For Indian Victims of Sexual Assault, A Tangled Legal Path
Source: Western Shoshone Defense Project
By RALPH BLUMENTHAL, New York Times, April 25, 2007
As a Cherokee woman charging rape by a non-Indian, Jami Rozell could not go to the tribal court, which handles only crimes by Indians against Indians in Indian country. So after five months of agonizing, she went to the district attorney in Tahlequah, Okla., and testified at a preliminary hearing.
“It was the hardest thing I’ve ever done, get up there in front of my family with all these men I’ve grown up with all my life,” said Ms. Rozell, now 25 and a first grade teacher in another town. But that was not the worst of it. The police, she said she was soon told, had cleaned up the evidence room and thrown out her rape kit, and with it all chances of prosecution.
However, Chief Stephen Farmer of the Tahlequah police says the department had received permission to destroy the evidence after Ms. Rozell initially declined to press charges.
Human rights advocates say such troubled cases involving Indian victims are common. And, American Indian women are voicing growing anger at what they call their disproportionate victimization in crimes of sexual assault, most often committed by non-Indians, and attitudes and laws that they say deter many from even reporting an attack.
“Indian women suffer two and a half times more domestic violence, three and a half times more sexual assaults, and 17 percent will be stalked — and I’m a victim of all three,” said Pauline Musgrove, executive director of the Spirits of Hope Coalition, an advocacy group in Oklahoma.
Now Amnesty International has taken up the issue, calling on Congress to extend tribal authority to all offenders on Indian land, not just Indians, and to expand federal spending on Indian law enforcement and health clinics.
In a report released yesterday, the American arm of the organization said sexual violence against American Indians had grown out of a long history of “systematic and pervasive abuse and persecution.”
Chris Chaney, deputy director of the office of justice services at the Bureau of Indian Affairs, and a member of the Seneca-Cayuga tribe of Oklahoma, said that Indians fell victim to crime at a higher rate than members of any other ethnic group and that domestic violence was on the rise because of methamphetamine abuse.
But Mr. Chaney said that the bureau recognized the problem and that the new federal budget proposed an increase of $16 million to aid Indian law enforcement agencies.
With just over 4 million American Indian and Alaska Native people in 550 federally recognized tribes scattered over Indian and non-Indian lands throughout the United States, jurisdictional questions often throw cases into limbo, Amnesty International found. In cases where tribal courts have jurisdiction, they can only impose punishments of up to a year in jail and a $5,000 fine. The report cited Justice Department figures suggesting that more than one in three American Indian and Alaska Native women would be raped in their lifetime, almost double the national average of 18 percent.
In 86 percent of the cases, the report said, the perpetrators were non-Indian men, while in the population at large, the attacker and victim are usually from the same ethnic group.
Larry Cox, executive director of Amnesty International USA, said the organization had been studying violence against women worldwide “and then somebody said why not look at what’s happening here.”
The 73-page report focused on Indian communities in Alaska, Oklahoma and South Dakota.
Alaska has the highest incidence of forcible rapes of all women, the report said, and Native Alaskans in Anchorage were nearly 10 times more likely to be victims of sexual assault than non-natives. Oklahoma’s 401,000 American Indians (according to 2005 Census estimates that include people listing mixed racial heritages) share 39 tribal governments and a patchwork of Indian and non-Indian lands; there are no reservations in Oklahoma, which is second only to California in its Indian population.
At Help in Crisis, a shelter for Indian women and their children in Tahlequah in eastern Oklahoma, many told of suffering assaults, often by husbands, without filing complaints.
Among them was Kendra Hunter, 25, who said she had been raped by three white men who held her captive for three days in 2001. Ms. Hunter said that she did report it, but that police officers turned away the complaint, saying that the sex was consensual and that with three witnesses against her, there was no chance of a case. “I had cigarette burns on me, and they called it consensual,” she said.
Deana Franke, director of the shelter, showed off an exercise room she had built for the women but added, “I should be building a shooting range.”
Nearby in Tahlequah, at offices of the United Keetoowah Band of Cherokee Indians in Oklahoma, the director, Sonya K. Cochran, and two advocates, Lois Fuller and Sue Gaytan, displayed the legal records of a local Indian woman who complained of having been raped and sodomized by a brother-and-sister team of attackers in Fort Smith, Ark., in 2004, only to have the charges dropped after a prosecutor said the woman had repeatedly missed court dates. The woman contends she was in court.
Culturally, some advocates said, Indians, fearing humiliation, are often reluctant to press a complaint, seeing it as a test of faith or preferring to “let the creator take care of it,” as one said.
The jurisdictional complexities were evident outside the offices of the Citizen Potawatomi Nation in Shawnee. A nearby fast-food drive-in stands on state land, the north lane of the road is on city land and the south lane is Potawatomi land, where Jason O’Neal, chief of the Lighthorse Police of the Chickasaw Nation, has jurisdiction.
Chief O’Neal said that increasingly, Indian and non-Indian police departments are recognizing each other with cross-designations of authority.
But even on Indian land, if a crime is committed by, or suffered by, a non-Indian, federal law applies — except in states (not including Oklahoma) where such jurisdiction has been ceded to the state. Yet tribal courts enjoy concurrent jurisdiction when the crime is committed by an Indian, regardless of the victim, on Indian land. And the federal government retains jurisdiction over 14 major crimes, including rape, committed by Indians in Indian country. Another problem is figuring out just who is an Indian — an enrolled member of a tribe, for sure, and less certainly, anyone a tribe considers Indian, but beyond that definitions blur.
“I can’t get a U.S. attorney to take a domestic violence case unless there’s severe physical harm or use of a deadly weapon,” said Kelly Stoner, director of the Native American Legal Resource Center at the Oklahoma City University School of Law. “If you just knock a tooth out it’s not enough.”
Renée Brewer, a child welfare and family violence counselor at the Potawatomi Nation and a member of the Creek Muskogee tribe, said she recently had four agencies arguing over jurisdiction after a woman from the Absentee Shawnee Nation called 911 to say she had been raped.
“The D.A. was so confused,” Ms. Brewer said. The woman eventually left the state. And the accused rapist? “Oh, he walked,” Ms. Brewer said.
Authorities Fail To Protect Native Women From Rape Attacks!
Dear Bobbie: I wanted to tell you about a report released yesterday by AmnestyInternational denouncing the US government’s failure to protect NativeAmerican and Alaska Native women from shocking rates of rape.
More than on in three Native women will be raped in their lifetimes . http://www.amnestyusa.org/maze
The United States government has created a complex maze of tribal, state and federal jurisdictions that often allows perpetrators to rape with impunity -- and in some cases effectively creates jurisdictional vacuums that encourage assaults.
"Native women have been resisting rape in North America for over 500 years.It has been an invisible problem to the larger dominant culture because of myths and misconceptions about Native people.
We are an extremely marginalized population but Native women are strong and capable. We have always been leaders in our communities," said Sarah Deer, an attorney and Native American advocate, during and online discussion held on Amnesty's website.
ABOUT THE REPORT:
Join Voices with Native American and Alaska Native Women and Take Action toStop the Violence.
Slide show: Survivors of sexual violence and advocates speak out.
Photographs by Adam Nadel.
Full version of the report:
Rosa Del Angel
Web Advocacy Associate
New Media Unit(202) 544-0200 x. 326
Amnesty International USA
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