Restoration Magazine

The following issues, concerns, and recommendations have been identified by Indian tribes and advocates for the safety of Native women during past annual consultations (2006–2017), through NCAI resolutions (2000–2018), and at numerous national meetings. A review of oral and written statements made by tribal leaders during consultations over the years clearly documents these are not new issues but complicated legal and policy barriers embedded in the layers of federal Indian law. These issues are monitored on an ongoing basis by the National Congress of American Indians Task Force on Violence Against Women (“NCAI Task Force”).

The NCAI Task Force recommends that federal departments in order to fulfill the purposes of the VAWA Safety for Indian Women Title to increase the safety of Indian women and accountability of perpetrators address the following issues and coordinate with Indian tribes regarding implementation of the proposed recommendations.

Issues Regarding Implementation of Violence Against Women Act

Tribal Jurisdiction Over Non-Indian Offenders. The lack of tribal jurisdiction over non-Indian offenders on Indian lands continues to be a key reason for the perpetuation of disproportionate violence against American Indian and Alaska Native women. VAWA 2013 addressed this issue for certain crimes of domestic violence, dating violence, and protection order violations for some tribes. Many crimes of violence against Native women and children continue to fall through the cracks and many tribes, particularly those in Alaska and in states with restrictive settlement acts such as Maine, are not able to make use of this provision. For those tribes that are implementing the jurisdiction provision of VAWA 2013, funding and resources are a significant problem. Concerns have also been raised about how health care costs will be covered for non- Indian inmates who are sentenced in tribal courts. Recommendations: Federal departments support and reaffirm tribal criminal jurisdiction over non-Indian perpetrators of domestic violence, sexual assault, dating violence, stalking, and trafficking for all federally recognized Indian tribes. For Indian tribes unable to utilize the VAWA 2013 Special Domestic Violence Criminal Jurisdiction (SDVCJ) the DOJ establish a pilot project under which tribal criminal jurisdiction over non- Indian perpetrators of domestic violence, sexual assault, dating violence, and stalking can be implemented. In addition, DOJ establish a federal workgroup to identify options for covering health care costs for non-Indians sentenced in tribal courts. It is recommended that all federal departments support increased funding for tribal implementation of the 2013 SDVCJ.

Research of Violence Against Alaska Native Women.

In 2013, VAWA was amended to include the 229 “Alaska Native Villages” under the National Baseline Study. The baseline study is intended to provide recommendations to enhance the effectiveness of federal, state, tribal, and local responses to violence against Indian women. It is a concern that research specific to violence against Alaska Native women committed in Alaska Native villages is lacking. Recommendation: NIJ specifically develop under the VAWA-mandated program of research studies specific to Alaska Native women. 

Enforcement of Federal Statutes Across Indian Tribes. Enforcement of the federal firearms provision and habitual offender statute is of concern particularly in tribal jurisdictions where tribes share concurrent jurisdiction with state governments such as under PL 280, and Indian tribes impacted by restrictive settlement acts such as Maine. Recommendation: DOJ and DOI increase training to districts with Indian tribes where these federal statutes are not being charged and coordinate with Indian tribes to increase utilization of the statutes.

Outstanding Unaddressed Issue of Addressing Missing and Murdered Native Women. This past year, more than 200 tribal, state, regional, and national organizations joined with the National Indigenous Women’s Resource Center in support of the Senate resolution to create a National Day of Awareness for Missing and Murdered Native Women and Girls. The first national day of awareness reached millions of people across the United States and the world through social media platforms. The social media networking and mobilization surpassed the 2017 efforts. This public call for increased awareness is indicative of the extent of the reality that Native women go missing on a daily basis often without any response by law enforcement. Recommendations: DOJ is urged to fully implement the VAWA 2005 program of research and specifically provide Indian tribes information regarding the disappearance and murder of Native women; and all federal departments should take the necessary actions to: 

• Review, revise, and create law enforcement and justice protocols appropriate to the disappearance of Native women and girls, including inter-jurisdictional issues;
• Provide increased victim services to the families and community members of the disappeared or murdered Native woman, including but not limited to both Native and non-Native services such as counseling for the children of the disappeared, burial assistance, and community walks and healing and other tribal-specific ceremonies;
• Coordinate efforts across federal departments to increase the response to the disappearance or murder of Native women and girls; and,

Coordinate efforts in consultation with Indian tribes to increase the response of state governments, where appropriate, to cases of disappearance or murder of Native women or girls.

2018 Consultation Priority Issues

Disbursement of Crime Victim Funding and Support for a Permanent Fix. American Indians and Alaska Natives experience the highest crime victimization rates in the country. ¹ Tribal governments, like other governments, are responsible for meeting the needs of victims in their communities. The newly created 3% tribal set-aside from the Crime Victims Fund is celebrated across Indian tribes. This funding has the potential to change the landscape of crime victim services in tribal communities, and tribal leaders are eager to engage in a discussion with DOJ and the Office for Victims of Crime (OVC) about how to make the best use of these lifesaving funds. While the timing of the appropriations for FY 2018 has created many challenges for administering this new funding, the importance of demonstrating success with this inaugural round of funding is essential. The NCAI Task Force offered preliminary recommendations with regard to 1) the mechanism for distributing the funds and 2) permissible uses of the funds by tribal recipients.

Mechanism for Distributing 2018 Tribal Funds. Tribal governments have consistently asked for grantmaking processes at DOJ that reflect respect for tribal self- determination and the government-to-government relationship. It is strongly recommended that OVC adopt a method of distributing the funds among all eligible tribes that takes into account the need for sufficient base funding. Given the short time frame to distribute the funds we recommend OVC to consider using the distribution formula for the Family Violence Services and Prevention Act (FVPSA) tribal program at HHS. The FVPSA formula was developed in consultation with tribal governments shortly after Congress created a 10% tribal set-aside in FVPSA. While focused on victims  of family violence it is a particularly useful model since it also provides funding for services to crime victims. The FVPSA tribal formula provides for base funding in tiers with any remaining funds distributed to all eligible applicants on a per capita basis. Eligible applicants include all federally recognized tribes who demonstrate the capacity to provide services to victims of family violence. Given the short time frame for obligating funds for FY 2018, we recommend OVC consider using the FVPSA formula for the first year while engaging in a process of consultation with tribal governments that would allow for the formula to be refined or changed in future years.

Use of Funds by Tribal Recipients. Different tribes will have different needs and it is important that the funding can be used flexibly. We recommend DOJ take a broad view of what constitutes activities that will “improve services to victims of crime” as set forth in the appropriations bill. The needs of victims in tribal communities may differ significantly from those in non-tribal communities. Congress enacted the tribal set-aside in order to rectify a longstanding inequity between tribal governments and state and territorial governments, and tribes should be able to engage in the same activities as other governments. We encourage you to view the recently updated VOCA regulations applicable to the state victim assistance programs as a starting place for determining the parameters of the tribal program and to engage in consultation with tribal governments about how these regulations should be augmented or amended to address the unique tribal context. We also recommend the project period for these grants be up to 4 years to spend any funds, which would allow tribes to use the time necessary at the start of the award period for project planning and needs assessments where that is necessary.

Recommendation: The DOJ, DOI, and HHS should strongly support a permanent fix to VOCA tribal funding stream by passage of the SURVIVE Act.

Need to Improve Public Safety Funding Mechanisms. Currently, base funding for tribal courts, law enforcement, and detention is provided through the Bureau of Indian Affairs (BIA) and is entirely inadequate. Oftentimes, tribes located in states included under PL 280 are completely shut out of this funding. BIA last year released an “unmet obligations” report that concluded that there is more than a $2 billion unmet need for tribal law enforcement and courts funding. Additional funding is provided through the DOJ and Health and Human Services (HHS) under a series of grant programs that pose serious access issues for many tribes as competitive grant programs. Moreover, funding for prevention, rehabilitation, and treatment programs,  which are key components of any community’s approach to reducing crime, are located at IHS, SAMHSA, and elsewhere within HHS. In order to obtain this funding, tribes often must compete against each other under the priorities and guidelines set by the administering agency. In the end, too often the tribes that have the financial and human resources to employ experienced grant writers end up receiving funding, while the under- resourced tribes are left without. Tribes that do receive funding cannot count on it continuing beyond the current grant period. As a result, there are countless stories of successful tribal programs disappearing at the end of a two- or three-year grant cycle. Recommendation: The Administration should consult with tribes to develop a proposal that would bring much needed reforms to the tribal public safety funding system to better meet local needs.

Increase Federal Penalties for Violation of Tribal Protection and Exclusion Orders. Indian tribes issue protection and exclusion orders to ensure the public safety of their citizens and community members. In addition to domestic violence protection orders, tribes issue exclusion orders for drug-related crimes and protection orders against non-Indians for stalking and sexual assault offenses. However, tribes have a limited ability to enforce these orders in most cases. Recommendation: The Administration should initiate consultation with tribal governments about options to increase federal penalties and deterrence for non-Indians who violate tribal exclusion orders and protection orders.

Federal Accountability of Extractive Industries for Crimes Against Native Women. The escalation of sexual and domestic violence, including sex trafficking, due to extractive industries must be addressed by the DOJ, DOI, and HHS. Industries must be held accountable for the resulting violence of itinerant workforces created within tribal communities by these industries. Recommendations: DOJ and DOI should create standards of protection for tribal communities for extractive industries to comply with prior to, during, and post construction to protect Native women and children, including through the federal permitting processes. DOJ should assist Indian tribes in safeguarding the lives of Native women where extractive industries employ a militarized police force to ensure no militarized tactics and usage of excessive force and/or violations of civil rights are committed against members of tribal communities. HHS should enhance support for services and training for shelter and related advocacy services by developing materials addressing the needs of domestic violence victims who are victimized by itinerant workers who cannot be held accountable by local tribal authorities.

Priority Issues Specific to Federal Departments

Department of Justice, Office on Violence Against Women (OVW) Rescission from Tribal Programs. OVW continues to apply congressionally mandated rescissions to tribal programs; for example, $3.2 million was taken from the 2016 Grants to Tribal Governments program. It is our understanding that OVW has discretion to determine how to apply the rescission across its funding lines. Because of the unique federal trust responsibility and heightened federal obligations to, and disparities in crime and victimization for Indian tribes, future rescissions should not be applied to tribal grant programs.

Family Violence Prevention and Services Program. Support reauthorization and continued appropriations of FVPSA with amendments to increase tribal access to critical funds for domestic violence shelter and supportive services.

Department of Interior, Bureau of Indian Affairs. Prioritize taking land into trust in Alaska. Because of the legal status of the land in most Alaska Native villages, tribal governments in Alaska generally have very limited authority to protect their communities. The Department of Interior has issued regulations to allow land to be taken in to trust in Alaska, which has
the potential to transform the tools available to Alaskan tribes for ensuring public safety in their communities. The Administration should work swiftly to continue to take land into trust in Alaska. Address funding disparities for tribes in Public Law 280 (PL 280) and similarly situated jurisdictions. Indian nations in PL 280 jurisdictions have been provided substantially lower amounts of support from the BIA for tribal law enforcement and tribal courts than Indian nations not subject PL 280. Consequently, the tribes in PL 280 jurisdictions have had far less opportunity to develop their own police departments and court systems. Beginning in the 1990s, the DOJ has financially supported and provided technical assistance to Indian nations for development and enhancement of their police departments and court systems. The BIA should request appropriate additional federal funding to end this disparity in funding between tribes depending on their PL 280 status. Similarly, Indian tribes in Maine presented their concerns during the 2016 and 2017 consultations regarding the impact of Restrictive Settlements Acts on tribal authority to protect victims of domestic and sexual violence. These concerns should be responded to and addressed.

Consultation Issues Specific to the Tribal Law Order Act of 2010 (TLOA)

Federal Accountability. Section 201 of the TLOA requires U.S. Attorneys to coordinate with tribal justice officials on the use of evidence when declining to prosecute or refer a reservation crime. Sharing of this type of information is critical to keeping Indian women safe. Tribal officials need to be notified when a U.S. Attorney declines to prosecute sexual assault and domestic violence cases so that, in the case of an Indian defendant, a tribal prosecution may proceed, or in all other cases, tribes can at least notify the victim of the status of the case so that the victim may take the necessary steps for protection. Recommendation: Hold U.S. Attorneys accountable for necessary coordination and reporting duties with tribal justice officials under the TLOA. The safety of Indian women depends upon it.

Enhanced Tribal Sentencing Authority. Section 304 of the TLOA grants tribal courts the ability to sentence offenders for up to 3 years’ imprisonment for any one offense under tribal criminal law if certain protections are provided. This is a significant improvement, although this maximum sentence still falls short of the average sentence of 4 years for rape in other jurisdictions. Crucial for our purposes, tribes must have the capacity to house the offender in detention facilities that meet federal standards; otherwise, the enhanced sentencing power is meaningless. Recommendation: Work with Congress to ensure that the Bureau of Prisons Pilot Project is reauthorized.

Prisoner Release and Reentry. Section 601 of the TLOA requires the U.S. Bureau of Prisons to notify tribal justice officials when a sex offender is released from federal custody into Indian country. Recommendation: Ensure that tribal justice officials are notified of prisoner release and re-entry on Indian lands, regardless of the process by which this occurs (i.e., whether the BOP Director gives notice directly to tribal justice officials or whether he gives notice to the U.S. Attorney and the U.S. Attorney is responsible for relaying that message to tribal justice officials). Proper implementation of this provision is critical to the safety of Indian women.

Full Access to Federal Databases. TLOA, and VAWA 2005, requires the Attorney General to permit Indian law enforcement agencies to enter information into and obtain information from federal criminal information databases. The NCAI Task Force is concerned that not all Indian tribes have access to the NCIC under the Tribal Access Program (TAP). We understand that the TAP is currently limited to tribes with a SORNA-compliant sex offender registry or with a full-time tribal law enforcement agency. There are many tribes, particularly in Alaska, PL-280 jurisdictions and similar jurisdictions, however, who do not meet these criteria, and may never, but they do have tribal courts that issue protection orders. For these protection orders to be effective and protect victims, the tribe needs to be able to enter them into the protection order file of NCIC. In addition, while the TAP program enhances tribal sovereignty with direct access, there are still barriers in the federal law that limit this access, which limits the effectiveness of the TAP. The applicable federal laws need to be reformed and tribes need to be added to PL 92-544, which the Criminal Justice Information System (CJIS) identifies as limiting full tribal access. Finally, tribes need to have a system available for entering their misdemeanor domestic violence convictions and other NICS disqualifying events. Recommendations: A dedicated funding stream should be created for expanding the TAP program and make it more widespread for tribes able to meet CJIS Security requirements and have recognized governmental purposes, to access the databases. The repurposing of the tribal registry funding under VAWA 2005 to support the TAP program should be open to all Indian tribes. We need to ensure that all tribes have the ability to access federal databases not only for the purpose of obtaining criminal history information for criminal or civil law purposes, but also for entering protection orders, missing person reports, and other relevant information into the database, such as NICS disqualifying events. The Task Force also recommends that the DOJ create tribal technical assistance programs and host regional trainings for tribal judges, tribal attorneys, child welfare agencies and law enforcement to educate each about the gaps in the current system and how to facilitate better coordination to ensure that lifesaving protection orders are entered into the NCIC database. Finally, the NCAI Task Force recommends that DOJ create a multidisciplinary task force with significant tribal participation, to identify the outstanding barriers tribes face in acquiring full access to federal criminal history databases and to develop a plan of action to resolve these issues, including amendments to existing laws.

1. Rosay, R. B. (2016). Violence against American Indian and Alaska Native women and men: 2010 findings from the national intimate partner and sexual violence survey. Retrieved from https://www.ncjrs.gov/pdffiles1/nij/249736.pdf.