Restoration Magazine

Priority Issues to Address Violence Against Indian Women
 

Tribal Nations and advocates identified the following issues, concerns, and recommendations during past annual consultations (2006 – 2022), through National Congress of American Indians (NCAI) resolutions (2000 – 2022), through regional Tribal organization resolutions, at numerous national meetings, Congressional hearings, and Hill briefings. Tribal leaders and advocates continue to raise concerns about barriers preventing the protection of American Indian and Alaska Native (AI/AN) women at numerous national meetings with the administration, federal departments and agencies, with their respective Congressional delegations, and in NIWRC’s VAWA Sovereignty Initiative’s amicus briefs. A review of statements made by Tribal leaders during consultations over the years and before other state and federal policymakers demonstrate that many of the issues raised are not new but instead illustrate the complicated legal and policy barriers embedded in the layers of federal Indian law. These issues are monitored continuously and compiled by the NCAI Task Force on Violence Against Women.

The concerns and recommendations raised by Tribal Nations are extensive, as documented in oral and written testimonies of Tribal Nations and past VAW Consultation Reports to Congress. The following pages discuss some of the priority issues. Articles concerning Alaska Natives, the Family Violence Prevention and Services Act, the Prevention of Missing and Murdered Indigenous Women, and STTARS HUD Consultation Guidance discuss additional issues.

Issues Regarding Implementation of VAWA
 

Tribal Jurisdiction Over Non-Indian Offenders and Special Domestic Violence Criminal Jurisdiction (SDVCJ). Limited jurisdiction over non-Indian offenders on Tribal lands exacerbates the disproportionate violence against AI/AN women. The 2013 reauthorization of VAWA addressed this issue for certain crimes of domestic violence, dating violence, and certain protection order violations for some Tribal Nations. The 2022 VAWA reauthorization expanded the list of covered crimes to include sexual assault, stalking, sex trafficking, child violence, obstruction of justice, and assault against justice personnel. VAWA 2022 left no Tribal Nation behind by restoring jurisdiction to all Nations that choose to participate, including those in Maine, and establishing an Alaska Pilot Project. While a pivotal step forward, the most recent reauthorization did not address protections for elders or serious crimes that co-occur with domestic and sexual violence, such as financial crimes and homicide. Perpetrators will continue to slip through the cracks until Congress fully restores every Tribal Nation’s complete jurisdiction over non-Indians.

The federal government has a trust responsibility to fund Tribal public safety in Indian Country. While we celebrate the historic wins in VAWA 2022, Tribal Nations cannot meaningfully exercise restored jurisdiction and make Indian Country safer if the federal government does not live up to its trust responsibility to provide public safety funding and resources to Tribal Nations. Tribal Nations spend significant time and resources to prepare their justice systems and victim service programs to meet the needs of their communities; however, many Tribes are limited by a lack of flexible, consistent, and sustainable funding for their justice systems, leaving many without the ability to implement the VAWA 2022 restored criminal jurisdiction. For example, costly healthcare expenses for non-Indian inmates sentenced by Tribal courts often strain Tribes’ already limited budgets. The 2022 VAWA Tribal reimbursement program will help with many of these costs. Still, the federal government must live up to its trust responsibility by providing consistent and sustainable upfront funding for Tribal public safety and justice systems. Restoring Tribal criminal jurisdiction will not help to make Tribal communities safer without the necessary resources and funding to exercise that jurisdiction properly.

Recommendations for the Department of Justice (DOJ) and the Department of Interior (DOI)
 

DOJ and DOI should coordinate and collaborate to implement the provisions of VAWA 2022 and support Tribal Nations in implementing their restored jurisdiction over non-Indian perpetrators. We recommend the following next steps for DOJ and DOI regarding implementation:

DOJ, DOI, and all other federal agencies should live up to their trust and treaty responsibilities to Tribal Nations and include annual, consistent, and sustainable noncompetitive funding for Tribal Nations for all public safety and victim services needs in their annual budget requests;

In the President’s Budget, DOJ should request the full amount of funding authorized for Tribal programs in VAWA 2022, especially the $25 million for the Special Tribal Criminal Jurisdiction (STCJ) grant program and reimbursement for FY 2024 and FY 2025;

DOJ and DOI should offer joint training opportunities for Tribal and federal law enforcement on the implementation of VAWA 2022 in Indian Country;

DOJ and DOI must be on the same page regarding Alaska Native Villages’ restored jurisdiction. Tribal and federal staff will need training on this new area of restored jurisdiction. How will the Bureau of Indian Affairs’ (BIA) confusion over the Alaska Native Village Statistical Area be addressed? What resources do DOJ and DOI have for Tribal law enforcement training, and will those resources also apply to the Alaska Pilot Program?

DOJ and DOI should also build on the June 28, 2019, DOJ law enforcement emergency declaration for rural Alaska under the Emergency Federal Law Enforcement Assistance Program, which led to additional justice resources for the area; however, most of the funding never reached Alaska Native Villages. DOJ should build on that declaration and work with the DOI to provide comprehensive justice and public safety funding directly to Alaska Native Villages rather than the state of Alaska.

Ensure the STCJ grant program and the STCJ Reimbursement Program are streamlined and easy for Tribal Nations to apply for. Additionally, the programs should be culturally-appropriate and responsive to the needs of Tribal Nations and not locked into a rigid list of allowable costs or requirements. VAWA 2022 notes that the reimbursement expenses shall include “costs incurred, relating to, or associated with,” the four designated reimbursement areas. This flexible language allows DOJ to be much more expansive than only the four designated areas in the law. For example, there are dire infrastructure needs across Indian Country, and Tribal Nations cannot prosecute perpetrators if they do not have roads to drive on or courthouses for trials. We urge DOJ to include this flexibility in their reimbursement regulations. DOJ should also take into account the recommendations Tribal leaders presented during the various consultations on the Tribal Reimbursement Program;

DOJ and DOI should fund the VAWA 2022 Alaska Pilot Project sufficiently and make building infrastructure allowable for all Alaska Native Villages interested in exercising STCJ going forward

The Bureau of Prisons (BOP) should overhaul its Tribal prisoner program to make it easier for Tribal Nations to submit inmate placement requests and ensure they have BOP staff to respond to Tribal Nations’ inquiries. Additionally, BOP should cover transportation costs for Tribal Nations to transport inmates to designated facilities and coordinate with Tribal Nations to provide federal transportation to the facility;

DOJ and DOI should support legislation that would fully restore Tribal Nations’ jurisdiction over  non-Indians for any offense on Tribal lands;
DOJ and DOI should support legislation that would remove the limited number of Tribal Nations eligible to exercise restored jurisdiction under the VAWA 2022 Alaska Pilot Project; and

Increase funding for Tribal Nation implementation of STCJ for DOJ, DHHS, and the BIA.

The Department of Justice and Department of the Interior must not pull vital resources out of Indian Country after the Castro-Huerta Supreme Court decision.

Since the 2022 Castro-Huerta U.S. Supreme Court decision, Tribal Nations have been concerned about the federal government pulling much-needed justice-related resources from Indian Country. Tribal Nations have already reported seeing this trend on the ground in Oklahoma. Tribal Nations have shared that Federal Bureau of Investigation (FBI) agents and staff have been removed from the state since the 2022 decision and that some U.S. Attorneys in the state are declining to take on cases against non-Indians in favor of sole state or local government prosecution. These decisions are made without coordination with Tribes or government-to-government consultation with Tribal Nations in Oklahoma or throughout the country. This is especially concerning after Congress and the Administration sought to invest more justice resources in Indian Country in Oklahoma following the 2020 McGirt decision.

In its 2018 Broken Promises: Continuing Federal Funding Shortfall for Native Americans Briefing Report, the U.S. Commission on Civil Rights noted that the “unequal treatment of Tribal governments and lack of full recognition of the sovereign status of Tribal governments by state and federal governments, laws, and policies diminish Tribal self-determination and negatively impact criminal justice, health, education, housing, and economic outcomes for Native Americans.” The removal of federal staff and resources from Indian Country and ignoring the need for Tribal input when pulling such resources is what the Commission warned against. We urge DOJ and DOI to contact their staff in Indian Country to ensure this retreat stops.

On September 2, 2022, Monty Wilkinson, Director of the Executive Office for United States Attorneys, issued a memorandum to all U.S. Attorneys, Criminal Chiefs, Tribal Liasons, and Victim Witness Coordinators. In the memo, Director Wilkinson states that the ruling in Castro-Huerta “does not alter federal jurisdiction to prosecute crimes in Indian country pursuant to 18 U.S.C. §§ 1152 and 1153. Nor does the decision diminish the federal government’s trust responsibility to Tribes.” The Director went on to direct U.S. Attorneys to “not alter referral practices without formal consultation with Tribes in their districts, bearing in mind the important principles of Tribal sovereignty, [DOJ’s] government-to-government relationship, and the importance of partnership and open communication.” He stated that “the Department [of Justice] considers it a priority to address the disproportionately high rates of violence experienced by American Indians and Alaska Natives by promoting public safety in Indian country. The Castro-Huerta decision does not alter this mission, and communication, collaboration, and coordination among federal, Tribal, and state partners will help meet that goal.” We fully support the directives in this memorandum and the Director’s express recognition of the link between Tribal sovereignty, Tribal consultation, and safety in Indian Country.

Recommendations for DOJ and DOI
 

DOJ must fully implement the September 2, 2022, directives on the ground in Indian Country;
DOJ must ensure that not only are U.S. Attorneys following the direction of Director Wilkinson but that FBI Director Christopher Wray issues a similar statement and direction to FBI agents to stop the FBI retreat from Indian Country;

DOJ should provide training and education for U.S. Attorneys, FBI personnel, Criminal Chiefs, Victim Witness Coordinators, and any additional relevant DOJ staff on the directives from Director Wilkinson.

DOI should issue a similar memorandum to relevant DOI and BIA staff located in Indian Country and provide training to those individuals.

We urge DOJ and DOI to reverse the course and instead pour more staff, resources, and education/training into Indian Country to ensure that safety is increased rather than decreased.

In his memo, Director Wilkinson notes that “[i]f, after Tribal consultation, your [U.S. Attorney] office refers certain matters to state or local partners, you should maintain a list of all such cases.” DOJ should make public those lists of Tribal consultations and cases referred to states after Tribal consultations took place. This list should include the time and date of the Tribal consultation, the time and date of each case referred to state or local government, and the reason.