By Jedd Parr, CILS Sacramento office Directing Attorney
Over the last several years, the prevalence of violence suffered by Native Americans, particularly at the hands of non-Indian perpetrators, has finally become more widely acknowledged. Violence affects both men and women, but especially women. Although the data can be incomplete, it has been reported that Native American women are afflicted by violence at a frequency up to ten times the national average. According to the National Institute of Justice, over 84% of Native women have experienced violence at least once in their lifetimes – nearly 40% within the past year alone.[1]
One of the most troubling issues in this area is missing and murdered Native women whose deaths or disappearances go unsolved. Official data on just how often this occurs is lacking, but anecdotally, people familiar with the problem know it is all too frequent.
There are several contributing factors. On Indian reservations, one significant roadblock is that tribes generally lack criminal jurisdiction over non-Indians,[2] per the Supreme Court’s 1978 decision in Oliphant.[3] This decision makes tribal communities reliant on outside federal or state law enforcement agencies for the apprehension and prosecution of crimes committed by non-Indians. Complex jurisdictional issues, absence of community trust in external law enforcement, and high rates of cases being declined for prosecution all add to many of these cases going unsolved.
In California, a state subject to Public Law 280, confusion over jurisdictional issues often leads to a decreased law enforcement presence on Indian reservations in general, as well as a lack of communication between tribes and state and local law enforcement agencies. However, a study by the Urban Indian Health Institute identified numerous unsolved cases in off-reservation, urban settings.[4] This data suggests the problem is not just rooted in the above on-reservation factors but in broader concerns such as unreliable data collection systems, racial misclassifications, and bias in media coverage of cases involving Indian women.
Recently there have been efforts on the national and state level to address some of these concerns. In November 2019, a federal Task Force was convened under the name “Operation Lady Justice.” Its stated goals include consultations with tribes, model protocols such as best practices for law enforcement and improved data collection and use, and public education and outreach.[5] In September 2020, California passed Assembly Bill 3099 (Ramos), which sets forth similar goals. Although these measures have only just begun, with outstanding questions about whether they are comprehensive enough and how effective they can ultimately be, one can hope they represent at least the first steps towards confronting this tragic crisis.
[1] https://nij.ojp.gov/topics/articles/violence-against-american-indian-and-alaska-native-women-and-men#table2
[2] With the exception of “special domestic violence criminal jurisdiction” under the Violence Against Women Act, which requires a number of potentially costly expenditures by tribes before it can be exercised.
[3] Oliphant v. Suquamish Indian Tribe (1978) 435 U.S. 191.
[4] https://www.uihi.org/wp-content/uploads/2018/11/Missing-and-Murdered-Indigenous-Women-and-Girls-Report.pdf