'Historic' in a bad way: how the Tribal Law and Order Act continues the American tradition of providing inadequate protection to American Indian and Alaska Native rape victims.

• Author: Owens, Jasmine

1. ONE OF THESE THINGS IS NOT LIKE THE OTHERS

   Four different men, Earl Pratt of Massachusetts, Wendell Lee Strickland of Arkansas, Ronnie Tom of Washington, and Tommy Lee Johnson of Texas, committed heinous crimes against children. (1) Each man raped a seven-year-old child in his respective state, and each was convicted and sentenced for his crime. (2) Despite general disdain for egregious crimes such as rape (whether of man, woman, or child), our justice system treats one of these men very differently from the rest. Pratt received a twenty-five-to-thirty-year sentence in Massachusetts, (3) Johnson received twenty years in Texas, (4) and Strickland received an eighteen-year sentence in Arkansas. (5) But Ronnie Tom served less than two years in a Colville Indian jail in the state of Washington because the Assistant United States Attorney in Spokane, Washington, declined to prosecute him, and federal laws prohibited the tribe from exacting a greater sentence. (6)

   On a winter night in 2003, Ronnie Tom attempted to rape his live-in girlfriend's twelve-year-old sister. (7) The girl managed to escape Tom's attack, but he redirected his assault to his girlfriend's seven-year-old daughter. (8) Unfortunately, Tom succeeded in his vicious crime. (9) Although an "expert forensics interviewer found the [seven-year-old's] testimony recounting the rape clear and credible," Tom was never charged with a felony. (10) Tom is now living with his girlfriend and their young daughter, (11) despite a sexual-predator profile warning that Tom "should never be allowed to be alone with children, including his own, or live 'near places designed for children, such as schools, playgrounds (or) swimming pools.'" (12)

   Why is it that Tom is home with his child, free to offend again, while others who committed similar crimes have been locked away for decades? Tom was not proven to be less culpable for his crime than his fellow offenders; there was no determination of insufficient evidence, nor was there any prosecutorial or police misconduct causing the case to be dismissed on a technicality. The differences between Tom and the other convicted child rapists are race and location. Because Tom is a Colville Indian (13) who committed his crime on the Colville Indian reservation in eastern Washington, his case falls under federal jurisdiction. (14) In Tom's case the Assistant United States Attorney (located 150 miles away in Spokane, Washington) declined to prosecute, as they do in 65% of cases coming from Indian Country. (15) The Colville Tribal Court was constrained by federal legislation capping sentences delivered by tribal courts to one year of incarceration per crime, a $5,000 fine, or both. (16) The tribe charged and convicted Tom for his crime and a separate incident involving Tom's girlfriend's twelve-year-old sister, resulting in less than two years of incarceration in tribal jail, the maximum penalty the tribe could impose. (17)

   Unfortunately, the story of Ronnie Tom is an all-too-common reality for American Indian and Alaska Native people living in the United States' domestic dependent nations (Indian Country). American Indian and Alaska Native people suffer from a disproportionately high rate of rape and sexual assault. (18)

   Data gathered by the US Department of Justice indicates that Native American and Alaska Native women are more than 2.5 times more likely to be raped or sexually assaulted than women in the USA in general. ... [M]ore than one in three [Native American and Alaska Native women] will be raped during their lifetime; the comparable figure for the USA as a whole is less than one in five. (19) And while the assaults on American Indian and Alaska Native women are more violent than rapes suffered by the general population, (20) their rapes often go unprosecuted. (21) A complex concurrent jurisdictional system and mixed messages about state, federal, and tribal responsibilities lessen accountability for all law enforcement agencies involved and result in a lack of justice for victims.

   The latest enlargement of the jurisdictional system adds little more than another piece of legislation to the jurisdictional maze. On July 29, 2010, President Barack Obama signed the Tribal Law and Order Act of 20 l0 (the Act), the federal government's solution to the problems faced by American Indian and Alaska Native people. (22) The legislation, lauded as "historic" (23) and "groundbreaking," (24) does not do enough to protect women who have suffered rape and sexual violence. Despite the good press and excitement surrounding the new legislation, it fails to accomplish its stated purpose: "to reduce the prevalence of violent crime in Indian country and to combat sexual and domestic violence against American Indian and Alaska Native women. ..." (25) The amendment does not recognize tribal authority to prosecute rape and other serious felonies and continues to restrict tribal courts' authority to adequately punish tribal members.

   This Comment explains the problems with the current criminal justice system governing American Indian and Alaska Native people and offers a critique of and suggestions for the Tribal Law and Order Act. Specifically, this Comment argues that, to better protect Native American women from rape and sexual violence and to achieve the policy goal of healing past relations with American Indians and Alaska Natives, Congress should explicitly recognize concurrent jurisdiction between federal and tribal authorities to prosecute major crimes and remove restrictions on tribal authorities' ability to punish serious crimes such as rape.

   This Comment starts with an overview of the problem of sexual violence in Indian Country to provide a clear picture of the unique problems facing American Indian and Alaska Native rape victims, and an understanding of why modifications to the new legislation are necessary. Part II.A explains the extent of the violence, II.B describes criminal jurisdiction over Indian Country, and 0 illustrates problems of implementation of the current system. This Comment then takes an in-depth look at the Tribal Law and Order Act; Part III.A describes how the Act changes tribal jurisdiction and Part III.B details the practical effect of those changes. Part IV considers the Tribal Law and Order Act's viability as a solution to the problems discussed in Part II. Finally, Part V suggests modifications that would make the legislation more effective in combating sexual violence against American Indian and Alaska Native women.

2. THE PROBLEM

   Ronnie Tom's story is far from unusual. This Part details the sexual violence epidemic affecting Indian Country, the difficulty in determining which jurisdiction has authority to prosecute and investigate incidents of rape and sexual violence, and the practical problems arising out of the existing jurisdictional system that the Tribal Law and Order Act of 2010 seeks to redress.

   1. RAPE AND SEXUAL VIOLENCE 1N INDIAN COUNTRY

      Rape and sexual violence in Indian Country have reached epidemic levels. Data gathered by the United States Department of Justice (DOJ) suggests that American Indian and Alaska Native women are over 2.5 times more likely to be raped or sexually assaulted than other women living in the United States. (26) A DOJ study looking at violence against all American women suggested that more than one in three American Indian and Alaska Native women will be raped during their lifetimes, compared to less than one in five women in the general population. (27) DOJ reports that at least 86% of the reported cases of rape or sexual assault against American Indian and Alaska Native women are committed by non-Native men. (28) A quarter of reported sexual violence towards these women is suffered at the hands of an intimate partner, while 41% of rapes are committed by strangers. (29) These numbers paint a dire picture. Even more distressing is that some anti-rape and human rights organizations think the numbers are a gross underestimation of the amount of rape and sexual violence plaguing Indian Country. (30)

      The sheer magnitude of the rape and sexual violence problem is itself shocking, but worse still is the brutality of the rapes suffered by American Indian and Alaska Native women.

      Rape is always an act of violence, but there is evidence to suggest that sexual violence against American Indian and Alaska Native women involves a higher level of additional physical violence. Fifty per cent of American Indian and Alaska Native women reported that they suffered physical injuries in addition to the rape; the comparable figure for women in general in the USA is 30 per cent. (31) In addition, the identity of those who rape American Indian and Alaska Native women makes the already brutal act take on tragic significance. While the majority of rapes in the United States are intraracial (white women are mostly raped by white men, black women are mostly raped by black men, etc.), (32) rapes of American Indians and Alaska Natives are typically committed by non-Native outsiders. (33) Some have interpreted the rapes as a continuation of America's colonizing relationship with Native American and Alaska Native people. (34)

      American Indian and Alaska Native women are more likely to be raped and brutalized during their rapes, and they arguably suffer additional mental anguish stemming from the historical significance of the ongoing rape and colonization of their tribes. Additionally, the sexual assault and rape of American Indian and Alaska Native women is much more likely to be ignored. (35) As President Obama stated at a conference with tribal leaders, "It]he shocking and contemptible fact that one in three Native American women will be raped in their lifetimes is an assault on our national conscience that we can no longer ignore." (36)

   2. THE JURISDICTIONAL MAZE

      Despite the president's statement, a complicated jurisdictional maze of federal legislation and the Supreme Court's...