Legal Hurdles Stall Rape Cases on Native Lands

The second in a two-part series.

Sunset in Standing Rock

Police cars on the Standing Rock Indian Reservation in South Dakota. Tribal authorities on Standing Rock and other reservations say that jurisdictional uncertainties complicate rape prosecutions involving Native American women. Jim Richardson/CORBIS hide caption

itoggle caption Jim Richardson/CORBIS

Hear Part 1 of This Report:

Police Chief Jason O'Neal i i

Chickasaw Tribal Police Chief Jason O'Neal and other tribal leaders have been trying desperately to stop the sexual assaults after what they say was years of federal neglect. Courtesy Jason O'Neal hide caption

itoggle caption Courtesy Jason O'Neal
Police Chief Jason O'Neal

Chickasaw Tribal Police Chief Jason O'Neal and other tribal leaders have been trying desperately to stop the sexual assaults after what they say was years of federal neglect.

Courtesy Jason O'Neal
A sign advertising Indian land i i

Much of the Indian land in Oklahoma has been bought and sold many times over, leaving a jurisdictional patchwork quilt for law enforcement. Amy Walters, NPR hide caption

itoggle caption Amy Walters, NPR
A sign advertising Indian land

Much of the Indian land in Oklahoma has been bought and sold many times over, leaving a jurisdictional patchwork quilt for law enforcement.

Amy Walters, NPR
Patches from different tribal police forces i i

Tribes have their own police forces, but tribal authorities cannot charge non-Indians with a crime. Amy Walters, NPR hide caption

itoggle caption Amy Walters, NPR
Patches from different tribal police forces

Tribes have their own police forces, but tribal authorities cannot charge non-Indians with a crime.

Amy Walters, NPR

At 14, Bonnie, a Cherokee Indian, needed a ride home. She grew up near the small city of Talequah, on the eastern side of Oklahoma. A woman she knew from town offered her a ride, instructing Bonnie to wait at her house.

The woman's husband was home, drinking with four of his friends.

"I was in the other room, and they came in and threw me on the bed," Bonnie said. "And they all held me down."

Bonnie never reported the rape. She says she had been told many times by her mother and other relatives that nobody was going to take a case involving an Indian girl getting raped.

"I just didn't figure anyone would believe me — a child against five white men," Bonnie said.

In the years that followed, Bonnie worked as a bartender and struggled to put the incident behind her. She said she would sometimes catch men bragging about similar things they said they had done.

"I've even heard a couple of white men just through the years talking about it, but I never say nothing," Bonnie said.

'Almost a Lawless Community'

Chickasaw Tribal Police Chief Jason O'Neal has heard these stories, too. One day recently at the Chickasaw police headquarters, a call came in from a Native American woman who said she had been raped and didn't know where she was.

Standing in the doorway of the command center, O'Neal looked antsy.

"I know they're working on it — to locate her position and see if everything is OK," he said.

The identity of the woman and her attacker — and especially, her exact location — mean everything to O'Neal. If the woman is Indian on Indian land with an Indian attacker, he can help her. If not, there's often little he can do – and he says that's usually the case. According to a Justice Department report, 80 percent of Indian victims describe their attackers at non-native.

"Many of the criminals know Indian lands are almost a lawless community, where they can do whatever they want," O'Neal said.

In this case on this day, the woman turns up outside of tribal land, which means he cannot intervene and won't know what happened to her.

Situations like this are excruciating for O'Neal and tribal leaders, who are trying desperately to stop sexual assaults after what they say has been years of neglect by federal officials.

Thanks to casino money, the Chickasaws have one of the most well-funded, highly equipped police departments in the state. They have their own emergency command center, as well as more training and officers than most of the surrounding sheriff's departments.

What they don't have, however, is the power to arrest the men raping women on Chickasaw land.

The Complicated Laws on Indian Land

At a gas station just outside Ada, Okla., O'Neal stood next to the ice machine as he tried to explain the intricacies of the law on Indian land.

Beneath the gas pumps and mini-mart is land that has belonged to the Chickasaw people for more than a century.

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

When asked what happens to those reports, O'Neal replied, "Well, I really couldn't tell you. I don't think I've ever been called back on one of them."

Tribal police cannot charge non-Indians with a crime on tribal land — only the U.S. attorney's Office can. Tribal leaders say that in too many cases, no charges are filed at all.

But for O'Neal, the layout of the land itself is a problem. Indian land in Oklahoma is a patchwork quilt. The gas station, for example, is tribal land, but the highway that runs adjacent to it belongs to the state. Across the street is the entrance to town, and the building next door is not tribal property.

Unprosecuted Sexual Assaults

The people who pay the biggest price for this are often Native American women, who are two and a half times more likely to be sexually assaulted than other women. In fact, one Justice Department study found one in three Indian women will be raped in her lifetime. Tribal officials say that's because the assaults often go unreported, uninvestigated and unprosecuted.

On many rural reservations, there are often few Bureau of Indian Affairs police officers. But in Oklahoma, many tribes have their own police departments. The law itself is what prevents them from stopping the perpetrators, and without enforcement, many women don't come forward.

To work around this, tribal police can partner with neighboring police departments, but some, like one sheriff's office near Ada, won't sign on, O'Neal said.

"The sheriff had told his deputies that he didn't care if they [his deputies] were lying on the side of the road bleeding to death, they were not to call on our agency to help them," he said. "And you know what, that just goes back to plain old racism. There's nothing else to explain that."

Several sheriffs interviewed by NPR openly questioned the competence of tribal police departments, but they deny allegations of racism. Rather, they say, they don't want to share law-enforcement powers with officers who don't report to them.

An Inability to Punish

Even when tribal police get past their limited powers and land issues and haul someone into court, the inability of the tribes to exact a punishment goes right up the chain.

At the Citizen Potawatomi Nation in central Oklahoma, the tribe has built a courthouse like any other, equipped with benches and a jury box fashioned from wood.

The only people sitting in the defendant's chair, however, are Native Americans. Tribal prosecutors like David Hall are only allowed to handle misdemeanors, like public intoxication, speeding and shoplifting.

"The fact that I am not allowed to prosecute felonies that occur on tribal land irritates me. It angers me. I don't understand that," he said.

Hall said that he can't get federal prosecutors to take the cases he's not allowed to try, including two recent rape cases across the street: one in the parking lot at the casino, and one in the parking lot at the supermarket.

Renee Brewer, who works at the courthouse as a victim's advocate, remembers a case from a year ago. A woman who had been assaulted called the police and told them that her attacker was still hiding in her closet.

"I get there, and there are four different law-enforcement agencies on the front lawn with the victim, arguing, 'Well this is your case, you have jurisdiction of this.' You could go on and on with scenarios," Brewer said. "Then you wonder why these cases are not getting prosecuted — because the United States government made it as difficult as possible for us to handle our own prosecutions on our own land."

Oklahoma U.S. Attorney John Richter said he'll take any sexual assault case from a reservation that he can.

"I'm open for business, willing to take more," he said. "I'm not aware of serious cases that have not been investigated in the western district of Oklahoma. Where we hear about it, we are firmly committed."

But he said that there's no way to know how many Native American rape or assault cases they've tried or declined. The cases are brought to them by the FBI and the Bureau of Indian Affairs. Neither agency's Oklahoma office would grant NPR's request for an interview.

If cases are declined, Richter said, it's because many rapes are inherently difficult to try, and federal courts place a high burden on prosecutors for evidence.

"We have to live in the real world," he explained. "Just because a case is not brought, doesn't mean we don't wish a case could be brought."

But federal law-enforcement officials who spoke to NPR believe that U.S. attorneys find the sexual assault cases insignificant compared to their usual work — terrorism, organized crime, drugs, racketeering.

Seeking Comfort in Tradition

A 2003 report from the Justice Department found that U.S. attorneys take fewer cases from the BIA than from almost any other federal law-enforcement agency — a bitter reality for women on the reservations.

Without hope of punishment for their attackers, many women turn within, seeking comfort in tradition, like a ritual called a Sweat Lodge.

At sunset on a recent night in northern Oklahoma, just outside the Otoe-Missouria Indian reservation, Juskwa Burnett hosts a healing ceremony for women who have been victims of sexual assault.

As a fire burns over a pile of large rocks, a prayer man welcomes dead ancestors. The guests are usually women whom Burnett counsels at the community center.

As the ceremony gets underway, guests enter a dome-like structure made of willow branches and covered in blankets. Burnett fills a pipe with tobacco.

The guests spend the next several hours praying, singing and talking about what has happened to them. Afterwards, they head to nearby showers, as an honored man whose Indian name means Little Bear waits for the fire to die.

Little Bear's job in the dome is to douse the rocks to create steam. Night after night, he hears the stories women tell about being sexually assaulted.

"It's a burden when you hear about all these prayer requests, all these things that people are praying about, crying about, things that happened to them sexually," he said. "Sometimes it makes it hard to go to sleep at night."

For Little Bear, the issue is personal, too. When she was just a teenager, his sister was raped on the side of the road by a man in a passing car.

"She was walking home, and a guy raped my sister in the back of a car. Just left her in a ditch," he said. "That's the worst I've encountered with, you know, not even half a mile from our home — almost made it home."

Indian Territory: Tracing the Path to Oklahoma

Trail of Tears sign i i

The Cherokee were forcibly removed from their land in Georgia. Their 1,200-mile trek to present-day Oklahoma is known as the "Trail of Tears." Amy Walters, NPR hide caption

itoggle caption Amy Walters, NPR
Trail of Tears sign

The Cherokee were forcibly removed from their land in Georgia. Their 1,200-mile trek to present-day Oklahoma is known as the "Trail of Tears."

Amy Walters, NPR

About one in 12 residents of Oklahoma is a Native American — a higher percentage than in any other U.S. state.

These demographics are in large part the fruits of America's 19th-century expansion to the South and West. As white settlers sought more land to harvest cotton, they encountered an obstacle: The Cherokee, Creek, Choctaw, Chicasaw and Seminole nations already lived on the lands in question.

From 1814 to 1824, Andrew Jackson, then a military commander, took the lead in negotiating treaties that traded the Indian-held lands that whites desired for plots further West. The U.S. acquired parts of Georgia, Tennessee, Mississippi, Kentucky and North Carolina, as well as three-quarters of Alabama and Florida.

Tribal leaders agreed to the treaties in hopes of preserving peace and retaining some of their land. Those hopes were dashed in 1823, when the Supreme Court ruled that Indians could not hold title to lands within the boundaries of the U.S.

Some tribes in the southeastern U.S. voluntarily relocated westward after the Supreme Court decision. Many more resisted — some by attempting to assimilate or cooperate with white settlers, others through defiance and even warfare.

In 1830, Congress passed the Indian Removal Act, which authorized the U.S. to set aside lands west of the Mississippi River for tribes. Another act, passed in 1834, created what became known as Indian Territory; it included modern-day Oklahoma.

The laws helped set the stage for mass, forced migrations of tribes, as the U.S. government claimed their lands in the North and East by force. Within less than five decades, more than 60 tribes had willingly or forcibly relocated to Indian Territory.

In one of the most infamous forced migrations, bayonet-wielding U.S. soldiers evicted thousands of Cherokees from their lands in Georgia. At least 4,000 Cherokee are believed to have perished during a grueling 1,200-mile trek known as the "Trail of Tears."

Indian Territory itself didn't last long. The growth of railroads brought more white settlers west of the Mississippi. As the U.S. population swelled, Congress opened large swathes of the territory for settlement.

By the early 20th century, Indian Territory had been abolished. The remaining lots of land were reassigned from tribal entities to individual Indians. That made it possible for Oklahoma to gain statehood in 1907, but it also scattered Indian holdings.

Today, more than three-dozen federally recognized tribes live in Oklahoma. Before statehood, U.S. authorities and tribal leaders had agreed that tribal governments would be dissolved. Nonetheless, tribes continue to hold limited sovereignty on their lands.

Comments

 

Please keep your community civil. All comments must follow the NPR.org Community rules and terms of use, and will be moderated prior to posting. NPR reserves the right to use the comments we receive, in whole or in part, and to use the commenter's name and location, in any medium. See also the Terms of Use, Privacy Policy and Community FAQ.