Restoration Magazine

Tribal Consultation 2020 | Priority Issues to Address Violence Against Indian Women

The following concerns and recommendations are ongoing national priority issues raised during past annual consultations from 2006–2019. These issues have been voted upon by Indian tribes through tribal resolutions unanimously passed during NCAI conferences (2000–2019). Regional organizations of Indian tribes have also discussed and passed resolutions in support of these recommendations. 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 by tribal leaders during prior consultations for more than a decade document many of these concerns are not new issues but are ongoing complicated legal and policy barriers embedded in the layers of federal Indian law. These issues, discussed below, are monitored on an ongoing basis by the NCAI Task Force on Violence Against Women. The Task Force recommends that the federal government through the legislative and executive branches address these issues and coordinate with Indian tribes regarding the implementation of proposed recommendations to fulfill the purposes of the VAWA Safety for Indian Women Title.

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 exists on the positions.

Many of the concerns and recommendations made by Tribal leaders during past consultations are addressed in the Safety for Indian Women Title of the Violence Against Women Reauthorization Act of 2019, H.R. 1585. Other recommendations are addressed in other federal legislation, such as the Justice for Native Survivors and the Not Invisible Act. In 2019, 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 with key Tribal enhancements in 2020.

The concerns and recommendations raised by Indian tribes are extensive as documented in past VAWA Consultation Reports to Congress. The following pages provide some of the priority issues and where available, any supporting legislation. Additional information on pending legislation is also provided for FVPSA on pages 62-63, VAWA on pages 64-67, and Alaska Native villages on pages 68. A chart of pending legislation is provided at page xx. We hope this information is helpful to your preparation for and engagement during the 2020 Consultation.

Tribal Jurisdiction Over Non-Indian Offenders (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. It also 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.
Commensurate 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 & Tribal Officer Protection Act (NYTOPA). See legislative update on page 52.
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. See legislative update on page 52.

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

The federal response to the crisis of Missing and Murdered Native Women (MMIW) is a breach of the federal trust responsibility and human rights violation as reflected in the statistical disparities documented in the 2016 National Institute of Justice Violence Against American Indian and Alaska Native Women and Men: 2010 Findings from the National Intimate Partner and Sexual Violence Survey. According to the 2018 U.S. Department of Justice Indian Country Investigations and Prosecutions Report to Congress, the 94 offices of federal prosecutors and respective FBI/BIA offices are responsible for responding to crimes for 200 Indian tribes, less than half of federally recognized tribes. We cannot continue to ignore the importance of an adequately resourced local Tribal response to prevent abductions and murders as affirmed by the 2018 U.S. Department of Justice Indian Country Investigations and Prosecutions Report to Congress (pg. 3) that stated: “It 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.” 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 in 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 24.5 million people across the United States and the world through social media platforms. This public call for justice indicates the extent to which Native women are missing and/or murdered, past and present, often because of the lack of Tribal advocacy services and without any response by law enforcement exacerbated by the federal government’s failure to adequately fund Tribal advocacy services.

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

MMIW often occurs in connection with domestic violence, dating violence, sexual assault, stalking, and sex trafficking. It is essential that OVW, FVPSA, and IHS provide increased Tribally based victim advocacy services to the families and community members of the abducted, missing, or murdered Native woman. Such services should include counseling for the children of the MMIW, 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. OVW does not allow grant funds to be used to provide services to families of MMIW.
Implement the 2020 recommendations of NCAI regarding Tribal based victim services that should be funded by the Tribal set-aside from OVC.
NIJ fully implement the VAWA 2005 program of research and specifically provide Indian tribes information regarding the missing 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 Savannah’s Act (see page 50) and the Not Invisible Act (see page 50).
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.
Coordinate efforts across all federal departments to increase support for Tribal responses to missing or murder of Native women and girls. As provided by the Savannah’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.
See recommendations in section on Accountability of Extractive Industries for Violence Against Native Women.

Consultation Issue: 2020 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. In 2018, the CJS appropriations bill directed 3% of overall CVF disbursements to Indian tribes to address the needs of crime victims. This amounted to $133.1 million. In 2019, the Tribal set-aside in the CJS bill was increased to 5%, totaling $167 million. In 2020, the CJS bill maintained the 5%, totaling $132 million. (The SURVIVE Act (S. 211) is pending authorizing legislation that would similarly direct 5% of CVF disbursements to tribes).

While the establishment of a Tribal set-aside in the CVF represented a long-overdue recognition of the needs in this area, DOJ’s efforts to administer the funding in the first two years raised significant concerns about their capacity and commitment to ensuring that the funds reach the Tribal communities. However after hearing from Tribal Leaders on their concerns, OVC following a specific Tribal set-aside consultation released a solicitation that reflected the concerns and recommendations raised by Tribal leaders during consultation and moving forward with a formula distribution of this funding.

Recommendations to DOJ OVC:

Continue to engage in the process of consultation with Tribal governments to improve the distribution of the Tribal funds and how regulations should be tailored to address the unique Tribal context.
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 essential 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 for 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. See page 53.

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 (update) 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. Due to 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

Indian nations located in Public Law 280 (PL 280) jurisdictions - 65% of the nation’s federally recognized tribes - receive 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 less resources and support to develop their own police departments and court systems. Since the 1990s, the DOJ has financially supported and provided technical assistance to Indian nations for the development and enhancement of their police departments and court systems. Only in the past few years because of the tribal outcry, the DOI requested and received funding towards this end. The federal funding disparities for tribes located in Public Law 280 and similarly situated jurisdictions must be addressed.

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, is due to the presence of extractive industries on tribal lands that must be addressed by the DOJ, DOI, DOD 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, or serial predators employed by such industries.

Recommendations:

DOJ, DOI, the DOD Army Corps of Engineers, and HHS 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 citizens and members of Tribal communities.
HHS should enhance support for services and training for shelter and related advocacy and medical services by developing materials addressing the needs of domestic and sexual 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 a reservation crime. Sharing 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. In cases of non-Indian defendants, it is also important so the tribe 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.