(TLOA) P.L. 111-211]. The philosophy behind TLOA was that tribal nations with sufficient resources and authority will be best able to address violence in their own communities; it offered additional authority to tribal courts and prosecutors if certain procedural protections were established.” Mr. Perrelli continued, “Second, at least one federal court has opined that tribes lack civil jurisdiction to issue and enforce protection orders against non-Indians who reside on tribal lands. That ruling undermines the ability of tribal courts to protect victims. Accordingly, new federal legislation could confirm the intent of Congress in enacting the Violence Against Women Act of 2000 [P.L. 103-322] by clarifying that tribal courts have full civil jurisdiction to issue and enforce certain protection orders involving any persons, Indian or non-Indian. Third, federal prosecutors lack the necessary tools to combat domestic violence in Indian country. New federal legislation could provide a one-year offense for assaulting a person by striking, beating, or wounding; a five-year offense for assaulting a spouse, intimate partner, or dating partner, resulting in substantial bodily injury; and a ten-year offense for assaulting a spouse, intimate partner, or dating partner by strangling, suffocating, or attempting to strangle or suffocate.”
Dr. Rose Weahkee, director of the Division of Behavioral Health at the Indian Health Service (IHS), explained the provisions of TLOA: “The various provisions of the TLOA offer important policy support for health, wellness, and public safety in AI/AN communities and a recognition of the multiple factors that influence domestic violence and sexual assault issues. The TLOA also has several health-specific provisions, which will be addressed in further detail below. Taken together, these provisions should increase the rate of domestic violence and sexual assault convictions. Increased convictions may increase the reporting of domestic violence and sexual assault incidents by changing the climate and norms surrounding violence against women in AI/AN communities.” She added, “In 2009, Congress appropriated $7.5 million to the IHS in the Omnibus Appropriations Act, P.L. 111-8, to implement a nationally-coordinated Domestic Violence Prevention Initiative (DVPI). In 2010, Congress appropriated an additional $2.5 million for a total of $10 million. Prior to developing specific domestic violence and sexual assault prevention and treatment programs and initiatives, IHS engaged in Tribal consultation sessions with the National Tribal Advisory Committee on Behavioral Health (NTAC). The NTAC is composed of elected Tribal leaders across all twelve IHS Service Areas. Using the NTAC recommendations as a guide, the IHS established the DVPI. The DVPI promotes the development of evidence-based and practice-based models that represent culturally-appropriate prevention and treatment approaches to domestic violence and sexual assault from a community-driven context. The DVPI expands outreach and increases awareness by funding programs that provide outreach, victim advocacy, intervention, policy development, community response teams, and community and school education programs. The funding is also being used for the purchase of forensic equipment and includes case coordination of Sexual Assault Nurse Examiner (SANE), Sexual Assault Forensic Examiner (SAFE), and Sexual Assault Response Team (SART) programs to help victims of sexual assault by training medical personnel on how to properly conduct sexual assault medical forensic exams.
Sarah Deer, member of Amnesty International USA’s Native American and Alaska Native Advisory Council and assistant professor at William Mitchell College of Law, described TLOA’s shortcomings, especially with respect to trafficking and prostitution. She said, “The Tribal Law and Order Act has begun to address the long-standing public safety and justice services disparities on tribal lands, by beginning to restore to tribal governments the authority and resources to protect their citizens. Yet, the recent increase and attention given to ending violence against Native women has failed to specifically address prostitution or sex trafficking as forms of violence against women. Two Minnesota-based organizations have issued reports in the past three years exploring the broad range of historical and current injustices that make Native women particularly vulnerable to prostitution or sex trafficking, but to my knowledge, there are no major empirical or government-led studies focusing on the factors and experiences of prostituted and trafficked American Indian and Alaska Native women in the United States. In 2009, the Minnesota Indian Women’s Resource Center (MIWRC) released Shattered Hearts, a report documenting the commercial sexual exploitation of American Indian women and girls in Minnesota. The report details the historical legacy of physical and psychological abuse of Native women in the U.S. in conjunction with the social, economic, and cultural factors that contribute to making American Indian women particularly vulnerable to being trafficked into prostitution.”
Ms. Deer added, “In addition to the challenges in public safety and justice that American Indian women face as victims of sexual violence, exploitation, and trafficking, the grave disparities in quality of and access to adequate health care services not only have a direct impact on the ability of an Indigenous survivor of sexual assault to obtain justice and legal services, but also impact American Indian and Alaska Native women’s basic right to health care services, in many instances guaranteed by treaty rights…The federal government’s severe under-funding of IHS results in American Indian and Alaska Native women facing a number of specific barriers in obtaining a number of critical and basic health care services – such as the ability to obtain a properly and sensitively administered sexual assault forensic examination (SAFE) in the event of sexual violence, and from receiving adequate and basic prenatal care services that reduce the risk of maternal death and morbidity as a result of pregnancy or pregnancy-related complications.”
“As I travel across our region, I hear of the barriers that program advocates have to overcome simply to get help for those they serve,” said Carmen O’Leary, director of the Native Women’s Society of the Great Plains. She continued, “In some communities, there are no local services whatsoever. In others, there may be a local program, but when that program loses its vital funding, due to the end of a grant term or some other situation, there are no other local services for women in life threatening situations. In another community, the program staff may have to figure out one of four possible sites to take a sexual assault victim. Another program had to find a way to get women back from emergency services in a far off facility. There, the sexual assault victim was taken by ambulance to the emergency room sixty to a hundred miles from home, and she was left to find her own way back with no resources. In all of these situations, very little effort has been made to plan for anything except the minimal medical response for victims. And it is the victims that suffer, often revictimized by the response process, or lack thereof, that they must face. The stability and knowledge gained by the staff is lost as they have to move to another job and take their experience and expertise with them. It does take the knowledge of the local Native women to help other Native women. The base of what works and what is needed is lost as a program goes down.” Ms. O’Leary added, “Efforts at solutions have been passed, such as the Tribal Law and Order Act. These are commendable steps. But additional steps need to be taken in this area to fully implement the necessary provisions. One important step is a return of criminal jurisdiction to Indian nations over crimes of domestic violence, stalking, dating violence and sexual assault by non-Indians. This type of jurisdictional fix is critical to enhancing the safety of Native women. Many episodes of violence against Native women include perpetrators of another race who know that they can continue to offend without any consequences due to the unique and confusing jurisdictional rules present in Indian country. With a jurisdictional fix that restores tribal criminal jurisdiction over non-Indians for these limited crimes, the offender that goes unpunished under the current system might finally get what he deserves and his victim might finally achieve a sense of peace, knowing that justice was served.”
The Honorable Donald W. Rodgers, chief of the Catawba Indian Nation; Sherry Sanchez Tibbetts, executive director of the American Indian Community Housing Organization; and Mickey Peercy, executive director of Health Services of Choctaw Nation of Oklahoma, also testified.
