Written Testimony to Not Invisible Act Commission From Mary Kathryn Nagle

By Mary Kathryn Nagle, J.D., Cherokee Nation, Attorney At Law, Counsel to NIWRC

Thank you for providing me with the opportunity to speak before the Commission on July 25, 2023, in Billings, Montana. I write to follow up with written testimony and recommendations for the Commission.

First, I want to honor and recognize the hard work that each of you is doing. Receiving all of this testimony and bearing witness to the overwhelming tragedy and trauma our community members face in Indian Country is incredibly hard to do. Whether you serve as a federal employee or a grassroots community activist, I thank you for your service and sacrifice.

As you can see from the testimony provided, the trauma from the Missing and Murdered Indigenous Persons crisis is widespread. Although it seems as though there is no end to the crisis in sight, there are solutions the federal government can enact. I hope the Commission will recommend these solutions to Congress and federal agencies. This crisis results from federal policies dating back to military massacres at the time of the United States’ formation. The United States used violence against Native women to gain political power and geographic territory. It is not a coincidence that the violence continues today. Having caused it, the United States has a treaty trust duty and responsibility to take actions to stop it.

This treaty trust duty and responsibility does not end at the reservation border. Instead, it extends to every corner of Tribal Nations’ treaty territories, both historic and present. The United States Constitution commands that treaties, once signed by the President and ratified by the Senate, become the “Supreme Law of the Land.” The United States is failing to abide by its own Constitution.

There are recommendations this Commission can make to bring the United States into compliance with its Constitution and the treaties this Nation has signed with Tribal Nations. 

First, this Commission should recommend that Congress enact the Legislative Proposal passed by National Congress of American Indians Resolution SAC-22-0431. As many testified in Billings (and at hearings across Indian Country), when their loved one was murdered on their Reservation, their tribal government was precluded from arresting and prosecuting the perpetrator because of the Supreme Court’s decision in Oliphant v. Suquamish Indian Tribe. In Oliphant, the Supreme Court eliminated tribal criminal jurisdiction over crimes committed by non-Indians on tribal lands. This has made it nearly impossible for tribal governments to address the MMIP crisis. While the federal government has a trust duty and responsibility to address the crisis, this crisis will never be fully addressed until and unless the inherent right of our Tribal Nations to protect our people is fully restored.

The Legislative Proposal in SAC-22-043 also addresses the Supreme Court’s harmful decision in Oklahoma v. Castro-Huerta. In a moment of absurdity, the Supreme Court gave the criminal jurisdiction it took away from Tribal Nations in Oliphant to States. States, however, hardly—if ever—use this jurisdiction to protect Native lives. As the testimony you heard reveals, States have jurisdiction to arrest and prosecute the individuals who have killed Mika Westwolf, Kaysera Stops Pretty Places, Selena Not Afraid, Allison HighWolf, Harley Frueh, Rainy Hill—the list goes on. Despite having the jurisdiction to arrest and prosecute the individuals killing Native people, more often than not, States decline to investigate and prosecute. The Supreme Court’s decision to place this jurisdiction in the hands of States—and not Tribes—puts the lives of our people in greater jeopardy.

Congress can fix this.

Beyond restoring the inherent jurisdiction of Tribal Nations to protect tribal citizens in their own homes, this Commission can and should make recommendations to hold the FBI accountable. Currently, the FBI has jurisdiction to investigate the homicides of Native people on most reservations (save those under state jurisdiction under PL-280, for instance). Although the FBI has jurisdiction to investigate the homicides of Native people, they rarely do. The FBI’s disdain for protecting Native lives is so systemic and pervasive that the tragic stories of those like Steven Bearcrane, Lindsey Whiteman, Braven Glenn, or Olivia Lonebear are all too common. President Biden and his Administration cannot profess to care about and prioritize the MMIP crisis and continue to allow the FBI to ignore the homicides of Native people and treat MMIP families with such offensive disrespect. The FBI is traumatizing Native families, and it is up to the Biden Administration to address it.

The possible solutions for addressing the FBI’s systemic disdain for investigating the homicides of Native people deserve consideration. Legislation may be necessary to create a political appointee position for a Native deputy director or under-secretary, much like the Department of the Interior has an Assistant Secretary of Indian Affairs. The key to such a path forward would be ensuring this new position has line authority in some form that extends to agents throughout Indian Country. Parking a Native subject matter expert in the FBI with no line authority will do nothing to address the crisis. The FBI needs systemic, institutional change. And that change will not come unless someone is placed within the agency—someone who has both (1) the subject matter expertise to address the MMIP crisis and (2) the authority to make it happen.

Also, how the FBI recruits and places agents in Indian Country must be changed. Currently, many positions in Indian Country are two-to-three-year rotations that new agents must finish before moving on to the placement they truly desire. This plays a huge role in the complete lack of motivation FBI agents demonstrate for addressing the MMIP crisis.

The FBI does not dedicate sufficient resources to investigating homicides in Indian Country. The Commission should recommend an increase in staffing and funding to pay more agents in the field and more resources to conduct investigations when Native people are murdered.

It speaks volumes that not a single person from the FBI appeared at the Billings hearing. I understand a representative or two from the FBI may have tuned in via Zoom. However, the fact that the FBI did not send one of its agents from the Billings office to the hearing in Billings demonstrates the complete lack of consideration the FBI has for the MMIP crisis. The FBI cannot sit in the comfort of its DC offices and listen to these families’ stories via Zoom. Having contributed significantly to the crisis we face, the FBI should be sitting in the front row, watching and witnessing the agony the FBI has caused. No one enjoys being held accountable for their unlawful or problematic behavior—but until the FBI is willing to show up, their participation in this Commission physically is unlikely to be meaningful. And that violates the purpose and plain language of the statute that Congress passed to create this Commission.

Last, and far from least, the Commission must recommend a solution to provide the Missing and Murdered Unit (“MMU”) within the DOJ with more authority. I represent roughly 12 MMIP families. Out of those families, the MMU is only investigating one of those cases, despite the fact that all 12 have requested MMU assistance. Some of the cases are not being investigated because the FBI has refused to cooperate with the MMU (which, again, highlights the problematic role the FBI continues to play). Still, most of them are not being investigated because the local county or state law enforcement agency refuses to cooperate with the MMU.

This highlights a significant problem. Without the authority to issue a warrant or a subpoena off-reservation lands, the MMU can only investigate the cases that a state or local law enforcement agency asks the MMU to investigate (or consents to having the MMU investigate). And the state and law enforcement agencies refuse to ask or provide consent for the MMU to act. It is not difficult to understand why. The reason that state and local law enforcement agencies refuse to investigate the homicides of Native people is that these authorities either (1) do not value Native lives and thus do not prioritize providing public safety for Native people or (2) are corrupt and engaged in assisting the perpetrator in covering up the crime committed against a Native victim. Allowing the MMU to investigate a Native homicide that a local law enforcement agent has chosen not to investigate—or, in many instances, has refused to classify as a homicide—would shed an unfavorable light on local law enforcement agencies. So, of course, they refuse to consent to something that is going to make them look bad.

Currently, there is nothing to stop local law enforcement from doing this. The fact that a county or local law enforcement agency says no to the MMU is not made public, and the local law enforcement agency refusing to cooperate with the MMU is not at risk of losing its DOJ funding. This has rendered the MMU unable to address the MMIP crisis.

There are solutions. First, the Commission could recommend that the DOJ refuse to grant funding to law enforcement agencies that do not consent to allow the MMU to investigate the homicide of a Native person. It is important to note that one way local law enforcement agencies insulate perpetrators and their reputation is to classify homicides as “suicides.” This is the case for several of my families, despite the fact that strong evidence exists to demonstrate that the death of their loved one was a homicide and not a suicide. Thus, for this solution to work, the MMU and DOJ cannot rely on the state agency’s classification of the death as a suicide or “natural causes” or hypothermia—or any of the excuses state agencies use not to investigate the homicide of a Native person. Suppose the MMU has any reason to believe a homicide may have occurred, and the state agency refuses to allow (and by allow, that means provide the entire evidence file to) the MMU. In that case, the DOJ should immediately cut off all funding to that state agency. For instance, the Big Horn County Sheriff’s Office has refused to allow the MMU to investigate the murders of Kaysera Stops Pretty Places and Allison Highwolf. And yet, Big Horn County continues to receive funding from the DOJ. This is not right.

Second, the Commission could recommend that Congress pass a law extending the MMU’s investigative authority to any and all historic treaty territories. This would cover border towns with high MMIP rates (such as Benson County in North Dakota and Big Horn County in Montana). Congress would be well within its constitutional authority to pass such a law (as numerous treaties impose a treaty and trust duty on the United States to safeguard the lives of Native people within historic treaty territories), and as the Court recently acknowledged in Haaland v. Brackeen, passing legislation to effectuate treaty rights and duties is well within Congress’s constitutional authority. Not only would this be constitutional and legal, it would be quite effective. If such a law were passed, sheriffs in counties like Benson, ND, and Big Horn, MT, would no longer be able to protect their friends and acquaintances who murder Native women and their attempts to prevent the MMU from investigating the homicides of Native people would no longer prevent the MMU from doing its job.

We are a long way from solving the MMIP crisis. But I am encouraged by the hearings and your serious consideration of this crisis. The report and recommendations you publish have the potential to make a huge difference in Indian Country. If done well, your efforts could save lives.

I appreciate the opportunity to share my thoughts and recommendations, and I would be happy to visit with the Commission if there are questions regarding any of my recommendations.