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Tribal rape loophole

Non-Natives Are Using This Tribal Law Loophole To Rape Indigenous People

Tribal rape loophole

Photo by marksontok. Creative Commons license.

by A. Big Country

Think of five women you know. Statistically speaking, one of them has been raped.  

Now picture those five women again — except they’re all Native American. Now it’s more likely two of them have been raped.  

According to a U.S. Department of Justice report, one out of three Native American women are raped, and that number could easily be higher.  But why?

Native Americans have what is called tribal sovereignty, which allows tribes to govern themselves. Many people are familiar with this as it relates to gaming casinos. What many more are unfamiliar with is the other side of the coin: non-reservation members are not subject to tribal law or prosecution. And that fact has led Indian reservations to become a safe haven for rapists.    

Sexual predators have uncovered this loophole. For example, there is a marked increase in the number of rapes on one reservation in Minnesota during hunting season. Men can travel from hours away to hunt, rape and return home, leaving tribal women with no recourse.  

In 1978, the U.S. Supreme Court found that tribal courts could not try non-natives without authorization from Congress. These men could be brought to justice in U.S. courts, but federal prosecutors decline to prosecute 67 percent of cases.    

One option would be to fight toward having this 1978 decision reversed. That effort is being met with some opposition. Republican Iowa Senator Chuck Grassley said the following in a town hall in 2013 about trying non-tribe members in tribal court:

“The jury is supposed to be a reflection of society… But under the laws of our land, you got to have a jury that is a reflection of society as a whole, and on an Indian reservation, it’s going to be made up of Indians, right? So the non-Indian doesn’t get a fair trial.”

There are many huge flaws in that argument. One is that roughly 46 percent of people living on reservation land are non-Native, according to the 2010 U.S. Census. Another other is the assumption that Native Americans cannot be an impartial jury. Yet another is the fact that tribal courts adhere to the Indian Civil Rights Act, which gives everyone on the reservation equal protection under the law, similar to the U.S. Constitution’s 14th Amendment.        

Related: Black and Native Lives Must Matter Together

The murkiness of these tribal laws plays in the favor of the predator, though a recent case may have caused some movement in a positive direction.  

It was a case in which a white male raped a 13-year old Native boy. The rape occurred on tribal grounds in Mississippi, while both were employees at a Dollar General store (the boy worked there as part of a youth opportunity program). The people of that tribe could not try the offender, so they went to the state’s U.S. Attorney’s office. The office declined to prosecute. So the parents opened a civil trial against Dollar General. The store’s attorneys felt the suit didn’t have merit because the tribal court did not have the authority.  

Mississippi’s Fifth Circuit court felt the suit could stand, and the subsequent appeal was heard by the United States Supreme Court.  The Court’s decision was a 4-4 split, meaning the Circuit Court decision stood.  

(If you are wondering why the full nine judges did not render a decision – this case was heard in June of 2016, four months after Justice Antonin Scalia’s death.)

Even with the split decision, this is a step in the right direction for natives, but by no means a solution. This case is still not going to see a criminal trial; the only potential justice would come from the suit against the store.  

Regardless of their sovereignty, these people deserve protection.    



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