Maze of Injustice
A Summary of Amnesty International's Findings
Sexual violence against Indigenous women in the USA is widespread. According to US government statistics, Native American and Alaska Native women are more than 2.5 times more likely to be raped or sexually assaulted than other women in the USA. Some Indigenous women interviewed by Amnesty International said they didn't know anyone in their community who had not experienced sexual violence. Though rape is always an act of violence, there is evidence that Indigenous women are more likely than other women to suffer additional violence at the hands of their attackers. According to the US Department of Justice, in at least 86 per cent of the reported cases of rape or sexual assault against American Indian and Alaska Native women, survivors report that the perpetrators are non-Native men.
Sexual violence against Indigenous women is the result of a number of factors and continues a history of widespread human rights abuses against Indigenous peoples in the USA. Historically, Indigenous women were raped by settlers and soldiers, including during the Trail of Tears and the Long Walk. Such attacks were not random or individual; they were tools of conquest and colonization. The attitudes towards Indigenous peoples that underpin such human rights abuses continue to be present in in the USA today. They contribute to the present high rates of sexual violence perpetrated against Indigenous women and help to shield their attackers from justice. They also reflect a broader societal norm that devalues women and girls and creates power dynamics that enable sexual violence against women of all backgrounds.
A Complex Relationship between the U.S. and Tribal Governments
Treaties, the US Constitution and federal law affirm a unique political and legal relationship between federally recognized tribal nations and the federal government. There are more than 550 federally recognized American Indian and Alaska Native tribes in the USA. Federally recognized Indian tribes are sovereign under US law, with jurisdiction over their citizens and land. They maintain government-to-government relationships with each other and with the US federal government. The federal government has a unique legal relationship to the tribal nations that includes a trust responsibility to assist tribal governments in safeguarding the lives of Indian women. This federal trust responsibility is set out in treaties between tribal nations and the federal government, further solidified in federal law, federal court decisions and policy.
Issues of Jurisdiction
The federal government has created a complex interrelation between federal, state and tribal jurisdictions that undermines tribal authority and often allows perpetrators to evade justice. Tribal governments are hampered by a complex set of laws and regulations created by the federal government that make it difficult, if not impossible, to respond to sexual assault in an effective manner.
Women who come forward to report sexual violence are caught in a jurisdictional maze that federal, state and tribal police often cannot quickly sort out. Three justice systems -- tribal, state and federal -- are potentially involved in responding to sexual violence against Indigenous women. Three main factors determine which of these justice systems has authority to prosecute such crimes:
- whether the victim is a member of a federally recognized tribe or not;
- whether the accused is a member of a federally recognized tribe or not; and
- whether the offence took place on tribal land or not.
The answers to these questions are often not self-evident and there can be significant delays while police, lawyers and courts establish who has jurisdiction over a particular crime. The result can be such confusion and uncertainty that no one intervenes, and survivors of sexual violence are denied access to justice.
Barriers to Justice
Tribal law enforcement agencies are also chronically under-funded – federal and state governments provide significantly fewer resources for law enforcement on tribal land than are provided for comparable non-Native communities. The lack of appropriate training in all police forces -- federal, state and tribal -- also undermines survivors' right to justice. Many officers don't have the skills to ensure a full and accurate crime report. Survivors of sexual violence are not guaranteed access to adequate and timely sexual assault forensic examinations, which is caused in part by the federal government's severe under-funding of the Indian Health Service.
Tribal prosecutors cannot prosecute crimes committed by non-Native perpetrators. Tribal courts are also prohibited from passing custodial sentences that are in keeping with the seriousness of the crimes of rape or other forms of sexual violence. As a direct result of passage of the Tribal Law and Order Act, the maximum prison sentence tribal courts can now impose for any crimes, including rape, is three years, up from the previous maximum of one year. In comparison, the average prison sentence for rape handed down by state or federal courts is between eight years and eight months and 12 years and 10 months respectively.
As a consequence, Indigenous women are denied justice. And the perpetrators are going unpunished.
In failing to protect Indigenous women from sexual violence, the US is violating these women's human rights. Indigenous women's organizations and tribal authorities have brought forward concrete proposals to help stop sexual violence against Indigenous women. While passage of the Tribal Law and Order Act is a concrete step in the right direction, much more remains to be done.
Amnesty International is calling on the US government to take the necessary steps to end sexual violence against American Indian and Alaska Native women:
- Ensure the full implementation, funding and resources for the Tribal Law and Order Act
- Work in collaboration with American Indian and Alaska Native women to obtain a clear and accurate understanding about the prevalence and nature of sexual violence against Indigenous women;
- Ensure that American Indian and Alaska Native women have access to adequate and timely sexual assault forensic examinations without charge to the survivor.
- Provide resources to Indian tribes for additional criminal justice and victim services to respond to crimes of sexual violence against Native American and Alaska Native women.