The struggle for sovereignty and the struggle against sexual violence cannot be separated. Conceptualizing sexual violence as a tool of genocide and colonialism then fundamentally alters the strategies for combating it. Currently, the rape crisis movement has promoted strengthening the criminal justice system as the primary means to end sexual violence. Rape crisis centers receive much state funding, and their strategies consequently tend to be state-friendly: hire more police, give longer sentences to rapists, etc. There is a contradiction, however, in relying upon the state to solve the problems it is responsible for creating. Native people per capita are the most arrested, most incarcerated, and most victimized by police brutality of any other ethnic group in the country.

Given the oppression Native people face within the criminal justice system, many communities are developing their own programs for addressing criminal behavior based on traditional modes of regulating their societies. However, as James and Elsie B. Zion note, Native domestic violence advocates are often reluctant to pursue traditional alternatives to incarceration for addressing violence against women. Survivors of domestic and sexual violence programs are often pressured to "forgive and forget" in tribal mediation programs that focus more on maintaining family and tribal unity rather than on providing justice and safety for women.

Rupert Ross's study of traditional approaches for addressing sexual/domestic violence on First Nations reserves in Canada notes these approaches are often very successful in addressing child sexual abuse where communities are less likely to blame the victim for the assault. In these cases, the community takes a pro-active effort in holding perpetrators accountable so that incarceration is often unnecessary. When a crime is reported, the working team that deals with sexual violence talks to the perpetrator and gives him the option of participating in the program. The perpetrator must first confess his guilt and then follow a healing contract, or go to jail. The perpetrator can decline to participate completely in the program and go through normal routes in the justice system. Everyone affected by the crime (victim, perpetrator, family, friends, and the working team) is involved in developing the healing contract. Everyone also holds the perpetrator accountable to his contract. One Tlingit man noted that this approach was often more difficult than going to jail:

First one must deal with the shock and then the dismay on your neighbors faces. One must like with the daily humiliation, and at the same time seek forgiveness not just from victims, but from the community as a whole. . . [A prison sentence] removes the offender from the daily accountability, and may not do anything towards rehabilitation, and for many may actually be an easier disposition than staying in the community.

Elizabeth Barker notes along similar lines that the problem with the criminal justice system is that it diverts accountability from the community to players in the criminal justice system. Perpetrators are taken away from their community and are further disabled from developing ethical relationships within a community context. Ross notes: "In reality, rather than making the community a safer place, the threat of jail places the community more at risk."

Since the Hollow Lake reserve adopted this approach, 48 offender have been identified. Only five chose to go to jail, and only two who entered the program have repeated crimes (one of the reoffenders went through program again and has not re-offended since). However, these approaches, notes Ross, often break down in cases where the victim is an adult woman because community members are more likely to blame her instead of the perpetrator for the assault.

Many Native domestic violence advocates I have interviewed note similar problems in applying traditional methods of justice to cases of sexual assault and domestic violence. One advocate from a tribally-based program in the Plains area contends that traditional approaches are important for addressing violence against women, but they are insufficient. To be effective, they must be backed up by the threat of incarceration. She notes that medicine men have come to her program saying, `we have worked with this offender and we have not been successful in changing him. He needs to join your batterers' program.' Traditional approaches toward justice presume that the community will hold a perpetrator accountable for his crime. However, in cases of violence against adult women, community members often do not regard this violence as a crime and will not hold the offender accountable. Before such approaches can be effective, we must implement community education programs that will sufficiently change community attitudes about these issues.

Another advocate from a reservation in the midwest argues that traditional alternatives to incarceration might in fact be more harsh than incarceration. Many Native people presume that traditional modes of justice focused on conflict resolution. In fact, she argues, penalties for societal infractions were not lenient -- they entailed banishment, shaming, reparations, and sometimes death. This advocate was involved in an attempt to revise tribal codes by reincorporating traditional practices, but she found that it was difficult to determine what these practices were, and how they could be made useful today. For example, some practices, such as banishment, would not have the same impact as today. Prior to colonization, Native communities were so close-knit and interdependent that banishment was often the equivalent of a death sentence. Today, however, Native peoples can simply leave home and join the dominant society. In addition, the elders with whom she consulted admitted that their memories of traditional penal systems were tainted with the experience of being in boarding school.

Since incarceration today is understood as punishment, this advocate believes that it is the most appropriate way to address sexual violence. She argues that if a Native man rapes someone, he subscribes to white values rather than Native values because rape is not an Indian tradition. If he follows white values, then he should suffer the white way of punishment.

However, there are a number of difficulties in pursuing incarceration as the solution for addressing sexual assault. First, so few rapes are reported that the criminal justice system rarely has the opportunity to address the problem. Among tribal programs I have interviewed, an average of about 2 cases of rape are even reported each year. Complicating matters, because rape is a major crime, rape cases are generally handed to US Attorney, who then decline the vast majority of cases. By the time tribal law enforcement programs even see rape cases, a year might have passed since the assault, making if difficult for these programs to prosecute. Also because rape is covered under the Major Crimes Act, many tribes have not even developed codes to address sexual assault as they have for domestic violence. One advocate who conducted a training for southwestern tribes on sexual assault says that the participants said they did not need to develop codes because the "feds will take care of rape cases." She then asked how many cases of rape have been federally prosecuted, and the participants discovered that not one case of rape had ever reached the federal courts. In addition, there is inadequate jail space in many tribal communities. When the tribal jail is full, the tribe has to pay the surrounding the county to house its prisoners. Given the financial constraints, tribes are reluctant to house prisoners for any length of time.

But perhaps most importantly, as sociologist Luana (Salish) notes, incarceration has been largely ineffective in reducing crime rates in the dominant society, much less Native communities. "The white criminal justice system does not work for white people; what makes us think it's going go work for us?" she asks.

The criminal justice system in the United States needs a new approach. Of all the countries in the world, we are the leader in incarceration rates--higher than South Africa and the former Soviet Union, countries that are perceived as oppressive to their own citizens. Euro-America builds bigger and better prisons and fills them up with criminals. Society would profit if the criminal justice system employed restorative justice. . .Most prisons in the United States are, by design, what a former prisoner termed "the devil's house." Social environments of this sort can only produce dehumanizing conditions.

Similarly policing under tribal control or under the control of the BIA is not necessarily an improvement, as can be attested to by the countless charges of police brutality by BIA or tribal police. Two examples:

• March 1994: Washington, DC: Complaints against BIA police

  American Indian children in Montana have a name for the reservation police: terminators. Tribal leaders say that's how bad a reputation the Bureau of Indian Affairs has for law enforcement. "The common sentiment is the cops are the enemy of the people," said Clara Spotted Elk, who heads a special law enforcement committee for the Northern Cheyenne tribe in Montana. BIA fails to adequately train and supervise reservation police and disregards complaints about brutality and other misconduct, she and other tribal leaders told the Native American affairs subcommittee of the House Natural Resources Committee Friday. The House panel called the hearing after The Associated Press reported last year on 17 brutality complaints against BIA police in five Western states. The complaints, filed since 1990, involve charges ranging from beatings to spraying suspects with chemical Mace.

  
  The committee watched a brief videotape, disclosed in the AP series, in which a BIA officer slammed a woman's head into the wall on the Wind River reservation in Wyoming. The woman had been arrested for disorderly conduct. Under questioning from the panel, a BIA official insisted the incident did not constitute police brutality.




• December 6, 2002, Montana: The entire police force on the Rocky Boy's Indian Reservation was placed on probation by the Chippewa Cree Business Committee, apparently because of allegations of police brutality.

In addition, as a number of studies have demonstrated, more prisons and more police do not lead to lower crime rates. For instance, the Rand Corporation found that California's three strikes legislation, which requires life sentences for three-time convicted felons, did not reduce the rate of "murders, rapes, and robberies that many people believe to be the law's principal targets." In fact, changes in crime rate often have more to do with fluctuations in employment rates than with increased police surveillance or increased incarceration rates. Concludes Steven Walker, "Because no clear link between incarceration and crime rates, and because gross incapacitation locks up many low-rate offenders at a great dollar cost to society, we conclude as follows: gross incapacitation is not an effective policy for reducing serious crime." Criminologist Elliott Currie similarly finds that "the best face put on the impact of massive prison increases, in a study routinely used by prison supporters to prove that 'prison works,' shows that prison growth seems not to have `worked' at all for homicide or assault, barely if at all for rape..."

Relying on the criminal justice system as the primary approach toward ending violence does not address the reality of police and other forms of state violence in Native communities. Some recent reported examples in the United States and Canada include:

• September 2000, Saskatchewan. Police officers in Saskatoon, took a Native man, Darrell Night, and put him in a police car, drove him far from the city's downtown and dropped him off to walk home in freezing weather after taking away his coat. He survived, and on telling his story, it came out that police officers had regularly taken Native peoples out into the cold with no warm clothing, leaving them to freeze to death. The police would then blame their deaths on alcohol. Two other young aboriginal men did not survive such incidents -- their bodies were found separately in the same area as Darrell Night.




• Constable Dan Hatchen and Constable Ken Munson of Saskatoon city police were charged with police brutality, but were put back on the payroll during the trial. The Saskatchewan police commission ruled last Friday they deserve to be paid, because the two officers have been co-operative and honest throughout the investigation.




• In Saskatchewan, aboriginal people make up 11 per cent of the population but close to 74 per cent of the inmate population in provincial jails and 61 per cent of inmates in federal institutions. Saskatchewan conducted a $2 million on its own aboriginal justice inquiry. The president of the provincial association of police chiefs has now acknowledged publicly police from across Saskatchewan are alleged to have taken aboriginals and abandoned them in remote areas. The Federation of Saskatchewan Indian Nations says a total of 316 complaints were received.




• 1999. Calgary. An First Nations woman and her son (Connie Jacobs and Ty) were shot to death by police who called to respond to a domestic violence incident.




• 2002. Winnepeg. Nahanni Fontaine, an employee of the Southern Chiefs' Organization, reported that there were three boys asleep in a house when police burst in and started beating them and then called for more help. "There were 16 officers in that little house for three youth," she said. "The youth were taken outside, were handcuffed, were stomped in the face, were kicked in the stomach, were choked."




• January 30, 2003. South Dakota. A judge in South Dakota sentenced a former police officer for the Oglala Lakota Tribe to life in prison for raping a woman and her daughter. Tancrede Hamel, 28, pleaded guilty to the rapes. He has a prior conviction of raping a girl on the Pine Ridge Reservation.




• Feb 26, 2003 - Minneapolis. A group of American Indians [including a pregnant woman] who said they were beaten, falsely imprisoned and terrorized during a raid of their home have filed a federal lawsuit against several Minneapolis police officers. According to the lawsuit filed in U.S. District Court, six relatives and two friends who were in the home at the time claim that their race and location in one of Minnesota's roughest neighborhoods led police officers to mistreat them. Officers had obtained a warrant based on information that residents were selling drugs. No guns were found by officers at the home and none of the eight plaintiffs has been prosecuted for a crime in connection to the raid, the lawsuit said.




• The plaintiffs say the raid at the Little Earth Housing Project lasted over three hours and as many as 15 Minneapolis police officers were involved. Wayne Long Crow said he was sitting in a bed with his hands in the air when one officer struck him in the head with the butt end of a rifle, tearing open his scalp. Another plaintiff, Harold Groskruetz, said two officers slammed him into broken glass on the floor, cutting open his head. After he was handcuffed and bleeding, one of the officers kicked him in the head when he complained about the treatment of his wife.




• Two people were arrested after police found crack cocaine in a toy box. The lawsuit states that officers conducted a full search of the home and turned up nothing until another officer arrived and searched the toy box. The lawsuit accuses the officer of planting the drug. Each plaintiff is seeking damages in excess of $50,000.




• January 2003 - Minneapolis - Two unknown Minneapolis police officers are accused by witnesses who said they manhandled an American Indian man before leaving him and a woman outside in freezing temperatures. Two residents of the Little Earth housing complex in south Minneapolis have told community leaders and police investigators that they saw two officers drag the man and woman from the back seat of a marked squad car late Friday night. Those witnesses said they saw officers assault the man in a parking lot before leaving him unconscious after midnight. The temperature was 2 above. "They left them out to freeze," said Ellie Webster, executive director of Little Earth Community Partnership.

  She also said that off-duty officers who took the man to a hospital later told a Little Earth security supervisor that someone had urinated on the man's upper torso and head. The man and woman are homeless.




• The charges are similar to those a decade ago when two Indian men who were drunk were stuffed into the trunk of a Minneapolis squad car to be taken to a detoxification center. In 1995, Charles Lone Eagle and John Boney were awarded $100,000 each by a Hennepin County jury after jurors found that officers Michael Lardy and Marvin Schumer violated their human and civil rights. The officers said they put the men in the trunk as the quickest way to get them medical attention.




• June, 2001 - Cleveland. An off-duty Cleveland police officer shot and killed 20-year-old Joseph Finley, who was Cherokee and Seminole. The Cleveland police are accused of covering up the shooting that happened in June 29, 2001. Reportedly, Officer Toomey, 36, found Finley in his garage and, assuming he was a burglar, warned him repeatedly not to move, according to police. When Finley jumped up, Toomey shot him in the chest, abdomen, back, arms and legs. The coroner said Finley died of about 14 gunshot wounds; three were in the back.




• November 1997 - Plymouth, Massachusetts: The United Indians of New England have an annual protest in Plymouth, MA at Thanksgiving. In 1997, the march erupted into violence when the police attacked the demonstrators with pepper spray in an attempt to halt the march. 23 protesters were arrested, who then filed suit against the police for brutality. Lloyd Gray (Onondaga) stated that he was pepper sprayed and his head was bashed into the ground. Eventually, the protesters reached a settlement whereby the protesters dropped the suit in return for a $135,000 donation that was made to the United Indians of New England as well as an agreement to let the protesters to continue to have their annual marches.




• October, 2000 - Sioux Falls, South Dakota: Yankton Sioux tribal members are complaining that Wagner Police Chief Ed Zylstra used excessive force while arresting an American Indian homeless woman. They say Zylstra threw Sharon K. Gullikson to the ground in the middle of Main Street, handcuffed her, then yanked her up by the cuffs, cutting her wrist. Gullikson was charged with disorderly conduct and resisting arrest.

  It isn't the first time the police chief and the city have been at odds with the tribe. In April, tribal members accused Zylstra and his officers of racial profiling - stopping tribal members based solely upon their race. Zylstra and the city denied the charges. They say they were stopping tribal members to serve outstanding warrants. Several of those who witnessed Gullikson's arrest last week say the woman did nothing to provoke Zylstra.

  
  "He grabbed her by the wrist and slammed her wickedly, right to the concrete," said Larry Weddell, who watched the arrest from across the street. "She landed on her face and chest. Dust flew up when she hit. He kneed her in the back, put the handcuffs on her, then jerked her off the ground by the handcuffs. "She never attacked him. She wasn't trying to get away or assault him. There was no need for this attack. What he did was totally uncalled for."

  
  Gullikson said she went to the Wagner Food Center, a local grocery store, then shopped for earrings in a pawn shop, buying a pair for 25 cents. As she was walking in front of James Drug, she saw Zylstra drive up but kept walking until he honked the horn. She said Zylstra told her she was under arrest for trespassing and panhandling at the grocery store. "The next thing I knew, I was face down. My glasses broke, and my head hit the pavement," she said. "He kneeled on my kidney. At night, it ached for a while." Gullikson said Zylstra jerked her to her feet by the handcuffs, cutting her wrist. "I'm scared of him. A lot of homeless people are scared of him. They're scared of getting hurt," she said. "I didn't do anything to deserve it. I've never done anything myself to deserve such hatred from him."




• July, 2000 - Lake Andes, SD: A simple assault charge was filed against a Lake Andes police officer accused of choking a 12-year-old American Indian boy in a city park on the Fourth of July. He was allowed to keep working. Ben Cournoyer and two 11-year-old friends admit they were spray-painting profanity on picnic tables, which brought Atwood to the park. The three have been charged with vandalism. The three boys and three adult witnesses say a lecture from Atwood turned physical when he grabbed Ben by the neck and lifted him up off the ground. "He grabbed me around the neck, choked me, and lifted me up by my neck. I was barely on my tippie-toes," said Ben, a seventh-grader from Lake Andes.




• June 1999: Minneapolis: The St. Paul City Council unanimously agreed Wednesday to pay $92,500 to settle a police brutality lawsuit filed by a Minneapolis man who alleged that two officers handcuffed him, sprayed him with a chemical irritant and dumped him in the snow near the Minneapolis border.

  
  The council, without debate, also agreed to pay up to $30,000 for attorneys' fees and costs, ending the suit before its scheduled trial next month. City officials acknowledged that the officers violated police policy when they didn't take Michael Greenleaf (Red Lake Chippewa), who was intoxicated, to a hospital after spraying him with a chemical irritant in the incident on Nov. 15, 1997. Greenleaf, 38, also was put in jeopardy after the officers left him outside when it was 20 degrees and he was wearing only a light jacket. The police officers also made racist epithets during the incident. [St. Paul Will Pay $92, 1999 #1423]

In addition the innumerable incidents of police brutality involving Native peoples, , Native peoples, including Native women, are over-represented in prisons and jails. Native women are 35% of the women's prison population in South Dakota while only 8% of the women's population in South Dakota. .

The premise of the justice system is that most people are law-abiding except for "deviants" who do not follow the law. However, given the epidemic rates of sexual and domestic violence in which 50 percent of women will be battered and 47 percent will be raped in their lifetime, it is clear that most men are implicated in our rape culture. It is not likely that we can send all of these men to jail. As Fay Koop argues, addressing rape through the justice system simply furthers the myth that rape/domestic violence is caused by a few bad men rather than acts which most men find themselves implicated in. Thus, relying upon the criminal justice system to end violence against women may strengthen the colonial apparatus in tribal communities that furthers violence while providing nothing more than the illusion of safety to survivors of sexual and domestic violence. As the London based Women Against Rape states:

The prison sentences imposed for rape and sexual assault are often very low relative to sentencing for other offences. It is plain that these very low sentences can endanger women, and also tell potential rapists that rape and sexual assault are not serious crimes in the eyes of the Law. it is equally clear that longer prison sentences are no solution to the tragic problems women have with the courts and the police, and no solution to the causes of rape. An increase in punishment does not satisfy demands for women's safety. A generalised call for heavier sentencing has traditionally been the way in which politicians have spares to be doing something about rape, without spending any money on rape prevention, or showing any genuine interest in the protection of women. In fact long sentences are often advocated for reasons which have nothing to do with women's safety.

Sexual violence is a fundamental attack on Indian sovereignty, and both Native and non-Native communities are challenged to develop programs that address sexual violence from an anti-colonial, anti-racist framework so that we don't attempt to eradicate acts of personal violence by strengthening the apparatus of state violence. Nothing less than a holistic approach towards eradicating sexual violence can be successful. As Ines Hernandez-Avila states:

We must imagine a world without rape. But I cannot imagine a world without rape, a world without misogyny, without imagining a world without racism, classism, sexism, homophobia, ageism, historical amnesia and other forms and manifestations of violence directed against those communities that are seen to be "asking for it." Even the Earth is presumably "asking for it". . .

What do I imagine then? From my own Native American perspective, I see a world where sovereign indigenous peoples continue to plunge our memories to come back to our originality, to live in dignity and carry on our resuscitated and ever-transforming cultures and traditions with liberty. . .I see a world were native women find strength and continuance in the remembrance of who we really were and are. . .a world where more and more native men find the courage to recognize and honor--that they and the women of their families and communities have the capacity to be profoundly vital and creative human beings.

Continue on to Part 2

Activism and Social Justice: Inside and Outside