Federal Indian Law and Violent Crime

Abstract

As you return to your homes, and as you talk with your people, please tell them that the time of dying is at its end. Tell your children that the time of shame and fear is over. Tell your young men and women to replace their anger with hope and love for their people. Together, we must wipe the tears of seven generations. Together, we must allow our broken hearts to mend.--Kevin Gover, Assistant Secretary for Indian Affairs in the Department of Interior (September 8, 2000) [O]ne public speech by a single mid-level government official--especially one who is a member of the oppressed minority--is unlikely to have much lasting impact actual changes in government policies and citizen attitudes in the United States.--Rose Weston (2001: 1050) Our women are open game. So many are violated, and they tell us no one will do anything.--Deborah Blossom, Western Shoshone, Tosawihii clan, acting director of the Great Basin Women's Coalition Against Violence (in Norrell, 2003: 9) ON THE 175TH ANNIVERSARY OF THE ESTABLISHMENT OF THE BUREAU OF INDIAN Affairs (BIA), Assistant Secretary Kevin Gover (Pawnee) issued a monumental apology to Native people on behalf of the Bureau. In the apology, Secretary Gover acknowledged the failures of Indian policy and the atrocities committed by United States government officials against Native peoples (Gover, 2000). Many felt that the apology showed profound humility and accountability. However, in the aftermath of Secretary Gover's apology, Native persons continue to suffer the highest rates of poverty, unemployment, and violent victimization in the United (1) More recently, several U.S. senators have proposed yet another apology--this one to take the form of a national apology, authored by Congress and signed by the president of the United States (Senate Joint Resolution 37, 2004). Although the importance of public acknowledgments and apology cannot be underestimated (Bradford, 2003), such actions by the U.S. government do not go far enough in addressing the systemic violence experienced by women and children in tribal communities today. For example, Senate Joint Resolution 37 apologizes on behalf of the people of the United States to all Native Peoples for the many instances of violence, maltreatment, and neglect inflicted on Native Peoples by citizens of the United States. Addressing 500 years of violence, maltreatment, and neglect requires major changes and adjustments to the current structure of federal laws, policies, and regulations affecting tribal nations. Decision-making authority and control over violent crime should be restored to indigenous nations to provide full accountability and justice to the victims. Drafters and proponents of a national apology would do well to study and understand the complicated history of criminal justice in Indian country, and the impact on victims who fall through the wide gaps created by a system originally designed to destroy--not heal. A central component of this analysis concerns tribal sovereignty. As O' Brien (1991: 59) notes, without a commitment to tribal sovereignty, social justice for Indians is nonexistent. Indigenous legal scholar Robert Odawi Porter (2002) writes that sovereignty can be defined by three elements: belief, ability, and recognition. Responding to crimes such as rape and domestic violence is linked to the ability to protect one's citizens and the ability to support and honor women. Therefore, response to crimes against women and children is closely connected to sovereignty and tribal governmental power. The federal government has systemically stripped power from tribal nations over the course of the last several hundred years. Native people residing in Indian country are largely dependent on federal agencies, such as the Indian Health Service, the Bureau of Indian Affairs, and the Department of Justice (including the Federal Bureau of Investigation), to provide for basic human needs such as health care, education, and protection from crime. …