An Expansion of Tribal Sovereignty is Essential to Protecting Women
Updated: Aug 30, 2022
Originally published on The Wellian Magazine on November 29th, 2020
Our mothers and sisters are missing, murdered, and victims of sexual violence
Native American women are over 2.5 times as likely to be victims of sexual violence than other women.
One out of three Native American women are raped, 97% of the time by a non-Native Man.
Two out of three cases involving sexual assault on Indian Country were ignored by attorneys.
Although outrageous and jarring, this is not even the full picture. Many statistics about Native American women and girls do not include people from tribes that are not federally recognized.
If the colonialist nation does not allow you to be indigenous, then you are not.
For instance, the Lumbee Nation in North Carolina has over 55,000 members. Since the United States does not consider the Lumbee to be “real” Indians though, many studies do not account for tens of thousands of non-federally recognized tribal members.
The true figures are significantly worse.
Of course, the root of this epidemic dates to Christopher Columbus’s arrival. While a considerable amount of research has been done on how our colonial past shapes the present, researchers have less to say about how our recent history affects the modern day. Thus, I will contextualize the epidemic of Missing and Murdered Indigenous Women and Girls in our recent past and connect it to current legislation.
To understand how the US government created an environment where these horrendous statistics are women and girls’ daily realities, it is crucial to understand a bit of the legal history of tribal sovereignty.
Arguably the worst decision made on behalf of Native American women and girls was the 1978 Supreme Court case Oliphant v Suquamish. James Oliphant, a permanent, non-Indian resident on the Suquamish Indian reservation, assaulted a tribal officer and was taken into custody by tribal police. Afterwards, Oliphant applied for a writ of habeas corpus, claiming that he was unjustly detained. Oliphant argued that the Suquamish tribe had no authority over him because he was not Native American. The case made it all the way to the Supreme Court.
James Oliphant believed he should have been acquitted because it was a Native American man who he assaulted. He would not have applied for a writ of habeas corpus if he had assaulted a White officer instead. And there is no reason to not detain James Oliphant, right? A crime was committed on tribal lands, and tribes are sovereign nations that should be able to police within their own borders. I mean, that is the way it must be, or else non-Native people could commit any crime on tribal lands without due recourse. How could the Supreme Court allow that?
Well, let us return to history and see what happened.
It might be tempting to look at the year of the Oliphant v Suquamish decision and think things were better off for Native Americans by this time. After all, the Civil Rights Act had been passed over a decade earlier.
Unfortunately, conditions were still horrible in the 1970s, just as they are still horrible today. For example, during a six-year period in the 1970s, twenty-five percent of all Native Americans were forcibly sterilized by our government. Your history books left out that inconvenient truth to discuss how OPEC prevented Americans from filling their gas tanks quite as quickly as they once could.
With injustices as pervasive then as they are today, it should not surprise you to learn that the Supreme Court sided with James Oliphant.
In a 6-2 majority decision, the Supreme Court ruled that tribes had no jurisdiction over non-Indians, setting a precedent which would affect all tribes. Now, a non-Indian could commit a sexual and violent offense on tribal lands, and tribes could legally do nothing. A tangled web of non-jurisdiction was now created, one which left indigenous women and girls at extreme risk.
Native American women lived with the threat of violence looming larger every second, and the law remained that way, unchanged, for thirty-five years.
Then, in 2013, Congress extended protections of the Violence Against Women Act (VAWA) to give tribes jurisdiction over domestic crimes perpetrated by both Indians and non-Indians. The previous version of VAWA, signed in 1994, gave no additional legal power to tribes.
However, this 2013 reauthorization of VAWA came with many contingencies. First, it would expire in just five years. Second, it would not protect Native American women and girls from heinous crimes like child abuse, human trafficking, stalking, and sexual assault. But in the context of how our government had historically treated Native American women, this was a big win.
Can you believe that? A law that did not protect women from child abuse, stalking, sexual assault, or human trafficking was landmark legislation.
Today, the five-year sunset for VAWA 2013 has come and gone. It was kept afloat for a little while longer by a spending bill, but since February 2019, things are just the same as they were in 1978, right after Oliphant v Suquamish.
In 2019, Democrats introduced a reauthorization of VAWA 2013. This time around, tribes were given the power to protect Native American women from all crimes. The bill passed in the House with a vote of 263-158, but as of 2020, the bill has been ignored by the Senate.
But, if you have been paying attention to the news lately, perhaps you heard about recent strides made by the Savanna’s Act and the Not Invisible Act, signed by President Trump. A statement from the White House paints President Trump as a champion of Native American Women’s rights:
President Donald J. Trump was the first president to formally recognize the tragedy of Missing and Murdered Native Americans, when he issued a Proclamation in May of 2019 drawing attention to this issue. Today, he proudly signed into law S. 227, Savanna’s Act, which directs the Department of Justice to develop law enforcement protocols to address the issue, and S. 982, the Not Invisible Act of 2019, which directs the Department of the Interior and the Department of Justice to establish a joint commission on violent crime within and against the Native American community.
The White House, October 10, 2020
This raises the question: how could a Republican-controlled Senate deny extensions to Native American women and girls’ rights while a sitting Republican president promotes an expansion of tribal sovereignty?
It turns out, neither the Savanna’s Act nor the Not Invisible Act truly expand tribal sovereignty.
These acts do provide necessary funding for tribal police and for a joint commission to fight against Missing and Murdered Indigenous Women and Girls. But despite these gains in law enforcement, neither of these acts grant Native American women and girls additional legal protection. In fact, the language of the acts is so vague that James Oliphant could still get away with the same crime he committed in 1978. This means that other, non-Native men could get away with a lot worse. The Savanna’s Act and the Not Invisible Act are both championed as important crime bills, but they are still just that – crime bills. That is probably why President Trump signed them in the first place: to be tough on crime amid calls to defund the police.
There is an important distinction to be made between better legal protections and better crime enforcement. Better legal protections empower Native American women, while better crime enforcement empowers the police. Further, the Savanna’s Act and the Not Invisible Act do not only empower tribal police, but also non-Indian, local, and state police.
Sometimes it is the police who are the worst perpetrators of violence. According to the Guardian, one in five cases of Missing and Murdered Indigenous Women and Girls in California was due to police brutality or lethal neglect by police. Thus, it is alarming when the small, six-page Savanna’s Act reads:
“…to develop, strengthen, and implement policies, protocols, and training for law enforcement regarding cases of missing or murdered Indians.”
While it is possible for police funding to be used for training officers to fight their biases, the US spends more per capitaon policing than any other country except Luxembourg. Throwing more money at our police is unlikely to make a difference.
In contrast to federal and state police, tribal police are extremely underfunded. However, increased funding to tribal police is not a magic solution either. Tribal police can only enforce laws that the colonizer nation creates or allows. With the expiration of VAWA 2013, and the failure to authorize VAWA 2019, tribal officers cannot enforce crucial provisions. It does not make sense to increase law enforcement without also providing necessary laws to enforce.
The future of the Savanna’s Act and the Not Invisible Act are fully in the hands of the Attorney General and the Secretary of the Interior. They have had 90 days from October 10th to make recommendations on enforcement. Theoretically, the Attorney General and the Secretary of the interior could give enforcement power over to tribal governments. Unfortunately, this would never happen considering the history of tribal law.
That is why a Biden presidency is extremely important to indigenous women and girls. Biden was the original architect of VAWA 2013. Although wildly imperfect, it pioneered legislation to address violence against Native American women. A five-year report from the National Congress of American Indians states that VAWA 2013 has led to 143 arrests, 73 convictions, and no petitions for a writ of habeas corpus.
Biden has also pledged to address almost every problem raised in this essay. In fact, had I seen Biden’s plans earlier, this piece would have practically written itself. Biden’s campaign page states:
He also will work with tribal leaders to find long term solutions to address the Supreme Court’s decision in Oliphant v Suquamish… Biden will reaffirm tribal sovereignty and expand the crimes for which tribes can exercise special criminal jurisdiction, including sexual assault, stalking, child violence, and trafficking, through signing into law VAWA 2019.
Reading this, it might be easy to skip past the phrase, “through signing into law.” These few words mean that Biden counts on a Democratic Senate to pass VAWA 2019 before it reaches his desk. Right now, the Senate is still Republican controlled, and it will remain so unless Georgia’s Senate seats both swing blue. “All eyes on Georgia” means something very different for indigenous women and girls. It means protection from sexual assault, stalking, human trafficking, and child abuse. Hopefully, bipartisan support can be reached even if Republicans take the Senate. There are more Native Americans in Congress now than ever before, and Biden has run on a platform of working across the aisle.
However, it would be foolish to think that Native American women are waiting around for Georgia’s races to finish or for Biden to keep his campaign promises.
Activists like Sarah Deer, a lawyer and professor who was instrumental in VAWA 2013, continue to fight for Native American women and girls. Authors like Bunny McBride are courageously writing about sexual abuse and indigeneity, and younger generations are making their voices heard by painting handprints on their faces to raise awareness for Missing and Murdered Indigenous Women and Girls.
And you can help them. Visit the Coalition to Stop Violence Against Native Women to donate or to participate in a fundraising or advocacy event.
Tribal sovereignty should not be expanded because Native American women and girls are “weak”. On the contrary, Native American women and girls prove their power by fighting against these statistics every day – simply by existing. But that does not mean Native American women and girls are not guaranteed the same right to safety as does anyone else. We are all one community, the animals, the rocks, the plants, and the humans. Each of us have a right to happiness, and none of us deserve senseless violence. Bibliography
“Biden-Harris Plan for Tribal Nations.” JoeBiden.com. joebiden.com/tribalnations/. Accessed 28 Nov. 2020.
Coalition to Stop Violence Against Native Women. www.csvanw.org/. Accessed 28 Nov. 2020.
“Domestic Violence Rampant Among Native Americans. DomesticShelters.org. 13 Mar. 2017, www.domesticshelters.org/articles/statistics/domestic-violence-rampant-among-native-americans.
“Ending Violence Against Native Women.” Indian Law Resource Center. indianlaw.org/issue/ending-violence-against-native-women/. Accessed 28 Nov. 2020.
Golden, Hallie. “‘It haunts your life’” California’s legacy of police violence against Native American women.” The Guardian. 25 Sept. 2020, www.theguardian.com/us-news/2020/sep/25/california-native-american-women-police-violence.
“MMIW USA.” Missing and Murdered Indigenous Women. mmiwusa.org/. Accessed 28 Nov. 2020.
Reynolds, Emma. “Calls are growing to defund police in the US. Here are some lessons from overseas.” CNN. 24 June 2020, www.cnn.com/2020/06/24/world/defund-police-crime-social-welfare-intl/index.html.
Rosay, André B. “Violence Against American Indian and Alaska Native Women and Men.” National Institute of Justice. 01 June 2016, nij.ojp.gov/topics/articles/violence-against-american-indian-and-alaska-native-women-and-men.
“Safe Women, Strong Nations.” Indian Law Resource Center. indianlaw.org/safewomen/. Accessed 28 Nov. 2020.
“Statement from the Press Secretary Regarding the Signing of Savanna’s Act and the Not Invisible Act.” WhiteHouse.gov. 10 Oct. 2020. www.whitehouse.gov/briefings-statements/statement-press-secretary-regarding-signing-savannas-act-not-invisible-act/.