One of three Native women will be raped in her lifetime. According to the U.S. Department of Justice, the incidence of violence against Native women is nearly 3 times greater than any other population in the U.S.

1. Safe Women, Strong
Nations
Lucy Simpson, JD
Philomena Kebec, JD

2. Violence Against Native
Women
 Indian women are more than
twice as likely to have violence
committed against them than any
other group in the United States
 3 in 5 Indian women will be
battered in their lifetimes
 1 in 3 Indian women will be
raped in their lifetimes

3. The Jurisdictional Maze
In order to achieve justice, survivors of
sexual violence frequently have to navigate
a maze of tribal, state and federal law. The
US federal government has created a
complex interrelation between these three
jurisdictions that undermines equality
before the law and often allows
perpetrators to evade justice. … this has
created areas of effective lawlessness
which encourages violence.
Amnesty International Report, p. 8

4. What is Jurisdiction?
Jurisdiction is the power of
governments to make and
enforce laws.

5. Key Factors in Determining Criminal
Jurisdiction in Indian Country
 Location of the Crime
 Type of Crime
 Race of the Perpetrator
 Race of the Victim

6. Key Questions
 Did the Crime Occur in Indian
Country?
 Is it a Major Crime?
 Is the Perpetrator Indian or non-
Indian?
 Is the Victim Indian or non-Indian?

7. What is Indian Country?
 All land within the limits of any Indian
reservation, notwithstanding any rights
of way running through the reservation;
 All dependent Indian communities; and
 All Indian allotments.

8. Crow Nation Reservation
from Crow Nation Land Use and Realty Report (2002)

9. What is a Major Crime?
 One of 15 crimes listed in the Major Crimes
Act
 Must be committed by Indians in Indian
Country
 Victim can be Indian or non-Indian
 Federal government has jurisdiction over
these crimes

10. Major Crimes Related to
Violence Against Indian Women
 Murder
 Manslaughter
 Rape
 Felony sexual abuse
 Incest
 Maiming
 Assault with a deadly weapon
 Assault resulting in serious bodily harm

11. Who Is an Indian?
 “Indian” is not defined by Major Crimes
Act or any other federal legislation dealing
with crime in Indian country.
 Two requirements:
 Proof of some Indian blood; and
 Community acceptance of the person as Indian.
 Tribal enrollment is not required.

12. John , a tribal member, has a fight
with his girlfriend, and gives her a
black eye. His girlfriend is also a tribal
member and they live on the
reservation. Who has jurisdiction?

13. Key Questions
 Did the Crime Occur in Indian
Country?
 Is it a Major Crime?
 Is the Perpetrator Indian or non-
Indian?
 Is the Victim Indian or non-Indian?

14. Tribal Criminal Jurisdiction:
Indian Perpetrators
 Within Indian country, tribes have the
inherent power to exercise criminal
jurisdiction over all Indians (member and
non-member).
 This power is often concurrent with the
federal government.
 Tribal prosecutions are limited by the
Indian Civil Rights Act.

15. Tribal Sentencing Authority
 The Indian Civil Rights Act limits the
sentencing authority of tribal courts to:
 One year in prison, and/or
 A maximum fine of $5000.00.
 The typical sentence in state court for rape
is at least 4 years.
 TLOA will increase sentencing authority to
3 years.

16. Tom, a tribal member, murders his
girlfriend, who is also a tribal member,
at their house on the reservation. Who
has jurisdiction?

17. Key Questions
 Did the Crime Occur in Indian
Country?
 Is it a Major Crime?
 Is the Perpetrator Indian or non-
Indian?
 Is the Victim Indian or non-Indian?

18. Tribal Criminal Jurisdiction:
Indian Perpetrators
 Within Indian country, tribes have the
inherent power to exercise criminal
jurisdiction over all Indians (member and
non-member).
 This power is often concurrent with the
federal government.
 Tribal prosecutions are limited by ICRA.

19. Federal Criminal Jurisdiction:
Indian Perpetrators
 Under the Major Crimes Act, the federal
government has jurisdiction over Indians who
commit major crimes in Indian country.
 Federal jurisdiction is concurrent with tribal
jurisdiction.

20. Now, what if Tom is not a tribal
member and he assaults his girlfriend,
who is a tribal member, at their house
on the reservation? Who has
jurisdiction?

21. Key Questions
 Did the Crime Occur in Indian
Country?
 Is it a Major Crime?
 Is the Perpetrator Indian or non-
Indian?
 Is the Victim Indian or non-Indian?

22. Tribal Criminal Jurisdiction:
Non-Indian Perpetrators
Simple Rule: Tribes have no criminal
jurisdiction over non-Indians.
BUT tribes can exclude non-Indians from the
reservation and/or use civil remedies,
including the issuance of protection orders
against them, to deal with non-Indian
abusers.

23. Federal Criminal Jurisdiction:
Non-Indians
 Under the General Crimes Act, the federal
government has exclusive jurisdiction over
crimes by non-Indians against Indians.
 The federal government also has
jurisdiction over non-major crimes by
Indians against non-Indians.

24. Bob and his girlfriend are both non-
Indians. They live on the reservation.
Bob assaults his girlfriend. Who has
jurisdiction?

25. Key Questions
 Did the Crime Occur in Indian
Country?
 Is it a Major Crime?
 Is the Perpetrator Indian or non-
Indian?
 Is the Victim Indian or non-Indian?

26. State Criminal Jurisdiction
 States have exclusive jurisdiction over
crimes by non-Indians against non-Indians,
or victimless crimes by non-Indians.
 In Indian country, states have no
jurisdiction over crimes by Indians, or over
crimes that concern Indians or Indian
property unless the federal government has
expressly delegated this authority to them.

27. Indian Country Criminal Jurisdiction Chart
Offender Victim Jurisdiction
Indian Indian Major Crimes- federal jurisdiction
(concurrent with tribe)
Other Crimes- Tribal jurisdiction is
exclusive.
Indian Victimless Tribal jurisdiction is exclusive.
Indian Non-Indian Federal jurisdiction (concurrent with
tribe)
Non-Indian Indian Federal jurisdiction is exclusive.
Non-Indian Victimless State jurisdiction is exclusive, only
where no interest of the tribe, its
members or property is involved.
Non-Indian Non-Indian State jurisdiction is exclusive under
McBratney.

28. Tribal Protection Orders
 Tribal courts can issue civil protection
orders against Indians and non-Indians to
protect women from domestic violence.
 Tribal courts can fully enforce civil
protection orders against Indians and non-
Indians.

29. A protection order is . . .
“any injunction or other order issued for
the purpose of preventing violent or
threatening acts or harassment against, or
contact or communications with, or physical
proximity to, another person, including
temporary and final orders issued by civil
and criminal courts.”
Violence Against Women Act

30. Full Faith and Credit for
Protection Orders
 The Violence Against Women Act (VAWA)
requires state and tribal courts to give full
faith and credit to protection orders issued
by other state or tribal courts.
 Full faith and credit means that a legal
document from one jurisdiction will be
acknowledged as valid and enforced in
another jurisdiction.

31. For Full Faith & Credit, a
protection order must be issued:
 by a court with jurisdiction over the parties
and matter under the law; and
 after reasonable notice and opportunity to
be heard is given to the person against
whom the order is sought.

32. Full Faith & Credit under
VAWA does not require:
 That the order be called a “protection”
order, “restraining” order, or “no contact”
order.
 Filing of a protection order in a local state
or tribal court for enforcement of the order.
 Entry of a protection order in a national
database.

33. Tribal Law and Order Act of
2010
 Purpose is “...to reduce the prevalence of
violent crime in Indian country and to combat
sexual and domestic violence against
American Indian and Alaska Native women...”

34. 2010 Tribal Law and Order Act
 TLOA does not solve the criminal jurisdiction
issue. But it does:
 Require federal prosecutors to maintain data on
criminal declinations
 Increase tribal court sentencing authority from 1
year to 3 years
 Requires federal officials who work in Indian
country to testify to support a tribal court
prosecution

35. 2010 Tribal Law and Order Act
 The TLOA also:
 Authorizes the deputization of special assistant US
Attorneys to prosecute reservation crimes in
federal courts
 Increases deputization of tribal and state police to
enforce federal laws
 Increases efforts to recruit BIA and tribal police
 Allows tribal police access to state criminal history
databases

36. How to Advocate on
the International
Level

37. What are Human Rights?
 Rights that are inherent to being human
 Traditionally, these are considered held by
the individual
 Every person is entitled to enjoy his/her
human rights without discrimination

38. Human Rights Law
 HR law places obligations on countries to act
in a particular way to protect people’s human
rights
 The law does not establish human rights. It
guarantees the protection and promotion of
those rights.

39. International Human Rights Law
 International law (the law that governs relations
between the nations of the world) includes human
rights law.
 International HR law generally refers to the rights
expressed in international legal documents and
treaties, international jurisprudence and customary
international law.
 International HRs are rooted primarily in the UN and
regional systems, such as the OAS.

40. Violence Against Women as a
Human Rights Issue
 All women have the right to be safe and free
from violence
 Governments are obligated to ensure that
their own officials comply with human
rights standards.
 Governments are also obligated to adopt
effective measures to protect people from
human rights abuses by private individuals.

41. Violence Against
Native Women is a Human
Rights Crisis
 Indian women are more likely to be raped
than other women in the US.
 Most perpetrators are non-Indian.
 According to current scheme of criminal j’d
in Indian country, tribes are limited in
ability to prosecute these crimes.

42. Navajo Nation First Lady, Vikki Shirley, testifying before CERD at
its 2008 session in Geneva.

43. What Can be Achieved through
International Advocacy?
 Raising awareness of an issue
 Pressuring the United States Government
 Shaming the United States in the international
arena
 Use international HR standards to promote
better laws in the US

44. Palais des Nations (UN)
Geneva, Switzerland

45. Treaties and Declarations
Relevant to Violence Against
Women
 International Covenant on Civil and Political
Rights
 International Convention on the Elimination of All
Forms of Racial Discrimination
 Convention on the Elimination of All Forms of
Discrimination against Women
 American Declaration on the Rights and Duties of
Man
 American Convention on Human Rights

46. UN Committee on the Elimination
of Racial Discrimination
 Monitors the International Convention on
the Elimination of All Forms of Racial
Discrimination (ICERD)
 Receives state compliance reports & issues
concluding observations

47. Palais Wilson: UN Committee on the
Elimination of Racial Discrimination
NCAI VAWA Task Force on Violence Against Women

48. ICERD
 Principle treaty focused on preventing racial
discrimination
 Protects rights to equality including equal
treatment before the law and security of the
person
 Obligates states to assure everyone within
their jurisdiction effective protection and
remedies from racial discrimination

49. Violence against women is a
violation of ICERD:
 Right to security of person and protection
by the State against bodily harm (Art. 5.b)
 The federal government is obligated to
ensure Native women receive equal
protection of the law (Art. 26); and provide
effective remedies when a protected right is
violated (Art. 2).
 These rights must be protected without
regard to race.

50. CERD Reporting Process
 State parties must submit a compliance
report every 2 years
 NGOs invited to provide “shadow reports”
on the state’s compliance
 CERD last reviewed the US’ report and the
NGOs “shadow report” in February, 2008.

51. US NGO’s at CERD

52. NGO’s Present to CERD at
Palais Wilson

53. United States of America
Reports to CERD

54. CERD Concluding Observations
The Committee recommends that the State party
increase its efforts to prevent and punish violence …
against women … by … ensuring that reports of rape
and sexual violence against … Native American
women, are independently, promptly and thoroughly
investigated, and that perpetrators are prosecuted and
appropriately punished.

55. What is the Inter-American
Commission on Human Rights?
 Independent body of the OAS
 Authorized to hear complaints
 Can issue recommendations

56. American Declaration on the
Rights and Duties of Man
 Sets forth the protected rights and corresponding
duties of persons.
 Covers civil and political rights, as well as
economic, social and cultural rights.
 Obligates member states to protect the rights
identified in it.

57. Violence Against Women Violates
the American Declaration
 Right to life and to be free from inhumane
treatment (Art. I)
 Right to be free from any form of
discrimination (Art. II)
 Right of women and children to special
protections (Art. VII)
 Right to privacy and home (Arts. V, VI, and
IX)

58. Affirmative Obligation to Protect
Women from Violence
 US has an affirmative obligation to protect
the rights guaranteed in the American
Declaration from violation
 A nation state has an obligation to act with
due diligence to protect women and
children from violence (Art. VII)

59. Gonzales v. United States
 First case against the US addressing violence
against women.
 Alleges that US failure to enforce a protection
order violates a woman’s rights to life, security
of the person, right to judicial remedy under
the American Declaration.

60. Facts of Case
 Jessical Gonzales’ estranged husband abducted her
3 daughters, in violation of a DV restraining order.
She contacted the police who failed to act. The
children were then killed.
 Ms. Gonzales filed a lawsuit against the police. In
2005, the US Supreme Court held that she had no
constitutional right to police enforcement of her
restraining order.
 She filed a petition with the IACHR, alleging that
the police and the Supreme Court’s decision
violated her human rights under the American
Declaration.

61. Gonzales case and Native
women
 Finding against the US in this case would benefit
Native women because many law enforcement
officers are unable and/or unwilling to enforce
protection orders against non-Indians
 Especially important for Native women because
due to limited jurisdiction, often tribes can only
protect Native women through protection orders

62. Esperanza Lujan, ILRC Human Rights Policy
Specialist, testifying before the IACHR in March 2007

63. For more information:
Indian Law Resource Center
602 N. Ewing Street
Helena, MT 59601
(406) 449-2006
www.indianlaw.org