The New Trail of Tears

by Naomi Schaefer Riley

  On March 14, 2013 law enforcement went to the home of these two boys because one of them tried to sexually assault a three year old female neighbor who is developmentally delayed.

  Police were called last summer when adults and very young children observed a 15 year old boy having intercourse with a 10 year old girl on the steps of the church in St. Michaels at mid-day. No one responded to the call.10

  Sullivan’s reports go on like this at length, each more exasperated than the last. He details incidents that have been reported to him by one or more reputable sources – including tribal leaders, law enforcement, and even a nun. He notes that either no action has been taken or someone has provided some absurd excuse – people have told him that sex between a man and an adolescent girl hadn’t been further investigated because it was “consensual.” His sources have been threatened. Sullivan has been barred by his superiors from speaking with the media. But he continues, in the face of what is clearly a threat to his career and quite possibly his physical safety, to document the horrors at Spirit Lake.

  In one of his reports, he compares the situation at Spirit Lake to the situation at Penn State or in the Catholic Church. The authorities knew about the problems and looked the other way. Now the problems have been publicized, and people continue to look the other way.

  Perhaps a better comparison is to the case of Rotherham, England, where widespread child abuse was found to have taken place between 1997 and 2013. Investigators uncovered almost 1,400 cases of abuse, many of which had been documented in reports by a Home Office researcher in 2002.11 When the news broke, many people wondered how these horrors could have been ignored for so long. The reports were suppressed out of “political correctness,” some in British government have speculated, because the perpetrators and the local political leadership were largely of Muslim descent.12

  Denis MacShane, Rotherham’s former representative in Parliament, told the BBC that he should have done more to find out the truth of what was going on. He admitted he should have “burrowed into” the issue: “I think there was a culture of not wanting to rock the multicultural community boat if I may put it like that.” He said that his liberal views made him reluctant to raise the issue of how the Muslim community treated women.13

  Just as British leaders didn’t want to accuse a largely Muslim community of abusing young girls, so the U.S. government doesn’t want to make too much of an Indian community engaging in widespread child abuse. There’s so much guilt about racism, about what was done to these communities in the past, that they don’t want to shine a light on crimes taking place now. But the truth is that, in the name of protecting these communities, we’re failing to protect their most vulnerable members.

  Mark Fiddler used to believe that the most important thing for a child was to have “culturally appropriate” parenting: Indian children should be raised by Indian parents. But he says there was a “sea change” in his thinking in the mid-’90s as he started to learn about “attachment theory.” According to a report by the U.S. Department of Health and Human Services, “The importance of early infant attachment cannot be overstated.” The research has been clear for some time that children raised in stable environments with attentive parents have better outcomes in life. As the report concludes: “Children with secure attachments have more basic trust than those who are anxiously attached. They have more ego resiliency through early and middle childhood, unless they experience significant negative changes. They can also cope with setbacks, and recover more quickly. Securely attached children have more flexibility in processing current information and in responding appropriately in new situations and relationships.”14

  “What a child needs growing up is stability and permanent relationships irrespective of culture,” says Fiddler. In fact, he adds, “Healthy attachment is a predicate for cultural knowledge.” In all his litigation, he says, “my impetus is about the child’s attachments and protecting the child’s best interests. The theory behind ICWA is that Indian children won’t be screwed up as long as they’re parented by Indians. But the scientific evidence points to the fact that attachment is not related to the race of the caregiver.”

  In fact, what’s destroying Indian communities isn’t simply a “cycle of dysfunctional parenting.” A shocking number of children also have had exposure to alcohol in utero. Fetal alcohol syndrome can have severe effects on a child’s ability to learn, ability to judge consequences of his or her actions, and impulse control.

  Jody Allen Crowe, a former teacher and principal who has served on six different reservations, has witnessed the effects of fetal alcohol syndrome firsthand. In his book Fatal Link, Crow describes his first years teaching: “So many students were unable to read and write. More had behavioral difficulties. . . . Some were violent. Many were promiscuous. Suicides were prevalent. Some were predators, others were very vulnerable.” As evidenced by the fact that many of his students would soil themselves and then not be embarrassed about it, he says that a “majority of my students [were] having a difficult time, with few functioning at or possibly near their chronological age.”15

  Now the founder of Healthy Brains for Children, a nonprofit devoted to lowering the incidence of prenatal exposure to alcohol, Crowe describes his own ignorance at the time. “The impact of brain damage from alcohol was evident in their social behaviors, [in] their academic behaviors and in their physical characteristics, but I did not have a clue that what I was seeing was evidence of prenatal exposure to alcohol.”16

  According to a report by the U.S. Department of Health and Human Services, “Native Americans have some of the highest rates of fetal alcohol syndrome in the nation. Among some tribes, the rates are as high as 1.5 to 2.5 per 1,000 live births. Among others, the rates are comparable to that of the general population in the United States and range between 0.2 to 1.0.”17 If anything, children with fetal alcohol syndrome need even more resources and parental supervision than typical children. But child services on reservations are often overburdened, and sometimes they’re downright corrupt and incompetent. And ICWA is helping ensure that the list of adults who can take these children in is shorter, not longer.

  For some children, there are simply no responsible adults in the picture. And on a few reservations, adults are simply covering up the problems. Renbarger sits on a child protection team with officials from the FBI, the Bureau of Indian Affairs, and caseworkers for the tribe. “There is a shortage of homes” to put these kids in, she notes. “And there are no background checks before placing someone in foster care. There are sexual abusers who have access to these kids.”

  Elizabeth Morris confirms this from personal experience. For 17 years, Morris and her husband served as foster parents. When they first applied to be foster parents, “two social workers showed up at our house for an hour or two. They walked through the house. They didn’t look at the bedrooms. They didn’t care. After that, they asked us how to get to the National Bison Range. They were supposed to be observing us for two days, but they spent the rest of the time sightseeing. We could have been ax murderers.” And once a family is approved as an “ICWA” family – that is, cleared to take in Indian children – Morris says, “There is no follow-up.”

  Part of the problem, Renbarger notes, is manpower. In her case, she says, “There are a handful of agents working with a community of 20,000 people. If there’s a murder that happens that week, they have to go out and work that. Some of these child abuse cases get overlooked.” Meanwhile, she says, the tribal department of social services is supposed to be on call at all times to deal with these issues. But she has found herself “frustrated in trying to get a hold of them.” There have been instances where “they told the FBI agent to place the kid. That’s the attitude. They’re so overwhelmed themselves, but they don’t have competent leadership or direction either.”

  She says the “tribal departments of social services are incompetent, and there is not good oversight from the state level or from the Bureau of Indian Aff
airs.” Indeed, court orders for child protection “are not drawn up in a timely manner.” The court systems are often part of the problem. “They don’t have the same standards as state courts.” She gives the example that the judges are often related to the families whose cases they’re deciding. For the children, “it’s hard not to feel helpless in that kind of environment.”

  Although it would be helpful for the workers to have smaller caseloads, Renbarger says, “My gut tells me that more money being thrown isn’t necessarily the answer. There has to be some fundamental paradigm shift.”

  Where to start? With some honesty, for one thing. The fact that his supervisors’ apparent first impulse was to punish Tilus for speaking about these abuses tells us something about the system. The fact that Sullivan is barred from speaking to the media tells us something about the system. There’s tremendous fear about even naming the problem, and there’s a tendency to place the blame on others.

  Take the 2013 reauthorization of the Violence Against Women Act. A provision in the bill expanded Indian tribal courts’ powers to prosecute non-Indians accused of sexual assault on Indian lands. Title IX of VAWA authorizes “special domestic violence criminal jurisdiction.”18 Under this provision, tribes may criminally prosecute non-Indians for the crimes of domestic violence, dating violence, and the violation of protection orders.

  Kimberly Norris Guerrero, an actress and tribal advocate who’s Cherokee and Colville Indian, told the Washington Post: “Over the years, what happened is that white men, non-native men, would go onto a Native American reservation and go hunting – rape, abuse and even murder a native woman, and there’s absolutely nothing anyone could do to them. . . . They got off scot-free.”19

  Rape and sexual abuse are clearly rampant on many Indian reservations. According to the Justice Department, one in three Native American women will be raped in her lifetime.20 In a 2007 story on the Standing Rock Sioux reservation in the Dakotas, doctors told NPR that they saw rape and sexual assault victims “several times a month” but that they were almost never called to testify in court. And authorities rarely break out a rape kit when a woman reports a rape.21

  In 86 percent of cases of sexual assault against Indians, the victims claim their attackers were non-Indians. That’s a Justice Department statistic that also appeared in the Washington Post.22 But despite numerous calls to the Justice Department and e-mails to the Washington Post, I haven’t been able to get a copy of the report that yielded that number. And the Justice Department official to whom I spoke was unable to explain to me the methodology behind it either. He did say, “It’s not a number we like to rely on.” And he noted that he issued a similar warning to the Washington Post reporter.

  Moreover, another Justice Department report makes that number seem suspect. According to the 2013 “Indian Country Investigations and Prosecutions” report, the vast majority of crimes, including sexual assaults, committed against Indians on reservations are perpetrated by other Indians. A table on the “Status of Victim and Subject in Indian Country Investigations”23 that were “administratively closed that year” found 425 Indian subjects, compared to 32 non-Indian subjects. Among sexual assaults in particular, the numbers were 29 and 5. In other words, in about 85 percent of the FBI’s sexual assault cases closed on Indian lands, the perpetrators were Indian.

  Those numbers look to be similar in previous years. Although many reservation residents are non-Indian, and many reservations are adjacent to large cities with mixed populations, the idea that people of other races are coming to reservations to “hunt” Indian women seems questionable at best.

  Even if Indians on reservations account for only a quarter of the total Indian population in the United States, it’s pretty hard to imagine that there were enough assaults perpetrated by non-Indians against Indians on reservations to get to that 86 percent. And, if anything, one would think the cases taken and closed by the FBI would be more likely, not less likely, to involve racial incidents, where the question of jurisdiction across reservation boundaries and state boundaries might be more pronounced.

  The claim that attacks on Indians are perpetrated mostly by non-Indians has been made before, though, including in a 2004 report from the Bureau of Justice Statistics. In 2008, South Dakota attorney general Larry Long and University of South Dakota researchers looked at the claim. Their subsequent article, “Understanding Contextual Differences in American Indian Criminal Justice,” appeared in the American Indian Culture and Research Journal.24

  They pointed to a number of flaws in the BJS data, including that it was based largely on a survey of victims rather than on actual crime data. Looking at state data, Long found that nearly 73 percent of Indian homicides were committed by other Indians. “From our analysis, we found that intentional homicide is predominantly intra-racial in South Dakota, contrary to the [Bureau of Justice Statistics] findings.” As for rapes, they found that in South Dakota, 69 percent of Indian victims were assaulted by other Indians. “Contrary to the [Bureau of Justice Statistics’] national findings, rape is predominantly intra-racial in South Dakota,” Long and his co-authors wrote.25

  Trumpeting the new provisions of VAWA, Thomas J. Perrelli, a former associate attorney general, told the Washington Post: “There are tribal communities where state police have no jurisdiction and federal law enforcement has jurisdiction but is distant and often unable to respond. . . . There are tribal communities where the federal government has no jurisdiction but state law enforcement, which has jurisdiction, does not intervene. And there are still other tribal lands where there is a dispute about who, if anyone, has jurisdiction. All of this has led to an inadequate response to the plight of many Native American women.”26

  From my interviews, it seems clear that there has been an inadequate response on the part of law enforcement. And it also seems clear that there are problems with jurisdiction. When I recently asked a group of three Native American leaders to whom they would report a case of child abuse on their respective reservations, one said the tribal leaders, one said state officials, and one said the FBI.

  But it seems doubtful that the solution to these problems is to give more power to tribal governments, who in many cases can’t deal with the problems they already have.

  Just like the Catholic Church and the Penn State administration, or, for that matter, the Satmar ultra-Orthodox Jewish community in Brooklyn, Indian reservations are insular. Sometimes the people deciding the cases are related to the defendants. Reservations are often governed by old boys’ networks that can, if left unchecked, put tribal leaders’ interests ahead of victims’ interests, even in cases of sexual crime. We can’t let the foxes guard the henhouse.

  Then there’s the problem of the tribal “justice” systems. These courts just don’t offer the same kind of procedures and protections as the rest of our judicial system. And as Christina Villegas of the Independent Women’s Forum tells me, “The problem with the tribal courts is that they don’t necessarily adhere to the same constitutional standards as the other courts in this country.”

  Her point is backed by the National Association of Criminal Defense Lawyers. In a letter warning the House of Representatives against expanding tribal powers, the group notes that many tribes “do not make the code of laws publicly available” and “have no rules for discovery by the defendants of evidence against them.” Indeed, many tribes don’t even provide defendants with a lawyer to represent them at trial.27

  In all cases, but especially in rape cases, the collection and discovery of evidence is extremely important. As Villegas notes, without evidence and a clear judicial process, the cases just “descend into ‘he said, she said.’” Rather than giving over more power to Indian tribes, we should be giving women on these reservations greater access to the same courts (and police) that the rest of us get to use.

  But there are other forces standing in the way as well. In April 2015, a federal panel was formed to find out whether Native Americans living on reservations “a
re subject to disproportionately harsher punishments for crimes than other Americans,” according to an article in the Wall Street Journal. Because Indians on reservations are typically prosecuted under federal law and not state law, the punishments can be heavier.

  The article notes, “In South Dakota, Native Americans make up nearly 60% of the federal caseload, but only 9% of the population.” Such statistical comparisons are often used with other minority groups to suggest that there’s a policing or a sentencing disparity. But there’s a key figure missing from such analysis: what percentage of crimes are being committed by Indians in South Dakota? If Indians make up a disproportionate number of victims, and, as former attorney general Larry Long notes, most of these crimes are intra-racial, then we can presume that Indians are perpetrating a disproportionate amount of the crime.

  But even if it’s true that Indians are being sentenced more harshly because they’re being sentenced in federal court, what’s the alternative? Either give more power to prosecute to the tribes themselves – the effect of which will probably be less effective policing and prosecution. Or give power to the states – which the tribes would never go for because they want to maintain their sovereignty. Or change the sentencing guidelines in federal courts for Indians. All in all, this doesn’t sound like a winning proposition.

  None of these issues are new for William Allen, who served on the U.S. Commission on Civil Rights from 1987 to 1992. Allen describes the questions that came before the commission concerning Indians. “They were primarily law enforcement issues, the extent to which there were protections for people in the law enforcement environment.” He became especially concerned “with the lack of coordination between the tribal police and the Bureau of Indian Affairs and the FBI and Justice Department.” There seemed, according to Allen, “to be a pattern of deference to tribal authority that left them substantially unaccountable.”