Share this on Twitter Share this on Facebook Share this on Linked In Share this by Email
MCLE Self-Assessment Test

Protecting Native American women
from violence is an uphill battle

By Diane Curtis
Staff Writer

Native American Women ilustrationDomestic violence and sexual assaults are complicated crimes in any setting, but in California Indian Country, the opportunities for confusion, errors and misunderstanding in reporting, prosecuting and counseling are even greater.

Jurisdiction isn’t always clear. Distrust of law enforcement outside the reservation is widespread. Tribal police and courts sometimes lack the authority they need to see that justice is done. Data is not easily exchanged between different law enforcement groups. Many of the crimes are committed in very isolated areas difficult to reach by non-tribal police or sheriff’s deputies.

At the same time, the problem is exacerbated because Native American women experience 2.5 times more sexual assaults than women in other ethnic groups, according to Department of Justice statistics. One out of three Native American women is raped, and, although data collection could be improved, some statistics show that as many as 80 percent of the perpetrators are not Native Americans, and thus not subject to tribal justice.

“Violence against women in Indian Country is an epidemic,” wrote Michigan State University Law Professor Matthew Fletcher in a 2009 paper written for the American Constitution Society for Law and Policy.

Obstacles to addressing the epidemic in California present special problems because California is what is known as a Public Law 280 state ― a state in which jurisdiction for civil and criminal matters on reservations was transferred from the federal government to state government. “The obstacles presented by Public Law 280 to address sexual assault relate to data collection, training or awareness, lack of resources targeted at tribal communities, lack of well-funded tribal police departments, animosity toward tribal communities and lack of reporting from tribal community members,” says a December 2007 report of the Tribal Law and Policy Institute.

Many of those obstacles are being tackled, sometimes with great success, through state, local and tribal partnerships, but much still remains to be done, say two administrators in the California Attorney General’s Office, Olin Jones, director of the Office of Native American Affairs, and Deborah Bain, director of the Victim Services Unit.

Connie Reitman, executive director of the Inter-Tribal Council of California Inc., agrees that progress has been made but that both the tribal community and local law enforcement and providers of support services still need to be educated about the best ways to respond to domestic violence issues in general and victims who are Native American in particular and also about jurisdictional authority. Law enforcement outside the reservation, she says, is more responsive than in the past, but response times can be long just by virtue of sheriff’s departments located 30 to 50 miles ― often via rough, one-lane roads ― from victims. When deputies arrive, the perpetrator may have left the scene or talked the victim out of pressing charges.

Staffers at a Mendocino County victim advocacy program say they still experience reluctance by local law enforcement to cite batterers or issue protective orders. “This victim isn’t going to follow through; won’t go to court, will deny they’ve been beaten up,” a deputy will tell the victim advocates as a reason for not taking action. Law enforcement wants to be “judge and jury” ― at least with Native Americans, one staffer said. When the victim is not a member of a tribe, it’s easier to see justice done, the staffer said.

At the same time, Native American victims may be reluctant to make a formal complaint for a number of other reasons. Many women are afraid their children will be taken from them if they get involved with government social services because of the experiences of their ancestors. Joyce Moser, program coordinator for the Humboldt County District Attorney Victim Witness Program and a member of the Yurok Tribe, says her mother told her of being taken from her family and put in a boarding school designed to assimilate Native American children into European-American culture. They were punished if they spoke their native language, their hair was cut, they were given Anglo names and were often treated like servants. “That pain is still there,” said Moser. “Spirit wounds take time to heal.” More recent experiences at women’s shelters where native customs and beliefs are not respected also keep battered Native American women from seeking help.

Other Native Americans say they like to take care of their own issues on the reservation, that there is the feeling that neither the victims nor perpetrators will be treated like other members of other races in the state court system and that the punishments may not reflect their values and beliefs. They also point out that violence against women is most often caused by non-Native Americans and that such behavior has never been a part of Indian culture.

Another problem for tribal authorities is that they cannot arrest non-Native Americans for violent crimes. “When we have non-Indian people, spouses or otherwise, living on the reservation, the frustration is we have very little authority to protect the victims,” said Cynthia Gomez, a tribal court judge at Shingle Springs Rancheria. The lack of jurisdiction with non-Native Americans “allows the perpetrator to get more violent and it inhibits the Native American women from reporting the violence. That’s problematic for our community.”

But there have been moves in the right direction. The Obama Administration is including the right of tribal authorities to arrest non-Indians in the reauthorization of the Violence Against Women Act. California's Administrative Office of the Courts’ Center for Families, Children & the Courts launched the Native American Communities Justice Project in 2008 to assess the needs of Native American victims of family violence in California and to improve the administration of justice for those victims. One especially positive result of that project, say tribal judges, is acceptance and input into the statewide database of restraining orders issued by tribal courts.

Richard Blake, chief judge of the Hoopa Tribal Court and presiding judge of the Smith River Rancheria Tribal Court, is part of a pilot program in which restraining and protective orders are shared between the state and tribal courts. It’s a program that Blake had worked on at a more local level with the Humboldt County district attorney and sheriff’s deputies to great effect since 2003. In the past, he said, a deputy sheriff might have been given a restraining or protective order but would ignore it because he didn’t believe he was obligated to enforce a tribal court order. Working with the local authorities, the orders began to be accepted. With the state program in place through the Administrative Office of the Courts, the process is easy, Blake said. Tribal orders now look similar to those issued by state agencies and deputies are comfortable with them. “We’re able to issue those orders and know we’re in the system,” Blake said. The Judicial Council is scheduled to consider expanding the pilot project to all of California next year. Blake also said it has helped that tribal police are “cross-deputized” Humboldt county sheriff’s deputies. Judges in Shingle Springs and Imperial County echoed Blake’s report of progress.

Moser, of the Humboldt County District Attorney’s Office, said building trust is a huge part of working with tribes to fight domestic violence together. “Never promise anything that you have no plans in following through,” she says. “You have to be consistent and truthful. Sometimes we had only three people (at the monthly meeting with local agencies and the tribes) but we kept going. I think we were being put to the test.”

“There’s still a long way to go,” says Bain of the California Attorney General's Victim Services Unit. But she and others are encouraged by progress that has been made with the coalitions formed throughout the state with tribes and law enforcement, especially in San Diego, Riverside, Humboldt and Butte counties; with the additional training for tribal and local police and sheriff’s deputies and social service workers on laws and cultural sensitivity; with more outreach to victims on the reservations where they live; with more grants from the federal government to address the problem; and with recognition by the state courts and federal government that laws and policies need to be changed if the high rates of domestic violence against Native American women are going to abate.

Lester Marston, the Blue Lake judge and Ukiah lawyer, however, thinks the problem could be successfully addressed more quickly. He is blunt about who needs to take responsibility if the problem is to be addressed:

“Tribal governments need to get the issue on their radar screen ,” he says. “It’s an issue of priorities. If tribal self-government means anything, it means Indian people themselves must come up with a solution.” The ability to issue restraining orders that are enforced is a step in the right direction, Marston agrees, “but it’s not enough . . . You go to an Indian reservation and everybody knows what’s going on with the compact process or online poker or water rights or, if you’re a leasing tribe, land leases. Those kinds of things are talked about every single day. Sexual assault and domestic violence need to be given that same priority . . . Where there’s a will, there’s a way.”