An Epidemic of Violence: Nebraska's Tribes Lack Legal Power to Protect Their People

(Photo illustration by Hilary Stohs-Krause, NET News)
Native American women living on reservations face rates of domestic and sexual violence much higher than the national average. (Photo by Hilary Stohs-Krause, NET News)
Shari Patton is director for the Winnebago Tribe of Nebraska domestic violence intervention program. (Photo by Hilary Stohs-Krause, NET News)
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April 9, 2013 - 6:30am

The recent expansion of the federal Violence Against Women Act has been hailed as a milestone for Native women in the fight against domestic abuse and sexual assault. But it’s unlikely the law will have nearly as much impact on Nebraska’s tribes as it will in other states.

President Obama spoke to resounding applause last month at the signing ceremony for the expanded Violence Against Women Act, the recent reauthorization of which included provisions specifically targeting Native American women. 

An Epidemic of Violence, part 1

"Nebraska Native Women Struggle to Break the Cycle"

When it comes to solving the crisis of sexual assault and domestic abuse on Nebraska's reservations, legislation can only do so much; the roots of violence run deep, and many factors have contributed to the current epidemic.

VAWA’s immediate changes

The biggest provisional change for Native Americans outlined in the Violence Against Women Act – tribal jurisdiction over non-Native abusers – doesn’t take effect for two years, though tribes who meet the requirements early can apply for a pilot program that would grant them jurisdiction sooner, said Deborah Gilg, U.S. attorney for the district of Nebraska and chair of a national task force on violence against Native women.

However, she said, some changes take effect immediately:

  • VAWA broadens the federal stalking statute to include electronic communication.
  • It increases terms of imprisonment for assault by striking, beating or wounding from six months to a year.
  • The statute for assault with intent to commit murder has been broadened to also include an assault with intent to commit aggravated sexual assault.
“Indian Country has some of the highest rates of domestic abuse in America,” Obama said at the VAWA signing; national tribal and federal statistics estimate that one in three Native American and Alaska Native women will be raped in their lifetimes; 40 percent will face domestic violence.

“And one of the reasons is that when Native American women are abused on tribal lands by an attacker who is not Native American, the attacker is immune from prosecution by tribal courts," Obama continued. "Well, as soon as I sign this bill, that ends.”

If only it were that simple.

While media coverage of VAWA has been overwhelmingly positive, for Nebraska’s tribes, it’s much more a symbol than a solution ... at least, right now.

“That portion of the VAWA Act, on improving prosecution against non-Natives, that doesn’t even take effect for two years,” said Deborah Gilg, the U.S. Attorney for District of Nebraska. Gilg is the chair of a national task force on violence against Native women, and was herself abused as a child.

Repeated attempts to speak on the record with tribal court officials from all three of Nebraska’s tribes – the Santee, Omaha and Winnebago – were unsuccessful.

On paper, VAWA would allow for tribes to prosecute non-Native people who commit domestic abuse or sexual assault of Native people on reservation land. Seems fairly straightforward, but it’s actually quite complicated, especially in this state.

A long road

For one, there are several key requirements tribes have to meet before they can exercise jurisdiction over non-Native perpetrators, Gilg said. They have to ensure a licensed criminal defense attorney is available, for free, to defendants, which two of Nebraska’s three reservations currently do. Tribes’ law codes and court rules must be made publically available; only the Winnebago have done this.

One of the most controversial requirements?

“One really big hurdle is that under VAWA, you have to include Indians and non-Indians in jury pools,” said Jill Finken, a liaison between the U.S. Attorney’s office and the tribes. She prosecutes cases of domestic abuse and sexual assault on the reservations, and said the jury provision highlights one of the more broad challenges with regard to VAWA: some of the new regulations are pretty vague.

“There’s a lot of requirements that could be interpreted in a number of different ways.”  

Non-Native attackers

The Native American-focused portions of the reauthorized Violence Against Women Act specifically address non-Native attackers. Why?

“Non-Native perpetrators against women is a significant problem on the reservation, and it was something that definitely needed to be addressed,” said Deborah Gilg, U.S. attorney for the district of Nebraska and chair of a national task force on violence against Native women.

She said it’s hard to find reliable statistics, but the National Congress of American Indians reports among Native women who are victims of assault, an average of 63 percent describe the offender as non-Native; among Native women victims of rape or sexual assault, an average of 67 percent describe the offender as non-Native. Before VAWA, tribes had no jurisdiction to charge such offenders in court. Bear in mind, this is for Native women nationally, and not isolated to reservation territory.

Some of the criticism lodged at this provision has argued it gives too much power to tribal courts over non-tribal members, but it only applies to non-Natives with strong community ties to a reservation.

“If you live in Sioux City, Iowa, which is close to (the Winnebago reservation), and you never come to Winnebago, it’s not like just by driving through there, all of a sudden, you’re subject to tribal court law,” explained Jill Finken, a prosecutor who works as a liaison between the U.S. attorney’s office and Nebraska’s tribes. “But if you live on the reservation and you work on the reservation as a non-Native, to me it makes sense that you would be subject to the tribal laws.”

Some tribes in other states like Minnesota have reported problems with non-Native perpetrators coming to the reservation specifically to victimize Native women, who are strangers to them. In cases like these, where it’s rape by a non-Native stranger, the tribe would not be granted jurisdiction to prosecute the attacker. But overall, such situations are not the norm; an unpublished report from the National Criminal Justice Reference Service found for 71 percent of rapes and sexual assaults against Native women, the victims knew their perpetrator – and according to U.S. Census data, 59 percent of Native women were in relationships with non-Native men as of 2010, much higher than the interracial marriage rate for non-Native women (23 percent).

While it varies greatly from reservation to reservation, nationally, 46 percent of people living on reservations in 2010 were non-Native, according to the U.S. Census Bureau. All this data, even if you assume some of it’s flawed, indicates jurisdiction over non-Native abusers of Native women could potentially have a significant impact. 

-Hilary Stohs-Krause, NET News

For example, does the jury regulation mean domestic abuse cases against non-Native attackers must feature a jury with non-Native members? Or do tribes only have to include non-Native members in the pool from which jury members are selected?

The Winnebago tribe is the furthest along in Nebraska in terms of VAWA’s requirements. But Finken said even if tribes are able to meet ALL the standards, it still isn’t likely to make a major impact.

The reason? Tribes in Nebraska only have misdemeanor jurisdiction.         

“Which means nobody can be sentenced over a year,” she explained. “And (for) some offenses … justice requires a longer sentence than that. And those are the cases that we try and put into federal court, because we do have felony jurisdiction there.”

The legislation for tribes to assert that felony jurisdiction is already on the books – the Tribal Law and Order Act of 2010 – but none of Nebraska’s tribes have come close to meeting even those requirements yet, some of which are duplicated in VAWA.

The result is that the vast majority of domestic abuse and sexual assault cases that actually make it to a courtroom do so in a federal one … and most cases don’t even make it that far.

“I think what really has the potential to upset the applecart is whether the tribes could meet the provisions of the Tribal Law and Order Act and get felony jurisdiction – then, they could do the major crimes, that right now only the federal government does,” Finken said. “I think the Tribal Law and Order Act has more potential to impact the way things currently are than the Violence Against Women Act.”

Most of it comes down to money. The requirements of the Tribal Law and Order Act and VAWA both are unfunded – and could be expensive to implement, like building a jail for long-term incarceration.

“It concerns me greatly whether or not this is actually going to happen for tribes,” U.S. Attorney Gilg said.

A three-fold solution

But tribal advocates say there are other ways to combat the issue alongside laws, convictions and prison sentences.

Just ask Gloria Grant Gone. She’s the director of the Omaha Nation Abuse Intervention Project, and helped craft the legislation for the Tribal Law and Order Act. A survivor of abuse herself, Gone said her loyalty and energy are directed at the victims – but you can’t ignore the abusers, who have been coming to her office for help more and more … help that she isn’t equipped to provide.

And you can’t ignore the children.

In her office on the Omaha reservation, she guides me through a piece of paper on which she’s scribbled her idea of what her program should look like. She’s outlined a three-fold, overarching program: one part that addresses the issues of those who abuse, one part that helps victims and one that works with children, to try and keep them from turning into a victim or abuser.

“Right here with the children, this is where nothing happens,” she says, her finger tracing a column on the far right side of her diagram. “And they’re traumatized, we know that!  We have the victim, we have the abuser. But what do we have right here? We have a hurt child that we never went back to, to try to help.”

Gone’s Winnebago counterpart, Shari Patton, also sees the need for a holistic approach, and her program offers classes and counseling for both victims and offenders. She said the more positive education there is, the better.

But when asked if she thinks things are improving, Patton said no.

“It’s also up to the offender if they’re ready to make those changes,” she said. “I mean, we can give all the information we can to this individual, but it’s up to them themselves if they’re ready to change or not.”

“It’s just like raising a child – it takes everyone, every area in a family to raise a child,” Gone added. “This is the same thing. These abusers are the same way. Because they have (childhood) hurts, and it’s going to take all of us to raise that child again.”

When Gone’s husband started abusing her, they both sought help; as a result, she says, they’re still married today. She proudly tells me that none of her children have been violent towards their partners – nor do they accept being abused by others.



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