How the U.S. Government Created the Crisis of Violence Against Native Women and Girls

For Native women, murder is the third leading cause of death and the crisis of violence has an obvious origin. Here’s a primer.

Today, Hanna Harris would have been 33 years old. On the 4th of July in 2013, Harris went to Lame Deer on the Northern Cheyenne Reservation in Montana to watch the fireworks. Four days later, a volunteer search team found her decomposed body. At the time of the murder, Harris was 21 years old. She liked spending time with her grandfather watching high school basketball games or going to ceremony. Raised in Northern Cheyenne culture, Harris was also Lakota and often went back to Pine Ridge to visit her dad. At the time of her death, Harris’s son was still a baby–only 10 months old.

After Harris‘s death, Native advocates designated her birthday May 5 as a national day of awareness for missing and murdered Indigenous women and relatives.

For Native women, murder is the third leading cause of death. Native women living on reservations are murdered at a rate 10 times higher than the national average. Over the span of their lifetime, 4 in 5 Native Americans will experience sexual assault, domestic violence, or stalking. 97% of the people who perpetrate these crimes are non-Native.

This crisis of violence has an obvious origin: Who can prosecute what crimes on tribal land is a mess. As a result, many cases go unprosecuted. Abusers don’t abuse everyone; they abuse where they think they can get away with it. With no accountability for harming Native women and relatives, perpetrators take full advantage.

Criminal jurisdiction works like this: Police and prosecutors only have authority over specific areas. A district attorney from Philadelphia can’t prosecute crimes in New York and vice versa. Most non-Native people don’t think about it much, but Native people think about jurisdiction all the time. The complex and intricate way it works on tribal land has a profound impact on our lives. This web of jurisdiction has been centuries in the making; here is a primer on how we got here.

Tribes cannot prosecute non-Natives for most crimes

In the summer of 1973, at a large annual celebration that drew thousands of people to the Suquamish reservation, a white man named Mark Oliphant got in a drunk fight. When tribal police tried to place Oliphant under arrest, he fought back. In tribal court, he was charged with disorderly conduct and resisting arrest. Several months later, Oliphant was a passenger in his friend Daniel Belgrade’s car when Belgrade also tried to evade arrest–this time in a high-speed car chase. The chase ended when Belgrade crashed into a tribal police car.

Before Mark Oliphant was brought to trial, he filed a federal habeas petition arguing the Suquamish Indian Tribe couldn’t prosecute him because he wasn’t Native American. He lost twice in federal court, but, together with Belgrade, appealed his case all the way to the Supreme Court. In Oliphant v. Suquamish Indian Tribe, the Supreme Court ruled in the men’s favor, concluding that “while Congress never expressly forbade Indian tribes” from imposing “criminal penalties on non-Indians” it was “the commonly shared presumption” that tribes could not.

Thanks to Oliphant–except crimes carved out by the Violence Against Women Act–tribes cannot prosecute non-Natives who commit crimes on our land. Today, if you are not Native, you can go onto a reservation and break the speed limit, steal a pack of gum, or murder someone, and the tribe can’t do anything about it.

After Oliphant, tribes could still prosecute crimes committed by Native people on tribal land–in theory. In practice, that power is limited. In 1968, Congress passed the Indian Civil Rights Act. ICRA’s most damning provision limited the prison sentence tribes could impose to six months. The Act was amended in 2010 and the prison term was extended–to three years. And so, a tribe can technically prosecute crimes like murder, but they can only sentence the murderer to three years in prison.

The federal government can prosecute “major” crimes on tribal land

In 1881, a Lakota man named Crow Dog killed one of the tribe’s political leaders. Under tribal law, he paid restitution to the victim's family. But under the law of the Dakota territorial government, he was charged with murder. Crow Dog filed a federal habeas petition arguing the territorial court didn’t have jurisdiction on his reservation. Crow Dog won the case and was released. Congress did not like this outcome. And so they changed the law. In violation of numerous treaty provisions, Congress passed the Major Crimes Act, giving the federal government power to prosecute Native Americans who commit “major crimes” on tribal land. Major crimes includes things like murder, assault, kidnapping, child abuse, and robbery.

One might think federal authority over crimes in Indian Country might make Native people safer, but that's not what happened. The problem with federal prosecutorial power is that they don’t use it. When a case is referred to a prosecutor by law enforcement, the prosecutor has to decide whether or not to file charges. If the prosecutor doesn’t file charges, it's called declining the case. Between 2005 and 2009, U.S. attorneys declined 67% of sexual assault and related cases referred to them from tribal land. As recently as 2017, the Department of Justice declined over a third of all Indian Country cases.

States can… well, it depends.

As if all that wasn’t confusing enough, there is another layer: states. Originally, in our constitutional order, states did not have jurisdiction on tribal land. Tribes were almost like foreign governments. And so, just like Minnesota cannot prosecute crimes committed in Canada, the state could not prosecute crimes on White Earth. Starting in the 1940s, however, states started asking Congress for more power. And Congress started granting it.

At the height of its intrusion in 1953, Congress passed Public Law 280. Public Law 280–like everything else having to do with jurisdiction on tribal land–is complicated. The law left some states with jurisdiction on tribal land exclusive of the federal government, others with shared jurisdiction, and even gave states jurisdiction on certain reservations, but not others. In total, 15 states have more prosecutorial power on tribal land thanks to Public Law 280. The states are often referred to as PL 280 states.

After Congress thoroughly messed with state jurisdiction on tribal land, the U.S. Supreme Court weighed in. In 2022, the Supreme Court ruled that all states have the authority to prosecute crimes where the perpetrator is non-Native, but the victim is Native. In case you lost track, here is where that leaves state jurisdiction: All states can prosecute crimes committed by non-Natives on tribal land. Most states cannot prosecute crimes committed by Natives on tribal land.

One might think that with the federal government dropping the ball, allowing states to prosecute violent crimes in Indian Country would help. Research, however, reveals the opposite. Everyone wants Native people to be safe, but no one wants to pay for it. In states that can prosecute crimes on tribal land, 83-92% of local tribes get zero federal funding for their own law enforcement. States don’t want to foot the bill either. Today on the Flathead Indian Reservation, neither the local county nor the state want to pay to police the reservation. Lake County even sued Montana for over $1 million over the controversy. With everyone passing the buck, Native people in PL 280 states report poor policing in their communities, like long or no response to 911 calls.

Today, some tribes can prosecute some crimes committed by non-Natives on their land

For decades, Native advocates have said the way out of the crisis of violence is restoring tribal jurisdiction over tribal land. And for decades, they asked Congress to act. In 2013, in the reauthorization of the Violence Against Women Act in 2013, Congress finally did. The bill restored tribal jurisdiction over non-Native perpetrators of for crimes of domestic violence and dating violence. After the law went into effect, the Tulalip Tribe in the state of Washington arrested 17 non-Native perpetrators of domestic violence on their reservation who together had a total of 171 previous contacts with tribal law enforcement. That means 171 times tribal police had been called to the scene of their crimes, but couldn’t do anything.

Since the victory in 2013, VAWA has been updated to expand tribal jurisdiction over sexual assault, sex trafficking, stalking, and child abuse. Thanks to another law, tribes are also allowed to stack those three-year prison terms in some cases to put defendants away for nine years.

But–like everything else with tribal jurisdiction–the victory came with a loophole. To prosecute non-Native defendants under VAWA, tribes have to meet certain criteria and seek federal approval. As of 2022, 31 tribes across the U.S. had passed this hurdle–31 out of 574.

Hanna Harris’s murder on the Northern Cheyenne Reservation fell under federal jurisdiction. The initial law enforcement response to her disappearance was slow, and by the time a volunteer search party found her body, it was badly decomposed. While some forensic evidence couldn’t be collected due the state of decomposition, the defendants in her case later revealed that Harris was raped and bludgeoned to death before they dumped her body. One of the defendants was charged with second-degree murder. The second defendant, who allegedly raped Harris before she died, was only charged with accessory after the fact for helping move her body. The family spoke out against this plea deal.

Today, leading Native advocates are calling for one solution: full restoration of tribal jurisdiction on tribal land. Some advocates call this an “Oliphant fix”, referring to the 1978 Supreme Court ruling. Full restoration would mean that if someone commits a crime on tribal land–no matter who they are, what the crime is, or which reservation it happened on–the tribe can hold that person accountable. Tribes, who have existed since before the United States was even an idea, have the inherent right to govern our lands and keep our citizens safe. Today, as our relatives disappear and die at alarming rates, the need for tribal jurisdiction is dire. So far, Congress has continued to take a piecemeal approach.

Enraged? Here are some organizations fighting for expanded tribal jurisdiction and justice for Native victims:

National Indigenous Women's Resource Center: national advocacy and technical assistance organization

National Congress of American Indians: the oldest Native rights organization in the U.S.

If you or someone you love is experiencing violence, you can contact the StrongHearts Native Helpline at 1-844-7NATIVE or strongheartshelpline.org.

Let’s connect!

By the Fire We Carry has been shortlisted for a Reading the West Book Award in the General Nonfiction category! It would mean a lot if you support my book by voting before May 31: https://readingthewest.com/35th-annual-shortlist-titles/

On May 13, I am participating in the Luce-American Academy of Religion (AAR) speaker series and will be in virtual conversation about Indigenous Sovereignty and Reproductive Politics. Register here for the Zoom link: https://purdue-edu.zoom.us/meeting/register/LfJEFUo9TjOaWGh-J4U2rg#/registration

On May 24, I will be at the Fayetteville Public Library giving a book talk for By The Fire We Carry. Hope to see you there! https://www.facebook.com/events/656054813704817

What to Expect from Native America:

Thank you so much for reading! It’s really exciting to be engaging with readers and authors on Substack. Moving forward, I’ll be publishing twice monthly–with one longer form article (like this one), and another post with a Native News Roundup and a deeper dive on a current event or interview with Native folks who are making news. Please keep reading, sharing, and subscribing!