Bridging Jurisdictional Gaps: Collaborative Efforts to Protect Native Women

• In Event: Indigineity, Nativity and Boundaries of Exclusion

Abstract

Based on a foundation of colonial premises and inherent presumptions of inferiority, American federal Indian law has always contained an inherent bias against Native institutions and the full realization of tribal sovereignty (DeLoria 1972, 1984, Pevar 2007, Fletcher 2019). Acknowledging tribal sovereignty has almost always been constructed as a zero-sum game in which the federal government and later state governments have had to surrender power or control over policy to potentially disruptive and likely unpredictable tribal governments.

The trend of federal court decisions has also generally been to narrowly define how sovereignty can be exercised with concern that any assertion does not limit non-Native governments or infringe on the rights of non-Native citizens. This dynamic is clearly illustrated in the 1978 Oliphant v Suquamish supreme court decision in which the court ruled that a tribal government had no criminal jurisdiction over a non-tribal member even if a crime was committed on trust land. While in line with most Indian law precedent, the practical impact of this specific decision has been to severely attenuate the working ability of tribal police and courts to protect their citizens. This “unintended consequence” has profoundly affected Native women since their tribal police have no jurisdiction to prosecute non-Native perpetrators.

Yet, Native women are likely to suffer significantly higher degrees of violence, murder, rape, domestic violence than any other ethnic or racial group, according to recent reports, incomplete as the data collections admittedly are. While poverty, family dysfunction, and substance abuse play a role in this problem the inability of the police force, closest to the community, to prosecute offenders is a major handicap. In PL-280 states, the state and county governments have criminal jurisdiction over violent crimes committed on trust land and in non-PL280 states, the federal government or FBI has jurisdiction, creating a situation in which the only police force that has the power to prosecute is distant from the victim. This confusion in jurisdictional authority has prevented the prosecution of crimes against Native women and girls at much higher rates than crimes against any other ethnic or racial group.

In recent years, more public attention has been focused on addressing the inability of tribal governments to prosecute crimes of violence against Native women as a result of grassroots “No More Stolen Sisters!” campaigns and increased awareness of the MMIWG issues, led primarily by Native women. The election of two Native women to congress in November 2018, Deb Haaland D-NM and Sharice Davids D-KS, meant that this long-time community problem was addressed in the House of Representatives in legislation. Multiple state governments also have proposed legislation to consider state-level solutions which would close the jurisdictional gaps that prevent effective prosecution of crimes against native women.

Yet, barriers remain at both the state and federal level to workable solutions to a problem that everyone recognizes: Native women are experiencing violence and the perpetrators are not being punished.

In this paper, I would like to deconstruct the barriers to the effective prosecution of non-Native perpetrators of crimes of violence against Native women and girls through the policy deliberations and the popular discourse within the state of Wisconsin which is considering legislation that would address violence against native women and how this issue is interpreted by non-Natives.

The adoption of this issue by civil society groups who focus on domestic violence and from faith-based groups plays a role in garnering support. Yet, the complicated jurisdictional issues required to resolve it, built on a foundation of colonial premises which have weakened tribal institutions, make clear that a real solution would require a structural change in how criminal justice institutions operate and collaborate and how non-Natives view Native people and institutions.

Finally, I hope to elaborate on solutions which have been offered by Native communities throughout the state, as articulated by Native women’s groups, including Menikahnikem, the “community-builders” Menominee cultural group, the Women’s Council of the Red Cliff Ojibwas, and the Women’s Leadership group of the Stockbridge-Munsee nation, as well as through conversations with other Native women.
The advocacy offered by Native women’s groups, interpolated into the rigidity and unquestioned stereotypes of Native women and people, built into the cultural fabric of the state creates an interesting interplay.

Illustrating this dynamic within a single policy debate occurring in the state of Wisconsin to attempt to address violence against Native women will give some insight into cultural shifts and the beginning of structural change and giving more power to tribal governments.

Author

• Paula Mohan, UW-Madison