[Senate Hearing 110-196]
[From the U.S. Government Publishing Office]
S. Hrg. 110-196
EXAMINING THE PREVALENCE OF AND SOLUTIONS TO STOPPING VIOLENCE AGAINST
INDIAN WOMEN
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 27, 2007
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota TOM COBURN, M.D., Oklahoma
DANIEL K. AKAKA, Hawaii JOHN BARRASSO, Wyoming
TIM JOHNSON, South Dakota PETE V. DOMENICI, New Mexico
MARIA CANTWELL, Washington GORDON H. SMITH, Oregon
CLAIRE McCASKILL, Missouri RICHARD BURR, North Carolina
JON TESTER, Montana
Sara G. Garland, Majority Staff Director
David A. Mullon Jr. Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on September 27, 2007............................... 1
Statement of Senator Barrasso.................................... 4
Statement of Senator Dorgan...................................... 1
Statement of Senator Johnson..................................... 5
Statement of Senator Murkowski................................... 3
Statement of Senator Tester...................................... 67
Prepared statement........................................... 70
Witnesses
Arriaga, Alexandria, Director of Government Relations, Amnesty
International U.S.A............................................ 6
Prepared statement........................................... 9
Artichoker, Karen, Director, Sacred Circle National Resource
Center to End Violence Against Native Women.................... 34
Prepared statement........................................... 36
Kanji, Riyaz A., Kanji and Katzen................................ 41
Prepared statement........................................... 43
Rozell, Jami, Educator, Cherokee Nation, Oklahoma................ 21
Prepared statement........................................... 22
Young, Tammy M., Director, Alaska Native Women's Coalition....... 23
Prepared statement........................................... 25
Appendix
Alaska Justice Forum (Vol. 24, No. 1)............................ 219
Alaska Rural Justice and Law Enforcement Commission 2006 Initial
Report and Recommendations..................................... 88
Asetoyer, Charon, M.A. (Comanche Nation); Executive Director,
Native American Women's Health Education Resource Center,
prepared statement............................................. 73
Parisien, Helen, Shelter Manager, Bridges Against Domestic
Violence, prepared statement................................... 77
Sahneyah, Dorma L., Chief Prosecutor, Hopi Tribe, prepared
statement...................................................... 74
Salt River Pima-Maricopa Indian Community (SRPMIC), prepared
statement...................................................... 79
U.S. Department of Justice, prepared statement................... 81
EXAMINING THE PREVALENCE OF AND
SOLUTIONS TO STOPPING VIOLENCE AGAINST INDIAN WOMEN
----------
THURSDAY, SEPTEMBER 27, 2007
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:10 a.m. in room
628, Dirksen Senate Office Building, Hon. Byron L. Dorgan,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. With respect to the hearing that we are
holding today, let me make a couple of comments, because I
think it is important to describe what it is we are doing and
why.
Today the Committee will hold its third hearing to take a
look at tribal justice systems and the growing problem of
violent crime in Indian Country. The first two hearings showed
that we are facing a severe public safety crisis in Indian
Country. And today's hearing will focus specifically on the
issue of sexual violence against Indian women.
An April 2007 Amnesty International report found that 34
percent of Indian women will be raped or sexually assaulted
during their lifetimes. I commend Amnesty International for
bringing added public attention to what I think is a very
serious issue. However, as the report notes, this is
unfortunately not breaking news to women who live on Indian
reservations. The problem has existed for a decade and more.
The title of the Amnesty report is ``Maze of Injustice,''
and it refers to the complexity and the maze of jurisdiction
that exists on Indian lands today. However, this was not always
the case. Indian tribes historically exercised authority over
anyone who entered their lands, regardless of whether the
perpetrator was Indian or not.
The confusion that exists today is the result of outdated
Federal laws and court decisions that were passed during a time
when paternalism was this Nation's Indian policy. These laws
directly conflict with the policy of Indian self-determination
and they strike at the very heart of tribal sovereignty. As a
result, victims in Indian Country rely solely on the Federal
Government, specifically the FBI and the United States
Attorneys Offices, to investigate and prosecute sexual violence
in Indian Country. It is clear to me that the Federal
Government is not meeting its obligation.
For a number of reasons, many victims of sexual violence
are unable to bring their attackers to justice or even gain
access to the legal system. And that is intolerable. In North
and South Dakota, we have four police officers patrolling 2.3
million acres on the Standing Rock Sioux Reservation. Survivors
of violent crimes report waiting hours, in some cases days for
a police car to respond to an emergency request. When the
police do show up, the survivors sometimes have to travel
hundreds of miles to receive treatment. In the end, too many
women see their cases thrown out of court and worse, they often
never get an explanation from the officer or the prosecutor.
This year, NPR ran a series of stories on violence against
women in Indian Country. One involved cases on the Standing
Rock Reservation. The title of the report was ``Rape Cases on
Indian Lands Go Uninvestigated.'' In the report, a retired BIA
police officer described the grim situation. He said, ``We all
knew they only take the cases with a confession. We were forced
to triage our cases.''
When this type of violence becomes so commonplace the
police have to triage rape cases, something is dreadfully wrong
and someone needs to take action. Today, we are going to hear
first-hand from a courageous young woman about her struggle to
obtain justice under this broken system. I hope her story will
motivate all of those of us in Congress to fix a system that
desperately needs fixing.
The fallout from these heinous crimes is often devastating
to the victim. We have seen these crimes against Indian women
have a demoralizing and long-term effect on the fabric of an
entire community. Tribal leaders have in some cases described
reservations as a war zone. There is a growing perception among
criminals that Indian lands are a safe haven. I read a report
this week of a U.S. Attorney from Colorado, Troy Eid, who was
involved in stopping a drug organization that was set up on an
Indian reservation. He said ``Indian reservations are being
used as business development tools by large drug trafficking
organizations.'' It confirms our earlier reports that Indian
Country is a target.
Yesterday, I met with Judge Mukasey, the President's
nominee for Attorney General. I met with him specifically, I am
going to support his nomination, I am going to vote for him,
but I asked to meet with him specifically because I wanted to
review with him the circumstances on Indian reservations and
the difficulties we have in connecting adequate law enforcement
between State, local and Federal law enforcement authorities. I
wanted his commitment that he was going to understand this and
work hard to try to correct it.
So there is much to be concerned about. And I also
recognize it is very sensitive to be talking about this. I
don't want in some pejorative way to suggest that there is
something dreadfully wrong with a group of people in this
Country. That is not the case. Indian reservations in many
cases are remote areas, they have inadequate law enforcement,
in many cases very substantial poverty and other issues. And
they have too often, I think, been targeted by criminal
enterprises, targeted by drug dealers. We now see report after
report that there are very serious sexual crimes and crimes of
violence committed, particularly against women, not
exclusively, but particularly against Indian women, that often
go unreported and in many cases go unpunished. And there is
something wrong with that and we intend to find ways to fix it.
Senator Murkowski?
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. I appreciate a
great deal, in fact, that the Committee is holding this hearing
this morning. It is a very important topic, probably one of the
most serious problems facing our Indian and Alaska Native
communities, and this is the violence against women.
I want to welcome all of the witnesses, but particularly
Ms. Tammy Young, who has made a long trip back from Alaska to
testify before the Committee today.
Mr. Chairman, you know that we had scheduled a field
hearing in Alaska in June to discuss the Amnesty International
report on sexual violence. We canceled that hearing at the very
last minute out of respect for the passing of our colleague,
Senator Craig Thomas. I know it was certainly one of Senator
Thomas' priorities to improve law enforcement in Indian Country
and in part because of the violence against women and children
in our Indian communities. So this Committee taking up this
issue today again is certainly most timely.
As so many are aware, Alaska received national and even
global attention because of the Amnesty report. And while I
have heard from members of the Alaska Native community
expressing concerns about what they saw and read in the Amnesty
report, I view this report as a wake-up call that the Federal
Government has not been listening carefully enough to the
advocates for our Native women who experience these despicable
acts of violence. And I am deeply troubled when I hear that the
Amnesty report was not news, just as you have indicated in your
comments.
No one should have to face domestic violence or sexual
assault. And yet our Native women are at least two and a half
times more likely to be raped or sexually assaulted than their
non-Native counterparts. And in too many places, they have
nowhere to turn, absolutely nowhere to turn, no one to go to. I
am very troubled when I see the faces, listen to the stories,
very heart-breaking stories of these women who have experienced
the most appalling of assaults, and understanding the obstacles
that they face. But I am also very inspired by their strength
and by their courage. I too note the great sensitivity of this
issue.
But we can't continue to not talk about it. We cannot
continue to pretend that these statistics belong to somebody
else. Even though it is difficult, we must expose this for what
it is.
I am very disturbed to hear of the systemic shortcomings
that preclude the successful prosecution of these violent acts.
These shortcomings, such as the law enforcement, the
inadequacies of the IHS forensic processes needed to support
the prosecutions, they contribute to a haven of lawlessness in
Native communities. And they have to be addressed. And they can
be addressed immediately.
I have hope that this hearing will reveal some solutions to
this issue. I am certain that we can do a better job of
providing the resources necessary to ensure that Alaska Native
and Indian women are safe in their communities. I was a proud
sponsor of the Violence Against Women Act of 2005. I look
forward to hearing perspectives from the DOJ Tribal
Consultation held last week on that.
But I know that government alone can't get rid of the
violence that we see within our Native communities. It is going
to take a partnership of our Native leaders, of our Native
people, of law enforcement agencies, of social service
providers, to carry these solutions to fruition.
I note that we have many witnesses here today from
different areas, different parts of the Country with different
stories. I look forward to hearing form them, from their
perspective, but also to understand what they might propose to
be some of the solutions to this very, very difficult issue.
With that, Mr. Chairman, I thank you.
The Chairman. Senator Murkowski, thank you very much.
Senator Barrasso?
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you very much, Mr. Chairman. First,
I applaud the leadership of the Committee for bringing this
hearing on this important topic to us today. I want to thank
the incredible individuals who are going to be here today to
testify, because it does require courage and strength and
fortitude to come and tell these stories. It is remarkable.
As an orthopedic surgeon, I take care of women who have
been the subject of crimes of violence, and it is difficult as
a treating physician and it is difficult for the families, it
is difficult for the women. I think it is wonderful that we are
doing this, Mr. Chairman.
I need to apologize in advance, I have another committee
that is starting soon where I need to be. But I want to
carefully watch and listen to what has been said and will read
all the testimony.
We have a current vacancy, Mr. Chairman, in our U.S.
Attorney in Wyoming. Our last U.S. Attorney prosecuted an
incredible drug ring on our Indian reservation and has done
some significant work to help the other people who are living
there in this time of crime. We need to have that vacancy
filled so we can help with prosecutions there of horrible
crimes and violent acts like we are going to hear about today.
So any help that I could get from other members of the
Committee in getting that U.S. Attorney position filled in
Wyoming would be helpful to all of the people of Wyoming, and
specifically on our Indian reservations.
Thank you, Mr. Chairman.
The Chairman. Senator Barrasso, thank you very much.
I must say, our Committee is excited to be rejoined by
Senator Johnson. Senator Johnson has long been a very important
part of the Indian Affairs Committee and an unbelievable
champion of the issues that really matter. So Senator Johnson,
glad to see you back. Do you have an opening comment?
STATEMENT OF HON. TIM JOHNSON,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Johnson. Thank you, Chairman Dorgan, Vice Chair
Murkowski. I thank you for holding this hearing.
I particularly want to thank Karen Artichoker for her
presence today, her insights on the circumstances facing the
Oglala Sioux Tribe and for her testimony today and her
leadership on the issue. Thank you.
The Chairman. Senator Johnson, thank you very much.
Before I call the five witnesses, I want to make one
additional comment. There is a chart up here that quotes Ron
His Horse Is Thunder, who is chairman of the Standing Rock
Sioux Tribe. That is an Indian reservation that Senator
Johnson's State and my State share on both sides of the border.
He says, ``As long as the Tribe must depend on the Federal
Government to police and prosecute people on their own land,
anyone who comes here may well be able to rape or assault
women, like Leslie Iron Road, and get away with it.'' He was
making those comments in a story that was published. But this
is from a chairman of a tribe, a very astute, really a terrific
chairman. We have worked long with Ron His Horse Is Thunder.
And that is a startling statement but one that I respect him
making.
I want to make one other point. I referred to Troy Eid, the
U.S. Attorney in Colorado. I want to tell you fully what he
said. He said, ``Indian reservations are being used as business
development tools by the large drug trafficking
organizations.'' In a drug bust in Wyoming's Wind River Indian
Reservation, occupied by Northern Arapaho and Eastern Shoshone
Tribes, U.S. Attorney Eid talked about a business plan seized
by authorities that outlined how the drug organization wanted
to replace alcohol abuse with meth abuse. It described in
graphic terms how they planned to establish romantic
relationships with women, get them hooked and get them to deal.
Establishing relationships with them was designed to gain
access into the Indian community.
That is frightening stuff. I appreciate the work that U.S.
Attorney Eid has done. He has some very terrific, really
competent work. We really appreciate that work.
So let me call forward the witnesses, and as I do, thank
them very much for being willing to appear today.
Ms. Alexandra Arriaga is the Director of Government
Relations for Amnesty International in Washington, D.C. Ms.
Jami Rozell, Educator and a Survivor in Oklahoma. Tammy Young,
Co-Director, Alaska Native Women's Coalition Against Domestic
Violence and Sexual Assault in Sitka, Alaska. Ms. Karen
Artichoker, the Director of the Sacred Circle in Rapid City,
South Dakota. And Riyaz Kanji, Kanji and Katzen, in Ann Arbor,
Michigan.
I want to thank all of you for being willing to come and
testify. As Senator Murkowski and I have both indicated, this
is a very sensitive topic. I recall the first acquaintance with
violence on Indian reservations, sitting with a young girl
named Tamara and her grandfather, Reginald. I went to see them
because I read about something that had happened to this little
girl. Her nose was broken, her arm was broken, her hair pulled
out at the roots. She was placed in a foster home as a young
child without anyone checking whether the foster home was safe.
In a drunken party, this girl was savagely abused. She will
have those scars for her life, I supposed, her entire life.
But it reminds me that this subject is not about some
ethereal debate. It is about real people's lives, and about a
law enforcement system that is now not working and as a result,
violence against women and abuse of women exists that ought to
be obliterated. We hope through this hearing and through your
testimony and through other approaches that we can work
together to achieve, we hope to make some significant progress.
So let me thank all of you.
Alexandra Arriaga, one of the, not the only, but one of the
things that prompted us to hold a hearing was a number of
articles including the study that was released by Amnesty
International. We appreciate your being here, and you may
proceed. The entire statements made by all of you will be made
a part of the permanent record and you are welcome to summarize
your testimony.
STATEMENT OF ALEXANDRIA ARRIAGA, DIRECTOR OF GOVERNMENT
RELATIONS, AMNESTY INTERNATIONAL U.S.A.
Ms. Arriaga. Thank you very much, Mr. Chairman, thank you,
Madam Vice Chairman and Senator Johnson, it is very good to see
you here. Thank you.
I am honored to be here to speak about the issue today.
Amnesty International, as you know, is a worldwide human rights
organization. We have $2.2 million people around the world who
are supporters in 150 countries and territories. We learned
about the startling statistics of the sexual violence that is
plaguing Indian Country and that is victimizing and creating
survivors, very courageous women as well, among Native American
and Alaska Native women.
Amnesty, as you said, has recently released a report
entitled ``Maze of Injustice: the Failure to Protect Indigenous
Women from Sexual Violence in the United States.'' It focuses
on this crisis, but as you have stated, Mr. Chairman and Madam
Vice Chair, this is simply a report that has added public
attention and has served as a wake-up call. This is a report
that has really simply brought attention to an issue that has
been occurring for a very long time and that Native advocates
have been speaking about for decades.
We launched this investigation after learning of a U.S.
Department of Justice's own statistics that are quite shocking.
As many of you may have heard, the DOJ suggests that Native
women are more than two and a half times more likely than other
women in the United States to be raped; that more than one in
three Native American and Alaska Native women is likely to be
raped in her lifetime; and that 86 percent of the perpetrators
of these crimes are non-Native men. These statistics are
shocking and yet Amnesty International believes that they
severely underestimate the crisis.
In preparing this report, Amnesty International worked
closely with Native American and Alaska Native individuals and
organizations, with law enforcement and health service
personnel, with Government officials. We conducted detailed
research into specifically three locations that have very
different jurisdictional considerations. One was the Standing
Rock Reservation in North and South Dakota. another was the
State of Oklahoma and then also the State of Alaska. Many
courageous women came forward to share their stories. As you
have said, Mr. Chairman, this is about real people's lives.
I would like to just begin in order to bring that home, as
you have, to tell very briefly one of the stories that we
heard. Della Brown, a 33 year old Alaska Native woman, was
raped, mutilated and murdered. Her body was discovered in an
abandoned shed in Anchorage, and that was in September 2000.
Her skull was so pulverized the coroner compared her head to a
bag of ice. Reportedly a number of people walked through the
shed lighting matches in order to view her battered remains,
but did not report the murder to the Anchorage police. To date,
no one has been brought to justice for the rape and murder of
Della Brown.
This is one of countless stories, and I know that you have
heard many more.
Amnesty International found what Native women have already
known and said for decades: many survivors of attacks may never
get a police response, they may never have access to a sexual
assault forensic examination and they may never see their case
prosecuted. Barriers include jurisdictional maze and a chronic
lack of resources for law enforcement and health services.
Perpetrators of sexual violence are rarely being brought to
justice. Prosecutions for crimes of sexual violence against
indigenous women are rare in Federal, State and tribal courts.
The high levels of impunity can become an incentive for
perpetrators to commit further crimes. As one interviewee told
Amnesty, it feels as though the reservation has become lawless.
Several factors contribute to this crisis. More data is
urgently needed. Available data underestimates the rates of
violence. Many women in the Standing Rock Reservation, for
example, said they could not think of a single woman who had
not suffered some form of sexual violence.
No official statistics exist specifically on sexual
violence in Indian Country or Alaska villages. That needs to
change.
Amnesty International received numerous reports that
complicated jurisdictional issues significantly delay and
prolong the process of investigating and prosecuting crimes of
sexual violence. As you are aware, three main factors determine
where jurisdictional authorities lies: whether the victim is a
member of a federally recognized Indian tribe or not; whether
the accused is a member of a federally recognized Indian tribe
or not; and whether the alleged offense took place on tribal
land or not.
The answers to these questions are quite complicated and
not always self-evident. Some tribal, State and Federal law
enforcement agencies have addressed these jurisdictional
complexities by entering into cooperation agreements. The
experience here is quite mixed, but it is something to explore.
Chronic under-funding also contributes to the inadequate law
enforcement response. According to the Department of Justice,
tribes only have between 55 and 75 percent of the law
enforcement resources available comparable to non-Native rural
communities. There are many places where there is no accessible
road and no law enforcement process at all, such as you know,
Senator, is the case in some locations in Alaska.
Training, communication and plans of action are necessary.
It is essential that training occur in order to have better
understanding of the surrounding jurisdictional issues, but
also knowledge of the cultural norms and practices. And these
must be determined in conjunction with Native advocates. It has
to be developed in consultation. There should also be plans of
action that are developed with advocates in order to be able to
address these issues preventably as well.
I will touch quickly on just a few other areas. Forensic
examinations, as you have already noted, is a very important
area. The forensic exams are essential to ensuring the
possibility of adequate treatment but also prosecutions. There
are severe limitations right now with the IHS facilities and
their contract facilities. This is an area perhaps we can
explore further in the Q&A.
One important area here is the need for standardized
protocols. Also the need for sexual assault nurse examiners.
And also the need to clarify who covers the cost and expense of
the exams and the transportation. Certainly the victim should
not be covering these real costs. That does occur.
There is also an issue of law enforcement agencies that
lack sufficient funds to ensure the timely processing of
evidence, and this is due to cuts in funding that have happened
at the Federal level.
Resourcing for the programs that are run by Native women is
also critically important, especially under such dire
circumstances. Very quickly, the barriers that exist in Federal
law that prevent the tribal nations from being able to carry
out justice are severe. As citizens of particular tribal
nations, the welfare and safety of American Indian and Alaska
Native women is directly linked to the authority and capacity
of their nations to address such violence. A series of U.S.
Federal laws and Supreme Court decisions have had a devastating
impact. In particular, the Major Crimes Act, Public Law 280,
the Indian Civil Rights Act, and of course, the case of
Oliphant. Among the egregious consequences of these laws and
court decisions, the tribes are limited to handing down
custodial sentencing to only 1 year per offense, and tribal
courts are prohibited from prosecuting non-Indian suspects.
At the Federal and State level there is a failure to pursue
cases of sexual violence against indigenous women. The extent
to which these cases are dropped before they even reach a
Federal court is difficult to quantify, as the U.S. Attorney's
office appears not to compile statistics. When Federal
prosecutors decline to prosecute cases involving non-Native
perpetrators, there is no further recourse for indigenous
survivors under criminal law within the United States.
Tribal courts are the most appropriate for adjudicating
these cases that arise on tribal land. Despite severe
restrictions and obstacles and severe under-funding, the tribal
systems have been addressing some of these cases for decades.
Some tribal courts seek to overcome these limitations by
handing down sequential sentences on a variety of crimes, for
example.
International law is clear: sexual violence against women
is not a criminal act or social issue alone, it is a human
rights abuse. The United States has ratified many international
treaties that address this, but has yet to ratify the treaty
for the rights of women which can help discrimination and
violence against women worldwide.
The next steps Congress takes must be determined in close
consultation and cooperation with indigenous leaders. But all
women have the right to be safe and free from violence. Thank
you very much.
[The prepared statement of Ms. Arriaga follows:]
Prepared Statement of Alexandra Arriaga, Director of Government
Relations, Amnesty International U.S.A.
Della Brown, a 33-year-old Alaska Native woman was raped,
mutilated and murdered. Her body was discovered in an abandoned
shed in Anchorage in September 2000. Her skull was so
pulverized the coroner compared her head to a ``bag of ice''.
Reportedly, a number of people walked through the shed,
lighting matches in order to view her battered remains, but did
not report the murder to the Anchorage police. To date, no-one
has been brought to justice for the rape and murder of Della
Brown.
Introduction
Mr. Chairman and members of the Committee, thank you for inviting
Amnesty International to testify on an issue that significantly impacts
the human rights of American Indian and Alaska Native women. Amnesty is
a worldwide human rights movement with more than 2.2 million members.
Our mission is to conduct research and take action to prevent and end
grave abuses of all human rights. I will focus my remarks on the
findings of Amnesty's recent report ``Maze of Injustice: The failure to
protect Indigenous women from sexual violence in the USA.''
Amnesty International is a worldwide human rights movement with
more than 2.2 million members and supporters in more than 150 countries
and territories. Amnesty International's vision is for every person to
enjoy all of the human rights enshrined in the Universal Declaration of
Human Rights and other international human rights standards. Amnesty
International's mission is to conduct research and take action to
prevent and end grave abuses of all human rights. Amnesty International
is independent of any government, political ideology, economic interest
or religion. The organization is funded by individual members; no funds
are sought or accepted from governments for investigating and
campaigning against human rights abuses.
``Maze of Injustice'' Report
On April 24, 2007, Amnesty International released the findings of
over 2 years of investigation into the problem of sexual violence
against Native American and Alaska Native Women. The report is part of
a worldwide campaign to Stop Violence Against Women launched by Amnesty
International in March 2004. Since then AI has published reports on
aspects of violence against women in 40 countries.
Amnesty International launched an investigation after learning that
U.S. Department of Justice's own statistics indicate that Native
American and Alaska Native women are more than 2.5 times more likely
than other women in the U.S. to be raped. According to Department of
Justice statistics, more than 1 in 3 Native American and Alaska Native
women will be raped at some point during their lives and 86 percent of
perpetrators of these crimes are non-Native men.
Amnesty International's report examines some of the reasons why
Indigenous women in the U.S. are at such risk of sexual violence and
why survivors are so frequently denied justice. The report is based on
research carried out during 2005 and 2006 in consultation with Native
American and Alaska Native individuals and organizations. In the course
of this research, Amnesty International's interviewed survivors of
sexual violence and their families, activists, support workers, service
providers, and health workers. Amnesty International also interviewed
officials across the U.S., including tribal, state and Federal law
enforcement officials and prosecutors, as well as tribal judges.
Amnesty International also met representatives from the Federal
agencies which share responsibility with tribal authorities for
addressing or responding to crimes in Indian Country.
Amnesty International conducted detailed research in three
locations with different policing and judicial arrangements: the
Standing Rock Reservation in North and South Dakota, the State of
Oklahoma, and the State of Alaska. While this report presents a
national overview of sexual violence against Indigenous women, it
primarily presents our specific findings in these key areas of
research.
Each location was selected for its specific jurisdictional
characteristics. The Standing Rock Reservation illustrates the
challenges involved in policing a vast, rural reservation where tribal
and Federal authorities have jurisdiction. Oklahoma is composed for the
most part of parcels of tribal lands intersected by state land where
tribal, state or Federal authorities may have jurisdiction. In Alaska,
Federal authorities have transferred their jurisdiction to state
authorities so that only tribal and state authorities have
jurisdiction.
This report attempts to represent the stories of survivors of
sexual violence as many survivors courageously came forward to share
their stories. For example:
One Native American woman living on the Standing Rock
Reservation told Amnesty that in 2005 her partner raped her and
beat her so severely that she had to be hospitalized. An arrest
warrant was issued after he failed to appear in court but he
was not arrested. One morning she woke up to find him standing
by her couch looking at her.
The perspectives of survivors, as well as the Native women at the
forefront of efforts to protect Indigenous women must inform all
actions taken to end sexual violence.
Amnesty International is indebted to all the survivors of sexual
violence who courageously came forward to share their stories and to
those who provided support to survivors before and after they spoke
with Amnesty International and to the Native American and Alaska Native
organizations, experts and individuals who provided advice and guidance
on research methodology and on the report itself. Amnesty International
hopes that ``Maze of Injustice'' can contribute to and support the work
of the many Native American and Alaska Native women's organizations and
activists who have been at the forefront of efforts to protect and
serve women.
Amnesty International's research confirmed what Native American and
Alaska Native advocates have long known: that sexual violence against
women from Indian nations is at epidemic proportions and that Indian
women face considerable barriers to accessing justice. Native American
and Alaska Native women may never get a police response, may never have
access to a sexual assault forensic examination and, even if they do,
they may never see their case prosecuted. As a result of barriers,
including a complex jurisdictional maze and a chronic lack of resources
for law enforcement and health services, perpetrators of sexual
violence are not being brought to justice.
High Levels of Sexual Violence
Amnesty International's interviews suggest that available
statistics on sexual violence greatly underestimate the severity of the
problem and fail to paint a comprehensive picture of the abuses. No
statistics exist specifically on sexual violence in Indian Country or
Alaska Native villages; more data is urgently needed to establish the
prevalence of violence against Indigenous women. In the Standing Rock
Sioux Reservation, for example, many of the women who agreed to be
interviewed could not think of any Native women within their community
who had not been subjected to sexual violence.
Issues of Jurisdiction
Support workers told Amnesty International about the rapes of
two Native American women in 2005 in Oklahoma. In both cases
the women were raped by three non-Native men. Other
similarities between the crimes were reported: the alleged
perpetrators, who wore condoms, blindfolded the victims and
made them take a bath. Because the women were blindfolded,
support workers were concerned that the women would be unable
to say whether the rapes took place on Federal, state or tribal
land. There was concern that, because of the jurisdictional
complexities in Oklahoma, uncertainty about exactly where these
crimes took place might affect the ability of these women to
obtain justice.
Interviews with support workers (details withheld), May 2005
Amnesty International received numerous reports that complicated
jurisdictional issues can significantly delay and prolong the process
of investigating and prosecuting crimes of sexual violence.
Three main factors determine where jurisdictional authority lies:
whether the victim is a member of a federally recognized Indian tribe
or not; whether the accused is a member of a federally recognized
Indian tribe or not; and whether the alleged offense took place on
tribal land or not. The answers to these questions are often not self-
evident. However, they determine whether a crime should be investigated
by tribal, Federal or state police, whether it should be prosecuted by
a tribal prosecutor, a state prosecutor (District Attorney) or a
Federal prosecutor (U.S. Attorney) and whether it should be tried at
tribal, state or Federal level. Last, this determination dictates the
body of law to be applied to the case: tribal, Federal or state.
The jurisdiction of these different authorities often overlaps,
resulting in confusion and uncertainty. In many areas there may be dual
jurisdiction. The end result can sometimes be so confusing that no one
intervenes, leaving victims without legal protection or redress and
resulting in impunity for the perpetrators, especially non-Native
offenders who commit crimes on tribal land.
As citizens of particular tribal nations, the welfare and safety of
American Indian and Alaska Native women are directly linked to the
authority and capacity of their nations to address such violence. A
series of Federal laws and U.S. Supreme Court decisions over the years
have increasingly restricted the authority of American Indian and
Alaska Native Nations to exercise jurisdiction over crimes committed on
tribal land. The undermining of tribal authority has occurred over time
and in many ways. However, four laws have had a particularly
significant impact: the Major Crimes Act, Public Law 280, and the
Indian Civil Rights Act along with the case law of Oliphant v
Suquamish.
The Major Crimes Act (1885) granted the Federal authorities
jurisdiction over certain serious crimes committed by Indian
perpetrators, including rape and murder, committed in Indian
Country. There has been a widespread misconception that under
the Act only the Federal authorities have the authority to
prosecute major crimes. In fact, tribal authorities retain
concurrent jurisdiction over perpetrators that are Indian.
Nevertheless, the impact of the Act in practice has been that
fewer major crimes have been pursued through the tribal justice
systems.
State authorities do not generally have the authority to
exercise criminal jurisdiction over American Indians/Alaska
Natives on tribal land. Public Law 280 (1953), however,
transferred Federal criminal jurisdiction over many offenses
involving members of federally recognized Indian tribes on
designated tribal lands to state governments in some states.
The U.S. Congress gave six states--California, Minnesota,
Nebraska, Oregon, Wisconsin and Alaska upon statehood--
extensive criminal and civil jurisdiction over Indian Country.
Public Law 280 also permitted additional states-currently
exercised in varying degrees by Arizona, Florida, Idaho, Iowa,
Montana, Nevada, North Dakota, South Dakota, Utah and
Washington--to acquire jurisdiction if they wished, and while a
number of states originally opted to do so, currently only
Florida exercises full Public Law 280 jurisdiction. Where
Public Law 280 is applied, both tribal and state authorities
have concurrent jurisdiction over crimes committed on tribal
land by American Indians or Alaska Natives. Public Law 280 is
seen by many Indigenous peoples as an affront to tribal
sovereignty, not least because states have the option to assume
and to relinquish jurisdiction, a power not extended to the
tribal governments affected. In addition, Congress failed to
provide additional funds to Public Law 280 states to support
the law enforcement activities they had assumed. The BIA,
however, reduced funding to tribal authorities as a result of
the shift in jurisdiction. This has led to a situation where
tribal and state authorities have not received sufficient funds
to assume their respective law enforcement responsibilities,
resulting in a perception of ``lawlessness'' in some
communities and difficult relations between tribal and state
officials.
The Indian Civil Rights Act (1968) limited the criminal
sentence which can be imposed by tribal courts for any
offence--including murder or rape--to a maximum of 1 year's
imprisonment and a U.S. $5,000 fine. No such limits exist for
tribal civil jurisdiction. The message sent by this law is
that, in practice, tribal justice systems are only equipped to
handle less serious crimes. While this limitation on the
custodial sentencing powers of tribes (and resource
limitations) substantially limits the ability of tribal justice
systems to hold offenders accountable, an increasing number of
tribal courts are prosecuting sexual assault cases due to the
inadequate rate of Federal and state prosecutions of sexual
assault cases.
In 1978, the Supreme Court ruled that tribal courts could not
exercise criminal jurisdiction over non-Indian U.S. citizens. This
ruling in the case of Oliphant v. Suquamish effectively strips tribal
authorities of the power to prosecute crimes committed by non-Indian
perpetrators on tribal land. This situation is of particular concern
given the number of reported crimes of sexual violence against American
Indian women involving non-Indian men. In such situations, either
Federal or state authorities have the authority to intervene.
Reportedly, the apparent gap in jurisdiction or enforcement has
encouraged non-Indian individuals to pursue criminal activities of
various kinds in Indian Country. Tribal police do have limited powers
of arrest over non-Indian suspects in some states and they also retain
the power to detain non-Indian suspects in Indian Country in order to
transfer them to either Federal or state authorities, but this is not
generally understood by state or Federal officials.
Each location Amnesty International selected has specific
jurisdictional characteristics. Tribal and Federal authorities have
concurrent jurisdiction on all Standing Rock Reservation lands over
crimes where the suspected perpetrator is American Indian. In instances
in which the suspected perpetrator is non-Indian, Federal officials
have exclusive jurisdiction. Neither North nor South Dakota state
police have jurisdiction over sexual violence against Native American
women on the Standing Rock Reservation. State police do however have
jurisdiction over crimes of sexual violence committed on tribal land in
instances where the victim and the perpetrator are both non-Indian.
Amnesty International received reports that perpetrators seek to evade
law enforcement by fleeing to another jurisdiction. According to a
state prosecutor in South Dakota, the confusing and complicated
jurisdiction over crime on and around reservations in South Dakota,
means that some crimes just ``fall through the cracks.''
``[N]on-Native perpetrators often seek out a reservation place
because they know they can inflict violence without much
happening to them.''
Andrea Smith, University of Michigan, Assistant Professor of
Native Studies
Amnesty International found that jurisdictional issues in Oklahoma
are a constant concern since police officers responding to a crime have
difficulties determining whether or not the land in question is state,
tribal or Federal. Oklahoma is a geographical patchwork where non-
contiguous parcels of tribal land are often intersected by state land.
Both Indian and non-Indian people frequently cross between different
jurisdictions several times a day. One support worker told AI that, in
responding to an emergency call, arguments over jurisdiction between
tribal and state police are not always resolved, resulting in
inadequate investigation and evidence collection.
In Alaska, the Alaska Rural Justice and Law Enforcement Commission
(2006) found that ``There is no doubt that reduction in state/tribal
conflict over jurisdictional issues, and increased cooperation,
coordination and collaboration between state and tribal courts and
agencies, would greatly improve life in rural Alaska and better serve
all Alaskans.''
Jurisdictional authority has been the subject of considerable
debate in Alaska. Upon statehood, Alaska was included as one of the
original states in which Public Law 280 applied, giving the state (in
place of Federal authorities) concurrent criminal jurisdiction with
tribes to prosecute crimes committed by and against Alaska Native
peoples on tribal land throughout much of Alaska. The state of Alaska,
however, took the position that statehood had extinguished the Alaska
Native village's criminal law enforcement authority and reportedly
threatened councils with criminal prosecution ``should they attempt to
enforce their village laws.''
The situation in Alaska is further complicated because of issues
around how tribal lands are designated. A combination of Federal
legislation and U.S. Supreme Court decisions about the definition and
status of tribal lands has resulted in considerable confusion and
debate over jurisdiction within the state. This debate arises from the
unique way in which Indigenous land claims in Alaska were settled.
Following the Alaska Native Claims Settlement Act (ANCSA), passed by
the U.S. Congress in 1971, there has been considerable debate about
whether the land to which Alaska Native title was recognized qualifies
as Indian Country. In 1998 the Supreme Court ruled that ANCSA lands
were not Indian Country. It is important to note that the Court also
found that ANCSA did not intend to terminate tribal sovereignty, but
that it left Alaska tribes ``sovereigns without territorial reach.''
This issue is important because criminal jurisdiction normally has a
territorial element.
``Federally recognized tribes have a local government presence
but have disputed jurisdiction. The state has jurisdiction, but
often lacks an effective local government presence. The result
is a gap that leaves many villages without effective law
enforcement.''
Initial Report and Recommendations of the Alaska Rural Justice
and Law Enforcement Commission (2006).
While the State has sought to limit the exercise of tribal
authority and traditional justice methods for keeping the peace in
villages, it has at the same time failed to provide state law
enforcement services. The result is that many villages have been left
without law enforcement protection. It is important to note that it was
never the intent of the Federal Government for Public Law 280 to
extinguish tribal jurisdiction over criminal offenses. Furthermore,
over 200 Alaska Native entities remain federally recognized
governmental bodies.
Amnesty International is concerned that jurisdictional issues not
only cause confusion and uncertainty for survivors of sexual violence,
but also result in uneven and inconsistent access to justice and
accountability. This leaves victims without legal protection or redress
and allows impunity for the perpetrators, especially non-Indian
offenders who commit crimes on tribal land.
Inter-agency Cooperation
``It's only about a mile from town to the bridge. Once they
cross the bridge [to the Standing Rock Sioux Reservation],
there's not much we can do. We've had people actually stop
after they've crossed and laugh at us. We couldn't do
anything.''
Walworth County Sheriff Duane Mohr, The Rapid City Journal,
December 21, 2005.
Some tribal, state and Federal law enforcement agencies address the
jurisdictional complexities by entering into cooperation agreements.
These may take the form of cross-deputization agreements, which allow
law enforcement officials to respond to crimes that would otherwise be
outside their jurisdiction. A second form of agreement addresses
extradition in situations in which a perpetrator seeks to escape
prosecution by fleeing to another jurisdiction. Across the U.S.,
experiences of such inter-agency cooperation agreements vary greatly.
Where they are entered into on the basis of mutual respect, cooperation
agreements can have the potential to smooth jurisdictional
uncertainties and allow improved access to justice for victims of
sexual violence.
Problems of Policing
Amnesty International found that police response to sexual violence
against American Indian and Alaska Native women at all levels is
inadequate. Although jurisdictional issues present some of the biggest
problems in law enforcement response, other factors also have a
significant impact including lack of resources.
Lack of Resources: Delays and Failure to Respond
In an Alaska Native village in 2005, an Alaska Native man
became violent, beating his wife with a shotgun and attempting
to fire it at her; he then barricaded himself in a house with
four children. As the village had no law enforcement presence,
residents called State Troopers 150 miles away. It took the
troopers more than 4 hours to reach the village and, in that
time period, the man had raped a 13-year-old Alaska Native girl
on a bed, with an infant crying beside her, as her 5-year-old
brother and 7-year-old cousin watched helplessly.
Law enforcement in Indian Country and Alaska Native villages is
chronically underfunded. The U.S. Departments of Justice and Interior
have both confirmed that there is inadequate law enforcement in Indian
Country and identified underfunding as a central cause. According to
the U.S. Department of Justice, tribes only have between 55 and 75
percent of the law enforcement resources available to comparable non-
Native rural communities. AI also found that a very small number of
officers usually cover large territories and face difficult decisions
about how to prioritize their initial responses.
The Standing Rock Police Department in February 2006 consisted of
six or seven patrol officers to patrol 2.3 million acres of land, with
only two officers usually on duty during the day. Amnesty International
documented lengthy delays in responding to reports of sexual violence
against Indigenous women. Women on the reservation who report sexual
violence often have to wait for hours or even days before receiving a
response from the police department, if they receive a response at all.
``It feels as though the reservation has become lawless.''
Roundtable interview, Standing Rock Reservation (name
withheld) February 22, 2006.
Sometimes suspects are not arrested for weeks or months after an
arrest warrant has been issued. Amnesty International was told that on
the Standing Rock Reservation there are on average 600-700 outstanding
tribal court warrants for arrest of individuals charged with criminal
offenses. Failure to apprehend suspects in cases of sexual violence can
put survivors at risk, especially where the alleged perpetrator is an
acquaintance or intimate partner and there is a threat of retaliation.
In Alaska the low numbers of officers in rural outposts, combined
with the vast expanses and the harsh weather, present major barriers to
prompt responses by police to reports of sexual violence. Law
enforcement services in Alaska range from the larger, municipal police
departments found in cities such as Anchorage, to the State Troopers
(state police officers), who police the outlying rural areas, to
Village Public Safety Officers (VPSO) and Village Police Officers
(VPO), which often consist of one or two individuals working in smaller
villages. Neither VPSOs nor VPOs are ``certified'' by the Alaska Police
Standard Council because they do not meet training and qualification
requirements. Over 80 percent of those in Alaska who are not afforded
trained and certified law enforcement protection are Alaska Native. At
least one-third of all Alaska Native villages that are not accessible
by road have no law enforcement presence at all.
Those living in rural villages that do not have local or city
police departments may receive law enforcement services from the
state's 240 State Troopers. In more inaccessible communities, State
Troopers tend to respond only to more serious crimes. It can take State
Troopers from 1 day to 6 weeks to respond to crimes including sexual
violence in villages, if they respond at all. Because of delays in
response by State Troopers, VPSOs and VPOs are often the first to
respond to reports of crimes, including crimes of sexual violence.
VPSOs are relatively few in number and have additional responsibilities
outside of law enforcement, for example they may act as harbor masters.
Although they may be the first or only officers to respond, VPSOs
cannot serve arrest warrants or investigate serious crimes such as rape
without the approval of State Troopers.
``Most [VPOs and VPSOs] are ill-equipped. Many have to use
their home for office space as well as a holding facility for
detainees, and must walk or run to the scene of a crime because
they lack essential transportation such as snow-machines, four-
wheelers and boats, as well as essential equipment such as rape
kits [for evidence collection].''
Complaint for Declaratory and Injunctive Relief, Alaska Inter-
Tribal Council, et al., v State, et al, 25th October 1999.
Amnesty International found that in cases where both tribal and
Federal authorities have jurisdiction, FBI involvement in
investigations of reports of sexual violence against Indigenous women
is rare and even in those cases that are pursued by the FBI, there can
be lengthy delays before investigations start.
Amnesty International's research also revealed a worrying lack of
communication by all levels of law enforcement with survivors. In a
number of cases, survivors were not informed about the status of
investigations, the results of sexual assault forensic examinations,
the arrest or failure to arrest the suspect, or the status of the case
before tribal, Federal or state courts.
Detention in Indian Country
Another issue that must be considered is the detention needs in
Indian Country. The Department of Interior Inspector General found in
its 2004 report, ``Neither Safe nor Secure'' that there has been a
failure to provide safe and secure detention facilities throughout
Indian Country. Funding for detention in Indian Country has been
inconsistent and inadequate. For example, the Department of Justice
Office of Justice Programs provided $44 million for incarceration on
tribal lands in 2002 and only $14 million in 2006.
Training
AI is concerned that Federal, state and tribal training programs
for law enforcement officials are not equipping officers to respond
adequately and appropriately to crimes of rape and other forms of
sexual violence against Indigenous women. Basic training of law
enforcement officers varies from agency to agency. For example, an
officer in the Standing Rock Police Department reported that training
on interviewing survivors of sexual violence is not available unless it
is hosted or paid for by another organization. He noted that, given the
limited number of officers on the force, the Standing Rock Police
Department cannot provide them all with training opportunities.
Officers need training on cultural norms and practices to enable
them to respond appropriately, taking into account differences between
tribes. This may have implications for how police approach and speak to
victims, witnesses and suspects, including, for example, greater
awareness of potential language barriers.
Training on jurisdiction also appears to be inadequate. For
example, law enforcement officials in Oklahoma face a jurisdictional
maze of different tribal, Federal and state areas of authority, yet the
Council on Law Enforcement Education and Training reportedly provides
state police officers with almost no training on jurisdiction.
Inadequate Forensic Examinations and Related Health Services
Every effort should be made to facilitate treatment and
evidence collection (if the patient agrees), regardless of
whether the decision to report has been made at the time of the
exam.''
U.S. National Protocol for Sexual Assault Forensic
Examinations.
Another factor that Amnesty found significantly impacts law
enforcement and access to justice is the lack of access to forensic
exams--critical evidence in a prosecution--often due to the severe
underfunding of the IHS. If the authorities fail to provide the
examination, this can jeopardize prosecutions and result in those
responsible for rape not being brought to justice.
The examination, which is performed by a health professional,
involves the collection of physical evidence and an examination of any
injuries. Samples collected in the evidence kit include vaginal, anal
and oral swabs, finger-nail clippings, clothing and hair. Reports to AI
indicate that many IHS facilities lack personnel to provide
examinations, haven't prioritized development of sexual assault nurse
examiner programs and lack protocols for treating victims of sexual
violence.
A 2005 survey conducted by the Native American Women's Health
Education Resource Center found that 44 percent of Indian Health
Service facilities lacked personnel trained to provide emergency
services in the event of sexual violence. More specifically, there is
generally a severe lack of available Sexual Assault Nurse Examiners
(SANEs), registered nurses with advanced education and clinical
preparation in forensic examination of victims of sexual violence.
Amnesty International understands that there may be challenges to fully
staffing all facilities with SANE personnel, but we are concerned that
the IHS has not prioritized the implementation of SANE programs
throughout its facilities.
Amnesty International is also concerned that IHS facilities lack
clear and standardized protocols for treating victims of sexual
violence. A 2005 survey conducted by the Native American Women's Health
Education Resource Center of IHS facilities found that 30 percent of
responding facilities did not have a protocol in place for emergency
services in cases of sexual violence. The standardized protocols are
essential to help ensure adequate treatment of women who have suffered
sexual assault. The National Congress of American Indians (NCAI) is the
oldest and largest national organization of American Indian and Alaska
Native tribal governments passed a resolution in 2005 that the NCAI
``will urge the adoption and implementation of [a] national policy and
protocols on rape and sexual assault within the Indian Health Service
Unit emergency rooms and Contract Health Care facilities/providers.''
The person who carries out the sexual assault forensic examination
may later be called upon to testify in court during a prosecution. A
high turnover of staff, many of whom are on short-term contracts, means
that it may be difficult to locate the person who performed the
examination when they are needed to provide testimony. Furthermore,
Amnesty International understands that Federal, tribal and state
prosecutors face significant challenges in ensuring that the IHS
personnel who were responsible for the collection of the forensic
evidence testify in court. Amnesty International strongly encourages
efforts to eliminate bureaucratic obstacles and facilitate
participation by local personnel so that valuable evidence of sexual
assault can be submitted successfully in court.
Jami Rozell, a Cherokee woman living in Tahlequah, Oklahoma,
told AI that she decided to seek prosecution 5 months after she
was raped in 2003. She attended a preliminary hearing, but her
sexual assault forensic examination--which had been performed
immediately after the rape and included the sexual assault
nurse examiner's report, photographs, and the clothing she had
been wearing--had been destroyed. She was told by the police
department that as she had not pressed charges at the time, the
evidence had been destroyed as a routine part of cleaning their
evidence storage room. Because the evidence had been destroyed,
the District Attorney advised her to drop the complaint.
Furthermore, as the first to respond to reports of sexual assault,
law enforcement officials have a critical role to play in ensuring that
women can get to a hospital or clinic where their injuries can be
assessed and the forensic examination can be done. This is particularly
important where women have to travel long distances to access a medical
facility and may not have any way of getting there themselves. AI
received reports of confusion and disagreements over who should pay for
examinations or transport costs--the IHS, other medical providers, law
enforcement agencies or the survivors themselves. Amnesty International
believes that costs relating to sexual assault forensic examinations
should be the responsibility of law enforcement agencies since the
evidence gathered is an essential part of an investigation into a
report of sexual violence. In any event, survivors should not have to
pay the costs themselves.
It is important to ensure that evidence collected during a forensic
examination is processed. On or about June of 2000, the FBI partnered
with the State of Arizona Laboratory to process evidence from Indian
Country crimes, by allocating $450,000 a year to the State laboratory.
This program was the result of a realization that crimes in Indian
Country needed timely evidence processing, and the FBI lab was
overwhelmed. Support from the State lab was a logical and cost
effective answer.
Amnesty International recently received a report from a tribal law
enforcement officer/Director of Public Safety for the Tohono O'odham
Nation that, in October of 2005 the FBI discontinued this vital
program. The result is a delay and on occasion dismissal of cases
because of the lack of evidence analysis, this is particularly critical
in sexual assault crimes. This has severely impacted Tribal Police's
ability to ensure the processing of forensic examination in cases of
rape and sexual assault.
All survivors of sexual violence should be offered a forensic
examination, without charge, regardless of whether or not they have
decided to report the case to the police. Indigenous women in the USA
are being effectively denied access to these examinations either
because there is no facility nearby equipped to carry them out, the
facility is understaffed by individuals trained in the forensic exams
or because staff are not adequately trained on how to respond to
survivors of sexual violence and how to do so in a culturally
appropriate manner.
Prosecutions
``In Oklahoma, prosecution of sexual assault is last, least
and left behind.''
Jennifer McLaughlin, Sexual Assault Specialist, Oklahoma
Coalition Against Domestic Violence and Sexual Assault,
September 2005.
``To a sexual predator, the failure to prosecute sex crimes
against American Indian women is an invitation to prey with
impunity.''
Dr. David Lisak, Associate Professor of Psychology, University
of Massachusetts, 29 September 2003.
A key contributory factor identified in AI's research for the
continuing high levels of violence is that all too often those
responsible are able to get away with it. Survivors of sexual abuse,
activists, support workers and officials told AI that prosecutions for
crimes of sexual violence against Indigenous women are rare in Federal,
state and tribal courts. For example, a health official responsible for
carrying out sexual assault forensic examinations reported that in
about 90 percent of cases, she is not contacted again by police or
prosecutors about examinations she has performed, although she is
available as an expert witness for trials.
Sexual violence against Native American or Alaska Native women can
be prosecuted by tribal, Federal or state authorities, or a combination
of these. The U.S. Federal Government has created a complex
interrelation between these three jurisdictions that often allows
perpetrators to evade justice.
The perpetrator of sexual violence is the person liable under
criminal law for this act and should be brought to justice. However,
the state also bears a responsibility if it fails to prevent or
investigate and address the crime appropriately. U.S. authorities are
failing to exercise due diligence when it comes to sexual violence
against Native American and Alaska Native women.
Tribal Courts
Tribal courts vary greatly both in the statutes and criminal codes
which they enforce and their procedures. A common factor, however, is
that they face a number of limitations imposed at Federal level that
interfere with their ability to provide justice for Native American and
Alaska Native survivors of sexual violence. For example, Federal law
prevents tribal courts from prosecuting non-Indian or non-Alaska Native
offenders or imposing a custodial sentence of more than 1 year for each
offense.
Federal funding of tribal courts is inadequate. The U.S. Commission
on Civil Rights stated in 2003 that tribal courts have been under
funded for decades. Inadequate funding by the Federal authorities
affects many aspects of the functioning of tribal courts, including the
ability to proceed with prosecutions promptly. Nevertheless,
prosecutions for sexual violence do occur in tribal courts and some
courts are able to overcome limitations on the sentences they can hand
down by imposing consecutive sentences for several offenses. Some
tribal courts also work with sanctions other than imprisonment,
including restitution, community service and probation.
Tribal prosecutors sometimes decline to prosecute crimes of sexual
violence because they expect that Federal prosecutors will do so.
Although some tribal prosecutors may choose to take up a case if it is
declined for Federal prosecution, as often happens, this can result in
delays of up to a year and sometimes even longer. Often the net result
is that perpetrators are not prosecuted at either level.
Federal Courts
There is a failure at Federal level to pursue cases of sexual
violence against Indigenous women. The extent to which cases involving
American Indian women are dropped before they even reach a Federal
court is difficult to quantify as the U.S. Attorney's Office does not
compile such statistics. However, the evidence gathered by AI suggests
that in a considerable number of instances the authorities decide not
to prosecute reported cases of sexual violence against Native women.
Federal prosecutors have broad discretion in deciding which cases
to prosecute, and decisions not to prosecute are rarely reviewed. AI is
concerned that the difficulties involved in prosecuting rape cases,
combined with the particular jurisdictional and practical challenges of
pursuing cases where the crime took place on tribal land, can deter
Federal prosecutors from taking the case. When Federal prosecutors
decline to prosecute cases involving non-Native perpetrators, there is
no further recourse for Indigenous survivors under criminal law within
the USA.
State Courts
In some states, such as Alaska, state rather than Federal
prosecutors have jurisdiction. However, the same pattern of failing to
pursue cases of sexual violence against Indigenous women emerged.
Health workers in Alaska told AI that there is no prosecution in
approximately 90 percent of cases where Indigenous women undergo a
sexual assault forensic examination in Anchorage.
In addition, Native American and Alaska Native survivors of sexual
violence often face prejudice and discrimination at all stages and
levels of Federal and state prosecution.
Amnesty International learned of the case of a Native American
woman who in 2003 accepted a ride home from two white men who
raped and beat her and then threw her off a bridge. A support
worker for victims of sexual violence described how, ``People
said she was asking for it because she was hitchhiking late at
night.'' The case went to trial in a state court, but the
jurors were unable to agree on whether the suspects were
guilty. A juror who was asked why replied: ``She was just
another drunk Indian.'' Because the jury failed to reach a
verdict, the case was retried. The second trial resulted in
custodial sentence for both perpetrators.
Communicating With Survivors
Amnesty International received a number of reports that prosecutors
at all levels fail to provide information consistently to Indigenous
victims of sexual violence about the progress of their cases. Survivors
are frequently not informed whether their cases will proceed to trial
or not.
``One [Native American] woman I work with told me that she
reported her sexual assault 2 years ago and that she didn't
know if the case had been investigated or prosecuted. I
researched the case and discovered it had been declined [for
prosecution], but no one had told the woman.''
Support worker for Native American survivors of sexual
violence (identity withheld), January 2006.
Inadequate Resources for Indigenous Support Initiatives
Programs run by Native American and Alaska Native women are vital
in ensuring the protection and long-term support of Indigenous women
who have experienced sexual violence. However, lack of funding is a
widespread problem. Programs run by Indigenous women often operate with
a mix of Federal, state, and tribal funds, as well as private
donations. However such funding in often limited.
In 2005, the non-governmental organization South Dakota Coalition
against Domestic Violence and Sexual Assault contributed to the
founding of Pretty Bird Woman House, a domestic violence program on the
Standing Rock Reservation. The program, which is named after Ivy
Archambault (Pretty Bird Woman), a Standing Rock woman who was raped
and murdered in 2001, operates a shelter in a temporary location and at
the time of Amnesty International's report in April 2007 did not have
funding for direct services for its clients, but helps women to access
services off the Reservation. Given the rates of violence against women
on the Standing Rock Reservation, it is imperative that the Reservation
have its own permanent shelter.
International Law
Sexual violence against women is not only a criminal or social
issue; it is a human rights abuse. While the perpetrator is ultimately
responsible for his crime, authorities also bear a legal responsibility
to ensure protection of the rights and well-being of American Indian
and Alaska Native peoples. They are responsible as well if they fail to
prevent, investigate and address the crime appropriately.
The United States has ratified many of the key international human
rights treaties that guarantee Indigenous women's protection against
such abuses, including the right not to be tortured or ill-treated; the
right to liberty and security of the person; and the right to the
highest attainable standard of physical and mental health. The United
States should ratify the Treaty for the Rights of Women (CEDAW) which
can help end discrimination and violence against women worldwide. The
next steps Congress takes must be determined in close consultation and
cooperation with Indigenous leaders. All women have the right to be
safe and free from violence.
International law is clear: governments are obliged not only to
ensure that their own officials comply with human rights standards, but
also to adopt effective measures to guard against acts by private
individuals that result in human rights abuses. This duty-often termed
``due diligence''--means that states must take reasonable steps to
prevent human rights violations and, when they occur, use the means at
their disposal to carry out effective investigations, identify and
bring to justice those responsible, and ensure that the victim receives
adequate reparation. Amnesty International's research shows that the
United States is currently failing to act with due diligence to
prevent, investigate and punish sexual violence against Native American
and Alaska Native women. The erosion of tribal governmental authority
and resources to protect Indigenous women from crimes of sexual
violence is inconsistent with international standards on the rights of
Indigenous peoples.
The U.N. Declaration on the Rights of Indigenous Peoples, adopted
by the U.N. Human Rights Council in June 2006, elaborates minimum
standards for the recognition and protection of the rights of
Indigenous peoples in diverse contexts around the world. Provisions of
the Declaration include that Indigenous peoples have the right of self
determination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural
development (Article 3); that States shall take measures, in
conjunction with indigenous peoples, to ensure that indigenous women.
enjoy the full protection and guarantees against all forms of violence
and discrimination. (Article 22(2)); and the right of Indigenous
peoples ``to promote, develop and maintain their institutional
structures and their distinctive customs, spirituality, traditions,
procedures, practices and, where they exist, juridical systems or
customs, in accordance with international human rights standards''
(Article 34).
Key Recommendations
Amnesty International wants to highlight that on September 13th,
2007 the U.N. General Assembly adopted the U.N. Declaration on the
Rights of Indigenous Peoples which calls on states to ``consult and
cooperate in good faith with the indigenous peoples concerned through
their own representative institutions in order to obtain their free,
prior and informed consent before adopting and implementing legislative
or administrative measures that may affect them.'' (Article 19)
We respectfully refer you to ``Maze of Injustice: The failure to
protect Indigenous women from sexual violence in the USA'' for more
detailed information and recommendations, briefly however the following
steps need to be taken:
Develop Comprehensive Plans of Action to Stop Violence Against
Indigenous Women
Federal and state governments should consult and cooperate
with Indigenous nations and Indigenous women to institute plans
of action to stop violence against Indigenous women.
For instance, the Safety for Indian Women Demonstration
Initiative is an effort by the U.S. Department of Justice
Office on Violence Against Women (OVW) to enhance the response
of tribal and Federal agencies to the high rates of sexual
assault committed against Native American women. Under the
initiative, OVW awarded over $900,000 to four tribes to achieve
such goals as: enhance the response of tribal and Federal
agencies to sexual assault of Native American women; build upon
an existing coordinated community response to sexual assault of
Native American women; strengthen the capacity of tribal
justice systems to respond to sexual assault of Native American
women; enhance and increase advocacy and services for Native
American victims of sexual assault; strengthen coordination
between tribal and Federal agencies responding to crimes of
sexual assault against Native American women; and expand
current responses to crimes of sexual assault against Native
American women. Adequate and consistent funding should be
provided for such initiatives. At present, AI has been unable
to establish whether or not this initiative continues to be
funded.
Federal, state and tribal authorities should, in
consultation with Indigenous peoples, collect and publish
detailed and comprehensive data on rape and other sexual
violence that shows the Indigenous or other status of victims
and perpetrators and the localities where such offenses take
place, the number of cases referred for prosecution, the number
declined by prosecutors and the reasons why.
Ensure Appropriate, Effective Policing
Congress and Federal authorities must take urgent steps to
make available adequate resources to police forces in Indian
and Alaska Native villages. Particular attention should be paid
to improving coverage in rural areas with poor transport and
communications infrastructure.
All law enforcement officials should respond promptly to
reports of sexual violence, take effective steps to protect
survivors from further abuse, and undertake thorough
investigations.
Law enforcement agencies should recognize in policy and
practice that all police officers have the authority to take
action in response to reports of sexual violence, including
rape, within their jurisdiction and to apprehend the alleged
perpetrators in order to transfer them to the appropriate
authorities for investigation and prosecution. In particular,
where sexual violence in committed in Indian Country and in
Alaska Native villages, tribal law enforcement officials must
be recognized as having authority to apprehend both Native and
non-Native suspects.
All law enforcement agencies should cooperate with, and
expect cooperation from, neighboring law enforcement bodies on
the basis of mutual respect and genuine collaboration to ensure
protection of survivors and those at risk of sexual violence,
including rape, and to ensure that perpetrators are brought to
justice. These may take the form of:
-- Cross-deputization agreements, which allow law enforcement
officials to respond to crimes that would otherwise be outside
their jurisdiction. In addition authorities.
-- Extradition agreements address situations in which a
perpetrator seeks to escape prosecution by fleeing to another
jurisdiction. Tribal and state authorities may enter into
extradition agreements, in which each agrees to allow the other
to return fleeing perpetrators to the jurisdiction of the
crime.
In states where criminal jurisdiction on tribal land has
been transferred from Federal to state authorities (including
Public Law 280 states), Congress should ensure that tribal
governments, like state governments, have the option to
transfer jurisdiction back from the state to the Federal
authorities.
In order to fulfil their responsibilities effectively, all
police forces should work closely with Indigenous women's
organizations to develop and implement appropriate
investigation protocols for dealing with cases of sexual
violence.
Ensure Access to Sexual Assault Forensic Examinations
Law enforcement agencies and health service providers should
ensure that all Indigenous women survivors of sexual violence
have access to adequate and timely sexual assault forensic
examinations without charge to the survivor and at a facility
within a reasonable distance.
Congress and the Federal Government should permanently
increase funding for the Indian Health Service to improve and
further develop facilities and services, and increase permanent
staffing in both urban and rural areas in order ensure adequate
levels of medical attention.
The Indian Health Service and other health service providers
should develop standardized policies and protocols, which are
made publicly available and posted within health facilities in
view of the public, on responding to reports of sexual
violence.
The Indian Health Service and other health service providers
should prioritize the creation of sexual assault nurse examiner
programs and explore other ways of addressing the shortage and
retention of qualified Sexual Assault Nurse Examiners.
The Indian Health Service and other health service providers
should facilitate the availability at trial of forensic
evidence of sexual assault by eliminating bureaucratic
obstacles and encouraging participation of appropriate medical
personnel.
Law enforcement agencies in Indian Country should receive
sufficient funding to ensure the timely processing of evidence
collected from sexual assault forensic examinations.
Ensure That Prosecution and Judicial Practices Deliver Justice
Congress should recognize the concurrent jurisdiction of
tribal courts (meaning that tribal courts, and/or the state or
Federal courts, could try suspects) regardless of the
Indigenous or other identity of the accused.
Congress should amend the Indian Civil Rights Act to
recognize the authority of tribal courts to impose penalties
proportionate to the offences they try.
Prosecutors should vigorously prosecute cases of sexual
violence against Indigenous women and should be sufficiently
resourced to ensure that the cases are treated with the
appropriate priority and processes without undue delay. Any
decision not to proceed with a case, together with the
rationale for the decision, should be promptly communicated to
the survivor of sexual violence and any other prosecutor with
jurisdiction.
All U.S. Attorneys should begin immediately to collect and
publish publicly data on the number of cases of sexual violence
of Native American and Alaska Native women referred for Federal
prosecution, the number declined and reasons for decline.
Congress should recognize that tribal authorities have
jurisdiction over all offenders who commit crimes on tribal
land, regardless of their Indigenous or other identity and the
authority to impose sentences commensurate with the crime that
are consistent with international human rights standards.
Congress and Federal authorities should make available the
necessary funding and resources to tribal governments to
develop and maintain tribal courts and legal systems which
comply with international human rights standards, while also
reflecting the cultural and social norms of their peoples.
Ensure Availability of Support Services for Survivors
All governments should support and ensure adequate funding
for support services, including shelters, for American Indian
and Alaska Native survivors of sexual violence.
Additional Recommendations
Congress should fully fund and implement the Violence
Against Women Act--and in particular Tribal Title (Title IX),
the first-ever effort within VAWA to fight violence against
Native American and Alaska Native women. This includes a
national baseline study on sexual violence against Native
women, a study on the incidence of injury from sexual violence
against Native women and a Tribal Registry to track sex
offenders and orders of protection.
The Senate should ratify the Treaty for the Rights of Women,
officially the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW). Although the United
States played a key role in drafting this treaty, it remains
one of eight countries yet to ratify. This treaty can help end
discrimination and violence against women worldwide.
The next steps Congress takes must be determined in close
consultation and cooperation with Indigenous leaders.
Thank you for the opportunity to testify on this important human
rights topic.
The Chairman. Ms. Arriaga, thank you very much for being
here, and thank you for the work that Amnesty International has
done.
Next we will hear from Ms. Jami Rozell, who is an educator
from Oklahoma. Ms. Rozell.
STATEMENT OF JAMI ROZELL, EDUCATOR, CHEROKEE NATION, OKLAHOMA
Ms. Rozell. Mr. Chairman and members of the Committee,
thank you for inviting me to testify today. I would like to
submit my full testimony for the record.
My name is Jami Rozell, and I am a member of the Cherokee
Nation and a school teacher from Oklahoma. I will always
remember the date, Friday, May 9th, 2003, I was 21 years old in
my home town of Tahlequah, Oklahoma and raped by a non-Native
man I have known since junior high. I was accompanied that same
night to the Indian Health Services hospital at Hastings by my
brother, who called the city police. The Hastings hospital was
not equipped to do rape exams, so we were taken then to the
Tahlequah City Hospital next door.
At the city hospital, we waited a couple of hours for the
sexual assault nurse examiner to arrive. The hospital had
called an advocate from the local sexual assault service
provider, Help in Crisis, to be there with me during the exam.
The nurse finally arrived and so did the rest of my family. I
know that I was fortunate to have my family and an advocate
with me at this difficult and scary time. This is not the case
for all Native American women going through an exam or police
questioning.
It was horribly uncomfortable to have a camera inside of
me, and I was grateful to have my family with me at the
hospital. The nurse took photos of all the bruises, blisters
and abrasions inside of me and kept my underwear as evidence.
My mom asked the nurse if she could clearly tell that I had
been raped, and she told my mom that I had definitely been
raped. I bled for the next 3 days.
At the hospital, there had been a detective, a man that I
had known my entire life, through my family. He told me that I
had up to 7 years to decide if I wanted to press charges,
because the city police had their own full police report, the
nurse's exam with photos and all the evidence. The detective
told my dad that if his own daughter had been raped, he
wouldn't press charges. The detective said that he would just
deal with it and move on because it wouldn't get anywhere. The
detective told me to think about it.
Soon after, I rejected a meeting that our church attempted
between me and the man who raped me and grew depressed. I was
also scared that this man would stalk me around town in an
attempt to intimidate me. My dad spoke with a friend of the
family who is still a defense attorney in town, and he told my
dad not to go through with pressing charges. The attorney said
that I had already been raped once and the State court system
would just rape me again.
With everyone I respected and trusted telling me not to
press charges, I decided to wait. By October, 5 months had
passed and I was no longer feeling scared. I decided to move
ahead with the charges in March 2004. I was subpoenaed to State
court for the preliminary hearing. I was the one that had to
sit up on the witness stand for two and a half hours, while the
defense attorney questioned me and my character. It was me up
there on the stand and not the man who raped me. That was yet
again another horrible ordeal in this whole experience. It was
a courtroom full of my family and his, and once again, a bunch
of people from my town that I had known my whole life, and I
was the one made to feel ashamed.
During the trial I had to sit, and we had to make sure that
it was on State land, we had to determine for a fact that it
was State land and not tribal land, because in Oklahoma there
is no reservation. So you could be, one side of the street is
State land and the other side is tribal land, so the
jurisdiction was an issue that we had to determine before the
case could even begin.
A few weeks after the preliminary hearing I was contacted
for a meeting with the district attorney's office. They told me
that in a routine State police cleanup, all of my evidence had
been destroyed, so it was now a he said/she said case, and they
were advising me to drop the charges. I asked them what
happened, since they told me that I had up to 7 years to change
my mind. The district attorney said that because I had
initially decided not to press charges, everything had been
destroyed.
I have not been able to stand up for myself until now.
Amnesty International has given me support and the opportunity
to speak up, not only for myself but also in some way for many
Native American sexual assault survivors who cannot be here
today to share their stories. There are many discriminatory and
jurisdictional barriers to effective law enforcement response,
getting rape kits and prosecution in Oklahoma. My story is just
one of many.
I urge you to learn more about stopping sexual assault
against Native American women. Thank you.
[The prepared statement of Ms. Rozell follows:]
Prepared Statement of Jami Rozell, Educator, Cherokee Nation, Oklahoma
Mr. Chairman and members of the Committee, thank you for inviting
me to testify today. I would like to submit my full testimony for the
record.
My name is Jami Rozell and I am a Cherokee school teacher from
Oklahoma.
I will always remember the date, Friday May 9th, 2003. I was
twenty-one years old, in my hometown of Tahlequah Oklahoma and raped by
a non Native man I had known since junior high.
I was accompanied that same night to the Indian Health Service
hospital in Hastings, Oklahoma by my brother, who had called the city
police. The Hastings hospital was not equipped to do rape exams, so we
were then taken to the Tahlequah City hospital next door.
At the Tahlequah City hospital we waited a couple of hours for the
Sexual Assault Nurse Examiner to arrive. The hospital had called an
advocate from the local sexual assault service provider, Help-In-
Crisis, to be there with me during the exam. The nurse finally arrived
and so did the rest of my family. I know that I was fortunate to have
my family and an advocate with me at this difficult and scary time.
This is not the case for all Native American women going through an
exam or police questioning. It was horribly uncomfortable to have a
camera inside of me and I was grateful to have my family with me at the
hospital. The nurse took photos of all the bruises, blisters and
abrasions inside of me and kept my underwear as evidence. My mom asked
the nurse if she could clearly tell that I had been raped and she told
my mom I had definitely been raped. I bled for the next 3 days.
At the hospital, there had been a detective, a man that I had known
my entire life through my family. He told me that I had up to 7 years
to decide if I wanted to press charges because the city police had
their own full police report, the nurse's exam with the photos and all
the evidence. The detective told my dad that if his own daughter had
been raped, he wouldn't press charges. The detective said that he would
just deal with it and move on because it wouldn't get anywhere. The
detective told me to think about it.
Soon after, I rejected a meeting that our church attempted between
me and the man who raped me and grew depressed. I was also scared, as
this man would stalk me around town in an attempt to intimidate.
My dad spoke with a friend of the family who is still a defense
attorney in town and he told my dad not to go through with pressing
charges. The attorney said that I had already been raped once and that
the state court system would just rape me again.
With everyone I respected and trusted telling me not to press
charges, I decided to wait.
By October, 5 months had passed and I was no longer feeling scared
. I decided to move ahead with the charges. In March 2004, I was
subpoenaed to state court for the preliminary hearing. I was the one
that had to sit up on the witness stand for two and a half hours while
the defense attorney questioned me and my character. It was me up there
on the stand and not the man who raped me. That was yet again another
horrible ordeal in this whole experience. It was a courtroom full of my
family and his, and once again a bunch of people from town I had known
my whole life. I was made to feel ashamed.
A few weeks after the preliminary hearing, I was contacted for a
meeting at the District Attorney's office. They told me that in a
routine state police clean-up, all of my evidence had been destroyed so
it was now a he-said, she-said case and they were advising me to drop
the charges. I asked them what had happened since they told me that I
had up to 7 years to change my mind. The District Attorney said that
because I had initially decided not to press charges, everything had
been destroyed.
I have not been able to stand up for myself-until now. Amnesty
International has given me support and the opportunity to speak up not
only for myself but also in some way for many Native American sexual
assault survivors, who can not be here today to share their stories.
There are many discriminatory and jurisdictional barriers to effective
law enforcement response, getting rape kits and prosecution in
Oklahoma. My story is just one of many. I urge you to learn more about
stopping sexual assault against Native American women.
Thank you.
The Chairman. Ms. Rozell, thank you very much. That is not
easy testimony to offer, but our Committee deeply appreciates
your being here and participating in this important discussion
about a very serious issue.
Next we will hear from Ms. Tammy Young, Co-Director of the
Alaska Native Women's Coalition Against Domestic Violence and
Sexual Assault. Ms. Young, thank you. You have traveled a long
way and we very much appreciate your being here.
Senator Murkowski, would you like to say a word about Ms.
Young?
Senator Murkowski. I would join in the welcome of Ms.
Young, and note that when it comes to community advocates that
are making a difference, we are very proud of the efforts that
Tammy has made in her community and working with so many of the
women and families that have been afflicted with some very
horrible incidents in their lives. I appreciate all that you
do, Tammy. Thank you, and we are glad that you are here.
The Chairman. Ms. Young, you may proceed.
STATEMENT OF TAMMY M. YOUNG, DIRECTOR, ALASKA NATIVE WOMEN'S
COALITION
Ms. Young. Thank you. I am very happy to be here this
morning. Thank you for inviting me.
I have submitted written testimony and I just would like to
summarize for you. I work with the Alaska Native Women's
Coalition. We came into existence in 2001. Since we have been
in existence, we have been gathering many Alaska Native people
and service providers all across the State of Alaska. We have
had the good fortune to take part in some of the studies that
have taken place in Alaska, one of them being the Rural Justice
and Law Enforcement Commission, then later taking part in the
Domestic Violence Summit that was held in Anchorage.
Through many of these meetings we have been able to have
the dialogue to get to what is important to us, those of us
that live in the very small, rural communities. We have had the
good fortune of working with the Alaska Naive Justice Center,
and Tribal Law and Policy Institute in Anchorage to reach into
some of those areas of concern for us. We have looked at how
forensic evidence is gathered, both in hub communities and some
of the attempts in village communities.
We would offer as a suggestion to the Committee that there
is technology available to us now on a more far-reaching range
than previously the tele-medicine project. In some communities,
they are using this for mental health concerns. When you have a
women or a child that is affected by sexual violence, these are
long-term medical issues. So we are very interested in seeking
solutions that address not only the immediate concern, the
medical concerns such as emergency contraceptives, screening
for sexually transmitted diseases, but we are also interested
in seeking solutions for the long-term health care that is
needed.
We also feel that this would be an avenue that we could
help our men, possibly through the Batterers Reeducation
Program. Many people in small communities don't have access to
the Batterers Reeducation. In our view, in our customary and
traditional ways, we are hoping that all of our family members
will have the opportunity to be provided services. This is what
in some ways sets us apart from non-Native agencies or non-
Native communities.
We are not necessarily seeking that our tribal members be
cast off into jail or places like that, although there are some
tribes that are seeking banishment as an option. What we are
hoping for is healing, because we believe that domestic
violence and sexual assault came into our communities as an
effective of colonization and oppression.
When you look at our very small communities, they are still
very dependent on subsistence. It is very much a part of our
lifestyle to gather and be close to the earth. But we also are
faced with the challenges of not being able to receive the
transportation needed to go in for exams. Oftentimes the
weather will keep law enforcement from responding to very
critical situations. As part of our testimony, we did submit
all of the newspaper articles for the last several years that
document who our perpetrators are. In many instances they are
the very people that we are told to call upon for help.
Not too long ago, a young woman was shot in the back of her
head up in the Nome area. It later turned out that she was shot
by an Alaska State trooper. Many of our women are dependent
upon their very small community response that could happen.
Sometimes this does involve going to clergy. And if you review
these articles, you will see that in many situations clergy
have been a part of the problem as well.
The Alaska Native Women's Coalition has been trying to meet
with tribal leaders to discuss further options. Many times they
are suggesting to us that not only law enforcement, to be able
to come out, but also they are talking about solutions through
tribal court. In our small villages, tribal court sometimes
consists of our tribal councils. In other situations, it is
just a small body of elders.
So these are some of the areas that we are looking to for
solutions. Thank you.
[The prepared statement of Ms. Young follows:]
Prepared Statement of Tammy M. Young, Director, Alaska Native Women's
Coalition
On behalf of Alaska Native Women and children that are in need of
safety, we would like to thank you for your leadership in the
reauthorization of the Violence Against Women Act (VAWA). We believe
that it is imperative that the implementation of VAWA is achieved
specifically, we seek your full support and advocacy for the Tribal
Title IX--Safety for Indian Women.
The Alaska Native Women's Coalition (ANWC) is a statewide non-
profit grassroots coalition whose goal is to provide a unified voice
for Alaskan Natives against domestic violence, sexual assault and
stalking. Our membership is comprised of Alaska Native women who are
both survivors of violence and advocates for safety from such violence.
The coalition members include men and women from around the state in
rural communities--we are first responders, health care workers, tribal
chiefs and administrators, shelter workers, and other concerned
community members. ANWC provides direct victim services, court
advocacy, shelter services, and training for tribal specific issues,
among other things. Over the last several years the Alaska Native
Women's Coalition has worked to increase the safety of Alaska Native
women through gatherings on the regional and statewide level, including
local resources and state resources to dialog potential solutions and
enhance current systemic responses.
The danger Alaska Native women face is disproportionately higher
than any other population in the United States.
STATISTICS
Alaska reported 83.5 rapes per 100,000 females compared to a
U.S. average of 31.7 rapes per 100,000.
Reported cases of domestic violence in Anchorage alone
increased by 120 percent.
Alaska Natives make up 8 percent of the total population of
Anchorage yet the percentage of Alaska Native victims was 24
percent.
Alaska has one of the highest per capita rates of physical
and sexual abuse in the Nation.
In an informal poll taken in one of the off road
communities, 100 percent of the women there are or have been a
victim of domestic violence, sexual assault, or stalking.
The underlying issues for this rate of victimization are extremely
complex. In light of this we greatly appreciate your concern for and
support of Alaska Native Women.
The VAWA 1994 and 2000 recognized the importance of addressing the
unique circumstances of Native women. This historic legislation has not
only saved lives but has restored hope for hundreds of our Sisters
seeking safety from perpetrators of domestic violence, sexual assault,
and stalking. Unfortunately, we also must face the reality that many
women lost their lives to such violence over the last several years.
The 2005 VAWA legislation contained specific sections addressing the
safety of American Indian and Alaska Native women primarily providing a
tribal set aside. The Tribal Title addresses specific issues impacting
the safety of Native women. Each component represents an essential step
forward in enhancing the safety of American Indian and Alaska Native
Women.
In reviewing the Bureau of Justice Statistics report titled
``American Indians and Crime 1992-2002'' the findings reveal a
disturbing picture of the victimization of American Indians and
Alaska Natives. The rate of violent crime estimated from self
reported victimizations for American Indians is well above that
of other U.S. racial or ethnic groups and is more than twice
the national average. This disparity in the rates of exposure
to violence affecting American Indians occurs across age
groups, housing locations, and by gender. American Indians are
more likely than people of other races to experience violence
at the hands of someone of a different race, and the criminal
victimizer is more likely to have consumed alcohol preceding
the offense. Among American Indian victims of violence, the
offender was more likely to be a stranger than an intimate
partner, family member, or acquaintance. Strangers committed 42
percent of the violent crimes against American Indians during
1992-2001. An acquaintance committed about 1 in 3 of the
violent victimizations against American Indians. About 1 in 5
violent victimizations among American Indians involved an
offender who was an intimate or family member of the victim.
\1\
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\1\ Bureau of Justice Statistics--``American Indians and Crime
1992-2002.''
Rates of violent victimization for both males and females
---------------------------------------------------------------------------
were higher for American Indians than for all races.
American Indian females were less likely to be victims
compared to American Indian males.
The rate of violent victimization among American Indian
women was more than double that among all women.
American Indians were more likely to be victims of assault
and rape/sexual assault committed by a stranger or acquaintance
rather than an intimate partner or family member.
Approximately 60 percent of American Indian victims of
violence, about the same percentage as of all victims of
violence, described the offender as white.
Under Title II, Improving Services for Victims of Domestic
Violence, Sexual Assault and Stalking, there are new opportunities
through the Sexual Assault Services Program that ANWC is in full
support of. These new provisions will improve the lives of women and
children across the nation, and create new opportunities for women to
access services. Because of the rates of rape and sexual assault in
Alaska these services are essential from a health care perspective.
There are many obstacles that we face in our attempts to create a
coordinated community response (CCR) that is Alaskan Native specific.
The primary obstacle is the lack of resources at the village level.
While our Lower '48 and urban counterparts are considering non-profit
victim advocacy agencies, health care, social services, and criminal
justice systems in their development of a CCR, most Native Alaskan
communities do not have the luxury of these resources. In many villages
to have a health aide practitioner and the tribal councils who act as
the tribal court, are the community resources, additionally 75 of the
229 villages have an on-site Village Public Safety Officer or Village
Peace Officer. The Village Public Safety Officer (VPSO) has limited
authority and no place for detention of perpetrators in most
situations. Approximately 40 percent of these 229 villages have no form
of local law enforcement present in their community. The challenge for
these communities lies in getting together a team of people who can be
as impartial as possible while dealing with relatives, friends, and
acquaintances in incidents of violence against women and children.
Community members need to set the standard of behavior and create
community based solutions that restore their customary and traditional
means of living in non-violence.
Violence against women and children are being perpetuated in
communities where there exists no form of law enforcement and no local
infrastructure to address these incidents. These facts create the
dangerous reality that frequently the only people standing between
women in need of protection from a batterer or rapist is the local
community. Consequently, the life of a woman depends largely on the
local community's ability to provide immediate assistance. Given the
extreme danger created by such abusers and the remote isolation of
women, communities must develop their own village specific program
utilizing their existing local resources. The development of this local
response is the only assurance that women and often times their
children in rural Alaska are provided with the basic human right to
safety.
Although reporting has increased, victim safety, batterer
accountability and stalking still remains a big problem. Just last year
in one of our smaller villages where there exists no form of law
enforcement and where there exists no infrastructure to provide for the
basic safety of women and children, a woman was shot and killed by her
partner in a domestic abuse incident. In yet another incident in yet
another off road community, a woman was shot and killed while her
children stood helplessly by and watched. This is becoming an all too
common scenario for rural Alaska.
When an incident is reported and no one responds, this sends a
clear message to the perpetrator and the community that violence
against women is both tolerated and accepted. While there can be many
reasons that law enforcement doesn't respond, such as weather, funding,
man power and other reasons, the bottom line for women and children in
rural Alaska is they are not safe in their own homes and communities.
ANWC have been hosting conferences, meetings and teleconferencing
through which we have had many conversations with villages on what
challenges and issues they perceive as being prevalent. Through these
consistent dialogues we have ascertained that the unique issues
encountered in rural Native villages in Alaska are not being addressed.
Amongst the key challenges are the fact that ninety of the 229
communities across the state are without any form of law enforcement
and no basic infrastructure to address the incidents of violence that
is happening in their community. When there has been a perpetrator that
has been through the legal justice system in the community this creates
other, as of yet unresolved issues that overflow, into the community.
Perpetrators that are directed to Batterer's Re-Education as a part of
their sentence, often in rural communities don't have a program
available to them and the costs of living in another community and
maintaining their home and family, result in many non-compliant
offenders. ANWC is working toward several distance delivery methods and
hope to be a part of the solution for access to services for our rural
communities.
Victims are being re victimized at an alarming rate mostly due to
the fact that Native women from remote Alaskan villages have no
knowledge of the westernized judiciary system. They are losing their
children, their jobs, their homes, and forced to leave their villages
and culture due to the fact that they choose to leave an abusive
relationship or because they are in one.
We are aware of how much time and effort has gone into each of the
sections of the reauthorization language and rather than try to seek
specific sections that we support, we choose to limit our comments
because each section will improve areas of need for different parts of
the U.S., including Indian Country. We do have a couple of comments
that we hope will contribute further to improvements for Alaska Native
victims of domestic violence and sexual assault. Emergency services are
only one area of need.
1. Title VI--Housing Opportunities and Safety for Battered Women and
Children.
Title VI, Sec. 602. Request for more shelters for Alaska Native victims
of domestic violence and sexual assault.
While the rate of victimization is higher than any other population
of women in the United States, funding for essential life saving
services are inadequate. One example of this is the lack of crisis
services, such as shelters and rape crisis services which serve the
disproportionately large population of Alaska Native women victimized
(see statistics above.) And, there are only two Native run shelter
programs within the State of Alaska-one in Emmonak and ANWC's Interior
Alaska based shelter, ``Denaa Tsoo Yuh'' (Koyukon Athabascan for Our
Grandma's House), opened in January 2005.
Very few rape crisis/sexual assault services programs operate to
serve specifically Alaska Native women. Culturally specific services
are essential because we know that generally Alaska Native women prefer
and frequently will not use services that are not designed to address
their beliefs, customs and traditions.
2. Title I--Enhancing Judicial and Law Enforcement Tools to Combat
Violence Against Women.
ANWC fully supports Title I, Sec. 101 (f)(i)(2), ensuring that
training and technical assistance will be developed and provided by
entities having expertise in tribal law and culture. This same message
was echoed at our Statewide conference in Anchorage May 24-26, 2005 and
again in June of 2006. Such grassroots participation is what makes a
community's efforts successful and ultimately protects women and
children from domestic violence and sexual assault.
We request your full support for the provision of technical
assistance, as mentioned throughout the Bill, and ask that the
technical assistance be provided by those with culturally specific
knowledge. There are many excellent additions to the reauthorization of
VAWA 2005 that will benefit women across the country. ANWC fully
supports the Tribal Title IX, which includes vital provisions that will
ensure that all perpetrators of violent crimes committed against Indian
women are held accountable for their crimes; increase research on
violence against Indian women; and establishes a national tribal sex
offender registry, as well as ensuring that tribes have an opportunity
to address violence in their communities through the 10 percent tribal
set aside. In order to continue the progress of the past thirteen years
since the initial passage of VAWA, we must continue to dedicate our
resources to addressing the issues, most especially for those that are
still affected by violence each day. We appreciate that the Tribal
Title IX--Safety for Indian Women was included in the reauthorization
of VAWA. For small communities to have access to Federal funding is
imperative to providing for all women and children to have the basic
human right to safety. Thank you for all your support and dedication to
seek resources and resolutions for the ``Backbone of our Nations'' our
women.
Please feel free to contact Tammy Young, Director if the Alaska
Native Women's Coalition can be of any assistance.
Attachments
Thank you for the opportunity to offer comments on the work being
accomplished by tribes across the country. The Native Village of Anvik
has throughout the years been responsibly addressing issues that are of
concern for many villages and tribes including the safety and wellbeing
of our women and children. We are a village of approximately 800 with
only a small handful (25) from outside, but coexisting within the
confines of village life. We live on the Yukon River, which is our main
source of food and transportation to other villages. Our nearest
village is blank miles, with such and so services. We are neighbors
with blank villages and rely on each other in times of need. Village
life is cyclical in tune with nature; we survive in the ways of our
ancestors, from generation to generation. We can trace back in history
and pinpoint the intrusion of violence into our communities and the
methods that have held strong to facilitate the ongoing destruction of
healthy lives and families. We are part of a much larger picture as
well, below you will see that there are many other villages and urban
relatives that need time and attention for their unique needs and
barriers. Alaska covers an area of 586,412 square miles in the northern
part of the United States. The total population of the state is 622,000
of which approximately 98,043 are Alaska Natives living in either the
urban areas or the in the 229 tribal communities across the state. In
the most recent studies conducted by service providers in Alaska,
violence against women and children ranked amongst the highest in the
social problems that currently plagues our native communities. Alaska
has the highest rates of sexual abuse nationally and one of the highest
per capita rates of physical abuse in the nation. In Anchorage alone
from 1989 to 1998, reported cases of domestic violence increased by 120
percent. The percentage of Alaska Native victims in Anchorage was 24
percent, which is extremely high when one takes into consideration that
Alaska Natives comprise only 8 percent of the Anchorage population.
Alaska is home to 229 tribes. Of these 229 tribes, 165 are off road
communities meaning that the only way in and out is by air. Ninety-five
of these off road communities also do not have any form of law
enforcement. Violence against women and children are being perpetuated
in communities where there exists no form of law enforcement and no
local infrastructure to address these incidents. These facts create the
dangerous reality that frequently the only people standing between
women in need of protection from a batterer or rapist is the local
community. Consequently, the life of a woman depends largely on the
local communities ability to provide immediate assistance. Given the
extreme danger created by such abusers and the remote isolation of
women, communities must develop their own village specific program
utilizing their existing local resources. The development of this local
response is the only assurance that women and often times their
children in rural Alaska are provided with the basic human right to
safety.
Although reporting has increased, victim safety, batterer
accountability and stalking still remains a big problem. This same time
last year in one of our smaller villages where there exists no form of
law enforcement and where there is no infrastructure on site to provide
for the basic safety of women and children, a woman was shot and killed
by her partner in a domestic violence incident. This is becoming an all
too common scenario for rural Alaska. Murder and Suicide are very
serious situations that any prevention efforts would undoubtably save
lives. When an incident is reported and no one responds, this sends a
clear message to the perpetrator and the community that violence
against women is both tolerated and accepted.
1 of 3 American Indian and Alaskan Native women are raped in
their lifetime, and American Indian and Alaska Native women
experience 7 sexual assaults per 1,000 compared to 4 per 1,000
among Black Americans, 3 per 1,000 among Caucasians, 2 per
1,000 among Hispanic women and 1 per 1,000 among Asian
Americans.
According to the November 2000 National Institute of Justice
Report.
About 8 in 10 American Indian and Alaska Native victims of
rape or sexual assault were estimated to have assailants who
were White or Black.
According to the U.S. Department of Justice--American Indians
and Crime Report from 1999.
The Village of Anvik is thankful for the unique legal relationship
between the U.S. and Indian Tribes and trusts that the federal trust
responsibility to safeguard the lives of American Indian and Alaska
Native women through collaborative efforts between the Federal
Government and small tribes like Anvik will continue. That continued
support of sovereign efforts to provide for the basic necessity of
safety for women fleeing life threatening situations through grants
will be a continued effort of safeguarding the future of Indigenous
nations.
Anvik will continue to build their capacity to preserve the safety,
integrity, and well being of its members, especially the sacred status
of our women to live in an environment free of violence and sexual
assault.
______
Survivor Stories From Alaska Located in Tribal Communities--Presented
as Oral Testimony to the Senate Committee on Indian Affairs--September
25, 2007
Two adult tribal women, who wish to remain anonymous, have agreed
to share their experiences with the understanding that their locations
and identities will be kept confidential. Each live in one of the 95
villages in Alaska that have no immediate form of law enforcement.
These women have entrusted their stories here for the benefit of
understanding the level of danger and the circumstances that exists.
Surviving the event with minimal support from outside of their village.
These women entrusted the telling of their reality, with Tami Jerue of
Alaska Native Women's Coalition.
The first woman is married with several children between the ages
of 5 and 13; she was visiting in a nearby community from her home. She
was asleep, when the perpetrator broke into her family's home. She knew
this person; he raped her and threatened her family if she did not keep
quiet. After a few days she told her husband and other family members.
They told her to call the Troopers. There is a Trooper post some 100 to
200 air miles away from the village. She did call and reported this
incident, in detail also told Troopers who had attacked her. They did
not come out to interview her, and there has been no follow up. The
perpetrator is still walking around in the village. This incident
happened over one year ago.
The second woman, had been drinking in her home with her partner,
there were other people drinking with them. She passed out, and woke up
to find one of the men who had been drinking in the house with them,
was trying to take down her pants. She jumped up and started screaming,
she then woke up her partner, who refused or was incapable of doing
anything to respond. She called someone she considered to be safe that
was in the community to help her. She was picked up and taken to that
person's house. They called the Troopers, again in a hub community a
few hundred miles away to report the incident. This perpetrator has
been known to do this type of thing around the community, however has
never been convicted. Troopers did not come to investigate and the
perpetrator still walks around free.
The woman now says ``why bother to call, nothing ever happens.''
In the following statement from a mental health professional in
rural Alaska.
A number of studies regarding sexual assault in the United Sates
indicate that one in three females and one in five males are sexual
assaulted before they are eighteen years of age. Although generally not
identified as such this rate of sexual assault has serious and long
lasting mental and physical health ramifications.
A recent report by the Alaska Council on Domestic Violence and
Sexual Assault indicates that the Alaska rate of sexual abuse of
children is six times that of the lower forty-eight, a statistic which
should receive the alarming attention of both governmental and health
officials because of its epidemic proportions.
I have been a mental health professional in rural Alaska for more
than five years. Personal observations and discussions with various
clinicians around the State of Alaska has led me to believe that many
of the serious issues put forth in the Amnesty International report
have actually been minimized. From my own experience the response time
of the State Troopers or even OCS to an incident of reported child
abuse, domestic violence and sexual assault has been slow or in some
cases non-existent.
I have witnessed a judicial system order more time in jail for
burglary than the rape of a young girl over a four year period. Because
of these types of incidents trust in the system at large is minimal by
community members in much of rural Alaska. The result of this lack of
trust leads to frustration and to gross underreporting of incidents of
domestic violence and sexual assault. In the community I work in I
would estimate that ninety per-cent of the domestic violence and sexual
assault goes unreported to law enforcement.
Although this information only touches the surface of the problem
of sexual assault in rural Alaska it is my hope that it provides at
least some incentive for governmental, law enforcement and health
officials to act in a responsible manner to guarantee the safety and
welfare of Native women and children throughout this state.
Name withheld by request due to the confidential nature of some of
the above information.
______
Artist sues police over rape case
silook: woman says not even token attempt' made to find rapist.
Anchorage Daily News (Published: November 8, 2001)
BY SHEILA TOOMEY AND LISA DEMER
A well-known local artist says police officers who took her into
protective custody while she was in an alcoholic blackout failed to
notice she had been raped because they are prejudiced against
intoxicated Alaska Native women.
In a lawsuit filed two years after the September 1999 incident,
Susie Silook says once the assault on her was medically confirmed, the
Anchorage Police Department failed to seriously investigate it.
Silook is asking for monetary damages and an order directing the
city to train its personnel to deal with such situations.
Police spokesman Ron McGee said Wednesday that the department never
comments on pending litigation. In court papers, the city's legal staff
has asked that the suit be dismissed on a number of grounds, but has
not given its version of events. Municipal Attorney Bill Greene said
the case is in early stages and comment on the facts would be
inappropriate.
According to Silook's complaint, and police reports she provided to
reporters, she had been drinking at a number of downtown bars and a
restaurant on September 19, 1999, and doesn't remember how she ended up
at Chilkoot Charlie's in Spenard.
Sometime that night, she was raped, the suit says. But Silook had
no memory of it and did not report it to anyone that night.
At some point, Chilkoot's called the police to remove her,
apparently because she was being disruptive. Silook was taken to jail,
not under arrest, just to sober up. When she arrived, she had bruises
on her arms and blood in the crotch area of her pants.
It is unclear if she told police and corrections officers that she
had her period, or if they assumed that. Either way, it was
``deliberately indifferent'' and ``reckless'' of city officials not to
seek a medical evaluation of possible injuries, the suit says.
Two days later, after she had bathed and thrown away the bloody
clothes, a doctor determined that Silook had been raped with an object.
The bleeding was caused by a tear in her vagina, the suit says.
At that point, police initiated a rape investigation, but failed to
do all they could to identify her assailant, the suit says.
Police reports indicate an investigator subpoenaed security tapes
from Chilkoot's and interviewed several people, including Silook's
boyfriend, about events that night.
The attitude of police toward Native women who become crime victims
while drunk has been publicly questioned by activist groups over the
past year, following a series of unsolved homicides of minority women
and the capture of a serial rapist whose victims were mostly Native.
Police have responded that criminals seek out vulnerable victims
and that rape cases where a victim does not remember the attack or
attacker, or where there is no physical evidence, are very difficult to
solve and prosecute. Investigators do the best they can, police have
said.
In an interview earlier this week, Silook said police, jail
officials and staff at Chilkoot Charlie's all should have noticed and
investigated the source of blood visible on her blue jeans that night.
Police should have immediately interviewed everyone they could find
from Chilkoot's as soon as they knew they were dealing with a rape.
``I understand these cases are difficult,'' Silook said. ``But I
don't think they are impossible. There wasn't even a token attempt, I
feel, to find out what happened to me.''
In May, Silook gathered her anger and images documenting her rape
experience into a multimedia art exhibition, called ``Protective
Custody.''
``I did that show hoping to get more police involvement in the
cases of rapes and murders of Native women,'' she said. This week she
is in Indianapolis at an exhibition of her work and that of other
Native American artists, part of a fellowship that also includes a
$20,000 award.
Silook said the rape and its aftermath occurred while she was still
drinking. She has been sober for more than a year, she said.
______
Rapist dealt 30 years
deal jury trial for man who raped five native women would have been too
risky, judge says.
Anchorage Daily News (Published: February 9, 2002)
BY SHEILA TOOMEY
Serial rapist Gregory Poindexter was sentenced Friday to 30 years
in prison after a Superior Court judge decided a deal with the state
was in the best interests of his victims and the community.
In a packed, silent courtroom filled with supporters of the five
Native victims, Judge Elaine Andrews took nearly an hour to explain why
she was accepting a deal that many in the audience were opposed to.
If jurors had convicted Poindexter of all 18 original charges,
Andrews said she might have been able to give him 40 years without
risking reversal on appeal. But guilty verdicts are not a sure thing,
she said, and the state isn't sure the victims or the evidence could
withstand the pressure of multiple trials with aggressive cross-
examination.
Accepting Poindexter's plea in return for a 30-year cap on his
sentence ends the risk that he might be back on the street in a few
years.
``I have the perhaps unfortunate job to weigh evil,'' Andrews said.
Poindexter, 31, is a tall, beefy man, his physique suggesting a
football player going soft. In court Friday he wore jailhouse ``reds,''
which are reserved for troublemakers, instead of the usual blue
uniform. He sat unmoving in his chair for most of the hearing, shackled
hand and foot, eyes forward and mostly shut, not looking as two of his
victims took turns at a podium and told Andrews about the rapes and
beatings.
The only word he spoke was ``no,'' when Andrews asked if he wanted
to say anything.
The five women were raped between August 2000 and January 2001 in a
series of attacks that escalated in violence. Poindexter began by
offering victims rides, then began ``scooping them'' into his car and
beating as well as raping them, Andrews said. One woman said her face
was so damaged she still has double vision and needs more surgery.
``I felt every negative emotion a person can feel,'' she told the
judge. ``I wanted this so much to be a bad dream I wake up from.''
``This man tortured me for three hours,'' said another victim. ``I
have terrible nightmares and flashbacks. . . . This evil man hurt us
all.'' She asked Andrews to sentence Poindexter to ``a hundred years
and one day.''
Originally indicted on 18 charges, Poindexter pleaded no contest in
September to one count of sexual assault of five women, and one count
of kidnapping three of the women.
Assistant district attorney Rachel Gernat and defense attorney
Craig Howard both urged Andrews to accept the 30-year deal.
The prosecution has problems with some of the cases, Gernat said.
There is some evidence to support each charge, but perhaps not enough
to convince a jury beyond a reasonable doubt, she said.
If the state could try the cases all at once, jurors could probably
``put the puzzle together,'' Gernat said. But the defense would fight
to have at least two trials, one for cases that include a kidnapping
charge and one for cases that don't.
The rapes are ``a horrifying event that still haunts'' the victims,
Gernat said. They told their stories to a grand jury, and the state
doesn't want to make them testify again to another room full of
strangers.
Howard pointed out that most of the victims were drunk and had
trouble identifying their attacker. If the cases go to trial, it
``would be a battle royale . . . these women would have to be subject
to vigorous cross-examination'' on issues like identity and consent.
Given their intoxication at the time, they probably wouldn't be very
good witnesses, Howard said.
``I'm not inexperienced in court. If I have to, I will use whatever
abilities I have to acquit Mr. Poindexter.''
Howard also challenged anyone who suggested 30 years was a light
sentence. Gesturing to the spectators, he said, ``I know the people
behind me think he's getting some kind of sweetheart deal. He's not.''
In addition to 30 years to serve, Andrews sentenced Poindexter to
an additional 35 years of suspended time and 10 years' probation after
he gets out of prison. He can be forced to serve the suspended time if
he violates probation.
Unlike most criminals who come before her, Andrews said, nothing in
Poindexter's past suggested he would turn out to be a serial rapist. He
has a domestic violence conviction and committed a burglary that
involved taking a can of coins from a friend's house.
She ordered him to complete sex offender treatment while in prison
and warned he could lose his ``good time'' of about 10 years if he
doesn't.
After Poindexter was taken away, many spectators gathered
downstairs in the foyer of the courthouse for a drumming and chanting
circle, dedicated to Poindexter's victims and to a group of Anchorage
Native women whose murders remain unsolved, said Denise Morris, head of
the Alaska Native Justice Center, who helped organize the turnout.
Ida Nelson, one of the drummers and a friend of some victims, laced
into Howard's remarks, calling them racist. ``I think Poindexter
targeted Native women because he knew no one would stand up for them,''
Nelson said.
Despite the wish that Poindexter would be sentenced more harshly,
the victims and their friends seemed relieved the case was finished and
the culprit punished. Morris commended Andrews for taking the time to
explain ``the reasons and rationale for the sentence. I felt it was
probably reasonable based on the information she gave,'' Morris said.
______
Indian Health Service Doctors Disciplined For Sexual Misconduct
ap, the associated press
BY MATT KELLEY, ASSOCIATED PRESS WRITER
Washington (AP)-- Dr. Thomas W. Michaelis spent two months in an
Ohio prison in 1991 for trying to molest four teen-age girls.
He then worked for eight years as an obstetrician-gynecologist in
an Indian Health Service hospital in Arizona, paid $101,000 a year by
the government despite a law barring the hiring of sex offenders in
agencies serving American Indians.
IHS officials fired Michaelis last year. By then, he had examined
hundreds of women at the Phoenix Indian Medical Center after
registering with local authorities as a sex offender.
Michaelis said he told IHS officials about his convictions for
attempted molestation, but the agency hired him in 1993 anyway.
``They knew about it up front,'' Michaelis said. ``I guess they
needed a doctor eight years ago.''
At least 21 doctors who worked for the IHS between 1996 and 2001
have been punished or denied licenses by state medical boards for
offenses ranging from abusing drugs to neglecting patients who later
died, an Associated Press review of disciplinary records found.
Dr. Richard Chilian, a surgeon, had his North Dakota license
suspended in 1997 and then reinstated with restrictions after he took
20 tablets of the anti-depressant Wellbutrin and became so disoriented
he couldn't complete a surgery, according to North Dakota medical board
records.
Chilian now makes $90,549 at the Phoenix Indian Medical Center. He
said the North Dakota incident resulted from depression and IHS
officials knew that.
``They knew all about it, 100 percent,'' Chilian said. ``There was
never any attempt to cover things up.''
Officials at IHS, the federal agency charged with providing care to
1.5 million American Indians, acknowledge that background checks on
their doctors are often inadequate. It's just one of many problems they
blame on a lack of money.
``In general, there is no secretarial staff to support the medical
staff activities,'' said Dr. Craig Vanderwagen, the agency's chief
medical officer.
``Many of our people are seeing 40 patients a day or so. Then, your
attention to take care of that (background check) paperwork goes right
out the window,'' he said.
Several sanctioned doctors told AP that IHS officials knew about
their backgrounds before they were hired. Documents from the State
Medical Board of Ohio show IHS requested, and Ohio sent, records
detailing Michaelis' crimes.
IHS officials rejected a Freedom of Information Act request from AP
for records detailing what they knew before Michaelis was hired.
Likewise, IHS officials declined to discuss any specific disciplined
doctors, citing privacy concerns.
IHS managers have the power to hire doctors despite past troubles
as they try to fill vacancies that include more than 10 percent of
their physician jobs.
Vanderwagen said recruiting IHS doctors is often difficult,
especially for relatively low-paying jobs on the most remote, poverty-
ravaged Indian reservations.
Records show about 2.6 percent of IHS doctors have been punished by
state boards--a rate more than four times the average for all
government doctors and the highest of any federal agency.
In contrast, just 0.5 percent of doctors who provide care to
military veterans at Department of Veterans Affairs hospitals have ever
been disciplined.
The IHS discipline rate is about the same as the national average
for all doctors. But critics say the federal agency has an obligation
to do better--especially because Indians have suffered from substandard
health care for more than a century and are vulnerable.
``There are perpetrators out there who tend to look for the state
or county or federal systems that have loopholes,'' said Yvette Joseph-
Fox, executive director of the National Indian Health Board, which
represents tribal health officials.
``We've been haunted by these problems for more than a hundred
years . . . and for some strange reason, the perpetrators know that,''
she said.
AP identified 21 disciplined IHS doctors through state medical
board files and a database of punished doctors compiled by the consumer
watchdog group Public Citizen.
IHS doctors need only be licensed to practice medicine in one
state, not the one where they work.
For instance, Michaelis relied on his Ohio medical license even
though Arizona rejected his application. That means the only place
Michaelis could practice in Arizona was a federal facility like an IHS
hospital.
Dr. Michael D. Cerny's medical licenses have been revoked, denied
or suspended in Pennsylvania, Ohio, Iowa and Illinois for drug problems
and for tearing a woman's bladder during a hysterectomy, according to
records from the states' medical boards.
Cerny now practices at the IHS hospital in Pine Ridge, S.D.,
earning more than $103,000 a year. He holds a valid medical license in
Georgia.
Cerny did not return repeated calls to his office and home seeking
comment. Neither did Pine Ridge hospital administrator Vern Donnell.
Dr. Paula J. Colescott surrendered her Colorado medical license in
1995 after she admitted having sex with a 19-year-old patient,
according to Colorado State Board of Medical Examiners records. She
also was reprimanded in 1991 for a similar sexual relationship with
another patient, medical board records show.
Colescott, who now makes $98,310 a year at the Alaska Native
Medical Center in Anchorage, said she was upset by news coverage of the
1995 case.
``So you're going to publish again, and publicly humiliate me
again?'' Colescott said when interviewed. ``You never let it die, do
you guys? No, I am not willing to comment.''
In a written statement, Paul Sherry, chief executive of the tribal
consortium that runs the Alaska hospital, said Colescott ``meets all of
the requirements of the Medical Bylaws and Rules and Regulations to
practice as a licensed physician.''
______
Several other submitted articles have been retained in Committee
files and can be found at:
http://www.tribalnews.com/
http://www.adn.com/alaska/story/1702898p-1819699c.html
http://IndianCountry.com/?1054649768
http://www.adn.com/front/story/4325477p-4335352c.html
http://www.uaa.alaska.edu/just/rlinks/natives/index.html
http://www.adn.com/alaska/v-printer/story/4341644p-4350579c.html
http://www.adn.com/alaska/v-printer/story/4346810p-4355897c.html
http://www.adn.com/front/v-printer/story/4416837p-4409063c.html
http://www.adn.com/alaska/v-printer/story/4715310p-4665337c.html
http://www.indianz.com/News/archives/003731.asp
http://www.adn.com/alaska_ap/story/4820606p-4760255c.html
http://nativetimes.com/
index.asp?action=displayarticle&article_id=4016
http://www.adn.com/alaska/story/4982516p-4910648c.html
http://www.adn.com/alaska_ap/story/5081646p-5009291c.html
http://justice.uaa.alaska.edu/forum/f204wi04/a_rapes.html
http://www.adn.com/front/v-printer/story/5791918p-5725475c.html
http://www.adn.com/alaska/v-printer/story/6038774p-5928127c.html
http://www.adn.com/news/alaska/v-printer/story/6203267p-
6077492c.html
http://www.adn.com/news/alaska/v-printer/story/6222713p-
6097351c.html
http://www.adn.com/news/alaska/story/6335640p-6212250c.html
http://www.adn.com/news/alaska/story/6563826p-6446635c.html
http://www.sitnews.us/0805news/082405/082405_sentenced.html
http://www.sitnews.us/0805news/082405/082405_sentenced.html
http://www.adn.com/news/alaska/story/7130591p-7039083c.html
http://www.adn.com/front/story/7176631p-7086347c.html
http://www.adn.com/news/alaska/story/7202199p-7113837c.html
http://www.latimes.com/news/local/la-me-
alaskaside19nov19,1,7797805.story?coll=la-headlines-
california&ctrack=1&cset=true
http://www.adn.com/news/alaska/ap_alaska/story/7617975p-
7529778c.html
http://www.adn.com/news/alaska/crime/story/7638373p-7549948c.html
http://www.indianz.com/News/2006/014829.asp
http://www.ncjrs.gov/pdffiles1/nij/grants/215350.pdf
http://www.adn.com/news/alaska/crime/story/8218160p-8115089c.html
http://www.homernews.com/stories/012307/news_1001.shtml
http://www.adn.com/news/alaska/ap_alaska/story/8686257p-
8583319c.html
Submitted copies of the Alaska Justice Forum (Vol. 24, No. 1) and
the Alaska Rural Justice and Law Enforcement Commission 2006 Initial
Report and Recommendations are printed in the appendix.
The Chairman. Ms. Young, thank you very much for being with
us today.
Next we will hear from Ms. Karen Artichoker, who comes to
us from Rapid City, South Dakota, Director of the Sacred
Circle, Inc. Ms. Artichoker, thank you very much. You may
proceed.
STATEMENT OF KAREN ARTICHOKER, DIRECTOR, SACRED CIRCLE NATIONAL
RESOURCE CENTER TO END VIOLENCE AGAINST NATIVE WOMEN
Ms. Artichoker. Good morning. I would like to extend a
heartfelt handshake to each of you, and especially to Senator
Johnson. Many prayers were said for you and it is good to see
you looking so well.
I am the Director of Sacred Circle, which is a national
resource center to end violence against Native women, funded
through the Violence Against Women Act. But I also am a
Management Team Director for Cangleska, Inc. on the Pine Ridge
Indian Reservation, home of the Oglala Sioux Tribe, and we are
a private, non-profit organization.
I am so pleased that obviously you all are becoming more
and more educated about this issue and I agree that it is the
rare Indian woman who has escaped some form of sexual violence
in her life. We believe the statistics are low, very low, and
do not reflect the reality of the average Native woman.
I want to talk some about our local program and what we
have encountered, and in the way of our people, say it is not
our intention to offend anyone. I think we are aware that there
are some big problems here. And when we look at the processes,
and I am so pleased that we are looking at the processes,
because some of these things I am wondering could possibly be
changed quite simply, with some simple, simple adjustments. And
one of those I believe needs to be attitude and priority.
In working with Federal officials, we have encountered an
attitude that often alcohol is involved and so that seems to
diminish and negate the seriousness of the crime and the
potential for prosecution. So when we look at sexual violence,
then, for us as local women, we are looking at how do we work
with the Federal system and create reforms in that system, look
at law enforcement response throughout the woman's experience
dealing with local, tribal, police officer, BIA criminal
investigator at the Federal Bureau of Investigation, and of
course the U.S. Attorney's Office. It brings to my mind
Victoria Eagleman, on the Lower Brule Reservation, who was
murdered. And the family reported her missing, while the
Federal officials did not get involved because she was not
officially, there was no crime that had been committed.
So no Federal people were involved, the local police were
looking for her, the family started talking to the Bureau,
criminal investigators. They said, oh, you know, here's
alcohol, she drinks, she probably just took off with some guy.
She probably just headed out and she will be back. The FBI kept
saying, there is no evidence of a crime.
Well, finally, the community rallied and they searched,
horseback, ATVs, boats, because they are water people, the
community found her, 28 days later, her nude body stuffed in a
culvert a few miles out of town. The family of course
devastated, known all along that something bad had happened,
and her body, this is the particularly egregious part for me,
her body was sent to Sturgis for autopsy, the FBI accompanied
her because she was evidence. But once the autopsy was
performed, and the evidence was obtained, then they were out of
it. And the family was responsible, and they were unable to
bring her body back. So they agreed to cremation and she was
sent home via U.S. Postal Service, which was very, very counter
to our culture and respect for our family members who have
passed on.
So for us, we are looking at, we would like to build the
capacity of our local communities and our local response. We
don't believe our tribal criminal justice system is broken, it
never worked in the first place. It has never had the
opportunity to work. We are interested in talking about Federal
reforms and how we can build the capacity of our local
communities and develop community-based solutions, so that
maybe we can prevent State and Federal interventions.
Thank you.
[The prepared statement of Ms. Artichoker follows:]
Prepared Statement of Karen Artichoker, Director, Sacred Circle
National Resource Center to End Violence Against Native Women
I. Sacred Circle, National Resource Center to End Violence Against
Native Women, provides training, consultation and technical
assistance to Indian Nations, tribal organizations, law
enforcement agencies, prosecutors and courts to address the
safety needs of Native women who are battered, raped and
stalked.
For over a decade, Sacred Circle has advocated for the safety of
American Indian and Alaska Native women, by providing training,
consultation and technical assistance on how to better respond to
crimes of violence against Indian women, particularly domestic
violence, sexual assault and stalking. Sacred Circle submits this
testimony to provide written documentation to the U.S. Senate Committee
on Indian Affairs' Oversight Hearing on the prevalence of violence
against Indian women, and to provide recommendations on how to better
safeguard the lives of Indian women.
Our experience and national work with Indian women gives us the
necessary expertise to provide an accurate overview of some of the
successes and problem areas in addressing violence against American
Indian and Alaska Native women throughout the United States. Sacred
Circle is a member of numerous Federal inter-governmental committees
and various national task forces established to address violence
against women. \1\ On a tribal level, Cangleska, Inc., the mother
agency of Sacred Circle, provides advocacy to approximately 3,000 women
and children each year and approximately 2,400 men who are on domestic
violence probation as ordered by the Oglala Sioux tribal courts.
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\1\ National Task Force to End Sexual and Domestic Violence Against
Women; National Congress of American Indians Task Force to End Violence
Against Native Women; U.S. Department Of Justice Global Advisory
Committee; U.S. Department Of Justice Working Group on Federal Tribal
Sexual Assault Response; Full Faith and Credit Project; Federal Law
Enforcement Training Center Curriculum Working Group; American
Probation and Parole Association Model Protocol Working Group;
International Forensic Nurse Examiner's DNA Curriculum Development
Working Group.
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Our testimony today offers concrete recommendations to strengthen
the response of the Federal and tribal systems to increase safety for
Indian women in the context of the Violence Against Women Act of 2005.
Given the prevalence of violence against Indian women, immediate action
by the Federal Government in coordination and consultation with Indian
tribes is required to enhance the safety of Indian women and save
lives.
II. American Indian and Alaska Native women are disproportionately
victimized by violence in America due to jurisdictional gaps in
Federal law.
Over the past 10 years, Sacred Circe has learned many things about
the state of peril confronting Indian women. Indian women are battered,
raped and stalked at far greater rates than any other group of women in
the United States. This means that from the oldest to the youngest,
Indian women are being disrespected in life, and sadly many are dying
without justice or the knowledge that their granddaughters may 1 day
live free of the violence they experienced. Because Indian women are
the backbone of our societies, this violence not only destroys the
quality of life of Indian women, but it also threatens the safety and
stability of their families, communities and tribal governments.
The Department of Justice estimates that:
more than 1 out of 3 American Indian and Alaska Native women
(34.1 percent) will be raped in her lifetime and 3 out of 4
will be physically assaulted; \2\
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\2\ Patricia Tjaden & Nancy Thoennes, U.S. Dep't. of Justice, Full
Report on the Prevalence, Incidence, and Consequences of Violence
Against Women (2000).
about 9 in 10 American Indian victims of rape or sexual
assault were estimated to have assailants who were white or
black; \3\ and
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\3\ Lawrence A. Greenfeld & Steven K. Smith, U.S. Dep't. of
Justice, American Indians and Crime (1999).
17 percent of American Indian women, at least twice that of
other populations are stalked each year. \4\
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\4\ Stalking and Domestic Violence, May 2001 Report to Congress,
U.S. Dep't of Justice, Office of Justice Programs, NCJ 186157.
These statistics reflect the horrific levels of violence committed
on a daily basis against Indian women. During a single weekend at one
Indian Health Service emergency room, located at Pine Ridge, seventy
women were treated for rape trauma. It is important to note that many
victims often do not seek medical treatment, so the instances of
violence may in fact be higher than what the statistics show. It is
also important to note that violence against Indian women occurs on a
continuum of violence from simple assault to murder.
In fact, murder is the third cause of death for America Indian
women. \5\ Further, the increased number of Indian women reported
missing raises the concern that such cases should be investigated as
homicide cases until the woman is located. The systemic response to a
``missing person report'' is frequently a ``cold case file''.
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\5\ I.j.d. Wallace, A.D. Calhoun, K.E. Powell, J. O'Neill, & S.P.
James, Homicide and Suicide Among Native Americans, 1979-1992, Violence
Surveillance Summary Series, No. 2, Atlanta, GA; Centers for Disease
Control and Prevention, National Center for Injury Prevention and
Control, 1996.
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Our experiences providing services to women show that the high
levels of violence against Indian women is linked to the particular
vulnerabilities of Indian women as a population and is compounded by
the social realties facing most Indian communities in the United
States. The gaps in Federal law and inadequate resources to support
tribal justice systems allow perpetrators to commit acts of violence
again and again with little or no accountability for their crimes.
People often say that the justice system is broken. Indian women
seeking safety understand this reality. Today it is more dangerous to
report incidents of domestic violence and rape because of the
retaliatory violence that often results due to the lack of an
appropriate justice system response.
The lack of jurisdiction of Indian nations over non-Indian
perpetrators and the sentencing limitations placed upon Indian tribes
by Congress enhances the vulnerability of Indian women and the ability
of predators to target Indian women as a population. The Department of
Justice estimation that 75 percent of sexual assaults committed against
Indian women are by perpetrators of a different race \6\ indicates that
perpetrators of such violence are aware of this jurisdictional void. To
make matters worse, this jurisdictional void furthers the public
perception that Indian women are not entitled to the same protections
as non-Indian women. The prevalence and severity of violence would be
treated as an emergency if committed against any other population of
women.
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\6\ Id. at 3.
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We appreciate this Committee's decision to hold oversight hearings
on this important matter. We hope that this is merely a first step and
that the Federal Government's interest and concern will not end with
the end of this hearing. The staggering statistics of violence against
Indian women requires that the highest levels of government--Federal,
state and tribal--act in coordination to address the escalating crisis
in the lives of Indian women.
III. VAWA 2006 law enforcement provisions can enhance the ability of
Indian tribes to respond to crimes of violence against Indian
women.
The unique legal relationship of the United States to Indian tribes
creates a Federal responsibility to assist tribal governments in
safeguarding the lives of Indian women. On January 5, 2006, President
Bush signed and reauthorized the Violence Against Women Act of 2005
(``VAWA 2005''). VAWA 2005 represents landmark legislation that aims to
protect victims of domestic violence, dating violence, sexual assault,
and stalking. Contained in VAWA 2005 is the historic Title IX, Safety
for Indian Women Act. Unfortunately, 1 year and 8 months after the
reauthorization, many of the life-saving law enforcement provisions
enacted by Congress have not been acted upon.
Section 903 of Title IX provides the opportunity for consistent
consultation on a government-to-government basis between the Department
of Justice and Indian Nations. The first consultation was held at
Mystic Lake, Minnesota on September 19, 2006. The second annual
consultation was held 1 year later, this past week, on September 19,
2007 at Sandia Pueblo, New Mexico. At this most recent consultation,
Indian tribes in their comments consistently raised the concern that
little, if no, action had been taken on the questions and
recommendations from the previous year's consultation. Further, a
consistent concern raised by tribal leadership, including the Great
Plains Tribal Chairman's Association, was that the law enforcement
reform sections of VAWA 2006 have not been implemented. Attached is a
list of tribal recommendations made during the 2007 consultation.
(Attachment A). We concur with these recommendations, and we would like
to highlight the following issues:
a) Title IX, Sec. 905 (a). Tracking of Violence Against Indian Women.
Section 905(a) amends the Federal code \7\ to require the Attorney
General to permit Indian law enforcement agencies, in cases of domestic
violence, dating violence, sexual assault, and stalking, to enter
information into, and obtain information from, Federal criminal
information databases.
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\7\ Section 905(a) amends 28 U.S.C. Sec. 534, Access to Federal
Criminal Information Data bases.
---------------------------------------------------------------------------
This amendment addresses a tremendous gap that has up to now acted
to reduce the ability of tribal law enforcement to adequately respond
to domestic violence and sexual assault. Prior to the amendment, tribal
law enforcement access to the Federal criminal databases was dependent
upon access granted or denied by the state agency. The ability of
Indian tribes to enter information regarding order of protections and
convicted sex offenders, and the resulting accessibility of that
information to tribal, state and Federal law enforcement agencies, is a
matter of life and death. This is particularly true for Indian women
who have obtained an order of protection or cooperated with prosecuting
their rapist. Access to the Federal databases is also an officer safety
issue and essential to the day-to-day services provided to tribal
communities.
Although we applaud this amendment, we are concerned that it has
not been properly implemented yet. Proper implementation of this
provision requires the Department of Justice to issue guidelines and a
directive to the personnel to allow tribal law enforcement to access
the Federal criminal justice databases.
Sec. 905(a) Tracking of Violence Against Indian Women
Recommendations:
Identify which component of DOJ is responsible for
implementation of Section 905(a) and provide Indian tribes
contact information for the component;
Develop DOJ guidelines for the implementation of Section
905(a), in consultation with Indian tribes, and provide the
guidelines to Indian tribes;
Issue a statement to Indian tribes that the system is now
available for tribal law enforcement to access and enter
information into the Federal databases under Section 905(b).
b) Title IX. Sec. 908. Enhanced Criminal Law Resources.
Section 908(a) amends the Federal criminal code \8\ to expand the
Firearms Possession Prohibition to include convictions in tribal court.
It amends the Federal criminal code to include under the term
``misdemeanor crime of domestic violence'' any offense that is a
misdemeanor under tribal law.
---------------------------------------------------------------------------
\8\ Section 908(a) amends 18 U.S.C. Sec. 921(33)(a0(1), Firearms
Possession Prohibition, and 25 U.S.C. Sec. 2803(3), Law Enforcement
Authority.
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Prior to passage of this amendment, perpetrators of domestic
violence convicted in tribal court could continue to possess firearms.
This important amendment by Congress recognized the danger that Indian
women faced because of this legal loophole. Unfortunately, no training
or guidelines have been issued by the Department of Justice for
implementation of this life-saving provision.
Sec. 908(a) Enhanced Criminal Law Resources Recommendations:
Identify which component of DOJ is responsible for
developing implementation prosecutorial guidelines for Section
908(a) and provide Indian tribes contact information for the
component;
Develop implementation guidelines on Section 908(a) in
consultation with Indian tribes;
Develop and provide training on the guidelines for the
implementation of Section 908(a) to Indian tribes;
Issue a press release at the time of the first prosecution
of Section 908(a).
c) Title IX. Sec. 909. Domestic Assault by an Habitual Offender.
Section 909 amends the Federal criminal code \9\ to create a new
Federal felony for habitual offenders of domestic violence and sexual
assault. It imposes criminal penalties upon any person who: (1) commits
a domestic assault within the special maritime and territorial
jurisdiction of the United States or Indian country; and (2) has a
final conviction on at least two separate prior occasions in Federal,
state, or tribal court for offenses that would be, if subject to
Federal jurisdiction, an assault, sexual abuse, or serious violent
felony against a spouse or intimate partner, or a domestic violence
offense.
---------------------------------------------------------------------------
\9\ Section 909 amends Title 18, Chapter 17.
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Section 909 was enacted by Congress to address the reality that
domestic violence is a pattern of violence that is repeated over time.
Domestic violence increases in frequency and also in the severity of
the violence committed. The pattern of domestic violence might begin at
a misdemeanor level and escalate to a felony level of violence. Tribal
law enforcement agencies report that domestic violence is one of the
largest categories of crime within tribal jurisdiction. Domestic
violence, however, is rarely prosecuted by the United States Attorneys'
Offices. One reason for the lack of prosecution is that a single
incident of domestic violence often does not rise to the requirements
of a Federal felony, and the Major Crimes Act does not include the
crime of domestic violence. The amendment at Section 909 addresses this
gap between tribal and Federal law. This new law will allow United
States Attorneys to prosecute perpetrators of misdemeanor domestic
violence that are repeat offenders and have two prior convictions in
tribal court. It addresses an outstanding concern of tribal law
enforcement, prosecutors and courts that domestic violence perpetrators
are not being held accountable for violence committed against Indian
women.
Coordination of investigation efforts between tribal and Federal
law enforcement will be essential to the successful prosecution of
cases under this Section. Unfortunately, no training or guidelines have
been issued by the Department of Justice on implementation of this very
important Section that directly impacts the safety of Indian women.
Sec. 909 Domestic Assault by an Habitual Offender Recommendations:
Develop in consultation with Indian tribes guidelines for
the implementation of Section 909 Domestic Assault by an
Habitual Offender;
Conduct cross training for Assistant United States Attorneys
and tribal prosecutors for the investigation, charging and
prosecution of cases under Section 909;
Inform Indian tribes of the progress and steps made toward
implementation of Section 909.
IV. Research is necessary to understand the prevalence, unique
particularities and estimated cost of crimes of domestic
violence, sexual assault, dating violence and stalking
occurring against Indian women.
The Department of Justice has issued several reports on violence
against women mandated by the Acts of 1994 and 2000. Within these
reports, crimes of violence against American Indian and Alaska Native
women are given limited attention. Previous research mandated under
VAWA did not require in depth research on violence against Indian
women.
Section 904 mandates for the first time in United States history a
national baseline study reviewing the crimes of domestic violence,
dating violence, sexual assault, stalking, and murder committed against
Indian women. Such a study is essential to analyzing and creating
safety in the lives of Indian women.
Of critical importance is the establishment of a task force, as
provided by Section 903(A), to include representatives from national
domestic violence and sexual assault tribal organizations that have
decades of experience in assisting Indian women. Such a task force must
also include Indian Nations, as the governments primarily responsible
for providing emergency responses to such crimes, for providing daily
assistance to Indian women, and for monitoring offenders. Indian tribes
after tens of thousands of years maintain their inherent sovereignty
with the authority and responsibility to protect the safety of their
Indian women and the stability of their citizenry. The presence of
these representatives on such a task force will ensure the expertise
necessary to properly implement the baseline study required by Section
904.
The following recommendations are offered to maximize the
opportunity provided by Section 904:
Immediately establish, as provided by Section 904(a)(3), the
tribal task force to develop and guide implementation of the
study;
Recognize that American Indian and Alaska Native women
experience multiple incidents of violence over a lifetime and
addressing such violence requires an array of services beyond
crisis intervention;
Recognize that the failure of Federal justice systems, and
state systems where state jurisdiction has been established, to
adequately respond to violence against Native women is
demonstrated in the distinction between the number of hospital
emergency trauma center visits and the number of cases
reported, charged and ultimately convicted.
V. The new position of Deputy Director for Tribal Affairs within the
Office on Violence Against Women is a first step toward
increasing the ability of the Department of Justice to
effectively coordinate on a governmental basis with Indian
Nations and improve the response of tribal law enforcement
agencies to crimes of domestic violence and sexual assault.
The unique governmental relationship between Indian tribes and the
United States is long established by the inherent sovereignty of Indian
nations as governments that pre-existed the United States, and is
recognized in the U.S. Constitution, Supreme Court cases, acts of
Congress and Executives Orders of the President. Congress again
recognized this unique governmental relationship within the Violence
Against Women Act by statutorily including Indian tribes within various
provisions and defining Indian Tribes as eligible applicants for
certain programs under the Act from the Violence Against Women Office
within the Department of Justice. The administration of Federal
programs to tribal governments must comply with this legal context. As
such, the development of policies and grant program guidelines
according to state-based models is not only inappropriate, but also
ineffective in the creation and implementation of an effective response
to domestic violence, sexual assault and stalking against Native women.
Furthermore, in order to properly administer tribal set-aside funds, it
is necessary to keep in mind the special relationship between Indian
tribes and the Federal Government, and the confusing jurisdictional
realities in Indian country. This is also essential in the development
of appropriate model codes, protocols, public education awareness
materials, research, and training.
Increasing the response of Indian tribes and tribal law enforcement
to domestic violence and sexual assault requires understanding the
complexity of the jurisdictional maze created by Federal Indian law,
the appropriate protocol for implementing government-to-government
programmatic and administrative matters, and the management of funds
set aside for Indian Nations. The new statutorily created Deputy
Director for Tribal Affairs must be involved with any initiatives to
address and enhance the response of tribal law enforcement to domestic
violence and sexual assault. The authorities, responsibilities and
expertise of the Deputy Director will be essential to the success of
any initiative to increase the safety of Indian women and respond to
such crimes. However, we want to stress that the Department of
Justice's responsibilities should not end with the creation of this
office. This is merely an important first step among many that need to
be taken to adequately address the horrific levels of violence
perpetrated against Indian women.
VI. Conclusion.
In 1994, Congress enacted the Violence Against Women Act
recognizing the extent and severity of violence against women. Over the
last eleven years, the Act has significantly increased the ability of
Indian Nations, tribal law enforcement agencies, and advocacy
organizations to assist Indian women and hold perpetrators of domestic
violence, sexual assault, and stalking accountable for their crimes.
VAWA 2005, specifically Title IX, represents a historic turning
point in United States history in the recognition by the United States
of its unique legal responsibility to assist Indian tribes in
safeguarding the lives of Indian women. Addressing the needs and
challenges confronting Indian tribes and tribal law enforcement in
adequately responding to crimes of violence against Indian women under
VAWA 2005 requires the full involvement of all agencies in the
coordinated governmental implementation of the Act.
Given the crisis in the lives of Indian women and the present lack
of adequate resources to properly safeguard Indian women, \10\ it is
clear that more must be done at every level, from increasing funding
through the Office on Violence Against Women, to better coordinating
the handling of cases by the FBI and United States Attorneys, to
addressing the problematic release of perpetrators by the Bureau of
Prisons. If action is taken at every level, we can improve efforts to
create a more responsive Federal criminal justice system, and we can
enhance tribes' ability to safeguard their citizens and communities. In
conclusion, Federal agencies must work on a government-to-government
basis with Indian Nations, specifically tribal law enforcement,
prosecutors and courts to hold perpetrators of such crimes accountable.
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\10\ See A Quiet Crisis: Federal Funding and Unmet Needs in Indian
Country, U.S. Comm. On Civ. Rights, available at http://www.usccr.gov/
pubs/na0703/na0204.pdf.
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The advances made under VAWA 2005 have the potential to further the
progress made toward a time when the honored status of Indian women is
restored and all women will live free of violence.
The Chairman. Ms. Artichoker, thank you very much. We
appreciate your testimony.
Finally, Mr. Riyaz Kanji, from Ann Arbor, Michigan. Mr.
Kanji, you may proceed.
STATEMENT OF RIYAZ A. KANJI, KANJI AND KATZEN
Mr. Kanji. Thank you, Chairman Dorgan. I very much
appreciate the invitation to appear before the Committee this
morning. By way of a very brief background, I clerked for
Justice David Souter on the U.S. Supreme Court in the October
Term, 1994. And I have practiced and taught in the field of
Federal Indian law ever since. Much of my work focuses on the
Supreme Court's Indian law jurisprudence.
The other witnesses before this Committee this morning have
testified I think in very eloquent terms about the tremendous
problems that arise from the fact that tribes presently do not
enjoy criminal jurisdiction over non-Indians. I am here to
address the question whether this Congress has the
constitutional authority to take meaningful action in the face
of those problems by restoring to tribes the sovereign power to
exercise criminal jurisdiction over non-Indians. I think the
answer to that question, as the Supreme Court made clear in its
recent decision in the United States v. Lara case is an
emphatic yes. Lara reaffirmed several fundamental tenets of
Federal Indian law. First, that Congress has very broad powers
to legislate with respect to Indian affairs. Those powers are
grounded in what is known as the Indian Commerce Clause, which
is found in Article I, Section 8 of the Constitution. And the
Court has long described those powers as being plenary and
exclusive. Second, the Court observed that Congress has
historically exercised those powers both to restrict and in
turn to relax those restrictions on the tribe's sovereign
authority. Neither Congress nor the Court has viewed Congress'
plenary powers as being a one-way ratchet. Those powers may be
used both to expand and to contract tribal sovereignty. And
indeed, there exist no textual limitations in the Constitution
on Congress' power to restore sovereign powers to the tribes.
Third, the Court held that the ability of tribes to control
events taking place in their own territories, including through
the maintenance of the criminal justice system, is an inherent
attribute of tribal sovereignty, such that there is nothing
unconstitutional or remarkable about Congressional action
designed to restore to tribes the ability to do just that.
I think the history behind the Lara decision is
instructive. The limitations in the modern era on the tribes'
criminal powers have stemmed in significant part from two
Supreme Court decisions that predated Lara. The first of these
was the 1978 decision in Oliphant v. Suquamish Tribe, where the
Court examined an array of statutes, treaties and other legal
materials and concluded that, taken together, those legislative
and executive branch actions had operated to divest tribes of
their criminal jurisdiction over non-Indians.
In the 1990 case of Duro v. Reina, the Court likewise
concluded that the tribes had been divested of jurisdiction to
prosecute Indians who are not members of the prosecuting tribe.
The Duro decision prompted an immediate response from Congress,
which within a year enacted legislation that came to be known
as the Duro fix. That legislation provided that the tribes'
powers of self-government include the inherent power to
exercise criminal jurisdiction over all Indians. That
legislation in turn was challenged by criminal defendants who
argued that both Oliphant and Duro were constitutional
decisions that were not subject to modification by Congress.
In its 2004 decision in Lara, the Court emphatically
rejected that argument. After reaffirming the plenary powers of
Congress, the Court stated in no uncertain terms that both
Oliphant and Duro are in the Court's words, Federal common law
decisions that are subject to Congressional modification. As
the Court said, those decisions simply ``reflect the Court's
view of the tribes' retained sovereign status at the time the
Court made them. They did not set forth constitutional limits
that prohibit Congress from taking actions that modify or
adjust the tribe's status.'' I think it bears mention that the
Lara majority was joined by then Chief Justice Rehnquist, who
had authored the Oliphant decision.
Lara is subject to one very important caveat. The Court
reserved the question whether Congress can authorize tribes to
prosecute either non-Indians or non-member Indians absent the
full panoply of due process protections that apply in Federal
and State courts. Most of those protections already apply in
tribal court as well by virtue of the Indian Civil Rights Act.
But there are exceptions, most notably the right of indigent
defendants to counsel.
It is my strong view that any Congressional legislation
restoring to the tribes criminal jurisdiction over non-Indians
should include the full panoply of due process protections.
Otherwise, I think there is a strong chance that the present
Court would strike down the legislation.
Lara is an extremely important decision. A Court that is
widely viewed as being highly jealous of its own prerogatives
reaffirmed the notion that Congress has the ultimate authority
over Indian affairs, and Lara, I think, is the right decision.
The field of Federal, State, tribal relations is far too
complicated and nuanced to be ultimately controlled by the
inevitable constraints that exist on judicial decisionmaking.
The Oliphant decision, as we have heard, has contributed to
disastrous results in Indian Country. But in Lara, at least the
Court made it clear that Congress has the power to act to
improve the situation.
Thank you again for the opportunity to appear here this
morning.
[The prepared statement of Mr. Kanji follows:]
Prepared Statement of Riyaz A. Kanji, Kanji and Katzen
The Chairman. Mr. Kanji, thank you very much.
Let me ask a couple of questions and then I will call on my
colleagues. My understanding is that when on an Indian
reservation, a non-Indian commits a crime, in this case let's
describe it as violence against women, rape or sexual assault,
that that then has to be dealt with by the U.S. Attorney,
right, or law enforcement off the reservation, is that correct?
Mr. Kanji. That is largely correct, Mr. Chairman, except in
the Public Law 280 States where the States would have criminal
jurisdiction.
The Chairman. And there have been complaints to our
Committee and there have been references in research that has
been done, articles written, that often those cases are not
pursued with great vigor, those cases are not given priority.
You refer to that, Ms. Young and Ms. Artichoker, in your
testimony. Describe that and your concern about that again.
Ms. Artichoker. Well, I think there is interplay and
dynamic there. One, we have a community now that believes
nothing will be done. So there is the, we have a no reporting
problem. People are not reporting. Nothing is going to happen
anyway. And then, if you do have situations where it is
reported and I can share a personal situation where a young
woman came to me, she had been raped in her own home, in her
own bed. And she had reported it, she said the criminal
investigator told her, sounds to me like you need to change
your lifestyle.
So she came to me and she said, can you advocate for me, I
want this to go to court, I want to testify, I want to tell my
story. And so I called the FBI, and I was told that she was so
drunk she didn't know whether she gave consent or not. So this
interplay also with alcohol use and where most often we are
going to see alcohol involved in these situations. So there is
an attitude issue around alcohol use, especially on the part of
women. And then you have again how that moves down into the
community to what is the point in reporting. So we have a
domino effect.
And so we don't see them prioritizing these cases then,
because everyone is related, nobody is going to testify. In the
end, the addiction issue is going to be too great, it might
prohibit a family's really being able to support someone. So it
just goes on and on and on.
The Chairman. Ms. Young?
Ms. Young. In small communities, when women attempt to make
reports, they are oftentimes forced to give their story over
the telephone. That in and of itself creates a lot of barriers.
We have a young woman in a small village, about 150 people,
called not just once, but three different times, feeling as
though may be they didn't understand what she was explaining to
them, what had actually happened. An entire year went by and no
response other than the interview on the phone. No other person
was contacted.
When you are in a small community like that, you know who
your perpetrator is. To give some context to that, if you do
find your way to a court situation and to the sentencing piece,
I have sat in court while mothers and aunties and grandmothers
are asked for their input before the sentencing happens. And
these women are standing up and saying to the judge, please,
don't allow them to come back to our community, please when
they get out of jail, which generally is a short amount of
time.
But probation, they generally end up back in our same
communities. The perpetrator of my own daughter lives about
four blocks away from me. And on an ongoing basis, if I am in
my yard, he is sitting across the street at his aunt and
uncle's house, watching me. So not only do they have the
opportunity to stalk and prey on young women int eh community,
but afterwards they terrorize family members.
The Chairman. It seems to me that the three areas that have
been discussed here include one, the lack of adequate medical
treatment and perhaps the gathering and development of evidence
in the medical treatment shortly after a sexual assault, rape
kits and so on, the availability of all of that. Second, the
concern about the lack of aggression by investigators or the
investigation itself in some cases not taken seriously. In
other cases it is tied up over the labyrinth of issues about
who has jurisdiction and so on. And third, the concern about
the lack of aggressiveness in the prosecution or even
determining whether it will be prosecuted. Are those accurately
pretty much the three ares that are of great concern?
And then as you think about that and answer that, Ms.
Arriaga, it has been very difficult to get data or statistics
about what has happened, and Amnesty International did gather
data and statistics. Tell us how you did that? And how
confident are you in the information that you have developed?
Ms. Arriaga. Well, the data that we gathered was a
combination. Part of it was looking at what does exist and
trying to find out what exists. As I sated, some of this was
statistics that the Department of Justice does have, general
statistics that they have.
But the specifics are still severely lacking. We believe
that it is important that for data collection, that there be
much more done. As I said, there are no statistics right now on
specifically sexual violence in Indian Country or Alaska Native
villages. Federal, State and tribal authorities should be
collecting this information. The U.S. Attorney's Office should
be looking to see which cases are reported and referred, which
ones are declined and for what reasons, what the specifics are
about the case, whether the perpetrator or the victim is non-
Indian. None of that is currently taking place as far as we can
tell. Amnesty did request that kind of information from the
U.S. Attorney's Office and it was not provided to us. Perhaps
the Congress would have more success in that area to determine
whether or not this is happening in a systematic way.
In addition, there should be information that is collected
about the severity of the issue. And for this I would really
look to my colleagues here, because we relied heavily with
advocates to get a sense from their communities and from their
experience about what in fact is the reality. So much of the
research we did was based on interviews. And I know that in the
case of the Violence Against Women Act there are some specific
areas there that may speak to this. So I would really defer to
my colleagues on that as well.
The Chairman. Thank you very much.
I am going to defer to my colleagues for questions. But Mr.
Kanji, your testimony is going to be very helpful to us. And I
hope that you will remain available to us as we reach out
following this hearing to try to think through and work through
some of these issues. So I thank you very much for your
testimony.
Senator Murkowski?
Senator Murkowski. Thank you, Mr. Chairman. And to followup
with your line there in terms of the three areas that we are
breaking down, when you think about the law enforcement aspect
and the tangled mess that we have, the maze, as Amnesty calls
it, we recognize that today, this month, this year, we are
probably not going to unravel that. We desperately need to
address it.
But there are some things that I think that we can do now
that can make a difference. For instance, the collection of the
forensic evidence. If this is causing a problem or not allowing
prosecutions to go forward, and it is because we don't have the
sexual assault nurse examiner available or trained, we can do
that. If it is an issue where we don't have the professionals
that are out there, we don't have access to them, we can work
on aspects of that.
I understand, though, that part of the problem, and Ms.
Young, maybe you can address this, is that IHS nurses can get
the same training to be a sexual assault nurse examiners. But
they have to take time off from their regular duties for the
training, they have to pay their own transportation to the
training locations. So if you are coming from a small community
in southeast or out in western Alaska, and you have to fly into
Anchorage for the training and you have to pay for that out of
pocket, you and I know that you are talking $500, $600, $700
just for that, and that they then also receive no overtime pay
for what they are doing as a SANE examiner.
To me, these are barriers that keep individuals from moving
forward and saying, okay, I will help out. We need to remove
those barriers. We need to help with that.
I want to ask a question, because it has been mentioned,
Ms. Rozell, in your testimony and both Ms. Artichoker and Ms.
Young, you have spoken to it. The fact that in so many of the
communities, the villages in Alaska or on the reservations, you
are talking about close-knit communities. Everybody knows
everybody. You are related to half the people in the village.
and when violence occurs, there oftentimes is well, don't go
after him, he is Uncle So and So, or everybody knows him. And
there is a hesitancy because of that closeness.
There is also nowhere to go. In too many of our villages,
there is no road out of town. The only way out is an airplane
that is cost prohibitive. So we have geographical barriers that
are inhibiting. Do you have any suggestions for us? How do we
deal with these close-knit communities in providing for a level
of protection? When you go into the clinic for an exam, where
is your perpetrator? Are there any suggestions that you can
give us as we deal with these kinds of problems?
Ms. Young. This has been something that we have talked
about at great length. When we have the opportunity for women
to be provided an exam, a rape exam, many times they have to
leave the community. It is the only way.
Senator Murkowski. I know that in some areas we are trying
to provide transportation funding to get the woman to a hub
community so there is a safe house.
Ms. Young. Yes. In some communities there are safe homes,
and more used for the domestic violence piece than for the
sexual assault piece. One of the conversations that we have
been having is around the issue of protection orders for
victims of sexual violence, especially in small communities. Of
course, this is after the exam is happening.
One of the largest pieces for us is that in small
communities, community health aides are the only form of
medical provider. At this point in time, they have no training
to provide this. This next coming month, we will be meeting
with the trainers for the community health aides to have this
very conversation: how can we get them trained and also at what
level of liability are we talking about.
Generally speaking, when you start talking about medical,
that is the very first issue that folks want to address. Even
in the community that I live in, in Sitka, we had the
opportunity to develop a SART team, a sexual assault response
team. And it took us three and a half years of dialogue to
figure out at which hospital, because there was a non-Native
and a Native hospital. And even after all of that conversation,
the program only stayed in place for a little less than 2
years.
Senator Murkowski. Ms. Artichoker?
Ms. Artichoker. On the Pine Ridge, we just built a
beautiful new shelter. And of course, we serve victims of
domestic violence and sexual assault. And through then the
shelter, we are coordinating to get, for instance, recently a
young woman was gang raped as part of a gang initiation. Her
choices were to be assaulted physically with fists or to be
sexually assaulted. She chose to be sexually assaulted, after
which she became psychotic.
So using the shelter then, and shelter advocates, we have
become sort of the hub to refer out and would like to be able
to expand our resource base so that we could really provide
substantive services to both victims of domestic violence and
sexual assault, knowing that most women who are battered are
also victimized by sexual violence.
So we are thinking that we don't really, our communities
are small, we don't need to go the route of having a separate
domestic violence movement, a separate sexual assault movement.
We need to be able to do both. We would really like to see some
community-based pilot projects where we could have a women's
advocacy center that would provide a forensic exam, an
advocate, a mental health professional. Because quite honestly,
we do see a lot of women becoming psychotic following sexual
assault.
Senator Murkowski. You mentioned that you have a nice, new
shelter in Pine Ridge.
Ms. Artichoker. Yes.
Senator Murkowski. What is the condition of shelters in the
other areas in your state?
Ms. Artichoker. Well, in the State of South Dakota,
actually, it is quite good. We have been working as private
non-profits in our communities for many, many years.
However, the rest of Indian nations, we have only been able
to identify about 30 shelters. So that is one of the reasons
why we are constantly saying we need construction dollars, we
need to be able to build in our communities, because the
infrastructure is not there. And it is only with the help of
the Shakopee Mdewakanton Sioux community that we were able to
build our shelter.
So prior to that, we had people sleeping on the floor like
cordwood. We say like cordwood, because we had a two-bedroom
shelter. Now we can accommodate 36 people, and I think for us,
we are looking at a continuum of services, so that you can
remain in your community but in some sheltered space. We want
transitional housing. We want the capacity to shelter women for
long term so they can get the support that they need. Because
otherwise you are out there and people are nattering at you
that, how dare you, you need to not testify and there is the
family feuds that occur when these crimes are committed.
So we would really like to see a continuum of services.
Many times women will be homeless as a result of sexual assault
or domestic violence. This past summer, we had a tipi up for a
women's mental health program. We put up this tipi. We had one
woman come and ask if she and her children could live in the
tipi for the summer. We had another woman who was living down
by the creek in a tent with her children. We had one woman
living in an abandoned trailer house with her teenage son.
So the housing issue is really problematic, and it doesn't
lend to families being able to support each other in these
really stressful situations.
Senator Murkowski. Thank you, Mr. Chairman. My time is up.
The Chairman. Thank you, Senator Murkowski.
Senator Tester?
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman. I appreciate
everybody who has testified here today on an issue that is more
than just a little bit distressing. I have several questions,
and I want to say, before I get into questions that Ms. Rozell,
I particularly appreciate your testimony and the fact that you
were able to even do it. And I think it is--I can't imagine how
difficult. But I really appreciate your being able to come here
today.
I guess I will start with Mr. Kanji. And it deals with, as
I am sitting here listening to testimony, you have actions
against Indian women that could be by an Indian, by a non-
Indian, it could be on tribal land, it could be off tribal
land. Is the jurisdiction clear, or do we need to clarify that,
and can we clarify it, if it is not clear?
Mr. Kanji. Thank you, Senator.
First off, the jurisdictional problems are certainly very,
I think there is nothing clear about the jurisdiction when it
comes to criminal actions in Indian Country, partly because of
the maze of Congressional statutes and partly because of the
court decisions that I described. I think that Congress
certainly can do a great deal to help clarify the
jurisdictional situation. Because of time constraints, I
limited my remarks to one aspect of that, expanding the tribes'
criminal jurisdiction to include non-Indians.
But there are several other very important steps that
Congress could take, I think, that would help greatly in this
situation. First and foremost, as you noted, certainly a good
deal of these crimes are committed by tribal members against
other tribal members. I think the statistics suggest that the
majority are committed by non-Indians. But we certainly have an
important quota of crimes that are committed by Indian
defendants. And there the problem is that the Indian Civil
Rights Act limits tribal sentences to 1 year in jail and a
$5,000 fine. So even when a tribe is prosecuting one of its own
members for a violent crime, it is severely constrained in the
punishment that it can mete out.
And many of the terrible stories that one hears are about
tribal members in their own communities wreaking havoc and
being sentenced to jail for a year and then coming right back
out and doing it again and again and again. That is a terrible
situation and that is certainly something where Congress could
act to increase that ceiling and increase that limit.
I think Congress can also act to provide incentives for the
sort of Federal-State-tribal cooperation that has also been
discussed and that I think can be very helpful in situations
where there is inevitably going to be jurisdictional overlap. I
think there has been a great deal of success in recent years in
tribes and States forging cooperative agreements in certain
parts of the Country to work together on criminal
investigations, criminal prosecutions, the cross-deputization
of police officers being a prime example. Chairman Dorgan
referred to U.S. Attorney Troy Eid and his program in Colorado,
where Federal commissions have been provided to State and
tribal officers.
Those are all very good things. But by and large they are
happening in a very local way in certain pockets of the country
and not in others. I think if Congress were to provide
incentives for that form of agreement, cooperation, that could
be very helpful. In the State of Wisconsin, there has been a
State program where the State has provided additional funding
to those counties that enter into cooperative agreements with
tribes. And what we have seen there is that the number of those
cooperative agreements has grown exponentially. And from what I
have heard, the experience has been a very positive one. So
that is the second thing that Congress can do.
A third thing I think would be to--we haven't talked very
much about the Public Law 280 States, but the States where by
virtue of Public Law 280 the States have primary criminal
jurisdiction, even with respect to Indian territories. There
again, as with the Federal situation, the situation has been
very mixed, but we have a lot of States, counties where the
State authorities are not terribly interested in prosecuting
these kinds of crimes. And if Congress were to act to make
clear that the tribes have concurrent jurisdiction in those
situations, so the tribes can act, whether or not the States
are acting, that would again eliminate a jurisdictional problem
and provide for increased enforcement and prosecution.
Senator Tester. Thank you. I appreciate that.
I want to go to the other end of the panel. Ms. Arriaga, at
the end of your testimony you said that crimes against Indian
women were human rights abuses. Then you said that the United
States had, the way I interpreted it, signed up with other
nationalities, so to speak, but had not done anything with
Native Americans. Could you expand on that a little bit, to
give me a little better understanding of what exactly you are
talking about?
Ms. Arriaga. What I was referring to was basically
international law, which treaties we have ratified and which we
have not that are international treaties. And what
international human rights law is with regard to issues of
sexual violence. So in that category, there are several
categories that the United States has entered into that are
generally United Nations treaties that are the standard that,
the standard-setter for human rights worldwide and the guiding
post that Amnesty uses.
Amnesty International holds any government accountable to
certain standards. That is what the treaties lay out. So in
accordance with international law, these are in fact human
rights abuses. In some cases, some parts of the world, when you
talk about violence against women, it is considered cultural.
It is not cultural, it is a crime. It is an abuse.
So that is why these standards exist, so that you can
actually cut through and say, no, there are minimal standards
and we have to recognize them. So some of the treaties that the
United States has in fact ratified that apply would be, for
example, the International Covenant on Civil and Political
Rights. There may be some aspects of some other treaties that
apply, too.
One that we have not ratified is the Convention on the
Elimination of All Forms of Discrimination Against Women. One
hundred eighty-five countries have, but the United States has
not. The United States is one of eight countries that has not,
even though we were instrumental in drafting that treaty. So
that is one that looks at issues of discrimination and Amnesty
believes that discrimination is a root cause of violence. Once
you establish relationships that are unequal it becomes a lot
easier to conduct violence. So that is one of our
recommendations.
The other thing that I will mention very quickly is that
the United Nations did pass just recently, of course there is
the U.N. Declaration on the Rights of Indigenous Peoples. But
specifically in September of this year, the U.N. General
Assembly adopted the Declaration and that calls on all State
governments to, and then in quotations, ``consult and cooperate
in good faith with the indigenous peoples' concerns through
their own representative institutions in order to obtain their
free, prior and informed consent before adopting and
implementing legislative or administrative measures that may
affect them.''
So that is why Amnesty believes that the first step is to
have a genuine consultation in good faith in order to determine
with the tribal governments how to go forward.
Senator Tester. Okay. Thank you very much. I appreciate
that.
I just have--well, I have many more questions, but I am
going to limit it to one more. It was something that Tammy
Young said about the clergy being part of the problem, if that
is what I heard. I am curious to know if you can expand on that
a little bit because oftentimes that is the first place you
turn.
Ms. Young. Yes. As part of our packet that we submitted,
there was about 105 pages of news articles that have been in
the Anchorage, Fairbanks and other newspapers in Alaska.
Several of them talk about a progression of years of abuse that
both men and women as adults are coming forward.
When we talk about the effect of sexual violence and the
reality that it is a multi-generational situation for many of
our families, it is important for us to know where it is coming
from.
Senator Tester. Very good. Thank you. Once again, thank
you, Mr. Chairman. I appreciate your putting this hearing
together and the staff helping on that.
In a short close, I hope this isn't the last conversation,
I hope it is the first of many, and I hope that we come forth
with some policy initiatives that will really help, take some
serious inroads to give hope back to Indian Country in this
particular area. So thank you all for testifying.
[The prepared statement of Senator Tester follows:]
Prepared Statement of Hon. Jon Tester, U.S. Senator from Montana
Thank you for holding this important markup and hearing today, Mr.
Chairman. We address several critical issues in Indian Country;
housing, violence against Indian women and others.
I first want to recognize and thank all the folks in this room who
have been working on these bills. I know that some of you have been
working for years on them and want to thank your for dedication and
hard work. I think all of us in this room have similar goals for our
work on this Committee. And that, Mr. Chairman, is to improve
conditions in Indian Country. We don't always agree on exactly how to
accomplish those goals but, it's comforting to know that we're moving
in the right direction.
Mr. Chairman, some folks, including Montanans, do have some
concerns remaining with the NAHASDA bill. But, rather than slow down
the momentum of this critical bill, I'll vote to pass it and hope that
our staffs can work together on some report language or something to
make sure that this bill translates into better housing in Indian
Country for as many people as possible. I want to make sure that we
improve conditions for everybody; not just \2/3\ of the people, or \1/
3\ of the people, but for everybody.
Regarding the hearing this morning, Mr. Chairman, I can't thank you
enough for shedding Congressional light on this critical issue. As you
know, Indian women suffer from much greater rates of violence than non-
Indians. This is outrageous. Mr. Chairman, Indians face too many
challenges already. Indian women should not have to live in pain and
fear.
I stand committed to doing everything possible to remove this
damaging element of Indian life. I encourage everybody in this room to
continue working together closely to solve problems and improve
conditions in Indian Country. We can't afford to wait. While we
deliberate, Indians suffer. Mr. Chairman, I'm going to vote to pass
these bills today because they represent another step forward in
improving Indian Country and look forward to future work.
The Chairman. Senator Tester, thank you.
Let me just say you have, as a first term Senator, just
arrived, you have been a great addition to our Committee. We
appreciate your participation. You come from a State that has
reservations, I visited one with you and I know you care about
those issues deeply. So Senator Murkowski and I are really
appreciative of your participation.
And let me echo your comments to Ms. Rozell. It is, I am
sure, very difficult to be public about these issues. And yet I
suspect that you know that doing so is really advocating on
behalf of others who perhaps can't or won't or feel that they
are not able to do what you are able to do. So the Committee
really appreciates your being here.
The work that Amnesty International has done, I think, is
very important work. And I hope you will continue to do that,
because I think it will be very instructive for us. To Ms.
Young and Ms. Artichoker, your work at the local level is also,
I am sure, work that gives hope to some people who have
desperately needed that hope.
Mr. Kanji, we are going to call on you, we are trying to
work through this maze of contradiction and conflict to see
what could we do that could address some of these
jurisdictional issues in a way that recognizes, continues
always to recognize the sovereignty issue. But in a way that
reaches out and helps tribal governments with respect to their
law enforcement and helps victims understand that if they are
victimized, perpetrators will be brought to justice. That is
very important.
So this is another of a series of hearings that we have
held on these issues, law enforcement, violence, in this case
violence against women. And Senator Murkowski and I were just
talking about several other steps that we are hoping to take to
both gather data and develop the basis on which to consult with
tribes, which is very important to us. But second, then, reach
consensus about what those consultations could allow all of us
to do in concert that will address these issues in a meaningful
way.
Senator Murkowski, do you have any final comments?
Senator Murkowski. I do, Mr. Chairman. I think we are all
troubled, troubled is a mild word. The violence that we see
against women in this Country we know is simply not acceptable.
And I applaud those that dedicate their lief as advocates to
help end domestic violence.
But I am so troubled, Mr. Chairman, that within that sector
of violence against women that our stories, because I don't
want to even go to the statistics, we know our statistics are
what drives it, we have to have the data. But it is really the
stories of the violence directed toward American Indian and
Alaska Native women. This subset of women, where we see the
statistics doubled and tripled, to know that in my State, if
you are a Native woman, the statistics, the chances of you
being raped are two and a half times more than if you are a
non-Native woman. Same place, same people around you, but if
you are a Native, then the chances that you are going to be a
victim are that much greater.
And it hurts to hear some of the stereotypes. But we have
to figure out how we can provide for a level of protection, a
level of safety for all women. But to know that within our
American Indian and our Alaska Native communities that women
are simply not safe is just not acceptable, Mr. Chairman. I
appreciate the efforts of so many. But we have to get beyond
just saying, thank you for the good work that you do. We really
have to turn this around for the people in Alaska and the
people all over Indian Country.
The Chairman. Senator Murkowski, thank you very much.
Let me make one additional comment. I was thinking about a
hearing I held in this area, not just about women, but the area
of sexual abuse. And I held that hearing in North Dakota some
long while ago. And a young woman testified who was in charge,
on one of our reservations, of social services and various
issues related to that. And she was a woman in her mid-20's,
had just taken that job. And she began testifying and she
described a stack of folders in her office on the floor that
represented complaints, in some cases sexual violence against
children. She said the complaints have not even been
investigated, there is nobody to investigate them. And then she
said, if there is a young child who needs to go to a clinic for
some tests or some medical treatment, she said, I have to go
beg to borrow somebody's car to take them.
Then all of a sudden she stopped testifying, she broke down
sobbing and couldn't continue, just couldn't continue. She was
so struck with grief about her situation. And a month or two
later, she quit her job. But it describes why we are here and
why there is an urgency and a need for us not to ignore this,
but rather to address it. I am committed, I know Senator
Murkowski and Senator Tester are as well, to make this hearing
count and attempt to make some real progress.
I thank you very much for testifying. This hearing is
adjourned.
[Whereupon, at 10:39 a.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Charon Asetoyer, M.A. (Comanche Nation);
Executive Director, Native American Women's Health Education Resource
Center
I would like to submit this testimony for the record to the Senate
Indian Affairs Committee: Oversight Hearing to Examine Violence Against
Native American Women that was held on September 27, 2007. Violence
against women is against the law and that include crimes of sexual
violence. Our history has illustrated that patterns of sexual violence
against Native American and Alaska Native women occurs against a
backdrop of systemic discrimination against Indigenous Peoples. When a
Native woman suffers abuse, this abuse is not just an attack on her
identity as a woman, but on her identity as Native.
The Fourteenth Amendment of the U.S. Constitution guarantees all
Americans equal protection under the law. This means that the
government has a legal obligation to intervene in sexual assault crimes
against Native American and Alaska Native women just as it responds to
sexual violence against other Americans. Failure to do so would be
unconstitutional racial discrimination.
More than 1 in 3--Native American and Alaska Native women will be
raped during their lifetime. Sexual assault against Native American and
Alaska Native women is not met with uniform response and the challenges
faced by survivors at every level increases the likelihood of impunity
for perpetrators.
In January 2005 the Native American Women's Health Education
Resource Center released a report entitled A Survey of Sexual Assault
Policy and Protocols Within Indian Health Service Emergency Rooms. The
Resource Center has put together this briefing paper on emergency room
services and policies for Native American and Alaska Native women who
go to an Indian Health Service facility for assistance after a rape or
sexual assault. The findings of this survey are alarming and document a
substantial gap in services.
30 percent of Service Units surveyed reported that they do
not have policies in place for emergency services in case of
sexual assault.
70 percent of the respondents indicated they have policies.
56 percent of Service Units have their policies posted and
accessible to staff members. The statistics reflect a
discrepancy between policy and practice.
44 percent of the facilities lacked trained personnel to
perform emergency services such as the collection of evidence
done in a police rape kit. For those facilities in the lower 48
states that do not provide emergency services for sexual
assault, victims must travel long distance some over 150 miles
to receive services. This figure does not include the extreme
travel distances and challenges faced by Alaska Native women.
Indian Health Services could greatly reduce the number of sexual
assaults within our communities if they would have trained Sexual
Assault Nurse Examiners (SANE) and Sexual Assault Response Team (SART)
programs within each Service Unit. A Sexual Assault Nurse Examiner is a
registered nurse who has been specifically trained to provide care to
victims of sexual assault and is capable of conducting forensic exams.
In addition, a SANE collects the forensic evidence that is needed in
court to get a conviction that would remove these perpetrators from our
communities. Many of these perpetrators are repeat offenders and they
know that nothing is being done to remove them from the streets so they
are free to rape again and they do.
To strengthen the services provided to victims of sexual assault
Indian Health Services must adopt a set of standardized Sexual Assault
Policies and Protocols within Indian Health Service Emergency Rooms and
all clinical facilities with SANE in place. This would dramatically
reduce the number of perpetrators that on our streets.
Over the past 5 years Native American and Alaska Native women and a
coalition of national organizations have been working to develop a set
of Sexual Assault Policies and Protocols for Indian Health Service
Emergency Rooms.
In 2005 this coalition took these policies and protocols to the
National Congress of American Indians and NCAI passed Resolution #TUL-
05-101 in support of adoption and implementation of these standardized
sexual assault policies and protocols.
When Indian Health Service is asked about standardized sexual
assault policies and protocols their repeated response is that they
respect the sovereignty of Tribes and IHS does not impose standardized
policies. With the passage of this resolution, which is a collective
decision of sovereign Tribes, IHS stills does not implement
standardized sexual assault policies and protocols. This is not
respecting the decision or the sovereignty of Tribes, it is undermining
the sovereignty of Tribes to work together.
IHS does not have standardized sexual assault policies and
protocols in place; in addition the current process for approving a
witness to testify in court, which is essential in order to get a
conviction of a rapist, is so complicated that it does not occur. The
request for an IHS staff to testify in court has to go through so many
levels of approval that by the time it gets to Head Quarters it gets
lost into some kind of a ``black hole'' never to be responded to or
that it is so timely that the prosecution has no one to testify on the
evidence and the case is lost, leaving the perpetrator to rape again.
To reduce the number of rapes that occur within Native American and
Alaska Native communities the follow must happen:
1. Indian Health Service must adopt and implement Standardized
Sexual Assault Policies and Protocols.
2. Train and place existing staff to become Sexual Assault
Nurse Examiners (SANE) in all Indian Health Service Clinic
Facilities.
3. Ensure that police rape kits are available all Indian Health
Service clinics and facilities.
4. Simplify the witness testimony approval process, which
currently prohibits needed court testimony from the appropriate
medical personnel.
5. Modify the method of service unit collection data by giving
sexual assault it's own category number so there are accurate
statistics on the number of sexual assaults committed.
______
Prepared Statement of Dorma L. Sahneyah, Chief Prosecutor, Hopi Tribe
Good morning, Honorable Byron L. Dorgan, Chairman, Honorable Lisa
Murkowski, Vice Chairman, and members of the U.S. Senate Committee on
Indian Affairs, I am honored to present testimony today before the
Committee.
I bring greetings to all from the Hopi and Tewa people and Chairman
Benjamin H. Nuvamsa.
My name is Dorma L. Sahneyah. I am an enrolled member of the Hopi
Tribe and belong to the Tewa Tobacco Clan on my mother's side. I serve
the Hopi Tribe as Chief Prosecutor, a position I have held for almost
11 years after having completed my legal education at the Arizona State
University School of Law. I currently also serve as President of the
Arizona Tribal Prosecutors' Association.
The Hopi Tribe is a federally recognized tribe located in the State
of Arizona. The Hopi Reservation, which consists of 1.5 million acres
of land that extends into two counties, is located in the arid deserts
of northeastern Arizona. As with other American Indian tribes that are
located in remote areas, the Hopi Tribe faces many challenges and
obstacles in keeping our community, particularly our women and
children, safe from perpetrators of crime.
The Hopi Tribe is a non-gaming tribe that has over the past years
relied primarily on revenue from coal mining operations to support
government-based programs and services. The Tribe is however
anticipating a shortfall of almost $8 million in Fiscal Year 2008 due
to decreased revenue from the sale of coal from our lands. The Tribe is
therefore reluctant to contract under Public Law 93-638 (The Indian
Self-Determination Act) law enforcement programs from the Bureau of
Indian Affairs (BIA) because it does not have adequate tribal funding
to supplement what it anticipates will be an inadequate law enforcement
budget. The BIA therefore continues to directly administer corrections,
criminal investigations, and police services on Hopi. Today, ten BIA
police officers patrol the entire reservation, and working three shifts
means that often only one police officer is working an entire shift
alone. One criminal investigator handles all cases involving major
crime violations that are referred for Federal prosecution. Many times
Federal prosecution is declined because the cases have not been
adequately investigated.
Programs to address domestic violence and sexual assault related
issues for many tribes started after 1997 as a result of funding under
the Office on Violence Against Women. Tribal prosecution offices
benefit greatly from training opportunities from these programs and
work very hard to address the cases that police officers bring on a
regular basis. It is not unusual for my office to receive 5-7 domestic
violence cases per week. A majority does not involve serious bodily
injury and will not be referred for Federal prosecution. On the other
hand, cases that involve offenses under the Major Crimes Act many times
are not accepted for Federal prosecution.
Tribal prosecutors are facing the following types of problems in
prosecuting domestic violence and sexual assault cases in Indian
Country.
Investigations typically are based and/or centered on the
victim. The victim more often than not will recant; ask for
charges to be dismissed; write new statements blaming
themselves and/or that provide a self-defense claim for the
defendant. This unfortunately is part of the untreated victim
mentality. It is evident that more specific and extensive
training is needed for all law enforcement officers. This
should include training officers to build the case around the
victim, not on the victim. This has been referred to as
``victimless'' prosecution or ``evidence based'' prosecution.
Both require the officer to respond to domestic violence calls
through a completely different process and procedure from the
traditional police response that officers are trained to use.
Officers must approach the investigation assuming from the
outset that the victim may, for whatever reason, not be
reliable, which requires the officer to gather collateral or
circumstantial evidence in abundance.
A lack of cooperation between tribal prosecutors and Federal
agencies. This is a problem that could be solved by memorandum
from the Attorney General's office to U.S. Attorneys and the
Field Solicitor that represent and advise Federal agencies that
operate on Indian lands. They generally are reluctant to allow
Federal employees to be subjected to tribal court subpoenas.
This includes, but is not limited to, Bureau of Indian Affairs
Law Enforcement officers; Detention Officers; Dispatchers,
Indian Health Service employees, such as doctors, nurses and
other health care providers who treated the victim's injuries.
On Hopi, the local IHS administrators will not allow medical
staff to conduct sexual assault examinations, which requires
then sexual assault victims to be transported hundreds of miles
to be examined. IHS medical staff often is crucial witnesses.
These individuals work within the territorial boundaries of the
Reservation and pursuant to tribal law are under the
jurisdiction of the tribal court; however legal
representatives, generally, field solicitors, will refuse to
allow Federal employees to cooperate in the tribal court
process claiming they are exempt because they are Federal
employees. This is a ridiculous and counter-productive policy,
as well as disrespectful of tribal sovereignty and tribes'
ability to self-govern. These are archaic positions whose time
has passed. It is time for a cooperative and collective
approach to all Tribal Issues by both the U.S. and the Tribes
themselves. A practical solution is to change the Attorney
General's position and policy on these issues. Foster an
attitude of cooperation with Indian Tribes especially in cases
where the Tribes are simply attempting to solve the problems of
their communities, while the Federal Government seemingly is
attempting to thwart those efforts.
There is a substantial and seemingly intentional problem of
communication and cooperation between the U.S. Attorney's
office, Criminal Prosecution Department, Federal Law
Enforcement; and Tribal Prosecutors especially on cases where
the U.S. Supreme Court has found that both sovereigns possess
``concurrent'' jurisdiction over criminal violations that occur
on Indian lands when the suspect is Indian. When such a case is
being federally investigated, tribal prosecutors are not
privileged to any information obtained or on the progress being
made. The result of this practice is tribal prosecutors often
are not aware that there is an ongoing investigation until a
family member of the victim or the victims themselves contact
the tribal prosecutor's office inquiring on the status of the
case. This places the tribal prosecutor in a very difficult
position on several levels. First, we cannot provide any
information much less comfort our own tribal members that are
going through very difficult times. Second, our jurisdictions
generally have one to 2-year statute of limitations for filing
criminal charges in the tribal court even in rape, assault,
sexual assault, and homicide cases. Therefore, the time that
the feds have the case runs against the Tribes' time to file
charges. Third, the Indian Civil Rights Act limits Indian
tribes to can only sentence offenders to a 1-year maximum
incarceration and/or a $5,000.00 fine (maximum). Many times
after the Federal investigation has been ongoing for 6 to 8
months, the Federal investigator will forward the case to the
tribal prosecutor with the announcement that the U.S.
Attorney's office has declined to prosecute without explanation
as to the reason for declining. Tribal prosecutors then are
forced within a relatively short timeframe to build a case,
file the charges, and try to figure out where the U.S. Attorney
felt the case was so weak that they had to decline. In spite of
this, Tribal Prosecutor's have still been able to gain
convictions in these declined cases (which should raise its own
inquires). However, as stated earlier, we can only ask for a
maximum sentence of 1 year in jail and a $5,000.00 fine for
what are sometimes egregious, violent crimes. Some of the
issues identified could be remedied by simple policy changes by
U.S. law enforcement agencies that provide services to Indian
tribes. Other issues identified concerning sentencing abilities
and jurisdiction over non-Indian offenders would require
legislative action on the part of the U.S. Congress. Surely,
the day has come for redefining and strengthening ``dependent
sovereign'' in favor of the Tribes, just as it is with the
States.
Nevertheless, the movement to end domestic violence in Indian
Country has been initiated and we must not lose the momentum of change
that is happening in our villages and communities. It is therefore more
important than ever that the dialogue between Indian Nations and with
you, as representatives of the Federal Government, continue in a
respectful and meaningful way.
The intersect between economically depressed populations, high
rates of alcoholism and drug abuse, domestic violence, sexual assault,
and other similar problems and conditions present on a majority, if not
all, of our reservations is complex and will continue to require a
tremendous amount of Federal dollars to enhance our capacity to respond
to these issues. We are aware that OVW has supported demonstration
initiatives for Indian country, such as the Safety for Indian Women
from Sexual Assault Offenders Demonstration Initiative. The Hopi Tribe
patiently awaits results from this initiative and subsequent funding
opportunities to address issues we now have, including refusal of the
reservation based Indian Health Care Service Unit to provide forensic
sexual assault examination services, which has placed further demands
on already limited resources by requiring transport of victims hundreds
of miles away from the reservation and timely response to court
subpoenas for medical staff to testify in tribal court in criminal
proceedings.
The pestilence of domestic violence, sexual assault, and stalking
cannot be eliminated overnight. It is a persistent problem that needs
to be addressed on the Hopi reservation year after year through
services designed to work in a stark environment that lacks a stable
economic base and that already is plagued with other social ills. The
Federal Government must understand that it takes time and tremendous
financial resources to develop the necessary infrastructure that will
insure successful programs. The strides that have been made on Hopi are
amazing considering the challenges and obstacles that the Tribe has
faced, and continues to face, in implementing these programs.
And, just when we have managed to get our heads above water, here
comes the Adam Walsh Act with its mandates and election and
implementation timelines. Again, without adequate resources, we are
challenged with building from ground up a functioning sex offender
registration and notification system or face the risk of placing tribal
sovereignty in jeopardy. Do not assume that tribes fail to understand
the importance of having a sex offender registry system. The Hopi Tribe
elected to opted-in to the registry program as we desire our children
and people to live in protected, safe, and healthy environments;
however the Hopi Tribe unfortunately is one of the economically poorest
populations in the United States, and because of its remote location in
Arizona, its population is far removed from resources generally
available to other tribes. It is therefore not surprising that the lack
of available resources--experienced personnel, technology
infrastructure, and financial support--is the biggest obstacle the
Tribe will face in implementing requirements of the Sex Offender
Registration and Notification Act (SORNA). The challenges the Hopi
Tribe faces in complying with the Adam Walsh Act requirements include,
but are not limited to: (1) remoteness and size of the reservation; (2)
lack of tribal expertise to develop and maintain a website; (3) lack of
trained staff to deal with collection, storage and disposal of DNA
evidence; (4) use of traditional Hopi names for registration purposes;
(5) lack of a tribal sex offender registry ordinance; and (6)
collaboration with state, county, and other tribal governments on
jurisdictional-related implementation issues.
The Federal Government can play a key role by supporting and
facilitating government-to-government dialogue between the tribes and
with state agencies that will result in cooperative agreements to aid
the tribes in implementing SORNA requirements.
Lastly, it has become increasingly difficult to continue to ignore
a glaring gap in the tribal criminal justice system's ability to hold
all criminal offenders accountable. The fact that tribes are limited to
misdemeanor level authority over serious crimes committed by American
Indians only is a matter that must be discussed. The tribal courts are
restricted to imposing criminal punishments of no more than a $5,000
fine and/or incarceration for 1 year, or both. We must begin the
difficult, but necessary, discussion of enhancing the criminal
penalties and the ability of the tribes to hold non-Indian offenders
criminally accountable in tribal courts. Although, on the other hand,
many tribes are currently facing serious detention issues, including
inmate overcrowding, lack of jail facilities, dilapidating buildings
and lack of trained staff. We have been told that there is no funding
to support construction of adult and juvenile detention facilities for
offenders. The Hopi Agency Bureau of Indian Affairs correction staff
today transports inmates back and forth nearly 300 miles from the Hopi
Reservation to Flagstaff on a daily basis. Juvenile offenders are
transported for detainment to Gallup, New Mexico and Towaoc, Colorado,
300-500 round-trip miles away, and many times are turned away because
there is no available bed space. We must together find a better
solution and more efficiently utilize the funding that is supporting
the way in which this problem is being addressed.
We must admit that these are persistent problems that the tribes
need to address year after year with adequate Federal financial support
and in collaboration with state agencies We look forward to working the
U.S. Senate Committee on Indian Affairs to address crimes of violence
that are being committed against Indian women in Indian Country by both
Indian and non-Indian perpetrators alike and would be pleased to offer
knowledgeable and dedicated leadership and staff from the Hopi Tribe to
sit on a national advisory work group to address these important and
complex issues.
Thank you.
______
Prepared Statement of Helen Parisien, Shelter Manager, Bridges Against
Domestic Violence
I have been Bridges Against Domestic Violence Shelter Manager for
about eighteen months. During this period, I have worked with numerous
women, mostly Native American, from several areas including but not
limited to Minnesota, Montana, North Dakota, and primarily from
Standing Rock and Cheyenne River Reservations in South Dakota.
Although the situations vary, they have several things in common.
These include fear, emotional turmoil, transportation problems, and a
general lack of financial resources.
One of the other things that the women have in common, is their
refusal to contact law enforcement when an incident occurs. Rather,
they wait until they have an opportunity to escape many times with only
the clothes they and their children are wearing.
I have found it is not uncommon on the reservations for the
perpetrators of violence continue with their lives without fear of law
enforcement. Many times, they are living in the same house where the
violence occurred despite laws which state a woman and her children do
not need to leave a home due to domestic violence.
Due to jurisdictional issues, I have experience a disturbing
failure of law enforcement to serve protection orders on abusers. If
the protection order has not been served, the victim must resubmit the
request to the court and repeat the entire process. This results in an
unnecessary delay in helping to insure the safety of the woman and her
children and takes up an unnecessary amount of court administrative
time.
If after the second time an order is not served, the victim has a
choice of either giving up, once again receiving limited protection
under the law which is there to protect her and her family, or, begin
the process again. To say it could easily take 8 weeks or more is not
by any means an exaggeration.
One of the issues, which repeatedly arises and is a major
contributing factor in the lack of reporting, is the length of response
time or lack of response time when law enforcement is called. The
following are some of my experience since beginning work at Bridges:
I was called by the Standing Rock Police Department
concerning a woman who had been severely beaten. The officer
stated to me that if she did not enter our shelter, she would
be killed. She had numerous bruised in various stages of
healing, cuts, blackened eyes, and was wearing a cast. I asked
her if the cast was the result of this beating. She replied no.
She had received the broken arm in a beating she had gotten 2
weeks before.
I spoke to her several times a day about her situation during
her stay. In the course of those discussions, I learned that
her abuser had told her if she tried to contact the police, he
would kill her family. He also told her that since the police
were so slow, he could have her family dead before the ``cops''
would even show up.
She told me she would like to have him prosecuted on this and
we began the process. I had to make several telephone calls to
the BIA Law Enforcement in Fort Yates, ND, and was sent through
several offices before I could get through to an investigator.
By the time the investigator and a FBI Agent came to interview
the woman 6 weeks had passed. She said it was too late and,
``See, I told you.''
I received a call concerning a young woman whom reported
being physically beaten and raped. I again contacted the BIA
Law Enforcement and requested than officers come down to
investigate.
Once again, I had to make numerous calls in an attempt to get
cooperation from law enforcement and was again sent from office
to office. When I finally reached the investigator, I was told
he would be down that same afternoon to interview the victim.
He did not come down.
Another telephone call the following day said he would be down
before noon. He again did not show up. This continued until the
victim left the shelter a couple of weeks later. The police
never did do an investigation.
In continuing conversations with this woman, she told me that
she lived in daily fear of being found by her abuser.
I worked with a woman who had been severely beaten and raped
on Standing Rock Reservation just across the river from
Mobridge. After this assault, she was left along the road with
little clothing on and was told by the abusers that if she told
anyone they would kill her.
She hid in the ditches for several hours while they repeatedly
drove by looking for her. They left and she began to walk along
the highway when a passerby picked her up and brought her to
the Mobridge Police Department. She was brought to the Mobridge
Regional Hospital for care and a rape exam.
While there, the Mobridge Chief of Police repeatedly called
the Standing Rock BIA Law Enforcement requesting an officer to
come and interview her. After 4 hours, he was finally able to
speak to a BIA officer--on the telephone--and assured the Chief
of Police he would be down later.
The woman came to our shelter expecting to be interviewed. I
called the Standing Rock BIA as an officer had not come and was
told an investigator would be down the next morning. He did not
come. After yet another call later in the day, I was told the
investigator would be down that same afternoon. He did not
come.
Consequently, the woman left shelter saying that if law
enforcement was not going to do anything, she needed to leave
the area fearing that the abusers would find her and carry out
their threats.
I received a call from a woman who said her partner had
beaten her. She told me that he was in the area and that she
had already call the Standing Rock police to report it.
I received another call from her a few weeks later saying that
her partner had returned home. He had heard that she reported
him and again beat her. I asked it he had been arrested for the
first beating and she said, ``no'' and that no officer had come
to interview her either.
This last beating was more severe and resulted she be in the
hospital for life threatening injuries. Her life was saved,
however, it took almost sixteen months before he was tried in
Federal court.
While it may seem to you that these incidents are extreme, I am
sorry to say they are the norm. I could list numerous other examples in
which the same time periods and inability to contact or receive
cooperation from law enforcement have occurred. Or, in which the
victims have state they are afraid to call the police, even if they
have been severely beaten, due to the slow or complete lack of response
time. Women have a very realistic fear they may be killed while waiting
for law enforcement.
I understand that there are several reasons for the responses we
have received when working with BIA Law Enforcement, which include but
are not limited to:
1. Mobridge's location borders on the Standing Rock
Reservation. The examples listed above all occurred on the
reservation but women come to Mobridge to shelter because there
is no shelter on Standing Rock. This also places them in a
different jurisdiction whereby local law enforcement cannot
help them with the crime committed on the reservation.
In addition, it is worthy of note that if an assault occurs
here in Mobridge, many times the perpetrator will go onto the
reservation to escape prosecution and service of court papers-
another jurisdictional issue.
2. Standing Rock is a large reservation covering area in two
states, North and South Dakota. The communities within average
25-30 miles apart.
For the past few years, Standing Rock has experienced a sever
shortage of law enforcement officer. There have been numerous
times we have been told that there was only one officer on
duty. Officers may be either in the very northern part of the
reservation or out on another call. We have been told by
Standing Rock dispatch that the officer would get to a woman's
call when they have time no matter how life threatening the
situation may be.
3. Thus, it is imperative that Standing Rock BIA Law
Enforcement not only fill the present vacancies but also
consider a program review to establish more positions. Response
time by officers must be cut especially when Standing Rock
women are beaten and raped. This can only happen when there is
an adequate number of officers on duty at any given time.
4. Adequate training on the response of law enforcement to
domestic violence and sexual assault/rape needs to be a
priority for all Standing Rock law enforcement staff. Over the
past year, two trainings have been sponsored by Bridges Against
Domestic Violence for law enforcement in Mobridge and in Fort
Yates on Standing Rock Reservation. Both events were
facilitated by certified trainers and were of no cost to the
departments. Standing Rock law enforcement failed to send even
one person from their department to either of these.
Domestic violence and sexual assault/rape are an unpleasant fact on
the reservations lived out by the Native American women who live there.
In fact, when posed with the question ``Do you know of any woman in
this community who has not been beaten or raped?'' women in a small
reservation community responded they did not know of anyone.
Please do everything possible to help the women of Standing Rock
reservation be safe in their homes and hold the abusers and rapes
accountable for their crimes.
______
Prepared Statement of the Salt River Pima-Maricopa Indian Community
(SRPMIC)
Background
The Salt River Pima-Maricopa Indian Community (SRPMIC) is located
in Maricopa County, aside the boundaries of Mesa, Tempe, Scottsdale,
Fountain Hills and metropolitan Phoenix, Arizona. The enrolled
population exceeds 8,000 and the total land base is 53,600 acres and
maintains 19,000 acres as a natural preserve.
We estimate that 200,000 vehicles and 100,000 non tribal people
enter the Salt River Pima-Maricopa Indian Community on a daily basis.
Some of these individuals are here asemployees passing through to get
to and from work, for business, to utilize the retail businesses
located within the Community boundary, and we anticipate that the
majority of the vehicle and non tribal people are just passing through.
We are concerned about the potential for violent attacks against our
women and Community members in general.
Violence Against Women Act (VAWA)
In 2005, Congress reauthorized the Violence Against Women Act
(VAWA), which for the first time includes a Tribal Title (Title IX)
that seeks to improve safety and justice for Native American and Alaska
Native women, including by; carrying out a study that provides a
comprehensive understanding of the scope and nature of sexual violence
against Indigenous women and the barriers to justice Indigenous women
survivors face; and establishing a Tribal Registry to track sex
offenders and protection orders. VAWA would also provide critical
resources to tribal authorities for criminal justice and victim
services to respond to violent assaults against women. Full funding for
the Violence Against Women Act is a vital and necessary step that the
U.S. Government must take to ensure the effectiveness of these
measures. The SRPMIC has developed several programs and has approved
supplemental funding to protect our Community members.
SRPMIC Domestic Violence Program
With respect to the SRPMIC, funding ended in the year 2000. We
received funding under the STOP Violence Against Women grant program
and the Grants to Encourage Arrests program. When funding ended, the
SRPMIC absorbed the cost for funding a:
judge position dedicated to domestic violence cases.
prosecutor dedicated to domestic violence cases.
police officer dedicated to domestic violence cases.
victim's advocate to assist victims through the
administrative and judicial system.
intergovernmental task force continues to address needs of
community.
grass roots women's advocate group continues to assist and
raise awareness.
counseling is available in the school system.
mandatory domestic violence training was conducted for all
employees.
The Community sponsors awareness events, assists in obtaining
immediate shelter care, prosecutes offenders regularly, and is
supportive in the movement to end domestic violence.
1. Funding Issues
Any new funding should focus on teen violence and even reach down
to the grade school level to start awareness and promote self-esteem at
an earlier age.
A. There are specific needs related to SRPMIC Domestic Violence
Services, which are:
funding to hire personnel to provide the ongoing support
services such as the Intensive Outreach Services needed to just
begin the building of trust between the Victim and the Domestic
Violence Service Worker. That process entails numerous meetings
with the victims.
SRPMIC Male Victims who are in need of information and
assessments are now coming forward asking for assistance. Their
needs are different in numerous areas than the female victims.
There is a need for expanded services for children involved
in the domestic violence situations. Intensive services for
children can help with prevention in the repetitive cycle of
children either becoming perpetrators or victims.
B. With regards to funding under the Adam Walsh Act, the timeframe
to prepare and submit a proposal prevented some tribes from being able
to apply for funds. This short timeframe was contrary to the intent of
distributing such funding to tribes with the highest needs.
2. Enhancing the Safety of Indian Women From Domestic Violence, Dating
Violence, Sexual Assault and Stalking
A. Alternative Housing. In Indian Country the victim is remaining
in the home throughout the incidents that occur. With each additional
incident the intensity of the abuse increases leading to fatalities.
There is a need for alternative housing for either the victim or
perpetrator while services are being provided and during the
transitioning of an individual once released from a counseling program
where domestic violence was a contributing factor to substance abuse.
B. Shelter. Salt River is in desperate need of a shelter(s) that
understands the needs of the Native Community. Outside shelters create
too large of a learning curve for a Native client to be able to survive
there for a long enough period of time. Oftentimes, shelters will not
let males stay with their families, so that older sons are separated
from their families.
C. Program for Perpetrators. A Perpetrators Program needs to be
developed. We send the victim and their children to counseling but they
return to the same home without the perpetrators' behavior changing to
support the family in a healthy environment. A Perpetrators Program
would require a male and a female counselor to conduct group sessions
together, when appropriate, as well as a case manager.
3. Federal Legislation Efforts Regarding Consultation
Subsequent legislation such as the current VAWA Act continues to
keep a light shined on the need to address domestic violence. But one
consultation a year may not be adequate. Further, there may be issues
that are occur more in one region than another, so there should be
consultations that address the needs more specifically.
4. Federal Efforts Regarding Prosecution
The Department of Justice should make the prosecution of offenders
a high priority. This should be a nationwide policy with all U.S.
Attorney's Offices.
5. Re-Assumption of Criminal Jurisdiction Over Non-Indian Offenders
The Violence Against Women Act, like the Adam Walsh Act, has
extensive reach into Indian Country. Both acts deal with the safety of
women and children and the need to prosecute offenders. Both Acts put a
tremendous burden on tribes. Tribal communities are very concerned for
the safety of its members and residents. The harm being done in Indian
Country was highlighted in the recent report by Amnesty International.
The report stated that Department of Justice statistics found that:
Native American and Alaska Native women are 2.5 times more
likely to be raped or sexually assaulted than women in the USA
in general.
More than one-in-three Native women will be raped in their
lifetimes.
At least 86 per cent of perpetrators are non-Indian.
Currently, there is no tribal criminal jurisdiction over non-
Indians who commit crimes within the jurisdiction of the Indian
Community, but a tremendous burden to keep everyone safe. Travel
through and between jurisdictions heightens the problem. Arrests and
prosecution by city and Federal jurisdictions is minimal. Relationships
between the tribal governments and the U.S. Government are on a
government-to-government basis. In order to truly work toward making
communities safe, jurisdiction over offenders in domestic violence and
sex-offender registration must be returned to Indian Communities, even
if on a limited basis. A pilot project should be developed. Eligibility
should be determined on a government-to government basis, depending on
the level of services the tribal government provided.
6. Advisory Board
The U.S. Department of Justice should appoint a Native American
Advisory Board for issues that would directly impact Indian Country.
This recommendation was raised to former U.S. Attorney Alberto Gonzales
and his staff on August 27, 2007.
7. Support for Reauthorization of American Indian Health Care
Improvement Act (AIHCIA)
The reauthorization of the AIHCIA must be a priority and also
supported by the Department of Justice. Violence Against Women and
Health Care go hand in hand.
Thank you for your time and consideration of these very important
issues.
______
Prepared Statement of the U.S. Department of Justice
Introduction
The Department of Justice (``the Department'' or ``DOJ'') is
committed to helping combat violence against women in Indian Country.
While we focus on investigation and prosecution of Federal crimes, we
have a comprehensive range of efforts that include crime prevention and
the provision of services to victims and at-risk individuals.
The Department's efforts in Indian Country are led by the Federal
law enforcement agencies and the United States Attorneys. The United
States Attorneys play the central role in seeking justice in Indian
Country, and they are committed to prosecuting Federal offenses on
Indian lands to the fullest extent of the law. The investigation and
prosecution of these cases is challenging, but the United States
Attorneys continue to dedicate resources to Indian Country and to work
with tribal governments and law enforcement agencies to increase
cooperation and to find solutions. The Office of Tribal Justice, the
Office on Violence Against Women, the Civil Rights Division, the Office
of Justice Programs, the Office of Community Relations Services, and
the Environment and Natural Resources Division, among others, provide
support for these efforts. The Department also works closely with our
partners in other Federal departments and agencies and among state and
tribal authorities.
The following sections of this statement address the jurisdictional
context of the Department's efforts, describe some of the
accomplishments of the Department with regard to crime in Indian
Country generally and domestic violence specifically, and respond to
recent criticisms of these efforts.
Background
Indian Country criminal justice issues are complex because of the
unique relationship of the Federal Government to the hundreds of
tribes, whose sovereign authority we are obligated to respect. In most
areas of Indian Country, the Federal Government, Indian tribes, and
states share responsibility for prosecuting crimes, depending on the
nature of the offense and whether the victim or perpetrator of the
crime is Indian or non-Indian. \1\ Jurisdictional issues, therefore,
play a substantial role in determining the path a criminal case in
Indian Country takes. For example, first responders to violent crime
incidents in Indian Country are most often tribal or the Department of
the Interior's Bureau of Indian Affairs (BIA) police. In the case of
Public Law 280 jurisdictions, state or local police are often the first
responders to a call for assistance. Subsequent investigation of
violent crimes can be initiated by tribal investigators, state or local
detectives, BIA Criminal Investigators, or Special Agents from the
Federal Bureau of Investigation (FBI), among others, depending on the
jurisdiction. Finally, violent crimes occurring in Indian Country may
be addressed in tribal, state, or Federal court, depending on the
severity of the matter and the jurisdiction in which the crime
occurred.
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\1\ A person is considered an ``Indian'' for purposes of Federal
criminal statutes if they have Indian heritage and are recognized as an
Indian by a tribe or the Federal Government. In nearly all cases, this
is established by a person's membership in a federally recognized
Indian tribe.
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The following paragraphs provide some background on this complex
subject.
Federal criminal jurisdiction. There are two main Federal statutes
governing Federal criminal jurisdiction in Indian Country: 18 U.S.C.
Sec. 1152 and Sec. 1153. Section 1153, known as the Major Crimes Act,
gives the Federal Government jurisdiction to prosecute certain
enumerated serious offenses, such as murder, manslaughter, rape,
aggravated assault, and child sexual abuse, when they are committed by
Indians in Indian Country. Among other things, Section 1152, known as
the Indian Country or Inter-racial Crimes Act, gives the Federal
Government exclusive jurisdiction to prosecute all crimes committed by
non-Indians against Indian victims. The Federal Government also has
jurisdiction to prosecute Federal crimes of general application,
meaning those that do not require Federal territorial jurisdiction as
an element such as drug and financial crimes, when they occur in Indian
Country. Finally, the Federal Government prosecutes certain specific
offenses designed to protect tribal communities, such as bootlegging in
Indian Country, theft from a tribal organization or casino, unlawful
hunting on tribal lands, and entering or leaving Indian Country with
the intent to stalk or commit domestic abuse. The FBI, the BIA, and
tribal law enforcement share responsibility for investigating Federal
Indian Country offenses. In most cases, tribal law enforcement acts as
first responders to Federal Indian Country offenses in their
communities.
Tribal criminal jurisdiction. As part of their inherent
sovereignty, Indian tribes have jurisdiction to prosecute all crimes by
Indians in Indian Country. Tribes have exclusive jurisdiction to
prosecute minor crimes between Indians, and, under section 1152, the
option to prosecute minor crimes by Indians against non-Indians and
thereby preclude a Federal prosecution for the same offense. Tribes
also have concurrent jurisdiction to prosecute Major Crimes, although
tribes are limited by statute to imposing 1-year prison sentences and
$5,000 fines. Most tribal offenses are investigated by tribal law
enforcement or the BIA, although the FBI may investigate crimes by
Indians against non-Indians, which are often subsequently prosecuted by
tribes if the local United States Attorney's Office refers the case.
State criminal jurisdiction. States have jurisdiction to prosecute
offenses in Indian Country where both the victim and perpetrator are
non-Indian, as well as ``victimless'' crimes by non-Indians. It should
also be noted that Congress has authority to adjust criminal
jurisdiction in Indian Country, and, in some cases, has delegated
Federal responsibility for prosecuting Indian Country crimes to
particular states or with respect to specific areas of Indian Country.
As a result, under Public Law 280 and other related statutes, some
states have jurisdiction to prosecute crimes by Indians in Indian
Country, including Major Crimes and Inter-racial Crimes and even crimes
between Indians. \2\ Depending on the particular statutory scheme, that
jurisdiction may be exclusive of or concurrent with Federal
jurisdiction. State offenses are investigated by state and local
authorities, although, again, it is common for tribal law enforcement
to act as first responders to crimes in their communities, even when
they involve only non-Indians. Many tribes and local law enforcement
agencies have arranged cross-deputization or other cooperative schemes
to accommodate their shared responsibilities for and interests in law
enforcement in Indian communities.
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\2\ The jurisdictional framework applicable in Indian Country is
subject to adjustment by Congress, and Congress has done so in a number
of cases. Most notably, Public Law 83-280, 18 U.S.C. sec. 1162,
required six states--Alaska, California, Minnesota, Nebraska, Oregon
and Wisconsin--to assume jurisdiction over Indian Country crimes and
divested the Federal Government of jurisdiction to prosecute under the
Major and Indian Country Crimes Acts in those areas, while giving other
states the option to assume that jurisdiction under 25 U.S.C. sec.
1321.
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These jurisdictional issues form the background and context for DOJ
efforts in Indian Country, which we will now describe.
DOJ Efforts to Combat Crime Generally in Indian Country
Of the ninety-three Federal judicial districts, twenty-nine have
some Indian lands within their jurisdiction. Each of these districts
has at least one tribal liaison, an Assistant United States Attorney
who is responsible for coordinating Indian Country relations and
prosecutions. There are currently forty-four Assistant United States
Attorneys serving as tribal liaisons. The tribal liaisons work
diligently to identify and respond to the needs of the tribes within
their districts. Because each tribe is a sovereign, and the challenges
they face are diverse, solutions and strategies are best developed at
the local level, in close consultation with the tribal government and,
where possible, the state and local governments and the BIA.
The cases the Department prosecutes in Indian Country represent
some of our most important and challenging work. Seldom do Federal
prosecutors have the opportunity to work as closely with victims and
communities as we do in Indian Country. That said, prosecuting violent
crime, particularly sexual assault or domestic violence cases, poses
unique challenges. These cases are some of the most difficult crimes to
prosecute in any jurisdiction. By their very nature, these crimes
involve the most intimate subjects and relationships, creating unique
testimonial issues. In predominantly rural Indian Country, the vast
distances police must travel often make it difficult for officers to
timely secure crimes scenes, and thus also more difficult to collect
and preserve evidence for use at trial. These difficulties are not
reasons to forego prosecutions, only complicating factors that must be
addressed in any prosecution.
Even with these challenges, the Department's dedicated public
servants are successfully prosecuting cases in Indian Country. For
example, in FY 2006, the last complete year for which statistics are
available, the Department filed 606 cases against 688 defendants in
Indian Country. That is nearly 5 percent higher than the average since
1994 of 580 cases against 643 defendants per year. In the same year, 82
cases went to trial, 13.8 percent more than the average of 72 cases
each year since 1994. Finally, the conviction rate for Indian Country
prosecutions in FY 2006 was 89.4 percent, slightly higher than the 86.2
percent average since 1994. Approximately 25 percent of all violent
crimes investigated by United States Attorneys nationally occur in
Indian Country.
The FBI also plays a significant role in Indian Country. Even in
this time of heightened awareness of and demands on the FBI from
terrorism investigations, Indian Country law enforcement remains
important to the FBI. Notably, since 2001, the FBI has increased the
number of agents working Indian Country cases by 7 percent.
The FBI investigates serious crimes in Indian Country, including
murder, manslaughter, kidnapping, maiming, incest, assault with intent
to commit murder, assault with a dangerous weapon, assault resulting in
serious bodily injury, assault against person under age 16, arson,
burglary, robbery, felony theft, and narcotics trafficking. Currently,
two-thirds of the FBI's investigations fall into three top priority
areas: homicide, child sexual and physical abuse, and felony assaults
(including adult rape).
The FBI also utilizes the Joint Indian Country Training Initiative
with the BIA to sponsor and promote training activities pertaining to
drug trafficking. In FY 2007, the FBI will have provided more than 30
training conferences for local, tribal, and Federal investigators
regarding gang assessment, crime scene processing, child abuse
investigations, forensic interviewing of children, homicide
investigations, interviewing and interrogation, officer safety and
survival, crisis negotiation, and Indian gaming. Furthermore, the FBI's
Office for Victim Assistance dedicates 31 Victim Specialists to Indian
Country, serving 38 Indian tribes. The Victim Specialists dedicated to
Indian Country represent approximately one third of the entire Victim
Specialist work force.
Improving State, Local, and Tribal Capabilities to Fight Crime in
Indian Country
In an effort to further strengthen the criminal justice response to
crimes in Indian Country, the Department has joined with the BIA to
train and commission state, local, and tribal law-enforcement officers
so that they can properly exercise Federal jurisdiction over non-
Indians who commit Federal crimes in Indian Country. This cross
deputization, or cross commissioning, of state, local, and tribal law
enforcement increases the number of law-enforcement officials on the
ground in Indian Country--all at little or no cost to the state, local,
or tribal governments.
Although the BIA is responsible for law enforcement in Indian
Country, state, local, and tribal governments regularly assist the BIA
in responding to emergencies in Indian Country; however, the assisting
agencies often do so without the ability to fully investigate and
enforce Federal laws because the agencies lack Federal law enforcement
training and credentials. To resolve this problem, the BIA for many
years has trained tribal, state and local officers, giving them an
opportunity to take an examination and if successful, receive Federal
law enforcement commissions through the BIA. Unfortunately, many state,
local, and tribal officers were not taking advantage of this training
program, in part because of a lack of regional and local access to the
training.
Recognizing that the training program was not being fully utilized,
the Department and the BIA in February 2007 initiated a pilot program
in the District of Colorado to allow the United States Attorney's
Offices to offer local and regional training sessions. The program,
hosted by the Southern Ute Indian Tribe, consisted of a 2-day training
session ending with an optional Special Law Enforcement Commission
examination administered by the BIA to cross-commission officers. This
2-day pilot program resulted in the cross-commissioning of 40 officers,
making the program a resounding success.
In the months since the pilot program, more than 100 tribal, state,
and local law enforcement officers have been successfully trained under
this pilot program in the District of Colorado and have passed the
required BIA test for cross-deputization. Moreover, based on the
success of the pilot program, the Department initiated a ``train the
trainer'' program in August of 2007 to train Assistant United States
Attorneys serving as tribal liaisons throughout the country to offer
the cross-deputization training and test in and around their respective
districts. Also, in November of 2007, the Department and the National
Congress of American Indians (NCAI) will be sponsoring a special cross-
deputization training and testing course to be held in conjunction with
NCAI's national convention in Denver, Colorado. This course is expected
to be attended by law enforcement officers from Indian tribes across
the United States.
The Department is committed to the success of the training program,
which allows officers to cross jurisdictional lines with the ability to
fully enforce Federal statutes against those who would commit crimes in
Indian Country. With the full participation of tribal, local, and state
agencies, this program will maximize resources, thereby offering
greater protection to those living in Indian Country.
The Strategic Federal Response to Violence Against Women in Indian
Country
The Department's efforts to combat crime in Indian Country, as
described above, include the issue of domestic violence. In fact, in
November 2002, the Native American Issues Subcommittee (NAIS) of the
Attorney General's Advisory Committee of U.S. Attorneys made family
violence in Indian Country, including sexual assault against women, a
priority. In February 2003, NAIS adopted the recommendations of a
working group tasked with developing a strategic Federal response to
violence against women in Indian Country.
In response to these recommendations, members of NAIS worked with
staff at DOJ's National Advocacy Center training facility to develop
training opportunities for Federal and tribal participants focused on
domestic violence in Indian Country. The training events were held in
June 2003 in Seattle, Washington, and May 2004 in Phoenix, Arizona.
Both trainings convened tribal and Federal advocates, law enforcement,
prosecutors, and national subject matter experts to learn in a
collaborative model how to better assist domestic violence victims and
to hold offenders accountable. In January 2006, a new course was
offered for Federal prosecutors and investigators at the NAC. The
course title was ``Prosecuting Federal Sexual Assault Cases Seminar.''
This training focused on issues specific to sexual assault cases,
including medical evidence, DNA, special interview techniques, pretrial
motions, the use of expert witnesses, and crime scene investigation.
The last half-day of the training was dedicated to the investigation
and prosecution of sexual assault in Indian Country.
In addition, the majority of the NAIS legislative recommendations
were incorporated into the Violence Against Women and Department of
Justice Reauthorization Act of 2005 (P.L. 109-162), enacted on January
5, 2006. The NAIS proposals, now a part of the Act, include the
addition of tribal court convictions for misdemeanor domestic violence
under 18 U.S.C. Sec. 922(g)(9), warrantless arrest authority for BIA
officers in certain cases of domestic violence, and increased penalties
for repeat domestic violence offenders. We believe that these laws will
prove to be powerful tools in addressing domestic violence in Indian
Country.
DOJ Funding Support for Domestic Violence Prevention and Victim
Services
The Department not only prosecutes crime in Indian Country, but
also funds efforts to reduce crime in Indian Country, including Indian
Country over which the states, not the Federal Government, have primary
jurisdiction. Over the past 6 years, the Department has provided more
than $642 million to tribal governments and law enforcement agencies
through the Office of Justice Programs, the Office of Community
Oriented Policing Services, and, especially, the Office on Violence
Against Women (OVW).
At the heart of OVW's mission is the charge to help communities
across the country to develop a coordinated community response to
crimes of violence committed against women by using the force and
effect of the criminal justice system to promote victim safety and
offender accountability. Resource issues result in many tribes
struggling to provide critical criminal justice infrastructure, such as
law enforcement officers, courts, and prosecutors. Many tribes that do
operate their own criminal justice systems struggle to fully fund such
agencies. These infrastructure gaps can jeopardize the safety of all
Native Americans, including Indian women. OVW grant programs have
provided Indian tribal governments the opportunity to obtain funding to
hire dedicated criminal justice professionals who can focus their
efforts exclusively on responding to violence against Indian women.
Since its creation in 1995 following the enactment of the Violence
Against Women Act (VAWA), OVW has awarded more than $100 million to
Indian tribal governments, tribal nonprofit organizations, and tribal
coalitions to combat domestic violence, sexual assault, stalking, and
teen dating violence. In Fiscal Year 2007 alone, OVW awarded
approximately $47 million in grant funding to Indian tribes and other
non-profit organizations to address violence committed against Indian
women. OVW currently funds more than 110 tribal governments and
nonprofit organizations that serve more than 200 tribal communities.
While much remains to be done to effectively address the high rate of
sexual assault and domestic violence committed against Indian women,
OVW, since its inception, has provided an array of resources to assist
in this effort.
For example, through its Technical Assistance Initiative, OVW has
sought to provide a broad range of very practical solutions to help
tribal governments become more engaged in preventing domestic violence
and sexual assault among their members. Over the past few years, OVW
has supported several training and technical assistance events for its
tribal grantees that have focused on sexual assault. The Southwest
Center for Law and Policy, for example, has used OVW funding to support
its highly successful National Tribal Trial Training College (NTTC).
The goal of the NTTC is to provide Indian Country victim advocates,
civil legal assistance attorneys, and criminal justice, social
services, and health care professionals with the skills necessary to
improve the adjudication of violence against Indian women cases in
Federal, state and tribal courts. Previous NTTC training topics have
covered forensic and special investigation issues in sexual assault,
domestic violence, and stalking cases for tribal prosecutors and tribal
law enforcement officers; developing effective responses to the
intersection of stalking and sexual assault in Indian Country; and the
development of trial skills for Indian Country sexual assault nurse
examiners, health care practitioners, social services providers, and
victim advocates in cases of sexual assault against Indian women. The
most recent NTTC training was held in Seattle, Washington, this past
July and focused on developing the capacity of tribal court judges and
tribal court personnel to adjudicate sexual assault cases. An Assistant
United States Attorney, specializing in the prosecution of violent
crime in Indian Country, participated as faculty at this training.
In addition to tribal governments, through the Tribal Domestic
Violence and Sexual Assault Coalitions Program (Tribal Coalitions
Program), OVW funds broad anti-violence coalitions of grassroots
community organizations, often composed of affected women who assume a
leadership role in advocating for systemic change. Funding from the
Tribal Coalitions Program currently supports the operation of twenty-
two tribal domestic violence and sexual assault coalition programs
across Indian Country. The tribal coalitions funded by OVW provide
training to both Native and non-Native organizations and agencies that
serve Indian victims of domestic violence, sexual assault, and dating
violence. They also conduct public awareness and community education
campaigns in tribal communities to increase the public's understanding
of violence committed against Indian women, and provide technical
assistance to the tribal government victim services programs and tribal
nonprofit programs that make up their membership. The work that these
coalitions have done with Indian tribal government leaders and
community members, as well as Federal, state, and local leaders, to
raise awareness about violence committed against Indian women has had a
tremendous impact on national policy.
The Department also believes that access to forensic medical
examinations is critical to both the successful prosecution of sex
offenders and the recovery of victims. Ideally, all persons who report
or disclose a recent sexual assault--including Native American women--
should have access to specially educated and clinically prepared sexual
assault forensic examiners (SAFEs) who can validate and address their
health concerns, minimize their trauma, promote their healing, and
maximize the detection, collection, preservation, and documentation of
physical evidence related to the assault for potential use in the legal
system.
To advance the goal of increased access to SAFE professionals, the
Department has funded two technical assistance projects. First, OVW
entered into a cooperative agreement with the International Association
of Forensic Nurses to disseminate the Attorney General's National
Protocol for Sexual Assault Forensic Examinations (the Safe Protocol)
and to assist jurisdictions with implementation of such protocols.
Second, OVW and the National Institute of Justice jointly made an award
to the Interactive Media Laboratory at Dartmouth Medical School to
develop an advanced distance learning program, known as the SAFE
Virtual Practicum, for health care practitioners who perform or may
perform sexual assault forensic medical examinations. The SAFE
Practicum walks students through the steps of a forensic medical exam,
guided by the process outlined in the SAFE protocol. It also includes a
virtual clinic with clients and mentors, lectures, and interviews with
experts and victims. The Department anticipates that the completed
Practicum will be available to practitioners this fall.
Finally, three of the Department's Violence Against Women Act
(VAWA) grant programs fund or encourage improved access to forensic
medical exams. First, since its enactment in 1994, VAWA has mandated
that, in order to receive STOP Violence Against Women Formula Grant
Program (STOP Program) funds, states must certify that victims will not
incur the full out-of-pocket costs of forensic medical exams. 42 U.S.C.
Sec. 3796gg-4(a)(1). The Violence Against Women and Department of
Justice Reauthorization Act of 2005 amended this requirement to permit
states to use STOP funding to pay for those forensic medical exams.
This amendment took effect in Fiscal Year 2007. In addition, since the
inception of the STOP Program, states may use STOP funds for expenses
related to the forensic exams, such as purchasing rape kits and
forensic equipment, training medical professionals to perform the
exams, and witness fees for those medical professionals. Tribes are
eligible to receive STOP funds as sub-grantees of states. Second, under
the Grants to Indian Tribal Governments Program, tribes may choose to
fund forensic medical exams, including personnel, training and
equipment costs. Third, under the Rural Domestic Violence, Dating
Violence, Sexual Assault, Stalking, and Child Abuse Enforcement
Assistance Program, grantees--including Indian tribal governments and
tribal nonprofit organizations--may use program funds to improve access
to forensic medical exams.
Responses to Recent Critiques of DOJ Efforts
As discussed earlier in this testimony, the Department continues to
work with tribal governments and tribal entities to prevent and respond
to domestic violence and sexual assault in Indian Country in a variety
of ways. Recently, statistics have been cited for the proposition that
high levels of violent crime in Indian Country are not being addressed
by Federal law enforcement. These accusations are largely based on
misreadings of statistical studies that deal with a subject that is
inherently difficult to quantify. It is unfortunate that this
misunderstanding has detracted from the successful work being done by
tribal, Federal, and state prosecutors to eradicate sexual violence in
Indian Country.
One of the Department's studies that has been misunderstood in
relation to Indian Country is American Indians and Crime, A BJS
Statistical Profile, 1992-2002, which relies on the National Crime
Victimization Survey (NCVS) to provide data on the level and nature of
victimization among American Indians in the general population. \3\
Although American Indians and Crime is a significant publication, the
data in the report primarily reflect the experience of Native Americans
living outside of Indian Country. Less than one-third of 1 percent of
households in the NCVS sample are occupied by Indians residing in
Indian Country. This sample size is insufficient to produce a reliable
estimate. Thus, the statistics in that report cannot, and do not, speak
to crime occurring in Indian Country. Instead, the report is reflective
of those crimes occurring outside of Indian Country, an area in which
Federal jurisdiction is limited by the Constitution and the Congress.
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\3\ American Indians and Crime, A BJS Statistical Profile, 1992-
2002 is available at: http://www.ojp.usdoj.gov/bjs/abstract/aic02.htm.
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In addition, even considering the unreliable sample size of
households in Indian Country, the NCVS cannot generate estimates of
violence on reservations, in tribal communities, or on trust lands
because the sampled households in NCVS are derived from geographic
units that include reservations, but do not uniquely identify them.
Moreover, during NCVS interviews, Native Americans self-identify
themselves, but do not provide details of tribal affiliation. As a
result, the NCVS sample is not reflective of Indian Country and can
only provide estimates of victimization rates among American Indians
residing off the reservation, where the states, not the Federal
Government, are responsible for general crimes of violence.
That said, the Department recognizes the need for better data on
crime occurring in Indian Country and, consequently, has increased its
efforts in this field. The Bureau of Justice Statistics (BJS) is
working with State Statistical Analysis Centers (SACs) to generate
State Based Tribal Crime Reports. BJS has actively sought to generate
estimates that compare tribal (reservation or tribal community) crime
to jurisdictions adjacent to the reservations. This localized
comparison provides a truer picture of criminal activity on tribal
lands than does an aggregated national average that is possibly skewed
for a variety of factors. BJS is currently working with BIA to obtain
such data from six states (including data from 40 tribes) in the West.
In addition, the Department is currently in the process of
establishing a task force to assist the Department in conducting a
National Baseline Study to Examine Violence Against Women in Indian
Country under VAWA 2005. The members of the task force will possess a
broad and varied knowledge of the complexities of Federal Indian law,
the nature of domestic violence, dating violence, sexual assault, and
stalking committed against American Indian and Alaskan Native women,
and the cultural considerations that must be observed when conducting
research in tribal communities. OVW is working to ensure that the
proposed nominees will maintain a geographic balance representative of
many of the challenges unique to Indian Country. In creating the task
force, the Department is taking steps to ensure that the task force is
established as a Federal advisory committee under the provisions
established by the Federal Advisory Committee Act.
This task force will assist the National Institute of Justice (NIJ)
in the development and implementation of a national baseline study to
examine violence against Indian women in Indian Country. In particular,
the NIJ study will examine the types and magnitude of violence against
women in Indian Country; will evaluate the effectiveness of Federal,
state, and local responses to violence against native women; and will
propose recommendations to increase the effectiveness of these
responses. Within the study, the crimes that will be reviewed include
domestic violence, sexual assault, dating violence, stalking, and
murder.
Finally, statistics alone do not convey the on-the-ground reality
of DOJ's efforts. For example, many districts with Indian Country
responsibilities have dedicated specific task forces, government-to-
government meetings, or multidisciplinary teams organized to work
cooperatively with the tribes on issues related to sexual assault.
Moreover, significant liaison work performed by Assistant United States
Attorneys and victim's advocates with the tribes is not susceptible to
statistical description.
Conclusion
The Department of Justice recognizes and is committed to helping
meet the law enforcement challenges in Indian Country, including in the
area of domestic violence and sexual assault. The Department believes
that each tribe, as a sovereign government, is best positioned to craft
sustainable, culturally appropriate, and effective solutions to the
diverse problems they face. However, the Federal Government is a vital
partner in these efforts, and the Department will continue to work with
tribes, state and local law enforcement, and the Department of Interior
to meet these challenges.
______