On any given day, Annita Lucchesi might be ordering casket sprays, prepping food for a wake, buying school supplies for a child with a missing parent or booking a motel for a woman escaping domestic violence.
Her grim professional docket is a reflection of the scale of the crisis of violence facing Indigenous people, as well as long-standing negligence by the federal government and law enforcement when it comes to Indigenous people’s safety, she said.
“The reality is that the only people doing any of this work are grass-roots folks,” Lucchesi said. “If we as community members didn’t step up to do it, it literally wouldn’t get done.”
Lucchesi, who is of Cheyenne descent, said that as a survivor of domestic violence, sexual assault and trafficking who has loved ones who are missing or murdered, this work has never felt like a choice. She said that just in her small community of about 3,000 people, she has tracked more than 100 unsolved cases of missing and murdered people in the last couple of decades by following news reports and talking to community members. This winter alone, she said, there have been three murders she has tracked using these methods.
“It’s personal to me,” said. “At what point does our local cemetery become a mass grave?”
Lucchesi’s experiences with violence are not uncommon. More than 84 percent of Indigenous women have experienced violence in their lifetime, according to a 2016 National Institute of Justice report. In some counties, the U.S. Department of Justice found, Indigenous women are murdered at a rate 10 times higher than the national average. Indigenous men face disproportionately high rates of violence, and while data collection on transgender and two-spirit Indigenous people is often lacking, Lucchesi said they too face overwhelmingly high rates of violence.
Lucchesi added that these shocking numbers, however, are probably undercounts — of the oft-cited statistic that one in three Indigenous women have been raped, she said she has an aunt who says skeptically: “Show me the other two.”
The majority of sexual assault cases in the United States go unreported, according to an analysis by the Justice Department. Poor data collection on gender-based violence among Indigenous people, including misclassifications of homicides as suicides or accidents, paired with a difficult-to-access legal system probably make this worse for Indigenous people, women’s rights experts say. Last year, Deb Haaland, the first Native American sworn in as U.S. interior secretary, announced a new Missing & Murdered Unit (MMU) within the Bureau of Indian Affairs to try to tackle some of these issues.
It is a problem that a bipartisan group of lawmakers says they’re also hoping to address this month by pushing to reauthorize the 1994 Violence Against Women Act for the first time in almost a decade. The updated version of the bill, led by Sens. Lisa Murkowski (R-Ala.), Dianne Feinstein (D-Calif.), Joni Ernst (R-Iowa) and Richard J. Durbin (D-Ill.), would include provisions expanding tribal jurisdiction over gendered violence.
The House voted last March to reauthorize the landmark legislation, which was originally written by then-Sen. Joe Biden as part of the 1994 crime bill. VAWA is up for renewal every five years, and while it has been reauthorized multiple times, it lapsed in 2019 when the Republican-dominated Senate did not pass it.
Many Indigenous legal scholars and activists, however, say VAWA is a patchwork solution to a larger fundamental problem — the federal government’s failure to respect tribal sovereignty, or the rights of tribes to govern themselves by their own laws and courts.
“Sovereignty is inherent, it’s not a gift or a delegation from the federal government but a capacity that tribes have always possessed since time immemorial,” said Wenona T. Singel, an associate professor of law at Michigan State University’s College of Law and an enrolled member of the Little Traverse Bay Bands of Odawa Indians.
Part of why Singel sees tribal sovereignty as so closely tied to the epidemic of violence facing Indigenous women goes back to a pivotal 1978 Supreme Court case. Oliphant v. Suquamish Indian Tribe ruled that tribes could not prosecute non-Indians who committed crimes in their territories.
“It’s essentially this loophole that non-Indians have been able to take advantage of where they could commit crimes against Indians, Indian women in particular, and not be prosecuted,” Singel said. “It allowed non-Native perpetrators to commit violence on the reservation against Indian victims with impunity, repeatedly, knowing that there would be little to no consequences for their actions.”
Research shows that the overwhelming majority of Native women who are survivors of sexual violence experienced it at the hands of a non-Native person.
“If an American were to go to Paris and murder somebody, they’re accountable to the French legal system,” Lucchesi said. “Why is it that when someone comes to a tribal nation and murders somebody, they’re not accountable to our legal system?”
While the federal government has criminal jurisdiction over crimes committed by non-Native people, experts in tribal law say it rarely prioritizes crimes in Indian country and are even less likely if it is sexual violence. According to the Justice Department, between 2005 and 2009, U.S. attorneys declined to prosecute half of crimes that occurred in Indian country and 67 percent of crimes related to sexual abuse.
VAWA’s progression over the past two and a half decades has, in part, been an attempt to fix these issues. When VAWA was reauthorized in 2013, a provision was added recognizing that tribes could prosecute non-Indians who “who assault Indian spouses or dating partners or violate a protection order in Indian country.”
Women’s rights advocates say major gaps remained, however, when it came to perpetrators women didn’t know — an oversight with deadly salience given the heavy prevalence of drilling for oil and minerals on or near reservations.
As legal scholar Lily Grisafi wrote in a 2020 paper: “The dangers of this jurisdictional gap are compounded on reservations near extractive industries, which bring with them thousands of transient, single men — who at times outnumber the women twenty to one — with stressful, high-paying jobs and no connection to the community.”
It is this gap that the 2022 version of VAWA, which senators say they hope to introduce this month, attempts to fill by including anyone who commits violence against Indigenous women, whether the victim knows them or not.
In a statement last year to the Senate Committee on Indian Affairs, Wizipan Garriott, principal deputy assistant secretary for Indian Affairs, said of the reintroduced VAWA: “The time has come to honor tribal sovereignty and expand tribal jurisdiction to crimes outside of domestic violence to further empower tribal justice systems to find justice for victims. The Department supports the expansion of Tribal criminal jurisdiction as provided for in H.R. 1620, the Violence Against Women Act Reauthorization Act of 2021.”
It may be a moot provision, however, as VAWA continues to face opposition. Many Republican legislators and the National Rifle Association oppose the updated version of the bill because it would add dating partners and stalkers to the provision banning spouses of convicted domestic violence or abuse from owning firearms, closing the “boyfriend loophole.”
Some Republicans have also voiced opposition to the bill’s protections for transgender women seeking services at a women’s shelter.
“The most egregious provisions of this bill push leftist gender ideology at the expense of important protections for women’s privacy and security,” said Rep. Debbie Lesko (R-Ariz.) during the House vote last year.
Experts say these stalls at the federal level are part of why tribes shouldn’t be subjected to the whims of national politics to protect Indigenous women.
“What would really be effective and most helpful would be a wholesale, broad reaffirmation of tribal criminal jurisdiction over non-Indians,” Singel said. “Rather than through this piecemeal, patchwork strategy that incrementally reaffirms tribal inherent sovereignty and tribal jurisdiction over non-Indians.”
While Singel supports the passage of the current VAWA bill, she said, it is only a partial restoration of a power that never should have been taken in the first place. Even if VAWA does pass, she said, tribes will need significant resources to implement it, given that some of its requirements are cumbersome and expensive, particularly for smaller tribes with underfunded judicial systems.
Lucchesi said that respecting individual tribes’ legal systems — there are 574 federally recognized tribes — means that tribes can determine their own solutions, grounded in the individual and varied realities of each community, including forms of justice that don’t rely as heavily on punitive measures such as incarceration.
She points to the Yurok Tribe in Northern California as an example of a tribal justice system that uses strategies like mediation and community support programs, such as drug treatment and college preparation support, instead of relying on jails and prisons.
Other experts in tribal legal systems point to the Navajo Nation Peacemaking Program, which families experiencing violence, including domestic violence, meet to talk through issues as a community, instead of relying on judges or lawyers without local context.
According to Singel, tribal legal systems are not only sophisticated and capable of delivering justice — but they’re also more equipped to deal with the problem immediately.
As she put it: “Native women have suffered profoundly in terms of the experience of sexual violence in this country, and it’s time that we do something about that.”
