Sat 28 Jul 2007
In April, Amnesty USA issued a report on the denial of justice to Native American women who have been victims of sexual assault. Native American women suffer sexual assault at 2.5 times the rate of the general population, but due to the complex relationship between State, Federal and Tribal law a majority of sexual assaults cannot be or are not prosecuted. When sexual assaults occur on tribal lands, tribal authorities can only prosecute the offense if both the victim and perpetrator are members of that tribe. Tribal courts may not impose sentences longer than one year, significantly less than is usual for sex crimes convictions in other courts. However, 80% of victims describe their attackers as non-native. In those cases, crimes occurring on tribal land must be referred to federal authorities; a majority of such cases are never prosecuted. NPR’s All Things Considered reports several cases where Tribal law enforcement officers’ attempts to report such crimes to the US Attorneys were ignored by Federal authorities (the US Attorneys’ Offices declined to be interviewed for the report).
If the crime occurred off tribal land, local state or county authories have jurisdiction as they would over any other crime occurring in the area. However, in many places tribal land can be literally across the street from non-tribal lands and it is difficult to determine who has jurisdiction. NPR reports a case where representatives of four law enforcement agencies stood on a victim’s front lawn and argued about who had jurisdiction while the woman’s attacker remained inside the house with the victim.
According to NPR, the problem is exacerbated by a lack of resources on tribal lands to investigate rapes. There are often too few Tribal law enforcement officers to adequately investigate every reported crime. Victims of violence sometimes wait months for law enforcement to even respond to a complaint. Medical clinics lack staff to treat rape victims or supplies to collect evidence.
The complex relationship between Federal and Tribal jurisdiction was intended to give Native American tribes sovereignty over their own lands and members. However, the restrictions placed on Tribal officers’ power over non-Natives combined with the Federal authorities’ failure to respond to crimes committed on Tribal land has resulted in serious human rights violations. The Federal government is obligated to exercise due diligence to ensure that the human rights of persons subject to its jurisdiction are protected; the Inter-American Court and Commission have both found that illegal acts that are not directly imputable to the State can lead to international responsibility if the State fails to exercise due diligence in preventing or responding to the act. Article 2 of the International Covenant on Civil and Political Rights also imposes such a requirement. Although the U.S. is not a party to treaties on the rights of women or indigenous people, the U.S. is in violation of its international obligations under the ICCPR and the Inter-American Declaration; the U.S. may also be in violation of the Convention on the Elimination of All Forms of Racial Discrimination. The Convention of Belem do Para, the Convention on the Elimination of All Forms of Discrimination Against Women and the Declaration on the Rights of Indigenous Peoples adopted by the Human Rights Council also provide additional legal protection for Native American women, but the U.S. is not a party to these agreements. Additionally, the domestic Violence Against Women Act provides funding for Tribal/Federal cooperation on crimes against women and increased Federal penalties for offenders; however, the Bush administration has underfunded these measures in violation of the Act.
Three months after the publication of Amnesty’s report, it seems that little has been done to address this issue. The rights of Native Americans are rarely discussed in the United States, even in the human rights community. We must work to raise awareness of these issues and to support the enforcement of existing legislation as we promote the ratification of additional human rights treaties. Amnesty provides a web form you can use to write to your elected officials. The House recently approved an amendment to a bill providing funds for sexual assault prevention and prosecution. At the grassroots level, even if you don’t live in a community with a Native American population, you can provide support for victims of sexual assault by volunteering at a local rape crisis center. Often, rape crisis centers need law students or lawyers to volunteer to assist victims with the difficult and confusing process of pursuing justice for their attackers. This is a great way to get directly involved in ensuring that victims’ rights are protected.
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