Indigenous Revelations

(CN) 5/4/11 - A Navajo woman cannot seek damages from the U.S. government after a cop sexually assaulted her 14-year-old daughter and took “compromising” pictures of the girl with his cell phone, the U.S. Court of Federal Claims ruled, finding that the attack is not covered by the “bad men” clause of the Navajo Nation’s treaty with the United States since the attack occurred on a Sioux reservation. Officer Daniel Kettell, a Rosebud Sioux Indian Reservation police officer and a member of the Sioux tribe, arrested Jennifer Pablo’s daughter, F.C., on suspicion of underage drinking and drove her to a Rosebud Sioux police station in June 2008. “While [en] route to the facility, Officer Kettell physically and sexually abused, molested, and assaulted F.C. and took compromising photos of her on a cell phone,” according to the ruling. Kettell was arrested and charged with one count of abusive sexual contact for the attack. He pleaded guilty in South Dakota U.S. District Court and was sentenced to two years in prison and ordered to pay a fine. Pablo filed a $2 million lawsuit against the United States for “future medical, rehabilitative, and psychological counseling, treatment, and therapy” damages, arguing that the attack is protected by the “bad men” clause of the Fort Sumner Treaty of 1868 between the Navajo Nation and United States. According to the clause: “If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will … reimburse the injured persons for the loss sustained.” Pablo is a member of the Eastern Navajo Tribe in New Mexico; F.C.’s father is a member of the Three Affiliated Tribes of North Dakota Indians. F.C., now a Navajo Tribe member, was living with her father on the Rosebud Sioux Reservation and was not an enrolled tribe member at the time of the attack. Pablo cited the “bad men” clause of the Fort Laramie Treaty in her initial complaint, but shifted to a similar clause of the Fort Sumner Treaty in her amended action. Arguing that the Rosebud Sioux Reservation lies outside of the boundaries of the reservation recognized by the Fort Sumner Treaty, the government moved for summary judgment against Pablo. “The government does not dispute that F.C. was born on, was residing on, and was attacked on a reservation recognized by the Fort Laramie Treaty,” Judge Nancy Firestone wrote. “[However,] Article XIII clearly strips a Navajo of the rights conferred by the ‘bad men’ clause if he or she permanently settles outside the boundaries of the reservation recognized by the Treaty.” In agreeing with the government, Firestone cited Herrera v. United States. In Herrera, a Navajo girl was attacked off-reservation by a boarding school classmate, and the court ruled against her claim for damages. Tribe members relinquish all rights if they occupy any territory outside of their reservation, Firestone said. “The government argues that F.C. was not residing or located in the Navajo Reservation at the time of the attack and therefore under Article XIII of the Fort Sumner Treaty she was not entitled to any of the privileges or rights conferred by the treaty at the time of the attack, including the protections of the ‘bad men’ clause,” according to the April 21 ruling. “Article XIII of the Fort Sumner Treaty provides, in part, ‘it is further agreed and understood by the parties to this treaty, that if any Navajo Indian or Indians shall leave the reservation herein described to settle elsewhere, he or they shall forfeit all the rights, privileges, and annuities conferred by the terms of this treaty.’” Pablo filed a separate claim for $5 million in damages pursuant to the Federal Tort Claims Act, as Rosebud Sioux Tribe officers are considered federal employees by contract. The claim is pending, and the government has not yet responded on its merits.

Sexual violence against Indigenous women in the USA is widespread — and especially brutal. According to US government statistics, Native American and Alaska Native women are more than 2.5 times more likely to be raped or sexually assaulted than other women in the USA. Some Indigenous women interviewed by Amnesty International said they didn’t know anyone in their community who had not experienced sexual violence. Though rape is always an act of violence, there is evidence that Indigenous women are more like than other women to suffer additional violence at the hands of their attackers. According to the US Department of Justice, in at least 86 per cent of the reported cases of rape or sexual assault against American Indian and Alaska Native women, survivors report that the perpetrators are non-Native men.

The Federal Government has also undermined the authority of tribal governments to respond to crimes committed on tribal land. Women who come forward to report sexual violence are caught in a jurisdictional maze that federal, state and tribal police often cannot quickly sort out. Three justice systems — tribal, state and federal — are potentially involved in responding to sexual violence against Indigenous women. Three main factors determine which of these justice systems has authority to prosecute such crimes:
- whether the victim is a member of a federally recognized tribe or not;
- whether the accused is a member of a federally recognized tribe or not; and
- whether the offence took place on tribal land or not.

The answers to these questions are often not self-evident and there can be significant delays while police, lawyers and courts establish who has jurisdiction over a particular crime. The result can be such confusion and uncertainty that no one intervenes and survivors of sexual violence are denied access to justice.

Tribal prosecutors cannot prosecute crimes committed by non-Native perpetrators. Tribal courts are also prohibited from passing custodial sentences that are in keeping with the seriousness of the crimes of rape or other forms of sexual violence. The maximum prison sentence tribal courts can impose for crimes, including rape, is one year. At the same time, the majority of rape cases on tribal lands that are referred to the federal courts are reportedly never brought to trial.

As a consequence Indigenous women are being denied justice. And the perpetrators are going unpunished.