Rape of Native American Women: Rates, Jurisdiction, and Reform

More than half of Native American women — 56.1 percent — have been sexually assaulted in their lifetime, and roughly 96 percent of those victims report that the perpetrator was non-Native.¹ The sexual assault of Native American women is driven not only by extraordinarily high victimization rates but by a jurisdictional system that, for decades, barred tribal courts from prosecuting the non-Native men committing most of these crimes, while federal prosecutors declined the majority of cases referred to them. Amnesty International called it a “maze of injustice.”²

How Often Native Women Are Assaulted

A 2016 National Institute of Justice study found that 84.3 percent of Native women have experienced some form of violence in their lifetime, with 56.1 percent reporting sexual violence specifically.³ Native women are almost twice as likely to be raped in their lifetime as non-Hispanic White women: 34.1 percent compared to 17.9 percent.¹ The CDC’s 2016–2017 National Intimate Partner and Sexual Violence Survey put the figure higher still, at 43.7 percent.

Within certain communities the numbers climb further. A Urban Indian Health Institute survey of 148 predominantly low-income urban Native women in Seattle found that 94 percent had been raped or coerced into sex at some point in their lives. Eighty-two percent said their first assault occurred before age 18. Only 20 percent reported the attack to police, and just 8 percent of those cases ended in a conviction.⁴ The authors cautioned that their sample skewed homeless and low-income and could not stand in for all Native women, but it showed what the problem looks like at the sharp end.

The crisis is not limited to women. Indigenous men report a 28 percent lifetime rate of sexual violence, compared to 21 percent for White men.⁵ Two-Spirit people face some of the highest rates in the country: 85 percent of Two-Spirit women and 45 percent of Two-Spirit men report sexual assault.⁶ Alaska Native women experience forcible sexual assault at the highest rate in the nation, and domestic violence rates in Alaska Native villages run up to ten times the national average.⁷

Who the Perpetrators Are

The National Congress of American Indians reports that 96 percent of Native female victims of sexual violence were assaulted by a non-Native perpetrator.¹ Amnesty International’s 2007 report cited at least 86 percent.² Every major study agrees the vast majority of offenders come from outside the victim’s community. That single fact is what makes the jurisdictional question so consequential: for most of modern history, the courts closest to the victim have had no legal authority over the person who attacked her.

Why So Few Cases Are Prosecuted

Criminal jurisdiction in Indian Country is a patchwork of federal, state, and tribal authority. Which government can prosecute a sexual assault depends on where it happened, the tribal enrollment of the victim and the offender, and whether the state has assumed jurisdiction under a mid-century federal statute. That complexity is widely treated as a cause of the crisis, not a byproduct of it.

Oliphant Stripped Tribal Authority Over Non-Natives

In Oliphant v. Suquamish Indian Tribe (1978), the Supreme Court ruled that tribal courts lack inherent criminal jurisdiction over non-Indians and may not prosecute them unless Congress specifically authorizes it.⁸ Because the overwhelming majority of sexual assaults against Native women are committed by non-Natives, tribes were left unable to prosecute most of the people assaulting their citizens. One analysis described non-Native offenders on tribal land acting with “a certain amount of impunity,” knowing tribal police could not charge them and that federal or state prosecution was unlikely.⁹

Even for cases involving Native defendants, tribal sentencing was capped. Under the Indian Civil Rights Act, most tribal courts could impose no more than one year for any offense, including rape. Federal and state courts averaged eight to twelve years for the same crime.²

Federal Prosecutors Declined Most Referrals

When tribes could not prosecute, U.S. Attorneys were supposed to. They often did not. Between 2005 and 2009, the federal government investigated only one-third of referred sexual assault cases involving tribal members on reservations.¹⁰ In 2010, U.S. Attorneys’ offices declined to prosecute 67 percent of sexual abuse cases from Indian Country, most often citing weak evidence or witness problems.¹¹ In Montana, U.S. Attorneys declined 64 percent of reservation sexual assault cases between 2013 and 2018.¹² In 2019, the FBI closed zero cases of sexual assault involving a non-Native perpetrator and a Native victim in Indian Country, a figure the National Congress of American Indians said “does not appear to reflect reality.”¹

Public Law 280 Shifted Authority to Six States

In Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin, Public Law 280 (1953) transferred criminal jurisdiction over Indian Country from the federal government to the states. Congress provided no funding for the new responsibility and did not consult the affected tribes.¹³ In practice, county sheriffs in California often responded little or not at all to crimes on reservations, deterred by uncertainty over their jurisdiction, no taxable base to fund policing, and cultural disconnection.¹⁴ The Bureau of Indian Affairs also used the law to justify redirecting funding away from tribal justice systems in those states, leaving many tribes without police or courts.

McGirt and Castro-Huerta Redrew the Map

In McGirt v. Oklahoma (2020), the Supreme Court held 5–4 that the Muscogee (Creek) Nation’s reservation was never disestablished and remains Indian Country for purposes of the Major Crimes Act.¹⁵ Oklahoma courts later extended the same recognition to nine additional tribal nations, which meant major crimes committed by Native people on those lands, including sexual offenses, fell under federal rather than state jurisdiction.¹⁶ Two years later, in Oklahoma v. Castro-Huerta (2022), the Court held that states have concurrent jurisdiction when a non-Indian commits a crime against an Indian in Indian Country, unless federal law specifically preempts it. States can now prosecute non-Indian perpetrators in Indian Country alongside federal prosecutors.

What Congress Has Changed

The Tribal Law and Order Act (2010)

Signed on July 29, 2010, the Tribal Law and Order Act allowed tribes to raise their maximum sentencing authority from one year to three years per offense, and to stack offenses up to nine years per proceeding, if they adopted specific due process protections: court-appointed attorneys for indigent defendants, law-trained judges, and publicly available criminal codes.¹⁷ Uptake has been limited. As of 2020, only 16 of 319 federally recognized tribal judicial systems had implemented enhanced sentencing.¹²

VAWA 2013 and 2022 Restored Tribal Jurisdiction

The 2013 reauthorization of the Violence Against Women Act was the first restoration of tribal criminal authority over non-Indians since Oliphant. It recognized the inherent power of participating tribes to exercise Special Domestic Violence Criminal Jurisdiction over non-Indians for domestic violence, dating violence, and certain protection order violations on tribal lands.¹⁸ A five-tribe pilot showed higher prosecution rates through tribal courts than the federal system had achieved.¹⁹

But the 2013 law did not cover sexual assault by non-Natives who were strangers to the victim, attacks on children, stalking, sex trafficking, or assaults on tribal police. The 2022 reauthorization, signed on March 15, 2022, expanded covered crimes to include sexual violence, stalking, sex trafficking, child violence, obstruction of justice, and assaults on tribal justice personnel.¹⁸ For the first time, a participating tribe can prosecute a non-Native who sexually assaults a tribal member on tribal land, regardless of whether the defendant had any prior tie to the tribe.

VAWA 2022 also established an Alaska Pilot Program allowing up to five Alaska tribes per year to exercise special criminal jurisdiction within their villages, addressing a population long excluded from the legal definition of Indian Country. Participation is voluntary and conditional: tribes must provide court-appointed lawyers for indigent defendants, use law-trained and licensed judges, include non-Indians in jury pools, and allow defendants to seek federal habeas review. The law authorized $25 million per year in combined grants and reimbursements and capped participating tribes at 30, with expansions requiring notice to Congress.¹⁸

Savanna’s Act and the Not Invisible Act

Both signed on October 10, 2020, these laws target the overlapping crisis of missing and murdered Indigenous people. Savanna’s Act, named for Savanna LaFontaine-Greywind, a 22-year-old pregnant member of the Spirit Lake Nation murdered in 2017, directs the Department of Justice to improve data collection and develop law enforcement protocols for these cases.²⁰ The Not Invisible Act created a cross-jurisdictional advisory commission that published its final report, “Not One More,” on November 1, 2023, calling for reliable base funding to tribes and reform of Public Law 280, which it said had a “disastrous effect” on tribal law enforcement.²¹

Why Reporting and Prosecution Still Fall Short

Chronically Underfunded Police and Courts

A 2021 Bureau of Indian Affairs report found Indian Country public safety and justice programs funded at under 13 percent of total need. It estimated an additional 25,655 personnel, including 11,635 law enforcement officers, were needed against a funded total of 3,781. Annual funding need: $3.5 billion. Actual spending: $446.7 million.²² The BIA Office of Justice Services reported a 30 percent vacancy rate, and tribal agencies lose officers to better-funded federal agencies.²³

Forensic Exams Are Often Unavailable

A 2011 Government Accountability Office report found that 19 of 45 IHS and tribally operated hospitals could not perform sexual assault forensic exams on-site. Of the 26 that could, six had no providers with specialized forensic training.²⁴ IHS headquarters could not identify how many providers had Sexual Assault Nurse Examiner training or track the total number of exams performed.²⁵ Survivors in remote areas sometimes had to travel more than 150 miles to reach a facility that could examine them.

Distrust and Isolation

Generations of federal policy — boarding schools, forced family separations, suppression of languages and spiritual practices — created deep distrust of outside institutions, including police and hospitals.²⁶ Many reservations are remote, lack reliable transportation, and have no local rape crisis center. Survivors who seek help off-reservation often encounter cultural incompetency and racial bias.²⁷ In small, tight-knit communities, fear of retaliation and the pressure to protect family members who may be the perpetrator also suppress reporting. In the Seattle Urban Indian Health Institute survey, 86 percent of survivors reported being affected by historical trauma; 42 percent had attempted suicide, and more than half lacked permanent housing.⁴

Where Survivors Can Get Help

The StrongHearts Native Helpline (1-844-762-8483) offers around-the-clock culturally appropriate support by phone, text, or online chat.²⁸ The National Indigenous Women’s Resource Center focuses on policy advocacy and support services, and the Tribal Law and Policy Institute publishes legal toolkits for tribal advocates, prosecutors, and judges handling sexual assault cases.²⁹ The BIA Victim Assistance Program provides crisis intervention, emergency services, and transportation support. The Office for Victims of Crime funds the Tribal Victim Services Set-Aside Program and the Tribal Resource Tool, a searchable directory of services for Native survivors of crime.

1
National Congress of American Indians. Key Statistics
2
Amnesty International. Maze of Injustice
3
Bureau of Indian Affairs. Missing and Murdered Indigenous People Crisis
4
Urban Indian Health Institute. Our Bodies, Our Stories
5
National Center for Biotechnology Information. Sexual Violence Among Indigenous Populations
6
Maryland Coalition Against Sexual Assault. Sexual Violence Against American Indians and Alaska Natives
7
Indian Law Resource Center. Ending Violence Against Native Women
8
Justia. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191
9
Federal Bar Association. Tribal Criminal Jurisdiction After Oliphant
10
American Medical Association Journal of Ethics. Policy, Wellness, and Native American Survivorship
11
Ballard Brief. Sexual Assault on Native American Reservations
12
National Indigenous Women’s Resource Center. Broken Trust Investigation
13
California Attorney General. Public Law 280
14
UCLA American Indian Studies Center. California Tribes and P.L. 280
15
U.S. Supreme Court. McGirt v. Oklahoma, 591 U.S. (2020)
16
American Bar Association. Jurisdictional Landscape After McGirt and Castro-Huerta
17
National Congress of American Indians. Tribal Law and Order Act
18
U.S. Department of Justice. 2013 and 2022 Reauthorizations of VAWA
19
Tribal Law and Policy Institute. Violence Against Native Women Publication
20
National Indigenous Women’s Resource Center. MMIWR Policy Center
21
National Indigenous Women’s Resource Center. Not One More – Not Invisible Act Commission Final Report
22
Bureau of Indian Affairs. 2021 TLOA Annual Report
23
U.S. Congress. House Subcommittee Hearing Document on BIA Law Enforcement
24
Amnesty International. End Rape Report
25
U.S. Government Accountability Office. Indian Health Service: Continued Efforts Needed
26
Wisconsin Department of Justice. Considerations for Responding to Native American Survivors
27
Coalition to Stop Violence Against Native Women. Breaking the Silence
28
Office for Victims of Crime. Tribal Related Resources
29
Tribal Law and Policy Institute. Sexual Assault Publications