Sovereignty of the Soul: Exploring the Intersection of Rape Law Reform and Federal Indian Law by Sarah Deer

By Sarah Deer


During the month of April 2018, Indian Nations and tribal organizations will host public events, vigils, walks, conferences and other activities to increase public awareness of sexual assault. In organizing such awareness activities pausing to examine the importance of increasing the national understanding of the relationship of sexual assault reform efforts and strengthening the sovereignty of Indian nations is timely. Restoration is honored to reprint excerpts of Sarah Deer’s article highlighting the intersection of these two priority issues of the movement. We encourage everyone to read the entire article and circulate it widely: resources/Sexual-Assault/Sovereignty-of-the-Soul---Deer.pdf The article provides important insight on why organizing to create increased protections for Native women from sexual assault must be linked to strengthening the sovereignty of Indian nations. In addition, we recommend hosting discussions of Sarah Deer’s book “The Beginning and End of Rape, Confronting Sexual Violence in Native America” during this April’s Sexual Assault Awareness Month.


This Article is designed with two audiences in mind. On one hand, it is to enlighten sexual assault scholars and practitioners about the importance of sovereignty in the analysis of rape law and reform. On the other hand, to persuade Indian law scholars and practitioners that the development of sexual assault jurisprudence is central to the struggle for sovereignty. Ultimately, this Article argues that it is impossible to separate theories of indigenous self-determination from theories on sexual assault jurisprudence. It is critical that a dual analysis be employed in both disciplines because sexual violence is so deeply imbedded in colonizing and genocidal policies.

Sexual assault law and legal reform is incomplete without a discussion about Federal Indian Law. There are three main reasons for this: Native American women suffer the highest rate of sexual assault in the United States, rape and sexual violence were historically used as weapons of war against indigenous peoples, and contemporary tribal governments have been deprived of the ability to prosecute many sex offenders. These three facts provide justification for an in-depth analysis of the intersection between sexual violence and Federal Indian Law. In explaining my perspective, this Article begins with some basic information about rape and sexual assault against Native American women. Next, I will provide a historical context for the information. Finally, I will explain the numerous legal challenges faced by tribal governments in addressing the problem.


Sexual assault law and legal reform is incomplete without a discussion about federal Indian Law.


Notably, the statistics published by the Department of Justice in the last five to six years indicate that Native American women, per capita, experienced more rape and sexual assault than any other racial group in the United States. In fact, American Indian and Alaskan Native women experience a higher rate of violence than any other group, including African-American men and other marginalized groups. One Justice Department report concluded that over one in three American Indian and Alaskan Native women will be raped during their lives.

When I travel to Indian country, however, advocates tell me that the Justice Department statistics provide a very low estimate, and rates of sexual assault against Native American women are actually much higher. Many of the elders that I have spoken with in Indian country tell me that they do not know any women in their community who have not experienced sexual violence.

I want to briefly discuss the nature of rape against indigenous women in this country because the experience of Native American women, as captured in these national surveys, is significantly different than the experience of the mainstream population. Dr. Ronet Bachman, a statistician at the University of Delaware, recently reviewed the raw data from the National Crime Victimization Survey (NCVS) and presented new calculations. I am going to cover just a few of her findings, which were based on ten years of surveys spanning 1992-2002. First, in accordance with the Justice Department reports, Dr. Bachman found that Native American women suffer the highest rate of sexual victimization when compared to other races.

Additionally, the physical nature of the violence shows a significant difference with respect to rape involving  Native Americans and other races. In discussing these differences, I do not mean to suggest that rape itself is not always violent. American Indian women, however, more often experience sexual assault accompanied by other overt forms of violence. For example, when asked whether aggressors physically hit them during the assault, over 90% of female Native American victims responded affirmatively as compared to 74% of the general population. Dr. Bachman also examined the number of women who reported suffering physical injuries. When asked if they suffered physical injuries in addition to the rape, 50% of female Native American victims reported such injuries, as compared to 30% of the general population, indicating a different level of violence. Although reluctant to compare traumas and declare that one person’s rape was worse than another person’s rape, when you see these numbers materialize consistently over a ten year period, you have to wonder why this is happening.

In general, very few rapes across the nation involve weapons. The NCVS results indicate that 11% of all reported rapes involve the use of a weapon. The numbers, however, are over three times as high, 34%, for female Native American victims. What is going on here? Why are Native American women victimized in such a brutal way, and what is happening on the reservations that can explain these horrifying statistics?

This final statistic is perhaps the most startling of all, and will become even more so when discussing the jurisdiction issues. Criminologists who study rape have determined that the vast majority of rapes are intra- racial. For example, a white man tends to rape a white woman and a black man tends to rape a black woman. When examining rape involving American Indian women, however, we see that over 70% of the assailants are white. The 1999 Department of Justice Bureau of Justice Statistics concluded that about nine in ten American Indian victims of rape or sexual assault had white or black assailants. This discrepancy will factor into the later discussion about colonization.

One major weakness in these statistics is that none of the surveys identify whether the crime happened on land subject to tribal jurisdiction. Until 1999, the NCVS did not include particularized questions about jurisdiction, except to distinguish between urban and rural areas. Knowing where these crimes occur is critical because, due to a complicated legal history, the jurisdiction of tribal governments is much more limited than the jurisdiction of the state and federal system.


Much change has been attempted in the Anglo-American approach to sexual assault in the last thirty years, but things have not really changed for Native American woman in about 500 years.


In order to analyze the legal response to sexual violence in Indian country, it is important to examine the 500 year history of rape of Native American women by Europeans. One of the historical angles from which to begin this analysis is the arrival of Christopher Columbus. Columbus is one of the major symbols of colonization in the Western hemisphere. Columbus’ arrival not only represents the destruction of indigenous cultures, but also the beginning of rape of Native American women by European men. A passage from the diary of one of Columbus’ aristocratic friends who accompanied him on the second voyage describes one such encounter:

When I was in the boat, I captured a very beautiful Carib woman . . . having brought her into my cabin, and she being naked as is their custom, I conceived desire to take my pleasure. I wanted to put my desire to execution, but she was unwilling for me to do so, and treated me with her nails in such wise that I would have preferred never to have begun. But seeing this . . . I took a rope- end and thrashed her well, following which she produced such screaming and wailing as would cause you not to believe your ears. Finally we reached an agreement such that, I can tell you, she seemed to have been raised in a veritable school of harlots . . . .

So right away, upon contact, we are seeing immediate rape. We continue to see rape used as a tool of colonization and a tool of war against Native peoples for the next several hundred years, until the present day. Historian Susan Armitage writes, “It is well documented that Spanish-Mexican soldiers in Spanish California and New Mexico used rape as a weapon of conquest.” The legal community recognizes that rape is used as a weapon in war and international tribunals  have address the issue. This legal analysis, however, is rarely applied to historical events. There are instances throughout history of using rape and sexual violence as a means of destroying a people, of rendering them unable to protect their lives and their resources, especially as a means to remove them from land that was desired. Another historian, Albert L. Hurtado, notes of the California gold rush, “part of the invading population was imbued with a conquest mentality, fear and hatred of Indians that in their minds justified the rape of Indian women.”

Much change has been attempted in the Anglo- American approach to sexual assault in the last thirty years, but things have not really changed for Native American woman in about 500 years. Those in the anti-rape movement often talk about rape as an “equal opportunity” crime. Such sentiment, however, is a little short-sighted in that those in the anti-rape movement need to look at the specific impact of sexual violence on marginalized populations and indigenous populations. We also need to acknowledge that the United States was founded, in part, through the use of sexual violence as a tool, that were it not for the widespread rape of Native American women, many of our towns, counties, and states might not exist. This kind of analysis informs not only indigenous scholars, but also anti-rape scholars. Thus, critical to contemporary anti-rape dialogues is the inclusion of a historical analysis of colonization.

Language of the early European explorers and invaders makes numerous references to the land of this continent as “virgin land” or a “woman” available for seizure and invasion. The terminology used to describe so-called explorations and settlements sometimes has violent sexual connotations. In fact, the language used in illustrating colonization often parallels the language of sexual violence. For example, words like “seize,” “conquer,” and “possess” are used to describe both rape and colonization. In fact, when speaking with Native American women who have survived rape, it is often difficult for them to separate the more immediate experience of their assault from the larger experience that their people have experienced through forced removal, displacement, and destruction. Both experiences are attacks on the human soul; both the destruction of indigenous culture and the rape of a woman connote a kind of spiritual death that is difficult to describe to those who have not experienced it.


For tribal governments, defining and adjudicating crimes such as sexual assault can be the purest exercise of sovereignty. What crime, other than murder, strikes at the hearts of its citizens more deeply than rape?


Given the history of colonization and the statistics showing significantly high rates of sexual assault for Native American women, what are the contemporary sexual violence issues in the lives of indigenous nations in the United States today? Two of the most significant issues are jurisdiction and resources; in essence, two integral facets of sovereignty that are integral to self- governance.

Substantial erosion of tribal jurisdiction over sexual assault has occurred over the last 120 years. Contrary to popular myth, tribal governments have always had justice systems, but recognition of these systems by Europeans has not always occurred because of ignorance and prejudice. Our histories and oral teachings reveal the effectiveness of these justice systems. As sovereign nations, we exercised full jurisdiction over our land and our people as well as people entering our land against our wishes or with our consent. Due to a series of federal laws, tribal governments have lost jurisdiction over the vast majority of sexual violence that happens to Native American women. Although these laws are numerous, this Article focuses on four: the Major Crimes Act, Public Law 280 (P.L. 280), the Indian Civil Rights Act (ICRA), and the case law of Oliphant v. Suquamish.

To access the complete article and review of these federal laws go to…


Sarah Deer (Muscogee (Creek) Nation) has worked to end violence against women for over 25 years and was named a MacArthur Fellow in 2014. Her scholarship focuses on the intersection of federal Indian law and victims’ rights. Prof. Deer is a co-author of four textbooks on tribal law. Her latest book is The Beginning and End of Rape: Confronting Sexual Violence in Native America, which has received several awards. Her work on violence against Native women has received national recognition from the American Bar Association and the Department of Justice. Sarah is the co-author of two amicus briefs filed by NIWRC in cases impacting the safety of Native women before the United States Supreme Court. She currently teaches at the University of Kansas. Professor Deer is also the Chief Justice for the Prairie Island Indian Community Court of Appeals.