The Beginning and End of Rape: Confronting Sexual Violence in Native America by Sarah Deer (review)

Sarah Deer’s The Beginning and End of Rape is a once-in-a-generation opus of powerful advocacy and precise scholarship. It is Deer’s work, much of it collected here, that formed the justification for the tribal jurisdictional provisions of the 2013 Violence Against Women Reauthorization Act and earned her a MacArthur Fellowship in 2014.

American Indian women (and their children) have been the target of historical American forces designed to wear down Indian resistance, break up Indian landholdings, and break down Indian cultures. Deer’s chapter on an 1825 Mvskoke law that allowed women to set the penalty for an act of sexual violence (perhaps one of the finest pieces of scholarship on tribal law ever written) establishes that Indian women played a critical role in tribal societies. But Indian women and their children suffered the worst in the Indian wars, as Indian foes burned villages and crops and used Indian families as hostages. Indian women often managed the property and family obligations of Indian nations, and they lost far more influence than Indian men when Indian people lost much of their lands and Indian tribes began to emulate non-Indian governments. One Indian boarding school administrator stated the malevolent brilliance of the federal focus on Indian women when he stated, “If we get the girls, we get the race.”

The modern legacy of that focus on Indian women is apparent in the terrible reality of sexual violence against Indian women, including domestic violence, rape, and human trafficking. Deer links this violence to massive failures on every level and jurisdiction in the Indian Country criminal justice system. Tribal governments have no meaningful capacity to prosecute sexual violence crimes. The federal and state governments’ responses are similarly limited. The United States was never intended to be the first responder to local crimes like sexual abuse. Moreover, the often extremely complex Indian Country jurisdictional questions that must be answered before the federal government can indict a perpetrator may stall or even preclude an indictment or a conviction. States may only prosecute Indian Country crime with the authorization of the federal government, and even when authorized, states are limited by resources and political constraints. In short, no level of government is effective at enforcing the law in Indian Country. Deer persuasively argues that this is all the fault of the United States, which through its stunted and vicious history of Indian law and policy created this situation.

Indian victims, like non-Indian women, are not supported by tribal, federal, or state criminal justice systems. They are subjected to shame. They are ostracized. They are disbelieved. Their perpetrators retain power over them in the American system.

In 2013 Congress reauthorized the Violence Against Women Act (vawa). One of the more controversial provisions was the recognition of tribal criminal jurisdiction authority over non-Indians who commit acts of domestic violence against Indian women in Indian Country. Conservative lawmakers assailed the statute and the tribal courts that might soon begin to prosecute non-Indians for the first time since 1978, when the Supreme Court held that Indian tribes did not have criminal jurisdiction over non-Indians absent congressional authorization. Deer’s scholarly and advocacy work, much of it represented in The Beginning and End of Rape, significantly influenced the enactment of the statute.

However, as Deer laments, a federal solution to a tribal problem has too many weaknesses. The 2013 act placed significant limits on tribal authority to prosecute non-Indians and virtually eliminated a culturally appropriate tribal response to sexual violence. For example, the requirement that tribal courts guarantee procedural protections to criminal defendants at least as stringent as those required under federal law is laudable. But they are expensive and, ironically, are not required in criminal cases against Indian defendants. Those tribes that do not have the capacity to prosecute crime in a meaningful way on their reservations are not empowered by...