The Myth Of Tribal Sovereignty And Why Twice As Many Native American Women Are Raped

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Diarist’s note- This was originally published at DailyKos and is my first diary here…if I have gotten anything wrong, leave me a comment and I will correct it.

Under American law, the various tribes of the Native Americans are supposed to be sovereign nations. The reality however, is something far less. The Nations are only entitled to govern themselves. This may sound like a trivial distinction, but other sovereign nations can enforce their laws against citizens of other countries.  The Tribal Nations are not given this power. So, the Nations must rely on state and local governments to prosecute crimes committed on their land.

The local response to crimes on reservations is, at best, neglect. This lack of cooperation has led to Native American women being twice as likely to be raped as American women as a whole. Generally, 1 in 6 American women have been the victim ofrape. So, 1 in 3 Native American women has experienced rape. If you are as angry about this as I am right now, follow me over the jump.

The SCOTUS, in 1978

ruled in Oliphant v. the Suquamish Indian Tribe that tribal governments have no criminal jurisdiction over non-Indians. When a crime is committed, tribal police and their non-Indian counterparts must hash out whether the suspect is Indian or not.


If a Native American man walks into the mini-mart and steals a carton of cigarettes, [Tribal authorities] can arrest him. If a non-native man commits the same crime, [Tribal authorities] would let him go and forward a report to the U.S. attorney’s office.


More than 86 percent of rapes against Native American women are carried out by non-native men, most of them white, according to the Justice Department. And despite this fact and the fact that the Tribal Nations cannot prosecute these claims, “a 2003 report from the Justice Department found that U.S. attorneys take fewer cases from the BIA (Buruea of Indian Affairs) than from almost any other federal law-enforcement agency.”  

So, kossacks, what can we do? Keep reading for contact information and legislation that could make a difference.

Idaho is currently considering a bill that would seek to change this situation by allowing tribes to prosecute crimes if the local authorities refuse to do so.

Here’s the contact info for the Idaho Senate and House.

But fixing the issue in one state is not enough! We need federal reform that would allow Tribal governments to prosecute any crime committed on Tribal land. One possible solution has been introduced in the Senate. It is called the Tribal Law and Order Act of 2009 .  The summary of the bill is:

Tribal Law and Order Act of 2009 – Amends the Indian Law Enforcement Reform Act to make a variety of changes to increase Native American tribes’ law enforcement powers and increase federal powers and responsibilities regarding crimes on Indian land, including: (1) allowing federal officials, with the consent of the tribe, to investigate offenses against tribal criminal laws; (2) providing technical assistance and training to tribal law enforcement officials regarding use of the National Criminal Information Center (NCIC) database; (3) requiring federal and local officials, when they decline to investigate crimes on Indian land, to report to Native officials and requiring such officials, when they decline to prosecute, to turn over evidence to Native officials; (4) establishing in the criminal division of the Department of Justice (DOJ) the Office of Indian Country Crime to develop, enforce, and administer federal criminal laws in Indian country; (5) authorizing, at the request of a tribe, concurrent federal-tribal jurisdiction; (6) authorizing grants to state, tribal, and local governments that enter into cooperative agreements, including agreements relating to mutual aid, hot pursuit of suspects, and cross-deputization; (7) requiring the Attorney General to allow tribal and Bureau of Indian Affairs (BIA) law enforcement agencies to directly access and enter information into federal criminal information databases (under current law, such access is limited); and (8) increasing the criminal sentences tribal courts may impose.

Unfortunately, the bill has been collecting dust since it was placed on the legislative calendar in October. The House appears to have a similar bill, which is languishing in committee. Please consider contacting your senators and the members of the House Subcommittee on Crime Terrorism, and Homeland Security Membership to urge them to get this legislation moving again and passed into law.

Attorney General Eric Holder has promised reforms and that U.S. Attorneys’ Offices will “work closely with law enforcement to pay particular attention to violence against women in Indian Country and make these crimes a priority.” link.  You can contact the Office of the Attorney General at (202) 514-2001 to remind him of this promise.

I would like to personally thank all of you who will read, comment and/or take action on this diary. As a survivor of rape, and sexual assault advocate I know the trauma that goes along with rape…but I cannot begin to imagine the additional traumas faced by Native Americans because of the additional legal burdens placed upon the prosecution of their rapes. No one should have to live through this. Thank you for taking a stand on this issue.

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 An ongoing series sponsored by the Native American Netroots team focusing on the current issues faced by American Indian Tribes and current solutions to those issues.



  1. You and me both. I am startled that the SCOTUS case that decided whether Indians could enforce their laws in their nations if crimes were committed by non-Indians involved the Suquamish. They are about half an hour up-peninsula from here.

    But is giving the Native nations better ability to enforce laws going to stop white guys from going onto reservations and committing rape? There was a law against rape and the guy that raped me was aware of that law, but he did it anyway. It didn’t deter him at all. I really wonder whether this rape epidemic isn’t also racially-motivated and should be prosecuted as a hate crime.

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