Tribal jurisdiction with gender parity

Native women’s decision-making processes must be empowered by not only ending racism, but also sexism.

A native woman burns sweet grass during a protest outside the Missing Women''s Inquiry in Vancouver
At least 86 percent of reported cases of rape or sexual assault against Native women are by non-Native men [Reuters]

Tribal demands are holding up the reauthorisation of the landmark Violence Against Women Act in the United States Congress. Apparently, conservative Republican congressmen cannot agree whether to allow Native American courts to prosecute non-Indians who rape women on tribal land. Yet every new report confirms what we already know: that Native women are victims of widespread abuse and their access to justice is extremely limited. In fact, more often than not, the justice system itself is the problem.

The extent of violence against Native and Indigenous women is as horrifying as the impunity that permits it. The United Nations has repeatedly stressed the multiple forms of discrimination that Indigenous women face, with various reports from the Committee on the Elimination of Racial Discrimination and the Committee on the Elimination of Discrimination Against Women. And North America is far from immune to this trend, as various reports have repeatedly demonstrated.

Unless the US Congress wants to countenance the continued violation of Native women’s rights, it must quickly grant the tribal authority demanded. And if tribes are serious about protecting women rights, they should go the extra step to guarantee women’s decision-making power in the administration of justice on tribal land. If in doubt, they may look south for inspiration.

Violence against Native women in North America

Native women are abused and murdered in unacceptably large numbers in North America. In the US, the rates of violence against Native women are two and half times higher than for any other population, and it is mostly committed by outsiders. According to the US Department of Justice, at least 86 percent of the reported cases of rape or sexual assault against Native women are committed by non-Native men.

Amnesty International produced an in-depth report on the issue, “The Maize of Injustice“, explaining how jurisdictional loopholes make it difficult, if not impossible, to address sexual assault efficiently. Complex legal arrangements created by the US federal government impede tribes from prosecuting non-Native men who commit crimes on tribal territory, thereby leaving women unprotected and giving impunity to the rapists.

Burden of Silence

In 2011, the Inter-American Commission on Human Rights organised an unprecedented hearing to examine how US policies have created a human rights crisis for Native women. Native women testifiedon the epidemic of violence, forcing US government representatives to admit that the level of violence against Native women is “an assault on the national conscience” and that much more must be done to protect them.

Such systematic violence has been disclosed in Canada as well. A recent Human Rights Watch report sheds greater light on the missing Native women of British Columbia. The 95-page detailed report on Canada’s Highway of Tears, a 724 kilometre road where too many Native girls and women have been murdered, shows that oftentimes police officers themselves are the abusers. It’s not only that police authorities have demonstrated decades of apathy in solving women disappearances, mind you. The report charges that officers of the Royal Canadian Mounted Police have been guilty of raping Native women, beaten hand-cuffed girls they were called to help, and that physical assaults are often accompanied by verbal racist abuse.

The HRW report’s title, “Those Who Take Us Away”, is a literal translation of the word for police in the Carrier language, which is spoken in many indigenous communities in northern British Columbia. There, as in so many Indigenous communities around the world, the police are not perceived as a source of help but feared for the violence they inflict. The last thing a Native woman in danger does is to call the police.

According to the Native Women Association of Canada, there are currently about twenty Native women and girls murdered annually. If transposed to non-Native women, this rate would mean that about 18,000 Canadian women would have gone missing since the late 1970s.

Tribal authority to counter state injustice

North American judicial systems are grossly failing Native women. It is urgent that independent inquiries bring justice to the crimes committed and that police training and new rules be implemented, as recommended by HRW. It is also high time for the US and Canada to ratify the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, otherwise known as the Convention of Belém do Pará. Yet such systematic violence has deeper roots.

Violence against Native women is an acute expression of the larger violence against Indigenous Peoples. The colonisation of the Americas, as argued by Andrea Smith, was largely made through the conquest of women’s bodies. The trend continues, and sexual assault on Native women echoes the disregard for Indigenous authority at large, from self-government to tribal sovereignty over land and resources.

The main problem is the continuing colonial violence of the state, as the Idle No More movement has been shouting quite loudly. The legal system is perhaps where exclusion is best enforced. Rules are made by and for sovereign states. Indigenous peoples, who have been historically excluded as the “uncivilised” who did not belong to the “modern” nation-state, have not participated in the making of the rules. Even when tribes and governments came to agreements, North American colonial powers abrogated legal treaties whenever they deemed necessary. Tribes distrust states and know that governments are the last place to seek protection.

This is why tribes in the US are trying to protect women by ensuring tribal jurisdiction. The Save Native Women Act proposes to include key tribal provisions in the Violence Against Women Act reauthorisation. The provisions, passed in the Senate and pending approval in the House of Representatives, would restore tribal jurisdiction to prosecute non-Native men who abuse women in Indian country.

Securing women decision-making power in making justice

Securing tribal authority to prosecute crimes against women is an important step, but it probably will be insufficient to bring justice to women. As we recognise the racist violence of the state, we cannot turn a blind eye to the sexist violence present across Native societies. In addition to rapes by non-Native men, domestic violence within native families is also rampant and physical abuse widespread.

Violence against Native women is so extreme because it is located at the intersection of racism and sexism. Solving only one part of the equation is not enough. If it is important to expand tribal jurisdiction, it is equally crucial to make women fully equal decision-makers in the administration of justice.

That is precisely what Kichwa Indigenous women have done in Ecuador. Tired of being stuck between racist state justice and sexist indigenous justice, they called for gender parity clauses within collective rights. They invoked international women’s rights encompassed in the Convention on the Elimination of All Forms of Discrimination Against Women and the United Nations Declaration on the Rights of Indigenous Peoples to claim their right to participate in the management of justice. But instead of only demanding a voice in the state system, they have also sought to transcend local justice by strengthening indigenous justice with international women’s rights.

The result is a modern legal arrangement that requires autonomous systems of indigenous justice to assure compliance with international norms of human and women rights. Article 171 on Indigenous Justice in Ecuador’s 2008 Constitution recognises indigenous justice on the provision that: “the authorities of indigenous communities, peoples and nationalities will exercise judicial functions based on their ancestral traditions… within its territory, guaranteeing the participation and decision of women.”

Tribes are extremely diverse, with over 800 cultures and nationalities in the US alone. Some tribes may be led by women, like the Six Nations of the Iroquois Nations, yet oftentimes they sideline women from political decision-making. If we are serious about giving justice to Native women we must, first and foremost, put the instruments of law in their hands.

Native women will be better protected by tribal law. They will be even better off when other Native women are half the police, prosecutors, and judges in tribal jurisdiction. In fact, that would be a good idea to protect non-Native women across all justice systems.

Manuela Picq has just completed her time as a visiting professor and research fellow at Amherst College.