Beyond the law

For more than a decade, a white man married to an Indian woman sexually terrorized his entire family on the Eastern Cherokee reservation in North Carolina. If his wife complained about the rapes and beatings with a baseball bat, he shocked her with a Taser. While raping his wife, he would force his teenage daughters to stand by so he could fondle their genitalia to compensate for erectile dysfunction. Afterward, he would show them his AK-47 and threaten to kill them if they ever left him or told anyone.

Despite those threats, his wife finally reported the incidents to tribal police. Eastern Cherokee prosecutor James Kilbourne wanted to prosecute, but the tribe did not have criminal jurisdiction over the non-Indian husband. Local and state authorities didn't have jurisdiction either because the victims were Indians.

In 21st century America, how is it that the availability of justice on Indian reservations is determined by the race of the perpetrator and victim? Although the federal government recognizes Indian tribes as sovereign nations, Congress and the Supreme Court have severely restricted tribes' ability to protect their citizens from violent crime.

The first blow came in 1885, when the Major Crimes Act declared that the federal government -- not Indian tribes -- had jurisdiction over murders, rapes and felony assaults involving Indians. Then, in 1978, the U.S. Supreme Court further stripped tribes of criminal jurisdiction over non-Indians in Oliphant vs. Suquamish Indian Tribe. The legacy of that fundamentally flawed decision is a jurisdictional void that has produced an epidemic of violence against Indian women and children.

On most reservations today, tribes prosecute misdemeanors committed by Indians, and the state prosecutes crimes committed by non-Indians against non-Indians. But when a non-Indian victimizes an Indian, only U.S. attorneys can file charges.

But U.S. attorneys often don't pursue such cases. In fact, they decline to prosecute crimes committed on reservations nearly twice as often as those committed off-reservation, according to Justice Department data recently analyzed by the Wall Street Journal. Six states (including California) were given criminal jurisdiction over Indians by Congress in 1953, but prosecutors in those states turn down cases at similarly high rates, according to preliminary findings from research underway at UCLA.