Published June 20, 2016 on Civic Ideas | By Clare Church
NEW YORK – When a Native American woman is raped, her case can easily disappear into a jurisdictional black hole.
“Over and over again, we see that nothing happens,” said Kristen Ruppel, associate professor of Native American Studies at Montana State University. “Some women have been found in a ditch and that’s it. That’s as far as it goes.”
In the debates that address the unpunished rape of Native American women, questions swirl around the possible reasons behind it and the potential policy solutions to stop it. Some tribes, including the Fort Peck Reservation in Montana, are confronting the jurisdictional complications that enable impunity through cooperation agreements between tribal and county police.
Legal loopholes often prevent the arrest of suspects, native or non-native, for the sexual abuse of a Native American. According to the U.S. Justice Department, one in three Native American women report being the victim of attempted or completed rape in their lifetime, whereas the national average is one in six. Only 6% of the reported rapes against Native American women result in arrest. Comparatively, 21% of the reported rapes against women nationally result in an arrest, according a 2013 FBI report. The disparity in justice for Native American women is in part due to the inconsistencies that regulate tribal jurisdiction.
Jurisdiction over a crime committed on a reservation varies according to the race of the perpetrator, the race of the victim and the severity of the crime. If a Native American woman is raped by a non-native, only the FBI can arrest and prosecute. If the perpetrator is native, the tribal police have this responsibility. Jurisdiction on reservations fluctuates among the federal, state, municipal, county and tribal police based on legal technicalities.
According to reports from Vice, Native American Roots, Amnesty International and the Daily Kos, some sexual offenders seek out reservations due to the gaps in jurisdiction, in a phenomenon that is known as rape tourism.
Timothy Purdon, former U.S. Attorney General for North Dakota, says that jurisdictional confusions are a factor in the high-crime rates against women on tribal lands. “It is a horrible thing; it is made more horrible when there is a jurisdictional confusion,” said Purdon. “If the local officers don’t know them [the perpetrators], they don’t know who has jurisdiction. This adds a real uncertainty to this and a whole other level of complexity to what is already a complex situation.”
To combat the jurisdictional disparity, Fort Peck reservation in Montana made cross-deputization agreements with municipal, county and state police. Cross-deputization circumvents exclusive jurisdiction laws by giving tribal police the authority to arrest non-natives, and municipal, county and state police the authority to arrest natives in the Fort Peck area.
Montana Wilson, former tribal prosecutor and defender for Fort Peck’s tribal courts, said that in 2000, “We deputized state officers, the county officers and the municipalities as tribal police. So even though they are not paid by us, they are still deputized as tribal police. And in turn our tribal police have been deputized by state police.”
The cross-deputization agreements, according to Wilson, have improved communication and cooperation between the different levels of law enforcement. “Our law enforcement is pretty well versed in working together,” Wilson said.
Now, if a Native American woman is raped on the Fort Peck reservation, she can report to the tribal, state or federal police, regardless of the race of the perpetrator. No longer is legal jurisdiction of the crime determined by whether or not the victim knows the race of her abuser.
Wilson confirms that the cross-deputization agreements have been a positive policy move for the tribe. “When this agreement went into place, we started cooperating and sharing resources with the state,” he said. “That really helped pull down the cost of law enforcement for both non-natives and natives, and helped with response times.” Wilson states that the cross-deputization agreement also helps with making arrests and conducting investigations.
Most recently, this coordination across jurisdictional lines aided in the arrest and conviction of Joseph Dean Lee. On Jan. 28, a Native American woman living on the Fort Peck reservation dialled 911 and reported that she was raped by Lee, a resident of the nearby town of Scobey. The FBI and Fort Peck tribal police cooperated and coordinated resources with one another, and within four months Lee was convicted. On April 20, Lee was sentenced to nine years in prison. Lee’s conviction is a rare moment of justice for Native American rape victims in the United States.
Fort Peck is the only reservation in Montana to maintain cross-deputization agreements. Elsewhere across the United States, the discussion of whether to follow suit is widespread. The Navajo reservation has three cross-deputization agreements in place, with Apache County in Arizona and the McKinley and Socorro counties in New Mexico. In December 2015, the Pokagon Band of Potawatomi Indians and St. Joseph County in Indiana entered discussions to create a similar working relationship.
The prospect of cross-deputization is not welcomed by all. Also in Montana, residents of the Crow Reservation and Big Horn County are currently in a heated debate surrounding possible implementation. Proponents of cross-deputization say the agreements will prevent criminals from using the jurisdictional entanglements to evade the law. Opponents say the agreements will limit tribal jurisdiction, by granting outside police forces the ability to arrest natives on reservation land. Conrad J. Stewart, of the Crow Nation legislature, said, “Cross-deputization, to me, is having an outside entity come in and do our job for us. I’m totally against that.”
Limitation of tribal jurisdiction is nothing new. Native Americans have suffered a severe loss to their human and cultural rights since colonialism. In a more recent example of this limitation, the Supreme Court’s 1978 decision in the Oliphant v. Suquamish Indian Tribe case stripped reservations of the rights to prosecute any non-native accused of a criminal offense on reservation land. To many academics and tribal policymakers, Oliphant v. Suquamish is the very core of the jurisdictional confusions and high-crime rates against Native American women. Montana State University’s Kristen Ruppel said that the decision in that case “spawned all sorts of literal horrors within the reservations.”
The increasing limitation of tribal sovereignty since makes cross-deputization and cooperation among the tribal, state, and federal police a hard proposal to sell to tribal policymakers. Skeptics of cross-deputization can point to this history of mistrust between reservations and the state and federal governments. Ruppel said, “There is such a deep history of mistrust, for good reasons. That is just one of those issues.”
Matika Wilbur is producing an art and advocacy piece called Project 562, for which she photographs and interviews citizens of each federally recognized tribe in the United States. She addresses this history of mistrust in both her art and her advocacy. “Our native women and all of our native people have suffered from severe trauma,” said Wilbur. “We’ve been relocated, we’ve experienced forced assimilation and our ancestors experienced the genocide that has been profoundly life-altering.”
While cross-deputization may manage the result of a sexual assault, it may not prevent the assault from occurring. Wilson, a proponent of cross-deputization, says that the solution to the rape of Native American women must be addressed before an arrest is even made. “What’s not the solution, I believe, is waiting until they [the sexual perpetrators] land in the criminal justice system to start treatment.” Wilson advocates for preventative action when it comes to the rape of Native American women. He further said “I don’t view the justice system as a way to reduce sexual assault; I view it as a way to manage the result of sexual assault.”
Although cross-deputization has been successful for the Fort Peck Reservation, one approach may not suit the diverse tribes across the United States. The way forward is quite literally up for debate.