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Luna, Eileen --- "Indigenous Women, Domestic Violence and Self Determination" [1999] IndigLawB 90; (1999) 4(25) Indigenous Law Bulletin 8

Indigenous Women, Domestic Violence and Self Determination

by Eileen Luna

To varying extents, and for different reasons, Indigenous women have had limited influence in their communities’ movements for self-determination. In both Australia and the United States, violence against Indigenous women is a continuing problem. This problem must be addressed if Indigenous communities are to advance and prosper. Many Indigenous communities in both Australia and the United States have found that there is a direct link between community and individual empowerment, self-determination, and the reduction of violence against women.

In the non-Indigenous legal and political systems, few (if any) substantive or procedural rights are accorded specifically to women, and few women have achieved political stature. However, the de jure power granted by courts and official governments is not the only source of power or authority in society. When activist Indigenous women undertake the direct provision of family violence services for community members, they are asserting de facto power. De facto power arises from taking responsibility for particular tasks or functions. And it is with this grass-roots empowerment that more and new powers arise. Yet it must be remembered that both forms of power are important, particularly where these services require adequate funding from both federal and community sources.

As communities and women take on the responsibility of addressing the violence perpetrated against them, they reduce the likelihood that patterns of violence will continue, they learn valuable skills in program development and service provision and they expand women’s impact in other areas of community concern. This exercise of Indigenous self-determination results in increased empowerment of Indigenous communities

In 1998, I, with two American Indian women research assistants, spent ten weeks in Australia. During our stay, we visited a number of Australian Aboriginal communities (rural, urban and university based) where we conducted interviews with participants and program workers in Australian Aboriginal family violence programs, and legal and topical research.^[1] What follows is an outline of US Government and American Indian approaches to the funding and administration of family violence programs. In conclusion, I reflect on general and historical influences on any comparisons that may be made between the US and Australia.

American Indian Approaches to Dealing with Violence Against Women 1994-1999

Money has been in critically short supply in most American Indian communities. The scarcity of funds often resulted in prioritization of problems, with the issue of violence against women remaining largely unaddressed. With the passage of the Indian Self-Determination Act^[2] and the Violence Against Women Act (‘VAWA’) in 1994,^[3] the Indian Self-Determination and Education Assistance Act^[4] in 1995 and President Clinton’s Executive Order that all departments of the executive must interact with the tribal governments on a ‘government-to-government’ basis,^[5] the stage was set for the development and implementation of tribal programs aimed at reducing violence against women.

In 1994, the Congress of the United States passed the Violence Against Women Act (‘the VAWA’) which earmarked funding for programs which were aimed at reducing violence against women. VAWA runs until the end of the year 2002^[6] and provides grants to states, Indian tribal governments and units of local government for program development and implementation, the promulgation of ordinances, codes, procedures and protocols for victims assistance, law enforcement, prosecution and tribal courts. The programs developed and implemented must include four components: victim services, law enforcement, prosecution, and a miscellaneous category, which has often included tribal court development. To date, more than 160 American Indian nations^[7] have received funding pursuant to this program.

The passage of VAWA, with its inclusion of Indian Tribal Governments as entities eligible for direct funding, has proven to be an important trigger for the expansion of services to Indian women. VAWA funding and program assistance has strengthened American Indian tribal governments’ legal and financial capacity to develop tribally-run programs which attempt to control violence against women on tribal lands. Four percent of the funds allocated under VAWA have been set aside for Indian Tribal programs. The amount of this set-aside compares favorably with the fact that Indian peoples comprise approximately one percent of the U.S. population.

Due to protection of confidentiality under VAWA,^[8] it is not appropriate to give information regarding the various tribal programs in other than summary form.^[9] However, the summary information itself is revealing. Through the use of these funds, over 160 Indian nations are in various stages of promulgating ordinances, codes and protocols for courts, law enforcement, and prosecution and developing task forces for coordinating the tribal response to incidents of violence against women.

While few tribes studied kept comprehensive numbers prior to receipt of the grant, it is possible to use 1995, the first year of the grant as a baseline. During 1995, 213 Indian women were provided shelter services. This number grew to 307 during 1997, an increase of 44 percent. A similar growth in shelter services was found for children. In 1995, 335 children were provided with shelter by the tribes. In 1997, this number had grown to 408, a 22 percent increase in shelter services for children.

Every tribe studied by the Impact Evaluation team used VAWA funds to develop victim or legal advocate positions to assist Indian women victims of violence. In 1996 there was an almost 100 percent increase in calls to hotlines set up to provide information to Indian women victims of domestic violence. Among tribes receiving VAWA funds from 1995 to 1997 there was an across the board increase ranging from 13 to 56 percent in arrests of perpetrators of family violence.

The distribution of federal funds to tribal governments has encouraged the discussion and planning of programs that directly meet the needs of the women of that particular Indigenous community. VAWA has helped to raise the consciousness of tribal members to the problems that have remained unaddressed, and has empowered women of the community to demand a say in what these programs do and how they are run.

Most of the American Indian domestic violence programs developed through VAWA are run by Indigenous women. The programs vary widely. Some are modeled on non-Indian programs, with emphasis on shelters and legal intercession. Others are more traditional, with emergency or ‘safe’ housing within communities and intercession by community members. As VAWA funds are generally controlled by the women who run the programs, women are also building their own skills in grant writing, program administration, and service provision.

The development and expansion of tribal courts, with jurisdiction over issues of violence against women, has been of significant impact in Indian Country. In the United States, tribal governments have the legal right^[10] to develop courts with jurisdiction over misdemeanor crimes committed by Indians.^[11] These courts may impose penalties of up to one year in jail and/or fines up to $5000.00. Indian customary law may be applied and systems of restorative justice utilized.

Tribal court procedures are as varied as the tribal communities of which they are a part. They may be formal, with strict rules of evidence and legally trained judges and prosecutors, or they may be informal, with conciliation and peacemaking as their emphasis. Other tribes may select judges without a legal background and may have no formal prosecution. A number of tribes have developed the position of lay advocate, generally held by a woman who has had first hand experience with domestic violence. These advocates may be responsible for informing a woman of her legal rights, may assist her in obtaining tribal or non-Indian social services. They often assist with the obtaining of court orders, which, even if based on customary or traditional law must, under VAWA, be honored by State and other tribal jurisdictions.^[12] The advocates may also support a woman during her court appearances and, in some instances, advocate on her behalf.

The person found guilty in Indian Country serves their time in a tribal jail. Tribal jails may be run by individual tribes or by the Bureau of Indian Affairs. Often tribes without jails contract to house their prisoners in jails run by nearby tribes. American Indian tribes are not required to meet the same standards set for jail in the non-Indian community, thus jail conditions vary widely.

Historical Influences on Approaches to Dealing with Violence Against Women

A recent health care study by S J Kunitz^[13] compared the experiences of Indigenous peoples in areas where Anglo settlers colonised. This study included Eskimo and Inuit, Canadian and United States Indian groups, Pacific Islanders in American states and territories, Maori, and Indigenous Australians. Kunitz found that health care for Indigenous peoples was worse in those places where formal treaties were not promulgated between the colonizer and the colonized. He further found that health services were worse where states and municipalities, rather than federal or national governments, had the responsibility for the provision of health and other Indigenous services.

In a 1981 Report, the New South Wales Task Force on Domestic Violence, stated that:

While the Task Force does not suggest that domestic violence will stop tomorrow if land rights are granted immediately, the particular significance land has in aboriginal culture and the control the granting of land rights would give aboriginal women and men over their lives encourages the Task Force to support the effective implementation of a just system of land rights.

The implications of this statement remain the subject of much debate. Since this statement was made, a number of state, federal and Indigenous Australian community-based family violence responses have been implemented.

For instance, in 1996 the state of New South Wales launched the NSW Aboriginal Family Health Strategy, through which a number of community health initiatives, with the aim of reducing incidence of violence and sexual assault through an holistic, community approach have been implemented^[14]. The stated commitment of the strategy is to ‘work within the context of Aboriginal Health as one in which self-determination is paramount’, language which emphasises the growth of self-determination and community empowerment.^[15]

Although there are similarities between the experiences of the American Indian and Indigenous Australian, particularly as they relate to colonization, the differences are great. The existence or not of treaties, the formal recognition of sovereignty and/or self-determination, and the integration of the Indigenous peoples with the national and state legal structures, are all factors which affect public policy development. The requirement that American Indian law, even though it may be customary and not codified, be recognized, and that tribal court procedures and orders be given full recognition and force of law in the courts of the State is another fundamental difference.

However the communities undertake the reduction of acts of violence against Indigenous women and children, and the provision of critical services, the results include the enhancement of the quality of Indigenous life and the empowerment of women within Indigenous communities. The reduction of acts of domestic violence is crucial if we, as Indigenous peoples, are to significantly enhance the health and well-being of Indigenous women. Indigenous women represent half of our communities, yet have been severely under-served. Indigenous communities which enhance domestic violence services help to equalize the inequities that so many of our women face, while also strengthening the empowerment and self-determination of the communities themselves. It is this empowerment, of both Indigenous women and Indigenous communities, which is the key to significant legal and policy advances.

Professor Eileen Luna is an American Indian and an enrolled member of the White River Band of the Chickamauga Cherokee and Choctaw. She is an Assistant Professor of American Indian Law and Policy at the University of Arizona, Tucson and was a visiting fellow at the UNSW Faculty of Law for one term in 1998.

^[1] Funded by a US National Institute of Health grant.

^[2] Public L No 103-413, 108 Stat (1994).

^[3] Public L No 103-322, 108 Stat, 1902 (1994).

^[4] Public L No 103-435, s 22(b), 108 Stat, 4575 (1994).

^[5] William Jefferson Clinton, Government to Government Relations with Native American Tribal Governments: Memorandum for the Heads of Executive Departments and Agencies <http://www.codetalk.fed.us/g_to_g.html> .

^[6] There is another act now under consideration by Congress to extend the act for another eight years: Violence Against Women Act II, S.51, Title I - V, 106th Cong, 1st

Sess, 19 January 1999.

^[7] Throughout this article several terms are used interchangeably in referring to indigenous peoples in a collective sense-tribal nations, tribes, Indigenous peoples. But, although it is problematic, I also use the term Indian or American Indian as it is the term most commonly used by Indigenous peoples of the United States to refer to themselves.

^[8] The Department of Justice promises, through contract, to protect the confidentiality of tribes, a hot issue in the United States, where tribes have frequently been studied and then all information released to their detriment. We are not allowed to reveal any information that would allow any tribe to be identified, and we were required to make this commitment to the tribes as part of our evaluation

^[9] The summary results contained within this paper were obtained through an Impact Evaluation of STOP Grant Programs for Reducing Violence Against Women Among Indian Tribes conducted by the author and a research team for the National Institute of Justice. This Impact Evaluation was conducted of the tribes that received Department of Justice grant funds for the financial year 1995-96.

^[10] Ex Parte Crow Dog [1883] USSC 252; 109 US 556 (1883).

^[11] See Bruce Duthu ‘Overcoming jurispathic law: the challenge for American Indian tribal governments’ [1999] IndigLawB 68; (1999) 4 (23) Indigenous Law Bulletin 12.

^[12] Public L No 103-322, s 2265, 108 Stat. 1902 (1994).

^[13] S J Kunitz, Disease and Social Diversity: The European Impact on the Health of Non-Europeans (1994).

^[14] ‘Allira breaks ground with health clinic’, Daily Liberal (Dubbo), 13 February, 1998; ‘Aborigines benefit from health pact’, Northern Star (Lismore), 5 March 1998.

^[15] ‘NSW Government Aboriginal Family Health Strategy Launched’, (1996) 20(1) Aboriginal and Islander Health Worker Journal.