Jana L. Walker is a Senior Staff Attorney and the Director of the Indian Law Resource Center’s Safe Women, Strong Nations project.

The UN Declaration on the Rights of Indigenous Peoples signals a new means to change federal law and policy to restore safety to Native women, to strengthen Indian nations and advance their jurisdiction over crimes within their territories, and to end the cycle of violence in Native communities.

The right to be safe and live free from violence is one of the most fundamental and important human rights recognized internationally.  It is a right that many in the United States simply take for granted, but not Native women, who are two-and-a-half times more likely to be assaulted and more than twice as likely to be stalked than other women in this country.  Unless you live in an Indian community, you may find it unimaginable that one in three Native women will be raped in her lifetime, and six in ten will be physically assaulted.  Unlike any other group of women in the United States, the overwhelming majority−some 88%−of Native women identify their attackers as non-Indian.  On some reservations, the murder rate for Native women is ten times the national average.  Yet, underreporting means these numbers are likely much higher.  Domestic and sexual violence against an individual also has devastating effects on entire families, communities, and Indian nations.

Although the 565 federally recognized American Indian and Alaska Native nations have inherent sovereign authority over their territories and people, their ability to protect Native women from violence and to provide them with meaningful remedies has been unjustly limited by U.S. domestic law and policy.  This epidemic of violence is inextricably linked to the stripping of criminal authority over non-Indians from Indian nations and to other systemic legal barriers, which create race-based, jurisdictional confusion about which government—federal, tribal, or state—has legal authority to respond to, investigate, and prosecute crimes.  More often than not, such crimes go unprosecuted, as documented in a federal report showing that, from 2005-2009, U.S. attorneys declined to prosecute 50% of all Indian country matters referred to them, 67% of which involved sexual abuse and related matters.

Even when Indian nations exercise criminal jurisdiction, the Indian Civil Rights Act (ICRA) generally limits the sentencing authority of tribal courts to no more than a year of imprisonment, no matter how heinous the offense.  In 2010, the Tribal Law and Order Act (TLOA) was enacted to improve criminal justice on Indian lands, including amendments to ICRA that allow tribal courts to extend sentences, but only if tribes meet certain requirements.  Indian nations now face substantial setbacks in implementing TLOA after some $90 million was cut from FY 2012 funding for tribal justice programs and crime fighting efforts in Native communities.

All this perpetuates a cycle of violence that allows, even encourages, criminals to act with impunity in Native communities.  All this also denies Native women equality under the law by treating them differently than other women in the United States.  Native women must not continue to suffer disproportionately higher rates of rape, sexual assault, and murder, and lower rates of enforcement, prosecution, and punishment just because they are Indian and live on an Indian reservation or in an Alaska Native village.

The UN Declaration on the Rights of Indigenous Peoples offers important standards about the rights of Native women and indigenous peoples that can be used to determine if the United States’ existing and proposed federal laws and policies measure up to its international human rights obligations.  Though not legally binding on countries, it stands as an official statement of the legal rights of indigenous peoples and indigenous women in international law.  Because no country in the world opposes it, the Declaration carries considerable political and moral force and creates a solid foundation for putting these standards into practice.  Besides relying on the United States’ trust responsibility and federal Indian policy to support needed changes at the federal level, Indian nations can also use the Declaration to gain world support and add global pressure on the United States to respond swiftly to human rights violations occurring within its borders.

The Declaration is a significant affirmation of the rights of Native women, both as individuals and as members of indigenous communities, including the right to gender equality, security, and access to justice.  Article 2 reinforces nondiscrimination, specifically declaring that indigenous peoples are “free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination . . . in particular that based on their indigenous origin or identity.”  Article 44 broadly recognizes the equal rights of indigenous women, including their rights to political participation, education, and employment, among others.

Violence against Native women and children is specifically addressed in Article 22(2), which calls on countries to “take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.”  Article 21 recognizes the right of indigenous peoples to the improvement of their social conditions, further directing that countries “take effective measures and, where appropriate, special measures” to ensure the continuing improvement of the economic and social conditions of indigenous peoples, with particular attention paid to the rights and special needs of indigenous women.  Ensuring adequate and equitable funding levels for essential services to Native women survivors and tribal justice programs is part of meeting this obligation.

Articles 3, 4, and 5 broadly describe the right to self-determination of Indian nations.  At the heart of this right must be the ability of indigenous peoples to develop and maintain their institutional structures, including their judicial, public safety, and law enforcement systems. Such institutional structures help Indian nations increase public safety and deter violence in their communities.

Article 35 recognizes the right of indigenous peoples “to determine the responsibilities of individuals to their communities,” and supports advancing tribal jurisdiction to deter and respond to violence perpetrated by any person within their communities.  Article 35 thus recognizes the competency and right of Indian nations to protect women within their communities from violence, to make their own laws about what conduct is unlawful, and to require that all persons—Indian or non-Indian—abide by such tribal laws.

Article 37 provides that “indigenous peoples have the right to the enforcement of treaties,” which may prove very useful if an Indian nation’s treaty imposes specific obligations for ensuring safety on its reservation.  Article 40 states that disputes with countries or other parties regarding infringements of individual and collective rights should be resolved through fair and just procedures.

Article 38 directs that, in taking appropriate steps to achieve the ends of the Declaration, including legislative measures, countries shall consult and cooperate with indigenous peoples.

Despite some strides to address violence against Native women, there is no doubt United States law falls far short of even the minimum human rights standards set forth in the Declaration.  Considering the United States’ trust responsibility to Indian nations, coupled with the standards in the Declaration, it is imperative that the U.S. act now to end the epidemic of violence against Native women.

The rights in the Declaration stand in support of reforming United States law and policy to remove legal barriers threatening the safety of Native women and denying them access to justice, to strengthen Indian nations and advance tribal jurisdiction over crimes by any person within their territories, and to end the horrific cycle of violence in Native communities.  Take action by supporting legislation now pending in Congress, such as the Violence Against Women Reauthorization Act and the SAVE Native Women Act, which would move in that direction.  Further information and materials about the Declaration and what tribes can do to implement it are available through our website at www.indianlaw.org.

Nyaweh.

*Jana L. Walker is a Senior Staff Attorney and the Director of the Center’s Safe Women, Strong Nations project.  She is an enrolled citizen of the Cherokee Nation (Cherokee/Loyal Shawnee/Delaware) with more than 24 years of experience in the field of Indian law and 7 years past experience as a registered nurse.

###

About the Indian Law Resource Center    

The Indian Law Resource Center is a non-profit law and advocacy organization established and directed by American Indians. The Center is based in Helena, Montana, and also has an office in Washington, DC.  We provide legal assistance without charge to Indian and Alaska Native nations who are working to protect their lands, resources, human rights, environment and cultural heritage. Our principal goal is the preservation and well-being of Indian and other Native nations and tribes.  For more information, please visit us online at www.indianlaw.org or join our online community located at www.facebook.com/indianlawresourcecenter.

And the ICT article.

Professor Miles, welcome back to the program. Thanks so much for joining us and, of course, congratulations again on the McArthur. And I’d like to ask you, when you first encountered stories of African-Americans and Native American slaves in Michigan, in the Michigan territory. I think it’s a surprise to many people to know or to even think about the fact that slavery existed that far north.

TIYA MILES: Well, I first encountered this when I took a class to the Ypsilanti Historical Museum, and we also took a local Underground Railroad tour. And we learned about an abolitionist here in southeast Michigan named Laura Haviland, who did work in Detroit and also in Ontario.

And she taught a school for escaped slaves in Canada, and there were blacks, as well as native people at that school. So that, for me, was the first clue that there was something between black people and native people in Detroit history regarding slavery, as well as in the Southeast.

MARTIN: Well, what have you been able to piece together about the slave experience in Michigan for both African-Americans and Native Americans? And I realize that the research is in its early stages. I know we want to stress that. But what have you been able to piece together?

MILES: Well, the first thing that strikes me about this research is that Detroit is a very unusual place. It was a major settlement for Native Americans, for French settlers, for British settlers and then later, for the Americans. So that meant that it was an area where lots of people were moving through and passing through.

There was a good deal of contestation over who would get to control Detroit. Would it be the French? Would it be the British? And would it be the Americans? And this meant that slavery also had a multilayered aspect in Detroit.

A little side note: Laura Haviland spent much of her adult life just outside of Adrian, Michigan in Raisin Township, and ran a school there, in addition to being a part of the Underground Railroad. Until 2010, a statute of her sat in front of Adrian City Hall. Put in storage while the old City Hall was demolished, the city is currently thinking about putting it in front of the Adrian Historical Society. Haviland’s papers are held by the University of Michigan, and she wrote her autobiography, A Woman’s Life Work in 1881. One of the first historical projects I ever worked on (including my first trip to an archive to look at her papers) was examining the many different editions Haviland released of A Woman’s Life Work, all with slight changes as she continually rewrote her life’s work.

11-393&11-400bsacNationalIndianHealthBoardEtAl,

Romero Opening Brief

Nambe Pueblo Brief

Here are the lower court materials.

Mashantucket Pequot Motion for Summary J

Mashantucket Pequot Opposition to Town’s Motion for Summary J

Mashantucket Pequot Reply

Other grievances, not surprisingly, involve money – particularly the sovereign nation’s deal to pay the state a quarter of its slot machine revenues instead of local taxes on reservation property in the northeastern corner of Ledyard.

Though the town grudgingly concedes it can’t collect these revenues, it has for years been trying to levy taxes on personal property owned by non-Indians on reservation lands – specifically slot machines that a New Jersey company leases to the tribe.

Six years ago the tribe and Atlantic City Coin & Slot Service sued Ledyard to block these taxes, claiming such municipal action disregards well-established principles of federal Indian law and interferes with the tribe’s gaming operations, self-determination and sovereign immunity.

So far, the town has spent $900,000 fighting the litigation – a whopping sum that could have been used to hire teachers, repave miles of roads or buy thousands of new library books.

The second (here) includes a quote on the Indian law implications of the case:

Bethany Berger, a professor of Indian law at the University of Connecticut School of Law, said that taxation of non-Indians and their property on tribal lands is complicated. Berger, co-author and member of the editorial board of Felix S. Cohen’s Handbook of Federal Indian Law, the pre-eminent treatise in the field, does not think Ledyard’s case is a strong one.

“The machines are leased by the tribe as part of this federally regulated business that the tribe has a big interest in,” she said, adding that the interests of the state of Connecticut in the matter may not be as strong as Ledyard officials hope.

“With respect to state interest, it can’t just be revenue-raising interest,” Berger said. “Ledyard wants to make money by taxing the machines, and that’s not the kind of interest that’s really important. The federal interest is very strong because of the Indian Gaming Regulatory Act and the tribal interest is also strong because this is the business that provides most of the tribe’s revenue.”

An excerpt:

He said: “My passionate support for Lansing and our casino project may have gotten the better of me, but none of my remarks were directed toward Native Americans, and nothing I said can fairly be construed as a racial slur, despite our opponent’s attempt to spin it that way. I make no apologies for using strong language against our opponents, who have made some very impertinent remarks about me, but I do offer my heartfelt and sincere apology to any and all who were offended by my choice of words.”