Restoration Magazine

The 2021 annual virtual consultation marked more than a decade of annual consultations between Indian Tribes and federal departments on violence against Native women. These consultations have driven federal legislative and policy reform and resulted in major changes to increase the safety of Indian women.

At the 2021 virtual consultation Indian Tribes presented the legal, policy, and administrative issues preventing their Tribal governments from safeguarding the lives of Indian women. Many of the barriers identified by Tribal leaders were legal ones—existing laws passed by Congress, U.S. Supreme Court rulings from decades ago, or administrative policies of federal departments.

A review of statements made by Tribal leaders during consultations over the past 16 years demonstrate that many of the issues illustrate the complicated systemic barriers embedded in the layers of federal Indian law. These issues are monitored on an ongoing basis and are compiled by the NCAI Task Force on Violence Against Women (“NCAI Task Force”). Highlights of two of the Tribal concerns and recommendations of the 2021 consultation are provided below.

Tribal Jurisdiction Over Non-Indian Offenders and Special Domestic Violence Criminal Jurisdiction (SDVCJ). The lack of Tribal jurisdiction over non-Indian offenders on Tribal lands continues to be a key reason for the perpetuation of disproportionate violence against AI/AN women. The 2013 reauthorization of VAWA addressed this issue for certain crimes of domestic violence, dating violence, and protection order violations for some Tribal Nations. While a step forward, the 2013 reauthorization failed to make the changes needed for Tribal Nations to fully protect AI/AN 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. The 2013 VAWA reauthorization also failed to include 228 Tribal Nations in Alaska and Tribal Nations in Maine. For Tribal Nations that are implementing the 2013 VAWA jurisdiction provision, funding and resources are a significant problem. Tribal Nations are confronted with costly health care costs for non-Indian inmates sentenced by Tribal courts, often straining their limited budgets.

The Departments of Justice and Interior (DOI) should support the following Tribal jurisdiction fixes identified in the Violence Against Women Reauthorization Act of 2021 (H.R. 1620) and other legislation as follows:

• Restore Tribal criminal jurisdiction over non-Indian perpetrators of domestic violence, sexual assault, dating violence, stalking, and sex trafficking for all federally recognized Indian Tribes;
• Support the inherent authority of Tribal Nations in the State of Maine to fully exercise Special Domestic Violence Criminal Jurisdiction (SDVCJ);
• Create an Alaska pilot project under which Tribal SDVCJ will extend over non-Indian perpetrators that commit domestic violence, sexual assault, dating violence, stalking, and sex trafficking on all lands within any Alaska Native Village. Similar to VAWA 2013, all 228 Alaska Native Villages will then be eligible to fully exercise SDVCJ after the Alaska pilot program ends;
• Extend protections to children and public safety personnel on Tribal lands as also provided in the Native Youth and Tribal Officer Protection Act; and
• Restore 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.
• Increase funding for Tribal Nation implementation of SDVCJ.
• DOJ and DOI should support the Tribal reimbursement program established in HR 1620, which will help Tribal Nations cover unexpected costs under VAWA.

Outstanding Injustice of Missing and Murdered Indigenous Women (“MMIW”). The federal response to the MMIW crisis is a breach of the federal trust responsibility and a human rights violation as reflected in the statistical disparities documented by the National Institute of Justice (“NIJ”). According to the 2018 DOJ Indian Country Investigations and Prosecutions Report, the ninety four offices of federal prosecutors, respective Federal Bureau of Investigation (“FBI”) offices, and Bureau of Indian Affairs (“BIA”) offices are responsible for responding to crimes for 200 Tribal Nations, which represent less than half of all federally recognized Indian Tribes.  An adequately resourced local Tribal response to prevent abductions and murders is critically important in Indian Country. In 2018, the DOJ noted in their report to Congress that “[i]t is the Department’s position that prioritization of initiatives in Indian country, including the effort to build capacity in Tribal courts, will lead to enhanced public safety for Native Americans.” AI/AN women are missing and/or murdered with little to no response from law enforcement. The lack of response is exacerbated by the federal government’s failure to adequately fund Tribal services and Tribal law enforcement.

MMIW often occurs at the intersection of domestic violence, dating violence, sexual assault, stalking, and sex trafficking. It is essential that the Office on Violence Against Women (“OVW”), the Family Violence and Prevention Services Program, and the Indian Health Service (“IHS”) increase Tribally based victim advocacy services for the families and community members of abducted, missing, or murdered AI/AN women. These increases should include but not be limited to the following services: increased accountability of law enforcement agencies where these crimes occur; counseling for the children of the victim; burial assistance; community healing such as walks for justice and to honor the missing or murdered; community meals and gatherings; and other Tribal-specific activities.

The recommendations to DOJ, DOI, and DHHS include the following:

• Implement NCAI recommendations regarding the Tribal set-aside from the crime victim fund to assure resources reach victims, survivors, and their families;
• Fully implement the 2005 reauthorization of VAWA NIJ research program and specifically provide Tribal Nations information regarding missing and murdered AI/AN women;
• DOJ and DOI should review, revise, and create law enforcement and justice protocols appropriate to the disappearance of AI/AN women and girls, including interjurisdictional issues as provided by the Savanna’s Act and Not Invisible Act;
• Support efforts of the Government Accountability Office 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.
• Develop protocols, in consultation with Tribal Nations, which recognize the inherent right of American Indians and Alaska Natives to exercise their traditional practices in response to MMIW. These protocols must address the current violations of Tribal beliefs, religious, and cultural practices of the murdered woman and the disrespectful handling of her remains. Coordinate efforts across all federal departments to increase support for Tribal responses to missing or murdered AI/AN women and girls as required by Savanna’s Act;and
• Coordinate efforts in consultation with Tribal Nations to increase the response of state governments, where appropriate, to cases of the disappearance or murder of AI/AN women and girls.