Half of American Indians living in native majority areas say they or a family member feel they’ve been treated unfairly by the courts, according to a new poll by NPR, the Robert Wood Johnson Foundation and the Harvard T.H. Chan School of Public Health. It’s a lack of justice that Wind River Reservation residents say they live with every day. Now the tribes are working together to solve the problem.
One morning, Northern Arapaho member Rose was sitting at the table with her 14-year-old daughter, Latoya.
“I told her to move her hair because she had her hair like this.” Rose shows how Latoya hid her neck and cheek by pulling her hair in front. “Because I noticed something and she went like that and she had marks, hickeys, just completely covering her, even almost on her face.”
That’s when Latoya told her mother that she’d been forcibly kissed by a woman from another reservation who was six years older. (Because they’re afraid of retaliation, they asked WPR to use only their middle names.)
“At that moment, I saw me in her,” Rose said with tears in her voice, “and there was just nothing I could do for her except let her know, it’s not your fault. It’s okay, I’ll protect you.”
She wanted more than anything to protect her daughter because when Rose herself was six, she too was molested by an older girl. Studies show that one in three Native American women are sexually assaulted in their life, but Rose wanted to stop that cycle of abuse. According to an NPR poll, 36 percent of Native Americans living on reservations say they avoid calling the police because of a fear of discrimination. So Rose called tribal police. But they referred her to the FBI since her tribe isn’t qualified to handle felonies. But after an investigation, Federal Prosecutor Kerry Jacobson declined to pursue Latoya’s case. Like most assaults, the case rested solely on the victim’s testimony.
“The only allegations involve the subject touching the minor’s lips, neck and upper chest and the knee and those areas do not fall within the definition of sexual contact.”
Jacobson said she recognizes that testifying against a perpetrator can be traumatic and that’s why she leaves cases like this open as long as possible, in case a victim wants to tell more later. She said, the problem is, it’s much harder to get convictions later. Jacobson said these are the majority of her cases.
“When a victim gets to a place where he or she feels safe enough and emotionally stable enough to divulge what happened, we have no scientific evidence left,” said Jacobson. “Those are very challenging.”
Jacobson did not interview the alleged perpetrator or any witnesses. In fact, a recent Government Accountability Office report shows that federal courts declined to prosecute 67 percent of reservation sexual assault cases. And since Latoya’s case was dropped, the tribal police have taken over. But, unlike the feds, they moved forward, issuing a warrant for the subject’s arrest. The problem is, the tribal court can only issue misdemeanors, less than a year in jail.
Leslie Shakespeare is a councilman for the Eastern Shoshone, the other tribe on Wind River. He wants to use the recently passed federal legislation called the Tribal Law and Order Act to do more. That law grants tribes the power to give sentences up to nine years and do it faster.
“The wait is what really disenfranchises people,” he said. “So when they see that process happening quicker, which doesn’t always happen on the federal side, they feel like justice is actually working.”
The two tribes have an ancient history of conflict, but Shakespeare said, the new law is motivating them to work together to create a stronger unified court.
“It cuts down on the repeat offenders. It cuts down on the cyclical nature of some of the crimes that are prevalent on some of the reservations. The other part of it is, the community feels like their voice is being heard.”
Since the act was implemented, the Department of Justice has even reported that the rates of prosecutions are on a slight uptick. Navajo tribal member and Wyoming State Senator Affie Ellis worked to write a report for the act called, “A Roadmap For Making Native America Safer.”
“We’ve experimented a lot with having a strong federal presence, we’ve experimented in some states having an exclusive state presence, but we really haven’t experimented or tried letting tribes work this out themselves,” said Ellis
She said, even though the act allows for longer sentences, there’s still one issue to work out.
“It costs money to keep your inmates in prison. And so that’s another question that needs to be addressed before tribes can go down this path is, what are we going to do with these people if we put them through our justice system and find them to be guilty?”
She said, they also have pay to hire law trained attorneys and judges.
Eight other reservations have already been figuring those problems out as they adopt Tribal Law and Order courts. Rose is hoping Wind River will be the ninth so her daughter Latoya’s alleged assailant will finally face real justice.
“That’s the whole thing,” said Rose. “She’s somewhere. And she’s somewhere probably doing this to another 14-year old.”
The new court is scheduled to be up and running by early next year.