The Failed Response of State Justice Agencies to Investigate and Prosecute MMIW Cases
Disrespect from lack of awareness or compassion for grieving families is clearly wrong. In the case of Indigenous women and their families, it is also a violation of protected rights.
In 1978, when Congress passed the American Indian Religious Freedom Act and earlier the U.S. Civil Rights Act of 1964, it was not intended to “specifically” address the context of today’s crisis of Missing and Murdered Indigenous Women (MMIW). Yet, the spirit and protections provided under these laws are applicable and offer guidance on the current systemic barriers confronting family members of murdered Indigenous women.
The Civil Rights Act of 1964
“Simple justice requires that public funds, to which all taxpayers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial [color or national origin] discrimination.”—President John F. Kennedy, 19631
The Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, or national origin. In addition, the Act gave federal law enforcement agencies the power to prevent racial and sexual discrimination in the use of public facilities and the delivery of services.
The families of MMIW have long-standing complaints about the failed response and denial of justice-related services by federal and state/local law enforcement agencies to the disappearance and/or murder of their loved one. This failed response represents a pattern or practice of local, state, and federal agencies not responding to cases of violence against American Indian women, as the number of suspicious deaths of American Indian women and girls that go uninvestigated––despite an inordinate amount of evidence that a homicide has occurred––is staggering.
In numerous cases, medical examiners, coroners, and prosecutors have wrongfully reported the cause of death of American Indian women as undetermined, possible suicide, or hypothermia in order to quickly close the case. Families have complained that the failure to properly investigate MMIW cases is based upon racial discrimination against Indian women. In many cases, the remains are cremated before a full investigation can occur, at times without the family's consent.
For decades, families of MMIW have been rebuffed by the federal and state/local justice responders despite Tribal calls for justice, vigils, marches, and testimony before the Senate Committee on Indian Affairs, of the overwhelming number of cases the following provide glaring examples of the disregard for the lives of Native women:
- January 2020: Kaysera Stops Pretty Places’ grandmother was told she died from a drug overdose, only to have the toxicology report come back with no indication of drug usage. Before a legitimate criminal investigation could be undertaken, the County Coroner cremated Kaysera’s body against her family’s permission
- June 2017: Ashley Loring Heavy Runner’s sister Kimberly Loring Heavy Runner testified in 2018 before the Senate Committee on Indian Affairs concerning the failed law enforcement response.
- February 2015: Allison Highwolf’s mother was told by one police officer, “Just because your daughter died, the world doesn’t revolve around you.”
- July 2013: Malinda Limberhand, mother of Hanna Harris, was told, “You can search for Hanna yourself. She has probably gone to Sturgis with a biker.”2
- August 2006: June Lefthand, mother of Victoria Eagleman, was told, “Vickie is off partying.”3
In May 2012, the U.S. Department of Justice Civil Rights Division opened an investigation into three law enforcement entities in Missoula, Montana. A year later, they issued findings for the Missoula Police Department and University of Montana Office of Public Safety that identified a pattern or practice of failing to adequately respond to and investigate allegations of sexual assault against women. Again, in February 2014, their findings of the Missoula County Attorney's Office identified a pattern or practice of failing to ensure unbiased, effective investigation and prosecution of reports of sexual assault by women.
The Civil Rights Act is known for high-profile cases concerning the U.S. Department of Justice (USDOJ), such as the investigations into the murders of George Floyd and Breonna Taylor committed by local law enforcement. It has much broader applicability. Just as local law enforcement agencies have exhibited discrimination by systemically and routinely targeting people of color with unlawful acts of violence, local law enforcement agencies across the United States have exhibited a systemic and routine practice of not investigating or prosecuting the individuals who continue to murder American Indian women and girls.
Civil rights laws apply to essentially any entity that receives federal financial assistance and encompasses the program or activity funded to any degree by federal financial assistance. The budget for the state of Montana in 2021, for example, where there are numerous complaints of discriminatory practices and denial of services by the families of murdered Indigenous women, is $16 billion in total, of which nearly $9.25 billion comes from the United States Treasury.4
“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”5
Ceremony and traditions have meaning in the lives of those who have passed and their loved ones who remain in this world. The inherent right to believe, express, and exercise traditional religions is connected to the ceremonies and traditional rites of passage and departure of a loved one from this world.
In the context of the U.S. Department of Justice (USDOJ), Congress created additional nondiscrimination provisions for specific federal grant programs. For example, the state of Montana receives numerous grants from the Office of Justice Programs and Office on Violence Against Women for justice-related services, such as the Violence Against Women Act, Edward Byrne Memorial Justice Assistance Grants, and numerous other federal grant programs.
USDOJ Investigation of Missoula Law Enforcement Agencies
One example of the broader applicability of the Civil Rights Act is the 2014 USDOJ findings resulting from a 2013-2015 investigation of the Missoula Police Department, Missoula County Attorney's Office, and University of Montana Office of Public Safety. In May 2012, the USDOJ Civil Rights Division opened an investigation of these three law enforcement entities in Missoula. It focused on gender bias in the handling of sexual assault complaints.
In May 2013, the division issued findings letters for the Missoula Police Department and University of Montana Office of Public Safety, identifying a pattern or practice of failing to adequately respond to and investigate allegations of sexual assault against women. In February 2014, the division issued a separate findings letter to the Missoula County Attorney's Office, identifying a pattern or practice of failing to ensure unbiased, effective investigation and prosecution of reports of sexual assault by women.
“A police department cannot truly protect women in its community without being prepared to respond to reports of sexual assault effectively and without bias,” said Roy L. Austin Jr., Deputy Assistant Attorney General for the Civil Rights Division. “Equal access to the protection of police and the courts is a matter of basic justice.6
Many states, like Montana, receive federal financial assistance and have a legal obligation to comply with civil rights requirements above and beyond those that otherwise would apply.
Failing to respond, investigate, and prosecute suspects in cases of American Indian women because of racial bias reflects a pattern or practice of denial of equal services.
American Indian Religious Freedom Act
The American Indian Religious Freedom Act (AIRFA) affirmed freedom of religion is an inherent fundamental right guaranteed to all Americans by the First Amendment to the United States constitution.
The AIRFA provided that the religious practices of American Indians are an integral part of their culture and formed the basis of Native identity. Accordingly, it mandated that the federal government protect and preserve American Indians’ inherent freedom to believe, express and exercise their traditional religions.
One concern of many families of murdered Indigenous women is the reality that county coroners have cremated the remains of their loved one without, and in most instances, against their consent (for instance, the case of Kaysera Stops Pretty Places, Crow Tribe).
In other circumstances, mothers or next of kin are not allowed to view the remains of their loved one. (Allison Highwolf, Northern Cheyenne)
And in other cases, the cremated remains are mailed back to grieving families.
What is the connection to the American Indian Religious Freedom Act in the case of a murdered Indigenous woman?
One concern of many families of murdered Indigenous women is the reality that county coroners have cremated the remains of their loved one without, and in most instances, against their consent as in the case of Kaysera Stops Pretty Places (Crow Tribe). In other circumstances, mothers or next of kin are not allowed to view the remains of their loved one, as was the case for Allison Highwolf (Northern Cheyenne).
“On and after August 11th, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rites.” 42 U.S.C. § 1996 (2011).
Ceremony and traditions have meaning in the lives of those who have passed and their loved ones who remain in this world. The inherent right to believe, express, and exercise traditional religions is connected to the ceremonies and traditional rites of passage and departure of a loved one from this world.
How one enters and leaves this world are two points in the life of a human being that are encompassed in the beliefs of the specific people and their ways of life.
The concept of women as sacred is ignored and violated when her family’s beliefs, ceremonies, and wishes for a Native woman’s burial are not considered and observed.
How a family completes the ceremonial rites of passage and grieving process in recognition of the loss of a loved one is damaged, and in some cases, destroyed.
The very spirit of the AIRFA is violated in the ongoing disregard of families for handling the remains of their murdered loved one. Such violations and disregard for AIRFA cannot continue. While AIRFA contains no penalty provisions, the impact of the mishandling of the remains on the ceremonial and traditional rites of the woman and her family must be acknowledged and prevented in the future.
In 1978, the AIRFA created a path forward by including a policy mandate for federal departments. Section 2 states: “The president shall direct the various Federal departments, agencies, and other instrumentalities responsible for administering relevant laws to evaluate their policies and procedures in consultation with Native traditional religious leaders in order to determine appropriate changes necessary to protect and preserve Native American religious cultural rights and practices. Twelve months after approval of this resolution, the President shall report back to the Congress the results of his evaluation, including any changes which were made in administrative policies and procedures, and any recommendations he may have for legislative action.
In June, 2021, six national organizations issued a 6-point plan of action to respond to MMIW. Point five of the action plan is consistent with the spirit of the AIRFA and calls for federal action: “Implementing a thorough federal response to MMIW by requiring every federal department to develop action plans with meaningful consultation with American Indian Nations and Native Hawaiians to address MMIW.”7
The local, state, and federal agencies that failed these women in life are also failing and desecrating them after their deaths. Those departments and agencies complicit in this denial of religious freedoms must be held accountable.
When States and Counties Fail
The USDOJ has a responsibility to investigate state/local agencies with a pattern or practice of inadequately responding to cases of MMIW based on a demonstrated pattern of discrimination against American Indian women and girls.
Indigenous women who are abused, trafficked, abducted, or murdered within the jurisdictional authority of a state or county have a legal right to the full range of justice-related services.
The USDOJ is the arm of government with the authority to investigate, prosecute, and correct this failure by state/local governments and violations of the Civil Rights Act. It also has the authority to enforce the numerous anti-discimination mandates of funding under other congressional acts administered by the Department.
It is urgent that the new missing and murdered unit at the Department of Interior develop guidelines and informational materials, including:
- Guidelines for state/local and federal departments, including training, charged with responsibility for handling the remains of murdered Indigenous women, including offices of the coroner.
- A fact sheet on the legal process and rights of family members of murdered Indigenous women after her remains are found.
Guidelines for federal departments, including training, in responding to missing and murdered Indigenous women cases, including that her family’s wishes must inform the process. Given the urgent nature of the crisis of MMIW, every missing case must be given priority as a potential homicide.
2 Restoration, Vol. 16, June 2019. https://n8ve.net/tKlEr
3 Restoration, Vol. VII, March 2008.
5 Section 601 of Title VI of the Civil Rights Act of 1964 (codified at 42 U.S.C. 2000d), DOJ implementing regulation: Subparts C and D of 28 C.F.R. Part 42.
7 Restoration, June 2021, p. 49. https://n8ve.net/3Ea1I
