Restoration Magazine

The following concerns and recommendations are on-going national priority issues raised during past annual consultations from 2006–2018. These issues have been voted upon by Indian tribes through tribal resolutions unanimously passed during NCAI conferences by member Indian tribes (2000–2018). Regional organizations of Indian tribes have also discussed and passed resolutions in support of these recommendations. And tribal leaders and advocates have discussed and raised concerns about these barriers to protecting Native women at numerous national meetings with the administration, federal departments and agencies, and their respective Congressional delegations.

A review of the oral and written statements made by tribal leaders during prior consultations, for more than a decade, clearly document 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 on-going basis by the NCAI Task Force on Violence Against Women. The Task Force recommends that federal departments address these issues and coordinate with Indian tribes regarding the implementation of the proposed recommendations to fulfill the purposes of the VAWA Safety for Indian Women Title.

“In 2005, advocates and tribal leaders came together as a national tribal movement to engage Congress to understand the life and death need to expand VAWA to support Indian tribes in responding to violence against Native women. After 10 years it was clear VAWA fell short, was inadequate, and needed to address the roots of the violence. To reach Indian tribes VAWA had to be more than a grant program. And, Indian tribes clearly were more than ‘grantees.’ The passage of the Safety for Indian Women Title was a historic stepping stone, but we have a long road ahead of us to reach safe ground.”—Carmen O’Leary, Executive Director, Native Women’s Society of the Great Plains; Board of Directors, NIWRC

The recommendations that follow include amendments to federal law, changes to administrative policies, and budget appropriations. These concerns and recommendations to address barriers raised at consultation are within the context of the government- to-government legal relationship of Indian tribes to the United States. In this context it is important for tribal leaders to provide statements regarding specific legislation to inform federal departments of such positions. This clarity based on an informed mutual understanding strengthens the tribal-federal relationship whether agreement or disagreement exist on the positions.

Many of the concerns and recommendations made by tribal leaders during past consultations are addressed in the Violence Against Women Reauthorization Act of 2019, H.R. 1585. Other recommendations are addressed in the SURVIVE Act, Justice for Native Survivors, and the Not Invisible Act. In 2018 tribal leaders raised concerns about the lack of shelter and supportive services for Indian tribes. The primary and only dedicated funding for shelter is provided under the Family Violence Reauthorization Act (FVPSA) that expired in 2015 and must be reauthorized in 2019.

The concerns and recommendations raised by Indian tribes are extensive as documented in past VAWA Consultation Reports to Congress. On the following pages are provided some of the priority issues and where available any supporting legislation. Additional information on pending legislation is also provided for VAWA on pages 24-27, MMIW on pages 28-41, FVPSA on pages 42-44, and Alaska Native villages on pages 37- 39 and 44-48. A chart of pending legislation is provided at pages 22-23. We hope this information is helpful to your preparation for and engagement during the 2019 Consultation.

Consultation Issues Regarding Reauthorization of the Violence Against Women Act, 2019

Tribal Jurisdiction Over Non-Indian Offenders and Tribal Criminal Jurisdiction (SDVCJ)

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. While a step forward VAWA 2013 failed to make the changes needed for Indian tribes to fully protect Native women from abusers, rapists, traffickers, and predators. It also did not address protections for tribal children and public safety personnel in the context of domestic violence crimes. And, it failed to include 228 tribes in Alaska and Indian tribes in Maine. For those tribes that are implementing the jurisdiction provision of VAWA 2013, funding and resources are a significant problem. Indian tribes are concerned about payment of health care costs for non- Indian inmates who are sentenced in tribal courts. Recommendations to DOJ and DOI to Support the Following as provided by the VAWA Reauthorization Act (H.R. 1585):

• Expansion of tribal criminal jurisdiction over non- Indian perpetrators of domestic violence, sexual assault, dating violence, stalking, and sex trafficking for all federally recognized Indian tribes.
• Increased funding for tribal implementation of SDVCJ.
• Inclusion of 228 Alaska Native Villages as eligible to utilize SDVCJ.
• Creation of an Alaska pilot project under which tribal criminal jurisdiction over non-Indian perpetrators of domestic violence, sexual assault, dating violence, stalking, and sex trafficking can be implemented (SDVCJ) on all land within any Alaska Native village.
• Inclusion of Indian tribes in the State of Maine as eligible to utilize SDVCJ.
• Extending protections for children and law enforcement personnel on tribal lands. As also provided by the Native Youth and Tribal Officer Protection Act (NYTOPA).
• Restoring tribal authority to prosecute non-Indians in cases of sexual assault, sex trafficking, and stalking as provided by the Justice for Native Survivors of Sexual Violence Act.

Consultation Issue: Addressing Missing and Murdered Indigenous Women (MMIW)

The federal response to the crisis of Missing and Murdered Native Women is a failure and human rights violation. We cannot continue to ignore the importance of a fully resourced local, tribal response to prevent abductions and murders. It is a continuation of the history of genocide committed against the Indigenous peoples of this country. The tribal and public calls for justice have created a National Day of Awareness for Missing and Murdered Native Women and Girls recognized by Senate Resolutions (2017, 2018, and 2019), and this year a Presidential Proclamation. In combination, over 200 tribal, state, regional, and national organizations joined with the National Indigenous Women’s Resource Center in support of the Senate MMIW resolutions. The National Day of Awareness efforts reached millions of people across the United States and the world through social media platforms. And the United Nations Commission on the Status of Women joined in support of the National Day of Awareness. This public call for increased awareness is indicative of the extent of the reality that Native women go missing on a daily basis often because of the lack of tribal advocacy services and without any response by law enforcement.

Recommendations to DOJ, National Institute of Justice (NIJ), DOI, HHS:

• OVW, OVC, FVPSA, and IHS provide increased tribally based victim services to the families and community members of the abducted, disappeared or murdered Native women. Such services should include counseling for the children of the disappeared, burial assistance, community healing such as walks for justice and to honor the disappeared or murdered, community meals and gatherings, and other tribal-specific activities. As provided for by the SURVIVE Act.
• NIJ fully implement the VAWA 2005 program of research and specifically provide Indian tribes information regarding the disappearance and murder of Native women.
• DOJ and DOI review, revise, and create law enforcement and justice protocols appropriate to the disappearance of Native women and girls, including inter-jurisdictional issues as provided by the Savanna’s Act (see page 34) and the Not Invisible Act (see page 33).
• Support the Government Accountability Office efforts to prepare and submit a report on the response of law enforcement agencies to reports of missing or murdered Indians, including recommendations for legislative solutions as provided by the Studying the Missing and Murdered Indian Crisis Act. See page 36.
• Coordinate efforts across all federal departments to increase support for tribal responses to the disappearance or murder of Native women and girls. As provided by the Savanna’s Act.
• Coordinate efforts in consultation with Indian tribes to increase the response of state governments, where appropriate, to cases of the disappearance or murder of Native women or girls.

Consultation Issue: 2019 Tribal Funding and Distribution

Disbursement of Crime Victim Funding (VOCA) and Support for a Permanent Fix

American Indians and Alaska Natives experience the highest crime victimization rates in the country.¹ The newly created 3% tribal set-aside from the Crime Victims Fund was celebrated across Indian tribes. This funding held the potential to change the landscape of crime victim services in tribal communities; however, disbursement by USDOJ of these funds has not met this expectation. Tribal governments have consistently asked for grantmaking processes at DOJ that respect tribal self-determination and the government-to-government relationship. Tribal leaders during the last consultation and other meetings with USDOJ and the Office for Victims of Crimes (OVC) recommended how to best use these lifesaving funds and a process for disbursement. While the timing of the FY 2018 appropriations created many challenges for administering this new funding, tribal leaders stressed the importance of demonstrating success with this inaugural round of funding. And, the NCAI Task Force offered preliminary recommendations concerning: 1) the mechanism for distributing the funds and 2) permissible uses of the funds by tribal recipients. The failure to fully disburse these lifesaving funds is unacceptable given the suffering and need for services of Indian victims.

Recommendations to DOJ OVC:

• Adopt a method of distributing the tribal funds among all federally recognized tribes that takes into account the need for sufficient base funding.
• Engage in the process of consultation with tribal governments for distribution of the tribal funds and how regulations should be tailored to address the unique tribal context.
• Until a full tribal consultation process is completed OVC distribute the funds according to the formula of the Family Violence Services and Prevention Act (FVPSA) tribal grant program at USDHHS. We recommend the base amount for VOCA tribal funding at $300,000. 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.
• Utilize a tribally-based view of what constitutes activities that will “improve services to victims of crime” as set forth in the appropriations bill. Different tribes will have different needs, and it is important that the funding can be used flexibly. The needs of victims in tribal communities may differ significantly from those in non-tribal communities. Congress enacted the tribal set-aside to rectify a longstanding inequity between tribal governments and state and territorial governments. OVC must respect the sovereign right of tribal governments to self-determination as they respect the sovereign right of state governments to self-determination.
• Extend the grant project period up to 4 years for CVF awards. A project period of up to 4 years to spend any funds would allow tribes, when appropriate, to use the time necessary at the start of the award period for project planning and needs assessments.
• Support a permanent fix to VOCA tribal funding stream as provided by the SURVIVE Act.

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 the 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.

Recommendation to OVW:

• Stop any future application of rescission to tribal grant programs.

Department of Interior, Bureau of Indian Affairs Disparities in Funding

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 to 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. In the past few years the DOI requested and received funding towards this end.

Recommendation to BIA:

• The BIA should continue to request appropriate additional federal funding to end this disparity in funding between tribes based on their PL 280 status.

Consultation Issue: Accountability of Extractive Industries for Violence 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. Native women and their children should not be exposed to violence by felons, often times serial predators employed by such industries.

Recommendations:

• DOJ and DOI create standards of protection for tribal communities for extractive industries to comply with before, during, and post construction to protect Native women and children, including through the federal permitting processes. 
• DOJ and DOI establish screening guidelines to prevent convicted rapists, domestic violence offenders, stalkers, child predators, sex traffickers, and murderers from assignments by industries on tribal lands to prevent predators from accessing vulnerable, and often unprotected, populations of Native women and children.
• DOJ 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.

Consultation Issues: Compliance with the Tribal Law Order Act of 2010 (TLOA)

TLOA, Section 201, Federal Accountability. Section 201 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: The Attorney General direct U.S. Attorneys to implement the law, Section 201, and be accountable for the necessary coordination and reporting duties with tribal justice officials under the TLOA. Failure to implement the law should be tied to employee performance and merit-based reviews.

TLOA, Section 304, Enhanced Tribal Sentencing Authority. Section 304 provides 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: The DOJ work with Congress to ensure that the Bureau of Prisons Pilot Project is reauthorized.

TLOA, Section 601, Prisoner Release and Reentry. Section 601 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 reentry on Indian lands, regardless of the process by which this occurs. Whether the BOP Director gives notice directly to tribal justice officials or notice to the U.S. Attorney, it is the U.S. Attorney who is responsible for relaying that message to tribal justice officials.

2019 Government-to-Government Violence Against Women Tribal Consultation New Buffalo, Michigan August 21-22, 2019

The 2018 consultation report, which summarizes the recommendations that USDOJ received at last year’s consultation are available at https://files.constantcontact.com/5212f69f401/302c7544-b74b-4a2e-9490-f98e3fd8538f.pdf 

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.