|Written by By Winona LaDuke,
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This morning I awoke thinking of Jancita Eagle Deer. I am sure she is watching us, from the other side, the side of the spirits. She is watching as Congress debates the Violence Against Women Act, and hoping someone remembers her.
Jancita was a Lakota woman from the Rosebud reservation. In l974, Eagle Deer testified that William Janklow, [her legal guardian as a child] had raped her on a ride home from babysitting for the Janklow family. The incident had occurred in l967. Rosebud Tribal Judge Mario Gonzalez, wrote that Ms. Jancita Eagle Deer testified under obvious emotional difficulty that she had been raped by Janklow, and that he threatened her life with a gun. Portions of her testimony were corroborated by her high school guidance counselor, her foster parents, a rape examination, and a BIA investigator. The evidence was enough to disbar Janklow, but he was never convicted of the crime. The Rosebud Tribal Court had no jurisdiction.
Eagle Deer was killed by a car near Aurora, Nebraska on April 4, 1975. The circumstances were mysterious. She died only a few months after she had testified against Janklow.
On November 2, 1974. Janklow was elected South Dakota State Attorney General.
Janklow's star continued to rise, and in l978, he became a two-term governor, known for turning South Dakota into the "Mississippi of the North." Under Janklow's political leadership, South Dakota was renowned for its poor treatment of Native people and seizure of Native lands. After serving additional time in the House of Representatives, and in jail for vehicular homicide, Janklow died in 2003. At every turn in his career, Native people rankled at his rise in power, and the lack of justice for Eagle Deer.
Jancita's story reminds us why the Violence Against Women Act deserves passage. The House of Representatives continues to debate the question of tribal government jurisdiction over non-Native perpetrators of violence against Native women if the crime occurs in Indian country. It's an interesting case of the un-equal protection under the law, as Senate Select Committee on Indian Affairs Chair Maria Cantwell remarked, "We cannot vote for an amendment…. that basically strips the rights of Native American women and treats them like second-class citizens. Nor can we just go silent on what is an epidemic problem in our country." The bill passed through the Senate, and now these issues remain a high concern to many Republican representatives.
To the Native community, the debate remains a clear example of a discriminatory legal system. Since the Supreme Court's Oliphant decision stripped tribal communities of much jurisdiction over non- tribal members, many reservations are now the residence for large non-Native populations. In contrast, Native people are prosecuted under both tribal and non-tribal law, and often constitute a disproportionate percentage of the prison population. In short, Native people are subject to the laws of a different political entity, but non-Native criminals find themselves without legal repercussions in Indian country.
Take a North Dakota reliving of history, in fiction and in law. Louise Erdrich's latest magnificent book, The Round House, speaks of the entanglements of laws and lack of justice in the case of rape of tribal women. In one facet of the book, the character Mayla Wolfskin bears an uncanny resemblance to Jancita Eagle Deer, "She worked for that one governor, you know, he did all those bad things. Nothing stuck to him." Of course, Erdrich writes fiction, and issues a disclaimer. The truth, however, is often a mirror to fiction.
In their lifetime 34% of American Indian and Alaska Native women will be raped, and 39% will be subjected to domestic violence. 67% report their assailants as non-Native individuals and on some reservations, Native women are murdered at more than ten times the national average. This set of facts is paired with high declination rates: U.S. Attorneys declined to prosecute nearly 52% of violent crimes that occur in Indian country; and 67% of cases declined were sexual abuse cases.
I asked Lisa Brunner, Executive Director of Sacred Spirits, a national tribal organization working on these issues, about this. Brunner said that some of the concern stems from a lack of understanding of tribal jurisdiction, and in some cases, tribes do not have criminal codes which allow this legal process. Brunner suggests that the answer is to fund the tribal process and educate the non Native population. The answer was not to put more funding in non-Indian jurisdictions, as declination rates for prosecution remain at over 62% in rape and sexual assault cases.
There are safeguards built into the provision which ensure that all rights guaranteed under the Constitution are given to non-Native defendants in tribal court. Further, the special domestic violence jurisdiction is narrowly restricted to apply only to instances of domestic or dating violence where: 1) the victim is an Indian, 2) the conduct occurs on tribal lands; and 3) where the defendant either lives or works on the reservation; i.e., where the defendant has significant ties to the community.
In their letter to Congress, the National Congress of American Indians patiently explained that Indian tribes are not a racial class, but are "… a political body - so the question is not whether non-Indians are subject to Indian court - the question is whether tribal governments, political entities, have the necessary jurisdiction to provide their citizens with the public safety protections every government has the inherent duty to provide."
As Cantwell testified, "The notion that this is somehow abrogating individual rights just because the crime takes place on a tribal reservation is incorrect. So I ask my colleagues, do you want to continue to have this unbelievable growth and petri dish of crime evolving? Because criminals know when you have a porous border that is where they are going to go."
Jancita Eagle Deer deserved justice that she did not receive. It is almost forty years later, and there should be no statute of limitations on justice. The Violence Against Women Act would provide a process for justice.