H T M L   T R A N S C R I P T   O F

Rape and the Reservation:
A legal maze allows sexual predators to attack American Indian women with impunity

by   K A R I   L Y D E R S E N
 
A staff writer for The Washington Post

 Autumn Gertz, a resident of the Standing Rock Sioux reservation in South Dakota, didn’t think of it as rape when she was forced to have sex against her will by her former boyfriend. Rape was rarely discussed openly in the community and even more rarely prosecuted, even though sexual assaults on the reservation were common.

 When she decided to leave the abusive relationship, she got no support from tribal authorities. ‘On our reservation, we don’t have much help for that,’ she said. ‘I called the police once when he hit me, and they didn’t arrest him or anything. They let him go.’

 When Gertz, now 27, was raped again, this time by a family acquaintance in 2005, after a birthday party at her aunt’s house, she was determined not to suffer in silence.

 But it took courageous advocacy on her part and a sympathetic FBI agent to bring that man to justice. After being released from jail after two months by a tribal court, Gertz’s rapist was sentenced to seven years in federal prison.

 That is an extremely unusual outcome for rape cases on reservations, as evidenced in an April report by Amnesty International that found that a lack of resources, a culture of silence and a maze of jurisdictional issues mean rapists on reservations are very rarely meaningfully prosecuted, and rape victims often don’t get the medical and psychological treatment they need.

 The report, ‘Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA’, found that American Indian and Alaska Native women are 2.5 times more likely to be raped or sexually assaulted than women in the United States in general, based on Department of Justice data, which shows 34 percent of American Indian women will be raped during their lifetime. And that data is based on what by all knowledgeable accounts is a gross under-reporting of sexual assault, meaning the true rates are much higher. At Standing Rock, many interviewees said they could not think of one woman who had *not* suffered sexual violence.

 One of the main problems is that American-Indian courts cannot prosecute non-Indian offenders, because of a 1978 Supreme Court ruling called *Oliphant v. Suquamish*. Federal courts—and in some states, state courts—can prosecute crimes committed on reservations. But in the case of rape and sexual abuse, federal and state prosecutors tend to ignore the problem or blame the victim, and a lack of resources and cooperation from tribal police and tribal health authorities makes the task even more difficult.

 The majority of alleged rapists on reservations are non-Indian, according to the report. Disturbingly, it suggests these perpetrators are well aware of the fact that they are highly unlikely to be prosecuted for their crimes and hence intentionally take advantage of the opportunity, creating a ‘breeding ground for sexual predators.’

 ‘The U.S. federal government has created a complex interrelation between these three jurisdictions (tribal, state and federal) that undermines equality before the law and often allows perpetrators to evade justice,’ according to the report. ‘In some cases this has created areas of effective lawlessness which encourages violence.’

 Perhaps this would explain the situation for C., an American Indian interviewed by Amnesty International whose name has been withheld. She was drinking a nonalcoholic beverage with a white man and woman in August 2004, and then passed out and was later raped and sexually attacked by the couple (the woman stuck a beer bottle in C.’s vagina). The case was dropped because C. allegedly didn’t show up for court; but she said she was standing outside the courtroom at the right time and no one called her in.

 Even when punishment is meted out it is often shockingly lax.

 Tribal courts can only impose sentences of up to one year and fines of $5,000, whereas the average rape sentence meted out by state courts is more than eight years and more than 12 years in federal courts. A tribal court sentenced Gertz’s attacker to a year in jail, though he was out in about two months.

 ‘When I saw him back out, I felt like I was being laughed at, like I wasn’t taken seriously,’ she said. ‘I would see him walk by, laughing at me, intimidating me, like it was nothing.’

 Support workers and activists at the Standing Rock reservation told Amnesty International that rates of rape, including gang rape, were ‘extremely high.’ Amnesty learned of five rapes occurring in one week in September 2005, and many victims reported suffering multiple sexual assaults by different perpetrators. The report says this preponderance desensitized the community to sexual violence and caused people to lay blame ‘directed at the survivor rather than the perpetrator.’

 Not surprisingly, these conditions mean women at Standing Rock and other reservations are highly reluctant to report rapes, and they are also unlikely to get crucial medical and psychological attention. Even when rapes are reported, there is a serious dearth of resources for victims at Indian Health Service facilities.

 More than half the country’s Indian Health Service facilities do not have a standardized sexual assault policy or protocol, according to Charon Asetoyer, executive director of the Native American Women’s Health Education Resource Center, a nonprofit group based on the Yankton Sioux reservation in South Dakota.

 ‘That’s really unacceptable,’ she said. ‘If there’s no procedure in place, there’s no assurance she’ll be screened for STDs and given access to emergency contraception. There’s no assurance they’ve even called an advocate to respond to her needs. Lots of times, the woman is afraid to go back to her home for fear of retaliation or rape by the same predator. Indian Health Service needs to call the nearest shelter and make sure there’s follow-up.’

 Since many Indian Health Service facilities don’t have a nurse on staff trained to use rape kits, the services are often contracted out, and women will be told to go to hospitals located 100 miles away or more, especially since most reservations are in rural areas.

 ‘In Alaska, I can’t even tell you how far it would be for women in some of the villages to get somewhere a rape kit can be used,’ said Asetoyer. ‘Many women don’t have transportation. So the collection of forensic evidence is not there. And the rapist is free to prey again on another victim, knowing there’s been no evidence collected, and the cycle begins again on another unsuspecting woman.’

 Gertz said that when she went to a local health center, staff told her a rape kit would not be used unless she agreed to press charges, something she had not decided upon at the moment. It is illegal, Asetoyer noted, to make medical treatment contingent on pressing charges.

 The Amnesty International report places its conclusions within the context of the legacy of U.S. governmental and societal abuse of American Indians. The report notes that prior to colonization, gender-based violence was rare and severely punished. But settlers regularly engaged in sexual violence as part of the conquest of Indians. And Christian missionaries and government officials dealt primarily with men and pressured tribes to mirror the white family structures, ‘profoundly chang[ing] gender roles among indigenous people.’

 ‘Sexual assault rates and violence against Native American women did not just drop from the sky,’ said Jacqueline Agtuca at a 2005 conference of American Indian women in Alaska. ‘They are a process of history.’

 Racism and demonization of Indian women are largely to blame for the current lack of resources and treatment, according to advocates and reservation residents.

 For example, when Gertz tried to go to a shelter off the reservation to escape her abusive partner, she said she was told she could not get a bed until she was tested for lice in Bismarck. She feels certain white women staying at the shelter weren’t subject to the same treatment.

 ‘I said, “I’ve never had lice, I’ve always kept clean,”’ she relates. ‘They said it was part of their policy. But one of the girls I met at the shelter said she and her daughter weren’t checked—and she looks like a white lady. I think it was a racial discrimination thing. I would never go back to that shelter after what I had to put up with.’

 High rates of drug and alcohol abuse on reservations are woven into a systematic blame-the-victim approach. When asked about the Amnesty International report, a Bureau of Indian Affairs spokesman repeatedly referred to statistics about drug and alcohol abuse on reservations, data that should have no relation to whether rapes are prosecuted and rape victims treated. The BIA communications office didn’t return calls for further comment.

 Now Gertz has moved off the reservation and is planning to attend school in Bismarck, where she lives with her daughter. She hopes her story can raise awareness of the problem of rape and lack of response on reservations, and spare other women the turmoil she went through.

 ‘If there’s any other woman going through what I went through,’ she said, ‘I would strongly encourage them to do what they can to get their assaulters put away.’ 

—  Kari Lydersen, “Rape and the Reservation: A legal maze allows sexual predators to attack American Indian women with impunity.” Journal article published in ColorLines: The national newsmagazine on race and politics, Nov./Dec. 2007, vol. 10, no. 6, pp. 36–8.