A bill aimed mainly at bolstering American Indian law enforcement power to investigate rape and other crimes committed on tribal lands passed the U.S. House last week with overwhelming bipartisan support. Rights groups, who have watched similar efforts fail time and again, hailed the move as a major step in stemming the epidemic of violence that plagues Indian women in particular. Some House Republicans, however, including Colorado Reps Mike Coffman and Doug Lamborn objected to the bill, voting against it not based on its substance, which they agree addresses a serious problem, but because of the cursory way they say the Democrats pushed the bill through Congress.
Fifth District Rep. Lamborn is a member of the Natural Resources Committee that earlier this year heard Arizona Rep Edward Pastor’s HR 725 Native American arts and crafts legislation. The committee voted unanimously to advance the ten-page bill, which aimed to guard authentic Indian artists from unfair competition waged by imitators.
When the bill went to the Senate, however, lawmakers saw it as an opportunity to address the larger issue of ineffective law enforcement on tribal lands. The ten-page bill became a hundred-page bill and, mainly by reauthorizing existing programs, went from a no-cost proposal to what the Congressional Budget Office estimates at roughly $1.1 billion over the next four years.
Lamborn and Coffman told the Colorado Independent that, ultimately, it wasn’t a question of the affordability of the bill. They said that the cost of the amended version signaled it was now a major bill deserving of careful consideration. They voted against it because Democrats rammed the amended bill through on a voice vote– an approach to lawmaking they found unacceptable.
“The Senate version addresses serious issues of crime and violence on Indian reservations, which I believe deserve to be heard by committees and given a fair and open debate on the House Floor,” Lamborn wrote in an email to the Independent. “Instead, House Democrats brought the bloated spending bill up for a vote, without any debate, under a procedure that is typically used for naming post offices. I believe this showed disrespect to the very real problems facing Native Americans.”
Most lawmakers, though, were unfazed by the process and agree the bill is more than affordable given the problem it seeks to solve.
The bill, amended by S 797 or the Tribal Law and Order Act sponsored by North Dakota’s Byron Dorgan, passed Wednesday on a 326 to 92 vote.
A jurisdictional vacuum
Sarah Deer, a member of the Muscogee (Creek) Nation of Oklahoma and an assistant professor at William Mitchell College of Law in St. Paul, celebrated passage of the bill and explained that there has been something of a “jurisdictional vacuum” that has allowed non-Indian rapists to act with impunity on Indian reservations.
In 1978, the U.S. Supreme Court ruled in Oliphant v Suquamish Indian Tribe that tribal governments have no criminal jurisdiction over non-Indians. When a rape is reported, Deer said tribal police and state or federal authorities have to hash out who’s responsible and how to proceed with an investigation.
“What we find is that, by and large, in most communities, nobody really takes action,” she said. “There’s not actually a legal loophole, but it’s a practical loophole. The jurisdiction is just a huge mess. It’s very confusing to determine who has ultimate authority to take on a felony level sex crime in Indian Country.” Deer added that tribal police and federal or state authorities need to determine factors like “whether the perpetrator is an Indian or not, whether the victim is an Indian or not, the status of the land on which the crime occurred.”
This jurisdictional mess — or “maze of injustice,” as the title of a 2007 Amnesty International report coauthored by Deer puts it — ends up disproportionately affecting women.
According to government statistics, one in three American Indian women will be raped in her lifetime. By many estimates, that figure is 2.5 times higher than the rate for non-Indian women in the United States.
“I’d venture to say that’s a conservative estimate,” Deer said. “When I travel to Indian Country and talk to women, they tell me, ‘Gosh, I don’t know anyone in my community who hasn’t been raped.’ “
One-year homicide sentences
The new bill enhances communication between tribal and state or federal law enforcement and expands the ability of tribal police to investigate crimes on Indian lands. It authorizes the deputization of tribal law enforcement to investigate crimes by non-Indians on native lands.
In addition to expanding tribal police authority to investigate crimes by non-Indians, the act increases the maximum sentence for rape that tribal courts could impose from one year to three years. That’s “three times what we had,” says Deer, but it’s still well below the 7- to 10-year sentences typically handed down by federal courts for convicted rapists.
The sentence maximums are shockingly low.
“Prior to the Tribal Law and Order Act, there was a one-year maximum sentence for any crime prosecuted in tribal court,” says Kirsten Carlson, director of the Safe Women Strong Nations program at the Indian Law Center in Helena, Mont., and a descendant of the Cherokee Nation. “You could murder someone and have a maximum one-year sentence.”
Carlson notes another key advancement in the act.
“While it doesn’t restore criminal jurisdiction to the tribes, it does increase the accountability of the federal government to tribal communities,” Carlson said. “For the first time, federal officials have to report back on declinations of these cases to Congress and tribal communities. Federal prosecutors need to maintain records…. That is a tremendous movement forward.”
Federal law, tribal law and a long history of racism
In the eyes of many American Indians, as Carlson’s comments suggest, the act still falls short in granting tribal jurisdiction over non-Indians. Such cases will still be heard in state or federal — instead of tribal — courts.
“I should just be satisfied with celebrating this victory, but I’d really like to see Congress take on this issue of non-Indian perpetrators,” said Deer. She’s perplexed by the rationale behind Oliphant v. Suquamish.
“I think there’s a fear that tribal governments will be harsher on non-Indians. I think that’s a racist idea at its core… the idea that tribal people can’t be fair. If you take racism out of the picture, then what the rule is doesn’t make sense.”
Carlson sees it as an issue of local accountability.
“What’s shocking about it is that under our constitutional system we think of crime as a local problem dealt with by local authority. This is a system where the local community doesn’t have control over it,” she said. “The reason that crime is a local issue in the United States is that then you can hold local people accountable.”
She notes that in Montana, there are 12 Assistant U.S. Attorneys (AUSAs) assigned to investigate rapes and violent crime on reservations, but they tend to live in bigger cities like Billings or Helena instead of on reservations. “It doesn’t impact them in the same way as it does in the local community.”
The U.S. Census Bureau estimates that 50,248 American Indians live in Colorado. The Bureau estimated the population of the Southern Ute reservation as 11,159 in 2000 and the population of the Ute Mountain reservation as 1,687.
Deer was baffled by Republican opposition to the bill. She said new mandatory spending in the legislation was at best minimal. The bill is “very much about prosecution. It’s a very law-and-order bill,” she said.
Additional reporting by John Tomasic