Next week, the University of Montana’s Blewett School of Law will recognize the 100th anniversary of the graduation of Mary Frances Garrigus, the first Indian woman to graduate law school at UM. One of the next Indian women to graduate will be Native American Law Student Association vice-president and former president Lillian Alvernaz, Assiniboine-Sioux, who is preparing for Indian Law Week, commemorated April 16-20 with the theme “Tribal Treaties Today: Rights, Culture and Sovereignty in Modern Society.”
Alvernaz has focused her studies on issues of violence against women in reaction to what she saw over two years of working near the Fort Peck reservation as a victims’ advocate. When the university hosted a sex-trafficking awareness event during the last week of March, Alvernaz asked on the event page, “Hello, will Native American women be discussed?” She says no one from the event responded to her, despite the potential of such an event to serve as a venue for discussing trafficking on reservations. One of the first issues that would have come up is the fact that there is no clear prohibition on human trafficking on the reservation due to gaps in jurisdiction.
“Where’s the crime? On Indian Country, off Indian Country. If it’s off, [then it’s] state, federal, whatever. If it’s on, then you look at, is your victim Native American or not, is your offender Native American or not,” Alvernaz says. “Once you determine that, then you look to what the crime is, and that determines if it’s federal or tribal.”
And some things that are federal or state crimes may not be articulated in tribal law. During a late-March meeting of the State-Tribal Relations Interim Committee, Fort Belknap tribal council member Brandi King addressed the lack of specificity in tribal code that would codify human trafficking as a covered crime. “One step that we’re taking here is creating tribal code specific to this, and that I think gives us an ability to declare our position, to declare our emergency, to provide us with the ability to seek resources,” King says. “The fact that we can create a code, it’s just a little peace of mind for the community members, where they can say it’s the responsibility of law enforcement to investigate this.”
Advocates for improving the response to cases of missing and murdered indigenous women cite two main logistical problems: a lack of consistent data that tribal agencies can access, and a lack of role clarity and cooperation between tribal, state and federal law enforcement agencies. There are some federal legislative efforts to improve communication between agencies, primarily a bill introduced last fall by North Dakota Senator Heidi Heitkamp, Savanna’s Law, that would direct agencies to create standard protocols for missing-persons cases. Alvernaz says the interagency relationships that do exist are often already strained. “There’s states viewing reservations or Indians as a burden,” she says. “But then there’s distrust [by] tribes for the states or the counties for various reasons.”
It’s the same problem tribes have faced in handling instances of domestic violence perpetrated against Native American women by non-Native men. The reauthorization of the Violence Against Women Act in 2013 improved the ability of tribes to prosecute domestic violence on tribal lands with its Special Domestic Violence Criminal Jurisdiction (SDVCJ) Provision, which recognized tribal jurisdiction for certain crimes over non-Indians. For more than 30 years before that, tribes had no authority to prosecute non-Indians for domestic violence. While an improvement, the provision was still narrow, Alvernaz says. A number of intimate-violence acts aren’t covered, including elder abuse, child abuse and sexual assault.
Fort Peck is the only Montana reservation to use the SDVCJ, and it has done so with some success. Alvernaz says that other tribes chose not to implement it because they didn’t have the resources, and there was no funding attached to the provision. Other reservations may have arrangements with county law enforcement to prosecute non-Indian abusers when they leave the reservation.
“It seems like a win for tribes to be able to exercise jurisdiction over non-Indians who commit domestic violence against their partners on the reservation. But that is a tiny sliver, it’s a very narrow circumstance. Tribes that don’t assume the [SCDVJ], they’ve still got that gap,” she says. “There’s still the gap, and it’s 2018.”