Wednesday, July 29, 2015

Shared humanity, shared responsibility: The Tribal Law and Order Act at 5




BY SARAH DEER
Professor of law at William Mitchell College of Law in St. Paul, MN

On July 29, 2010, Native people (myself included) filled the East Room of the White House to see President Obama sign legislation that has become a game-changer for tribal nations in the United States. This legislation, the Tribal Law and Order Act, included changes in the law that many experts did not think were possible even a few years before. The 5th anniversary of the ceremonial signing today provides an opportunity to assess progress made since Obama signed it into law.

At the signing ceremony, Lisa Marie Iyotte, a Native woman from South Dakota, was selected to introduce the President of the United States. Lisa had survived a rape in a time when there were very few resources in place for responding to rape on the reservation. Her story was intended to demonstrate the need for the legislation that the President was about to sign. In a moving moment, Lisa had trouble finding her voice and became overwhelmed. President Obama then came to her side at the podium and provided emotional support for Lisa Marie so that she could tell her story.

Lisa courageously described some of the major barriers to finding justice for rape cases in Indian country. In her story, there was not a coordinated effort to respond to sexual assault. She had to wait all night in a hospital for someone to collect DNA. Her assailant was never brought to justice in her case (although he ultimately was convicted for raping an underage girl). Before she turned the microphone over to President Obama, she said that the Tribal Law and Order Act will help cases like hers from falling through the cracks.

President Obama then made a few remarks, and in doing so, uttered the words that many of us had waited to hear:

“When one in three Native American women will be raped in their lifetimes, that is an assault on our national conscience; it is an affront to our shared humanity; it is something that we cannot allow to continue.”

It was the first time in history that a sitting President had directly acknowledged the violence that Native women experience – and he committed to ending it through the implementation of the legislation he was about to sign.

In terms of changes, the Tribal Law and Order Act (TLOA) had three main purposes. First, it was designed to make the federal government more accountable for serving the interests of justice on tribal lands. Second, it lifted some restrictions on tribal sentencing authority. And third, it put into place mechanisms to ensure greater collaboration and cooperation between tribal, state, and local officials.

So, five years later, where are we? In terms of accountability, the federal government now issues annual public reports that provide statistical data about the violence crime that comes to their attention. For too long, Native people had reported that federal officials declined to take cases seriously – but we had no definitive proof without the numbers. TLOA requires the federal government to disclose data about its performance responding to violent crime in Indian country. This is an important first step to developing concrete solutions. In this sense, transparency inspires accountability.

As far as the tribal sentencing restrictions go, TLOA made it possible for tribes, under certain circumstances, to sentence a convicted defendant to incarceration for up to nine years. Prior to TLOA, the maximum sentence could not exceed three years. For victims of crime, having some confidence that a perpetrator would be removed from her community will enhance her sense of safety and security. The challenge remaining is that many tribal governments do not have enough resources to put these enhanced sentencing laws into effect. In order to take advantage of the nine-year potential, tribes must provide public defenders and law-trained judges. The tribal laws have to be publicly available and all proceedings must be recorded. While many tribes already provide these important services, there are many tribes that simply cannot afford to implement these expensive changes. For those tribes, this section of TLOA remains out of reach.

Finally, TLOA set up a mechanism to encourage states, tribes, and the federal government to do a better job coordinating and collaborating on violent crimes. Whether it is cross-training – or cross-deputization – the goal is to provide a seamless system where victims feel that their case is taken seriously and that justice will be pursued.

Lisa Marie Iyotte’s words at the signing ceremony are a reminder that when a system fails to find justice, there are long-lasting ramifications for the victim and her family. TLOA’s 5th anniversary provides us with an opportunity to look back and look forward to a time when the high rate of violence against Native women will begin to decline.

For more information, the report A Roadmap for Making Native America Safer is highly recommended. This report was commissioned as part of the TLOA, and details the problems and solutions to improving the lives of Native people.

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Sarah Deer, a 2014 MacArthur Fellow, has worked to end violence against women for more than twenty years. She began as a volunteer in a rape victim advocacy program and later received her JD with a Tribal Lawyer Certificate from the University of Kansas School of Law. She is a professor of law at William Mitchell College of Law in St. Paul, Minnesota. She is author of The Beginning and End of Rape: Confronting Sexual Violence in Native America (forthcoming this fall), coauthor of three textbooks on tribal law, and coeditor of Sharing Our Stories of Survival: Native Women Surviving Violence.


"This is a compelling and compassionate revelation of the eternal violence against Native women. It’s a call to action for all of us."
—The Honorable Ada E. Deer, former Assistant Secretary for Indian Affairs and enrolled Menominee

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