Lisa Brunner remembers the first time she saw her stepfather beat her mother. She was 4 years old, cowering under the table here on the Ojibwe reservation, when her stepfather grabbed his shotgun from the rack. She heard her mother scream, “No, David! No!”
“He starts beating my mother over the head and I could hear the sickening thud of the butt of the shotgun over her head,” Brunner said. “Then he put the gun back on the rack and called her a bitch. He slammed the bedroom door and sat down on the squeaky bed. And then I heard the thud-thud of his cowboy boots as he laid down, squeaking again, and he went to sleep.”
There were many more beatings over the years, Brunner said. Twenty years later, she said, she was brutally assaulted by her own husband on this same Indian reservation, an enormous swath of Minnesota prairie that has seen its share of sorrow for generations.
An estimated one in three Native American women are assaulted or raped in their lifetimes, and three out of five experience domestic violence. But in the cases of Brunner and her mother, the assailants were white, not Native American, and that would turn out to make all the difference.
For decades, when a Native American woman has been assaulted or raped by a man who is non-Indian, she has had little or no recourse. Under long-standing law in Indian country, reservations are sovereign nations with their own police departments and courts in charge of prosecuting crimes on tribal land. But Indian police have lacked the legal authority to arrest non-Indian men who commit acts of domestic violence against native women on reservations, and tribal courts have lacked the authority to prosecute the men.
Last year, Congress approved a law — promoted by the Obama administration — that for the first time will allow Indian tribes to prosecute certain crimes of domestic violence committed by non-Indians in Indian country. The Justice Department on Thursday announced it had chosen three tribes for a pilot project to assert the new authority.
While the law has been praised by tribal leaders, native women and the administration as a significant first step, it still falls short of protecting all Indian women from the epidemic of violence they face on tribal lands.
The new authority, which will not go into effect for most of the country’s 566 federally recognized Indian tribes until March 2015, covers domestic violence committed by non-Indian husbands and boyfriends, but it does not cover sexual assault or rape committed by non-Indians who are “strangers” to their victims. It also does not extend to native women in Alaska.
Proponents of the law acknowledge that it was drawn narrowly to win support in Congress, particularly from Republican lawmakers who argued that non-native suspects would not receive a fair trial in the tribal justice system.
For their part, native women say they have long been ill-served by state and federal law. U.S. attorneys, who already have large caseloads, are often hundreds of miles away from rural reservations. It can take hours or days for them to respond to allegations, if they respond at all, tribal leaders say. Native women also have to navigate a complex maze of legal jurisdictions.
“There are tribal communities where state police have no jurisdiction and federal law enforcement has jurisdiction but is distant and often unable to respond,” said Thomas J. Perrelli, a former associate attorney general who was one of the administration’s chief proponents of the amendment. “There are tribal communities where the federal government has no jurisdiction but state law enforcement, which has jurisdiction, does not intervene. And there are still other tribal lands where there is a dispute about who, if anyone, has jurisdiction. All of this has led to an inadequate response to the plight of many Native American women.”
More than 75 percent of residents on Indian reservations in the United States are non-Indians. In at least 86 percent of the reported cases of rape or sexual assault of American Indian and Alaska native women, both on and off reservations, the victims say their attackers were non-native men, according to the Justice Department.
The loophole in the American Indian justice system that effectively provides immunity to non-
Indians is the story of a patchwork of laws, treaties and Supreme Court decisions over generations.
At the root of the confusion about Indian jurisdiction is the historical tension over Indian land. As American settlers pushed Native Americans off their tribal lands and then renegotiated treaties to guarantee tribes a homeland, large areas of the reservations were opened for white families to homestead.
That migration led to the modern-day reservation, where Indians and non-
Indians often live side by side, one farm or ranch home belonging to a white family, the next one belonging to an Indian family. It is a recipe for conflict over who is in charge and who has legal jurisdiction over certain crimes.
“The public safety issues in Indian country are so complicated,” said Deputy Associate Attorney General Sam Hirsch, one of the Justice Department officials who focus on tribal justice issues. “No one would have ever designed a system from scratch to look like the system that has come down to us through the generations.”
Over the past 200 years, there have been dramatic swings in Indian-country jurisdiction and the extent of tribal powers.
In 1978, in a case widely known in Indian country as “Oliphant,” the Supreme Court held that Indian tribes had no legal jurisdiction to prosecute non-
Indians who committed crimes on reservations. Even a violent crime committed by a non-Indian husband against his Indian wife in their home on the reservation — as Brunner said happened to her on the White Earth Nation reservation — could not be prosecuted by the tribe.
The court said it was up to Congress to decide who had that authority.
“We are not unaware of the prevalence of non-Indian crime on today’s reservations, which the tribes forcefully argue requires the ability to try non-Indians,” the court said. “But these are considerations for Congress to weigh in deciding whether Indian tribes should finally be authorized to try non-Indians.”
Congress took no action for 35 years.
As a result, native women who were assaulted were often told there was nothing tribal police could do for them. If the perpetrator was white and — in the lingo of the tribes — “not enrolled” in the tribal nation, there would be no recourse.
“Over the years, what happened is that white men, non-native men, would go onto a Native American reservation and go hunting — rape, abuse and even murder a native woman, and there’s absolutely nothing anyone could do to them,” said Kimberly Norris Guerrero, an actress, tribal advocate and native Oklahoman who is Cherokee and Colville Indian. “They got off scot-free.”
In 2009, shortly after taking office, Attorney General Eric H. Holder Jr. was briefed by two FBI agents on the issue of violence on Indian reservations.
They told him about the soaring rates of assault and rape and the fact that on some reservations, the murder rate for native women is 10 times the national average.
“The way they phrased it was, if you are a young girl born on an Indian reservation, there’s a 1-in-3 chance or higher that you’re going to be abused during the course of your life,” Holder said in an interview. “I actually did not think the statistics were accurate. I remember asking, ‘check on those numbers.’ ”
Officials came back to Holder and told him the statistics were right: Native women experience the highest rates of assault of any group in the United States.
“The numbers are just staggering,” Holder said. “It’s deplorable. And it was at that point I said, this is an issue that we have to deal with. I am simply not going to accept the fact it is acceptable for women to be abused at the rates they are being abused on native lands.”
Diane Millich grew up on the Southern Ute Indian reservation, nestled in the mountain meadows of southwestern Colorado. When she was 26, she fell in love and married a non-Indian man who lived in a town just beyond the reservation.
Not long after they were married, Millich’s husband moved in with her and began to push and slap her, she said. The violence escalated, and the abuse, she said, became routine. She called the tribal police and La Plata County authorities many times but was told they had no jurisdiction in the case.
One time after her husband beat her, Millich said, he picked up the phone and called the sheriff to report the incident himself to show that he couldn’t be arrested, she said. He knew, she said, there was nothing the sheriff could do.
“After a year of abuse and more than 100 incidents of being slapped, kicked, punched and living in terror, I left for good,” Millich said.
The brutality, she said, increased after she filed for a divorce.
“Typically, when you look backwards at crimes of domestic violence, if less serious violence is not dealt with by the law enforcement system, it leads to more serious violence, which eventually can lead to homicide,” said Hirsch, the deputy associate attorney general.
One day when Millich was at work, she saw her ex-husband pull up in a red truck. He was carrying a 9mm gun.
“My ex-husband walked inside our office and told me, ‘You promised until death do us part, so death it shall be,’ ” Millich recalled. A co-worker saved Millich’s life by pushing her out of the way and taking a bullet in his shoulder.
It took hours to decide who had jurisdiction over the shooting.
Investigators at the scene had to use a measuring tape to determine where the gun was fired and where Millich’s colleague had been struck, and a map to figure out whether the state, federal government or tribe had jurisdiction.
The case ended up going to the closest district attorney. Because Millich’s husband had never been arrested or charged for domestic abuse on tribal land, he was treated as a first-time offender, Millich said, and after trying to flee across state lines was offered a plea of aggravated driving under revocation.
“It was like his attempt to shoot me and the shooting of my co-worker did not happen,” Millich said. “The tribe wanted to help me, but couldn’t because of the law. In the end, he was right. The law couldn’t touch him.”
Last year, Millich and other American Indian women came to Washington to tell their stories to congressional leaders. They joined tribal leaders in lobbying for the passage of the 288-page reauthorization of the Violence Against Women Act, which included language proposed by the Justice Department that for the first time would allow tribal courts to prosecute non-
Indians who assaulted native women on tribal lands. It would also allow the courts to issue and enforce protective orders, whether the perpetrator is Indian or non-Indian.
Opponents of the provision, known as Section 904, argued that non-native defendants would not be afforded a fair trial by American Indian tribes. In the case of Alaska, the Senate excluded Native Alaskan women because of especially complicated issues involving jurisdiction.
At a town hall meeting, Sen. Charles E. Grassley (R-Iowa) said that “under the laws of our land, you’ve got to have a jury that is a reflection of society as a whole.”
“On an Indian reservation, it’s going to be made up of Indians, right?” Grassley said. “So the non-Indian doesn’t get a fair trial.”
Sen. John Cornyn (R-Tex.), another opponent, said the Violence Against Women Act was “being held hostage by a single provision that would take away fundamental constitutional rights for certain American citizens.”
The bill passed the Senate last February but was held up by House Republicans over Section 904. They argued that tribal courts were not equipped to take on the new responsibilities and non-Indian constituents would be deprived of their constitutional rights without being able to appeal to federal courts.
“When we talk about the constitutional rights, don’t women on tribal lands deserve their constitutional right of equal protection and not to be raped and battered and beaten and dragged back onto native lands because they know they can be raped with impunity?” Rep. Gwen Moore (D-Wis.) argued on the floor.
Underlying the opposition, some congressmen said, was a fear of retribution by the tribes for the long history of mistreatment by white Americans.
With the support of Rep. Tom Cole (R-Okla.), a member of the Chickasaw Nation, the House accepted the bill containing Section 904 on a vote of 229 to 196. On March 7, President Obama signed the bill with Millich, Holder and Native American advocates at his side.
The Justice Department has chosen three Indian tribes — the Pascua Yaqui Tribe of Arizona, the Tulalip Tribes of Washington state and the Umatilla tribes of Oregon — to be the first in the nation to exercise their new criminal jurisdiction over certain crimes of domestic and dating violence.
“What we have done, I think, has been game-changing,” Holder said. “But there are still attitudes that have to be changed. There are still resources that have to be directed at the problem. There’s training that still needs to go on. We’re really only at the beginning stages of reversing what is a horrible situation.”
Last summer, several Native American survivors of domestic violence from around the country put on a play, “Sliver of a Full Moon,” in Albuquerque. The play documented the story of the abuse and rape of Native American women by non-Indians and the prolonged campaign to bring them justice.
Using the technique of traditional Indian storytelling, Mary Kathryn Nagle, a lawyer and member of the Cherokee Nation in Oklahoma, wove together their emotional tales of abuse with the story of their fight to get Washington to pay attention.
Millich and Brunner played themselves, and actors played the roles of members of Congress, federal employees and tribal police officers who kept answering desperate phone calls from abused native women by saying over and over again, “We can’t do nothin’, ” “We don’t have jurisdiction,” and “He’s white and he ain’t enrolled.”
By that time, Brunner’s intergenerational story of violence and abuse had taken a painful turn. Her youngest daughter, 17, had been abducted by four white men who drove onto the reservation one summer night. One of them raped her, Brunner said.
It was the real-life version of author Louise Erdrich’s acclaimed fictional account of the rape of an Ojibwe woman by a non-Indian in her 2012 book, “The Round House.” In both the real and the unrelated fictional case, the new congressional authority would not give the tribe jurisdiction to arrest and prosecute the suspects, because they were not previously known to the victim.
Last week, inside her home on the frigid White Earth Nation, which was dotted by vast snowy cornfields and hundreds of frozen lakes, Brunner brought out a colorful watercolor she had painted of three native women standing in the woods under a glowing full moon. The painting was the inspiration for the title of Nagle’s play, she said, but it’s also a metaphor for the new law.
“We have always known that non-
Indians can come onto our lands and they can beat, rape and murder us and there is nothing we can do about it,” Brunner said. “Now, our tribal officers have jurisdiction for the first time to do something about certain crimes.”
“But,” she added, “it is just the first sliver of the full moon that we need to protect us.”