Domestic Violence in Indian Country
Washington College of Law held a panel discussion on Domestic Violence in Indian Country on February 3, 2010. The panel brought together experts from Indian Health Services, the US. Department of Justice: Office of Tribal Justice, Washington College of Law, and the Native American Rights Fund. At the heart of the discussion was the complexity of jurisdiction and federal and tribal law as it relates to domestic violence.
One of the more complex topics discussed was criminal jurisdiction in Indian Country. Christopher Chaney from the U.S. Department of Justice instructed the audience on the history of this type of law. He noted that prior to 1789, tribal nations were considered independent; truly sovereign like any foreign nation. In 1789, however, the U.S. adopted the Constitution with the Indian Commerce Clause which distinguished between tribes and other foreign nations. While federal jurisdiction for certain types of crimes (i.e. rape, homicide, aggravated assault) derives from the Major Crimes Act of 1885, a system of “tripartheid jurisdiction evolved over time.” As such, the victim and the perpetrators’ races are currently considered when determining jurisdiction. The confusion resulting from jurisdiction complexities is one of the difficulties that Professor Ezra Ross outlined as an impediment to resolving issues (Professor Ross discussed Kevin Washburn’s argument that the government is not doing what it should on Native topics in part because of distance, the lack of priorities, and victims' confusion over to whom to turn. Even when the law is clear, enforcement is yet another challenge).
The discussion raised some horrifying information about domestic violence in Indian country. The statistics are overwhelming with 39% of Native women and 19% of Native men as victims of violence. Michelle Begay of Indian Health Services noted that these rates are the highest among racial and ethnic groups in the United States. Domestic violence also takes it toll on the population as women are the ones to bear future generations. With tribal peoples already so marginalized in the United States, violence against Native women is ever more significant as it further erodes culture and race. As serious as the issue is, Dawn Baum of the Native American Rights fund noted that because tribes are sovereign nations, the United States Constitution and Bill of Rights do not necessarily apply. Further, as Professor Rosser discussed the US government cannot violate tribal sovereignty to protect women (Santa Clara Pueblo v. Martinez).
Further pertinent with cases of domestic violence in Indian Country is the integration of problems. Mr. Chaney mentioned the statistic that 90% of crimes turn on substance abuse issues in Indian Country. Ms. Baum discussed the issue of men not only as victims of domestic violence, but as offenders and reformers trying to define their roles within society. The weakened state of many tribes after surviving US government Indian policies has left them continually facing challenges within their own communities. As Dawn Baum emphasized, tribal people are “not stupid, [they’ve] got great ideas,” but sometimes they don’t have the capital and expertise needed. She went on to insist that economic developments is important to help run the shelters and create the necessary institutions like the court systems (whether these institutions resemble the US system or draw more upon the strengths of communities was also briefly discussed).
The discussion was not only noteworthy for what was said, but also for what was noticeable- 35 audience members with very few having taken any course on the topic. Unfortunately like so many American Indian discussions, a broad audience is not always present or interested. The average American has still not come to understand that it is also in his and her interest to care about Native topics. Thankfully, though, this type of panel discussion is a great step towards providing a voice on these topics.
One of the more complex topics discussed was criminal jurisdiction in Indian Country. Christopher Chaney from the U.S. Department of Justice instructed the audience on the history of this type of law. He noted that prior to 1789, tribal nations were considered independent; truly sovereign like any foreign nation. In 1789, however, the U.S. adopted the Constitution with the Indian Commerce Clause which distinguished between tribes and other foreign nations. While federal jurisdiction for certain types of crimes (i.e. rape, homicide, aggravated assault) derives from the Major Crimes Act of 1885, a system of “tripartheid jurisdiction evolved over time.” As such, the victim and the perpetrators’ races are currently considered when determining jurisdiction. The confusion resulting from jurisdiction complexities is one of the difficulties that Professor Ezra Ross outlined as an impediment to resolving issues (Professor Ross discussed Kevin Washburn’s argument that the government is not doing what it should on Native topics in part because of distance, the lack of priorities, and victims' confusion over to whom to turn. Even when the law is clear, enforcement is yet another challenge).
The discussion raised some horrifying information about domestic violence in Indian country. The statistics are overwhelming with 39% of Native women and 19% of Native men as victims of violence. Michelle Begay of Indian Health Services noted that these rates are the highest among racial and ethnic groups in the United States. Domestic violence also takes it toll on the population as women are the ones to bear future generations. With tribal peoples already so marginalized in the United States, violence against Native women is ever more significant as it further erodes culture and race. As serious as the issue is, Dawn Baum of the Native American Rights fund noted that because tribes are sovereign nations, the United States Constitution and Bill of Rights do not necessarily apply. Further, as Professor Rosser discussed the US government cannot violate tribal sovereignty to protect women (Santa Clara Pueblo v. Martinez).
Further pertinent with cases of domestic violence in Indian Country is the integration of problems. Mr. Chaney mentioned the statistic that 90% of crimes turn on substance abuse issues in Indian Country. Ms. Baum discussed the issue of men not only as victims of domestic violence, but as offenders and reformers trying to define their roles within society. The weakened state of many tribes after surviving US government Indian policies has left them continually facing challenges within their own communities. As Dawn Baum emphasized, tribal people are “not stupid, [they’ve] got great ideas,” but sometimes they don’t have the capital and expertise needed. She went on to insist that economic developments is important to help run the shelters and create the necessary institutions like the court systems (whether these institutions resemble the US system or draw more upon the strengths of communities was also briefly discussed).
The discussion was not only noteworthy for what was said, but also for what was noticeable- 35 audience members with very few having taken any course on the topic. Unfortunately like so many American Indian discussions, a broad audience is not always present or interested. The average American has still not come to understand that it is also in his and her interest to care about Native topics. Thankfully, though, this type of panel discussion is a great step towards providing a voice on these topics.
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