KU professor advocates for strengthening tribal laws to support survivors of sexual assault

University of Kansas distinguished professor Sarah Deer conducted a review of more than 200 tribal laws pertaining to sexual assault. 

“What I found did not make me happy,” she said. 

Deer, enrolled citizen of the Muscogee (Creek) Nation, gave her inaugural distinguished professor lecture, “What If Survivors Wrote the Laws? An Exploration of Tribal Statutes on Sexual Violence,” Monday evening at the Kansas Memorial Union. 

Deer is a professor at KU in Indigenous studies, women, gender and sexuality studies and the KU School of Law. She was named a MacArthur Foundation Fellow in 2014 and was inducted into the National Women’s Hall of Fame in 2019. 

She’s earned national recognition for her work opposing violence against Native women, including awards from the American Bar Association and the Department of Justice. 

She serves as the Chief Justice for the Prairie Island Indian Community Court of Appeals. She has testified before Congress on four occasions, was appointed to chair a federal advisory committee on sexual violence in Indian Country and has co-authored four textbooks on tribal law.

Her book, “The Beginning and End of Rape: Confronting Sexual Violence in Native America,” was awarded Best First Book award from the Native American Indigenous Studies Association.

‘It’s easy to get away with rape in Indian Country’

“Tribal legal authority is very limited in its ability to address sexual assault,” Deer said. “It’s easy to get away with rape in Indian Country.”

The Major Crimes Act of 1885 gave the federal government prosecutorial jurisdiction on tribal lands, which means that cases of violence against Native American women that occur on tribal lands must be prosecuted at the federal level. 

The Indian Civil Rights Act of 1968 limited tribal sentencing authority to a maximum of six months for any crime, including murder. This sentencing cap limited tribes to prosecuting misdemeanors, not felonies, because “Congress didn’t think the tribes could be trusted with a normal sentence.” The limit has since been amended to a three-year cap with the Tribal Law and Order Act of 2010. 

The 1978 U.S. Supreme Court decision in Oliphant v. Saquamish decided that tribal courts do not have the authority to prosecute non-Indians for any crime, meaning non-Indians could commit violent crimes on Indian land with impunity.  

“Most perpetrators of sexual assault against Native people are non-Native,” Deer said. 

Between 1997 and 2006, federal prosecutors rejected nearly two-thirds of all Indian Country cases, and between 2005 and 2009, they rejected nearly 67% of all sexual abuse cases on Indian lands, Deer said. 

Deer said she wants to see the federal declination rates. “How many sexual assault cases are brought to your attention, and how many do you prosecute?”

A U.S. attorney in North Dakota told her that the information “would be upsetting and confusing to us,” she said. 

However, the Tribal Law and Order Act of 2010 requires an annual report on the federal declination rates. Since the passing of that act, Deer says that rate has decreased — meaning the federal prosecutors are agreeing to prosecute more cases. 

“There’s a lot of improvement to be made,” she said.

‘Problematic, vintage, old-fashioned rape laws’

Deer wondered what tribes were doing, so she conducted a review of Tribal laws pertaining to sexual assault. 

There are more than 570 federally recognized Native American tribes in the United States. There’s no central database of tribal laws, so over the course of several months, she went to each individual tribe’s website. 

She found 216 separate laws from 108 tribal nations. The laws she found were “problematic, vintage, old-fashioned rape laws that really didn’t protect people from sexual assault,” she said. 

She first checked for spousal exemptions and found that laws of 32 tribal nations still allow a person to rape their spouse.

Twelve tribes require penetration in their definition of sexual assault and don’t recognize other forms of touching that could be criminalized. 

Four nations still have a prompt complaint requirement, 12 tribes don’t differentiate between criminal degrees of assault, and five tribes require the perpetrator to be male and the victim to be female.

She also looked at voluntary intoxication clauses and found that 82 tribal rape laws only cover involuntary intoxication.

“Most of the sexual assault that we know about today involve voluntary intoxication,” she said, yet “most of the language requires that the intoxication takes place without their knowledge.”

She also looked at the requirement for proving physical force, such as evidence of injuries or torn clothes after a sexual assault. 

“Most people don’t have injuries after sexual assault,” she said. “If you limit the definition of sexual assault to these physical force requirements, it very difficult for a tribal prosecutor to make a case.” 

Deer recommends moving toward a consent-based statute rather than force-based and offered an example of language that could be used: “Consent means that at the time of the act of sexual activity there are actual words or conduct indicating a freely given agreement to have sexual contact.”

Forty tribes had “true non-consent” laws that she thought were “pretty decent”; 117 had force requirements; and 21 had contradictory statutes that look like they’re consent-based but their definition of consent involves force. 

“This isn’t unique to tribes,” she said. These laws existed at the state level, but tribal laws were not updated along with state rape law reforms.

‘I want the community to have buy-in’

“We have a lot of work to do in Indian Country.”

Deer wants to know more about how victims experience the legal system and how they would write the laws. “Survivors deserve to have laws that protect them,” she said.

She is currently working with her nation to rewrite their sexual assault laws. “Defining sexual assault for the Creek Nation needs to be a Creek-based project,” she said.

She doesn’t want to impose her ideas on tribes; she wants tribal citizens to have those discussions. “I don’t want to just hand somebody a tribal code,” she said. “I want the community to have buy-in.”

Deer said Western legal concepts were imposed on tribal nations, and tribes had their constitutions written for them.

“We’re dealing with laws that are often a cultural mismatch. Laws that don’t necessarily match how people think about the world,” she said. 

Deer is working on her next book, which discusses Native survivors’ views on justice. Some of the survivors she interviewed wanted to see incarceration or the death penalty for perpetrators; others wanted alternative solutions. 

Strengthening tribal rape laws “doesn’t necessarily have to lead to incarceration,” she said.

Some survivors worried that men who go to prison will “come back worse” while others were “tired of throwing our men away.”

Some tribes have been experimenting with traditional forms of government, including cultural immersion programs where perpetrators only speak their traditional language and eat traditional foods, essentially “re-learn how to be a Native man.”

Melissa Peterson, Diné, is the director of Hawk Link & Native American Initiatives at KU. 

Peterson said that KU established the distinguished professorship in 1958, one year after Native Americans gained the right to vote in all states. Having Deer in this position “speaks volumes” about Deer’s work, she said. 

Peterson was especially touched that Deer would ask her what Native students at KU needed. 

“There’s 80 distinguished professors and not many of them are asking that question,” she said. 

Deer is “a voice for survivors,” Peterson said. “She uses her position to do so much good.”

Molly Adams (she/her), photojournalist and news operations coordinator for The Lawrence Times, can be reached at molly (at) lawrencekstimes (dot) com. Check out more of her work for the Times here. Check out her staff bio here.

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