[Senate Hearing 116-67]
[From the U.S. Government Publishing Office]
S. Hrg. 116-67
S. 227, S. 288, S. 290, S. 982, AND S. 1853
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JUNE 19, 2019
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Printed for the use of the Committee on Indian Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
37-844 PDF WASHINGTON : 2019
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COMMITTEE ON INDIAN AFFAIRS
JOHN HOEVEN, North Dakota, Chairman
TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska JON TESTER, Montana,
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana CATHERINE CORTEZ MASTO, Nevada
MARTHA McSALLY, Arizona TINA SMITH, Minnesota
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Jennifer Romero, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on June 19, 2019.................................... 1
Statement of Senator Barrasso.................................... 9
Statement of Senator Cortez Masto................................ 7
Statement of Senator Daines...................................... 46
Statement of Senator Hoeven...................................... 1
Statement of Senator Moran....................................... 8
Statement of Senator Murkowski................................... 6
Statement of Senator Schatz...................................... 8
Statement of Senator Smith....................................... 5
Statement of Senator Udall....................................... 3
Prepared statement........................................... 4
Witnesses
Addington, Charles, Director, Office of Justice Services, Bureau
of Indian Affairs, U.S. Department of the Interior............. 14
Prepared statement........................................... 16
Demmert, Hon. Michelle, Chief Justice, Central Council Tlingit
and Haida Indian Tribes of Alaska Supreme Court................ 18
Prepared statement........................................... 20
Malerba, Hon. Lynn, Secretary, United South and Eastern Tribes
Sovereignty Protection Fund.................................... 29
Prepared statement........................................... 30
Toulou, Tracy, Director, Office of Tribal Justice, U.S.
Department of Justice.......................................... 10
Prepared statement........................................... 12
Appendix
Jackson, Hon. Ryan, Chairman, Hoopa Valley Indian Tribe of
California, prepared statement................................. 74
Joseph, Hon. Victor, Chief, Tanana Chiefs Conference, prepared
statement...................................................... 72
Letters submitted for the record from:
Former and current U.S. Attorneys............................ 80
Hon. Teri Gobin.............................................. 76
Lucy Simpson................................................. 79
Hon. Chris Spotted Eagle..................................... 78
National Congress of American Indians, prepared statement........ 65
National Indigenous Women's Resource Center, prepared statement.. 53
Onco, Lacina Tangnaqudo, Congressional Advocate on Native
American Policy, Friends Committee on National Legislation,
prepared statement............................................. 64
Port Gamble S'Klallam Tribe, prepared statement.................. 70
Response to written questions submitted by Hon. Brian Schatz to:
Charles Addington............................................ 82
Hon. Michelle Demmert........................................ 84
Hon. Lynn Malerba............................................ 83
Response to written questions submitted by Hon. Tom Udall to
Charles Addington.............................................. 81
S. 227, S. 288, S. 290, S. 982, AND S. 1853
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WEDNESDAY, JUNE 19, 2019
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:39 p.m. in room
628, Dirksen Senate Office Building, Hon. John Hoeven,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. We will now call our hearing to order.
Today, the Committee will hold a legislative hearing on
five bills: S. 227, Savanna's Act; S. 288, the Justice for
Native Survivors of Sexual Violence Act; S. 290, the Native
Youth and Tribal Officer Protection Act; S. 982, the Not
Invisible Act of 2019; and S. 1853, the Bridging Agency Data
Gaps and Ensuring Safety (BADGES) for Native Communities Act.
On January 25, 2019, Senators Murkowski and Cortez Masto
introduced A. 227, Savanna's Act. This bill has 19 co-sponsors,
including myself, Senators Udall, Cantwell, Capito, Coons,
Cramer, Daines, Gillibrand, Harris, Heinrich, Klobuchar,
Merkley, Murray, Smith, Sullivan, Tester, Tillis and Wyden. S.
227 is named for Savanna LaFontaine Greywind from North Dakota.
On August 19th, 2017, Savanna, a pregnant 22-year old
member of the Spirit Lake Tribe, disappeared. Her body was
found eight days later, north of Fargo, North Dakota, in the
Red River. Although Savanna was tragically killed, her
daughter, Haisley Jo, survived, and is living with her father.
Both abductors are currently serving life sentences for their
actions against Savanna and Haisley Jo.
The bill is intended to improve cases of missing and
murdered Native Americans by improving tribal access to Federal
criminal data bases, requiring data collection of missing and
murdered Native Americans, and directing the Attorney General
to review, revise and develop law enforcement and justice
guidelines for these types of cases. Today, the Committee will
receive testimony on the bill, and I expect a substitute
amendment to Savanna's Act be filed at a later time.
The next bill is S. 288, the Justice for Native Survivors
of Sexual Violence Act, introduced by Senator Smith, on January
31st, 2019, along with Senator Udall. Similar versions of the
bill were introduced in the 114th and 115th Congress by former
Senator Al Franken.
In 2013, Congress included a provision in the
reauthorization of the Violence Against Women Act, VAWA, to
allow Indian tribes to assert criminal jurisdiction over
certain crimes and domestic violence committed in Indian
Country by non-Indians. S. 288 will expand the Special Domestic
Violence Jurisdiction to allow tribes to prosecute cases of
sexual assault, sex trafficking and stalking against non-Indian
member offenders. This legislation will also eliminate the
requirement that offenders must have sufficient ties to the
land, thereby ensuring that all non-Indian offenders can be
prosecuted for their crimes against tribal members.
On January 31st, 2019, Vice Chairman Udall introduced S.
290, the Native Youth and Tribal Officer Protection Act.
Senators Smith and Murkowski are co-sponsors. A prior version
of this legislation was also introduced by Vice Chairman Udall
in the 115th Congress.
Like the previous bill we discussed, this bill will also
expand criminal jurisdiction over non-Indians for crimes
against children and crimes against tribal officials. The
legislation also requires an increased interagency coordination
among the Indian Health Service, IHS, and the Bureau of Indian
Education, BIE, and the Bureau of Indian Affairs, BIA, to
increase awareness of victim services available for survivors
of domestic violence. Lastly, S. 290 will require the Federal
employees and IHS, BIE and BIA receive training to recognize
and appropriately respond to cases of domestic violence.
On April 2nd, 2019, Senator Cortez Masto introduced S. 982,
the Not Invisible Act of 2019, along with Senators Murkowski
and Tester as co-sponsors. S. 982 directs the Secretary of the
Interior to designate an official within the Bureau of Indian
Affairs Office of Justice Services to coordinate prevention
efforts, grants and programs across offices within the BIA and
DOJ related to the murder, trafficking and recovery of missing
persons in Indian Country. These efforts include the Office of
Justice Programs, the Office of Violence Against Women, the
Office of Community-Oriented Policing Services, the Office of
Tribal Justice and other Federal agencies, as needed.
The Not Invisible Act of 2019 also establishes a Joint
Advisory Committee on reducing violent crime against Native
people, the Joint Advisory Committee within the Department of
the Interior and DOJ, which is to make recommendations to the
Secretary of the Interior and the Attorney General on the
actions both departments can take to help combat violent crime
against Indians within Indian lands.
On June 13th, 2019, Vice Chairman Udall introduced S. 1853,
the Bridging Agency Data Gaps and Ensuring Safety for Native
Communities Act, along with Senators Cortez Masto, Smith,
Tester, Murkowski and McSally. The failure to properly collect
and share criminal justice data in Indian Country is a well-
known barrier to ensuring public safety for many Native
communities.
Among other things, S. 1853 will address the issue of
fragmented case information and compartmentalization between
different law enforcement data systems. The bill will codify
the DOJ's tribal access pilot program, which enhances the
ability of tribal governments to access, enter, and obtain
information from federally maintained law enforcement data
bases.
The Act also authorizes a five-year demonstration program
to allow BIA to conduct its own background and security
clearance checks for newly hired law enforcement personnel as
well as a five-year DOJ grant program to support State, tribal
and non-profit organization coordination efforts related to
missing and murdered persons cases of interest to Indian
tribes.
Finally, S. 1853 directs the Comptroller General to review
BIA and FBI evidence collection handling and processing for
cases originating in Indian Country. The Comptroller General is
to look for similar evidence to collection issues encountered
by State and local law enforcement agencies that have assumed
Federal jurisdiction over certain reservations.
Now, before I turn to Chairman Udall for his statement, I
do want to express disappointment that both departments did not
turn testimony in on time. The Committee first notified
departments four weeks ago regarding today's legislative
hearing. So the testimony needs to be in on a timely basis.
That does violate our Committee Rule 4(b). So again, in your
testimony, we will ask you for the record to state why your
testimony was not provided timely.
Putting the testimony aside, I further understand that
neither Administration witness is prepared to discuss the
merits of this legislation today. The purpose of a legislative
hearing is to be able to receive feedback on the legislation
and not having this opportunity to hear from the witnesses on
the merits of these bills is disappointing.
However, I am still prepared to go forward with today's
hearing, as we have witnesses that have traveled far to be
here. That being said, I am prepared to give the Administration
a hard deadline of July 8th to provide in writing to the
Committee a definitive conclusion about each bill today.
With that, I will turn to Senator Udall.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Chairman Hoeven, for calling this
hearing, and thank you to each of our witnesses for joining us
in these important discussions.
This Committee is well aware that public safety in Indian
Country is a problem. We heard from tribal leaders, we have
heard from law enforcement and we have heard from family
members of Native victims. Today, we have an opportunity to
take action and make good on our promises to improve public
safety in Indian Country.
All five bills up for discussion at this hearing put
forward concrete solutions to address the two core barriers at
the heart of the tribal public safety issues: jurisdiction and
resources. Both barriers must be addressed together for Indian
Country to see meaningful change.
I think the Chairman has done a good job of summarizing the
bills, so Mr. Chairman, I wanted to note my other frustration
with DOI and DOJ. They are not only in violation of Committee
Rule 4(b), as you have emphasized, but also, the Administration
was unable to finalize its legislative reviews in time for this
hearing. DOJ's testimony claims that as a direct result of
Attorney General Barr's visit to Alaska, ``Department
leadership at the highest levels have expressed a renewed
commitment to improving public safety in Indian Country.''
But where is the evidence of that renewed commitment here
today? If the department truly stands ready to do its part,
that is their quote, on addressing the MMIW crisis, why is it
not prepared for this hearing? To be clear, the
Administration's part is to provide views on this legislation
in a timely fashion. Both departments have failed in that duty
here. Today, it is only fair to question the sincerity of
claims to a renewed commitment.
As I said in my opening, these bipartisan bills are an
opportunity for us to transform talk about the importance of
improving tribal public safety into concrete action. I will not
abide any more empty words. And Indian Country cannot and
should not accept any more lip service. It is past time for the
Administration to show some follow-through. Mr. Addington and
Mr. Toulou, it falls to you to take this message back to your
leadership. We all expect you to do your part and help move the
needle forward on these priorities.
Thank you, Mr. Chairman.
[The prepared statement of Senator Udall follows:]
Prepared Statement of Hon. Tom Udall, U.S. Senator from New Mexico
Thank you, Chairman Hoeven, for calling this hearing. And, thank
you to each of our witnesses for joining us for such an important
discussion.
This Committee is well aware that public safety in Indian Country
is a problem. We've heard from Tribal leaders. We've heard from law
enforcement. And we've heard from the family members of Native victims.
Today, we have an opportunity to take action and make good on our
promises to improve public safety in Indian Country.
All five bills up for discussion at this hearing put forward
concrete solutions to address the two core barriers at the heart of all
Tribal public safety issues: jurisdiction and resources. Both barriers
must be addressed together for Indian Country to see meaningful change.
Indian Country criminal jurisdiction has been famously described as
a journey through a ``maze.'' \1\
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\1\ Professor Robert N. Clinton, Criminal Jurisdiction Over Indian
Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503,
504 (1976).
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Currently, when law enforcement is called to the scene of a crime,
the officer must determine:
the nature of the crime;
the status of the land where the crime occurred;
whether the victim is a member of a Tribe; and
whether the offender is a member of a Tribe.
Only once this multifactor test is complete can the officer
determine whether the federal government, the state, or the Tribe has
authority to act.
It is no wonder that criminals exploit this jurisdictional maze,
preying on Native women and children, and putting Tribal officers in
harm's way.
Senators Murkowski, Smith, and I introduced S. 290, the Native
Youth and Tribal Officer Protection Act, and S. 288, the Justice for
Native Survivors of Sexual Violence Act, to cut through that maze.
These bills build on provisions in the 2013 Violence Against Women
Act reauthorization that restored Tribal jurisdiction over domestic
violence crimes.
Tribes across the country have successfully implemented VAWA 2013
authorities to get known violent offenders out of Tribal communities
and off the streets.
Together, both S. 288 and S. 290 will ensure that Tribes have more
tools to keep families safe.
But, closing jurisdictional gaps is only part of the solution.
Tribes need the resources to effectively deploy the tools required to
improve public safety in their communities.
And as I've noted at several hearings over the last few months,
lack of resources is slowing progress in the Committee's Tribal public
safety response.
That's why I've fought to increase funding for public safety
programs at the B-I-A. And why I pressed the Department of Justice
about whether its budget lives up to its federal trust and treaty
responsibilities at our hearing in May.
I'm committed to continue this work through the appropriations
process. But, I also want to make sure existing federal resources are
used effectively.
S. 1853, the BADGES for Native Communities Act, does just that.
My bipartisan bill puts forward common sense solutions to increase
the efficiency of law enforcement resources. It will:
Improve the ability of officers and Tribes to share time-
sensitive crime data,
Streamline B-I-A's officer recruitment procedures to get
qualified police out in the field faster, and
Incentivize increased cross-jurisdiction collaboration so
limited resources aren't wasted on duplication.
The final two bills--S. 227, Savanna's Act, and S. 982, the Not
Invisible Act--similarly tackle inefficiencies in federal resource
coordination.
Taken all together, these five bipartisan bills each represent a
real opportunity to make meaningful progress on Tribal public safety.
I hope we can all work together to get the provisions they contain
enacted into law--either as stand-alone bills or as pieces of larger
legislative packages.
Finally, Mr. Chairman, I want to note my utter frustration that D-
O-I and D-O-J are not only--once again--in violation of Committee Rule
``4-b'', but also that the Administration was unable to finalize its
legislative views in time for this hearing.
D-O-J's testimony claims that, as a direct result of Attorney
General Barr's visit to Alaska, QUOTE ``Department leadership at the
highest levels have expressed a renewed commitment to improving public
safety in Indian Country.'' END QUOTE
But, where is the evidence of that renewed commitment here today?
And if the Department truly QUOTE ``stands ready to do [its] part''
END QUOTE on addressing the M-M-I-W crisis, why is it not prepared for
this hearing?
To be clear, the Administration's ``part'' is to provide views on
this legislation in a timely fashion.
Both Departments have failed in that duty here today. It is only
fair to question the sincerity of claims to a ``renewed commitment''.
As I said in my opening, these bipartisan bills are an opportunity
for us to transform talk about the importance of improving Tribal
public safety into concrete action.
I will not abide any more empty words.
And, Indian Country cannot--should not--accept any more lip
service. It is past time for the Administration to show some follow
through.
Mr. Addington and Mr. Toulou, it falls to you to take this message
back to your leadership. We all expect you to do your part and help
move the needle forward on these priorities.
Thank you.
The Chairman. Before proceeding, I would ask if other
members have opening statements before proceeding to the
witnesses. Senator Smith.
STATEMENT OF HON. TINA SMITH,
U.S. SENATOR FROM MINNESOTA
Senator Smith. Thank you very much, Chair Hoeven. I just
want to say thank you to Chair Hoeven and to Vice Chair Udall
for holding this hearing today on five important bills to
address public safety in Indian Country, and to address
violence against Native communities, and especially Native
women everywhere.
So I want to just note that I introduced my bill, S. 288,
the Justice for Native Survivors Act, along with Senator Udall
and Senator Murkowski, to expand the authority of the 2013 VAWA
special domestic violence criminal jurisdiction to include
crimes of sexual violence, sex trafficking and stalking. There
is a crisis of missing and murdered indigenous because the
Federal Government is not doing enough to address it. We are
not responding to violence committed against Native
communities, and we are not upholding our trust responsibility
to keep those communities safe. So we really need to pass my
legislation.
So I want to say thank you again to my colleagues on this
Committee for your partnership on these issues. And to our
witnesses here today, I fully support all of the bills that we
will be discussing this afternoon. I look forward to hearing
your testimony to make sure that these bills work in Native
communities to address the problems that we face. Thank you
very much.
The Chairman. Senator Murkowski.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman, and thank you
to you, Vice Chairman Udall, for the hearing today. These are
important bills, and I appreciate the leadership that we have
had with so many of my colleagues on this Committee, Senator
Smith, Senator Cortez Masto, Chairman, the Vice Chairman here.
These are matters that I hope all of us find very, very
troubling. The issue of missing and murdered indigenous women
is troubling enough. The issue of women that are trafficked is
awful to even think about. But part of our problem is, we don't
even know what we don't know. So doing a better job in
understanding and ascertaining whether it is the data, the
collection, these are some of what we are trying to address
with the bills that are before us.
What we are all trying to do is to improve public safety
and improve the justice system for our First Peoples, whether
they be in Alaska, whether they be in reservations around the
Country, whether they be in our urban centers. So I want to
particularly welcome Michelle Demmert, who is the Chief Justice
for Tlingit and Haida. She also serves as the NCAI VAWA Task
Force Chair . I appreciate it a great, great, deal, Michelle,
the work that you do on that. Your perspective on the
importance of tribal provisions in VAWA, the need to strengthen
them, these are so important for our efforts, so that we are
informed here.
I think an added benefit, and it goes beyond, that is such
a weak way to term it, but the insights that you are able to
provide of the unique challenges that face Alaska tribes is so
important to this discussion here today. The visit that the
Attorney General had to our State has already been mentioned.
It will be mentioned again.
I appreciate the fact that you came to the State, along
with the Attorney General, Mr. Toulou, to again see what not
only Alaska natives face in our more regional hubs, like
Bethel, but out in a small, isolated village like Napaskiak,
and to hear the Attorney General say, I have been briefed on
these matters, I have come to the State and I have listened to
you tell me about it. But when I come out and I see it, and I
experience it as I walk with the people, then I am able to feel
it in my heart.
This is what we need to see reflected within our agencies,
within the Department of Justice, within the Department of
Interior. We need to have you feel it in your heart, because
these women, these children, these families, that have
suffered, that have been victims and been victims not just once
but two and three and multiple times over, and for some
generational victims, we have to feel it in our hearts before
we are able to address this. So what must happen with this
Committee, the leadership that we have here, bills like the
handful that we have here, the expectations are that we are
going to start making a difference . I think back on those
people in Napaskiak who are now reflecting that these people
from Washington, D.C. came and they took pictures and now they
are gone, and has anything changed. Has anything changed for
that community?
I am bound and determined that we are not going to be in a
situation where they say, they just came and took pictures and
left. We are going to make a difference. So thank you for what
you are doing, Michelle, with us, and in working to address
this.
Senator Cortez Masto and I have a substitute amendment to
Savanna's Act that will not only address the crisis of murdered
and missing Native women addressed throughout the Country, but
it is not just in Indian Country, it is in our urban centers as
well. That is important. I think it is important to state very
clearly that I am very supportive of a concept that Congressman
Young included in the House VAWA with an Alaska pilot. I look
forward to addressing that on the Senate side as well.
But whatever we can do to address the epidemic levels of
violence against our indigenous women and people with my
colleagues here on the Committee and in the Senate, as we work
to strengthen VAWA, this is going to be very, very important .
So thank you, Mr. Chairman, for advancing these.
The Chairman. Senator Cortez Masto.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you. And thank you, I want to
echo the comments and the passion of my colleague, Senator
Murkowski. I truly believe we must do everything we can to
address the epidemic of violence against indigenous women and
children. This is a first start. And thank you for being here.
I so appreciate it.
I do want to talk about a couple of the bills. Particularly
with Savanna's Act, I was honored to work with Senator
Murkowski really to continue Senator Heitkamp's legacy here in
the Senate . Because of Senator Heitkamp bringing this issue
forward and highlighting it, we are able to carry these bills
today, and particularly Savanna's Act. The data base access,
law enforcement guidelines and data collection required by this
bill are essential to improving the safety and security of
Native women and girls. I am proud of the bipartisan work we
have done on Savanna's Act and hope we can mark up the bill
soon.
I would also like to address the Not Invisible Act, and
thank you again to my colleagues for joining me on this one as
well. It works in tandem with Savanna's Act, addressing the
crisis of missing, murdered and trafficked Native women by
increasing Federal coordination and establishing an advisory
committee of law enforcement service providers, Federal
partners and survivors to make recommendations. Thank you again
to my colleagues.
Mr. Chairman, I would like to enter into the record two
letters of support for the Not Invisible Act, one from the
National Indigenous Women's Resource Center and one from Las
Vegas Paiute Tribe.
The Chairman. Without objection.
Senator Cortez Masto. Thank you. I am also proud to support
the other bills before this Committee today.
The Chairman. Senator Moran.
STATEMENT OF HON. JERRY MORAN,
U.S. SENATOR FROM KANSAS
Senator Moran. Mr. Chairman, thank you. I just want to let
particularly the witnesses from the non-governmental side know
that I am interested in this topic. I am leaving here in a
moment . I was hoping to hear your testimony. The Veterans
Affairs Committee, of which Senator Tester is also a member, is
having a hearing today on veteran suicide, including
legislation that Senator Tester and I authored. So I need to
leave for there, and I am slower getting to the places that I
need to be than I used to be. But I want you to know how
interested I am in this topic.
And to the Administration witnesses, I was interested to
hear, I am the Appropriations Chairman for the Department of
Justice, interested in hearing how we can be of help to this
cause. And to my colleagues on the Committee, particularly
those who are the sponsors and co-sponsors of this legislation,
please consider us an ally and reach out to us. We are
interested in trying to be of help .
Mr. Chairman, thank you very much.
The Chairman. Senator, were you asking to have the non-
governments proceed first, so you can stay and hear them?
Senator Moran. I need to leave now, thank you.
The Chairman. Oh, okay. Senator Schatz.
STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
Senator Schatz. Thank you, Mr. Chairman and Vice Chairman,
for holding this hearing. It is clear that our system as it
stands today is failing men, women and children in Native
communities across the Country. We need to do more, so thank
you for your leadership.
In 2017, this Committee held a hearing on human trafficking
in Indian Country. One of the things that stood out to me was
the significant amount of child exploitation cases in
communities with high Native children populations, including
Hawaii. A recent study of internet service providers and child
pornography activities found that our own Department of Defense
ranks 19th out of 2,891 networks nationwide when it comes to
peer-to-peer file trading of child pornography. Again, 19th out
of nearly 3,000 networks. That is astounding, and that is
something that we can do something about.
So last Congress, Senator Murkowski and I worked together
to introduce legislation called the End National Defense
Network Abuse Act, also called the End Network Abuse Act. Our
bill will help the Department of Defense stop the widespread
abuse of the DOD's network to traffic in child pornography. I
want to thank Senator Murkowski for her leadership and her
partnership and for her work as an advocate of all Native
children.
Thank you, Mr. Chairman.
The Chairman. Senator Barrasso.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you, Mr. Chairman. Mr. Chairman, it
goes without saying, but I want to underscore the importance of
today's discussion. The bills that we are discussing here today
seek to address a problem so horrifying that often it is hard
to know where to begin. This Committee has heard time and again
from families whose loved ones never came home. Stories of
lives irreparably changed by a violent act, murder, rape,
kidnapping, domestic violence, human trafficking. They affect
women and children in Indian Country at an astonishing and
unacceptable level.
And those are just the cases that we know about. In 2016,
the Department of Justice issued a report that said that four
out of five American Indian and Alaska Native men and women
have experienced violence at least once in their lives. We know
that the vast majority of these crimes are personal, difficult
to discuss and often do go unreported.
As then-Chairman and Ranking Member of this Committee,
Senator Tester and I, requested that the GAO study human
trafficking and violence in Indian Country. When the GAO issued
their reports in 2018, they found that of 6,100 investigations
and 1,000 prosecutions for human trafficking in the United
States, during the years 2013 to 2016, that only 14
investigations and only 2 Federal prosecutions involved an
American Indian and Alaska Native individual. I said it then, I
will say it now, I do not believe that there were that few
cases involving tribal members. Nobody in this room believes
that. I believe violent crimes, like human trafficking, are
underreported, under-investigated and under-prosecuted.
This is not a new problem. For years, this Committee has
heard story after story of women and children who disappear
without a trace. We wait, no justice is carried out for them.
The families may never know what became of their son or their
daughter or their sister or their mother.
Access to data about the scope of the problem has
challenged this Committee, it has challenged the Department of
Justice, it has challenged the Department of Interior, and it
has challenged the tribes for decades. The bills we are
discussing today seek to address those reporting, data sharing
and data access issues. I look forward to the testimony about
how those bills can be used and how they can be improved.
I would also raise one other issue. Many tribal communities
need more law enforcement officials. They need more boots on
the ground. in Wyoming, the Wind River police department has
long struggled with an effort to fill all of their positions.
There are times when all positions are filled on paper, but
officers may be detailed to other reservations or in training
or in some other assignment.
Wind River is 2.2 million acres. That is 3,500 square
miles. It is larger than the State of Delaware. Sometimes there
are as few as 10 to 15 officers on the ground to patrol that
area. Response times and public safety suffers when officers
may have to travel 45 minutes in order to reach an emergency.
Law enforcement officers have high-stress jobs and when so
many positions are vacant or inactive, leave or sick days are
not an option. So burnout is always a serious concern. Not only
do these officers and these departments need access to the
information, they need to have the capacity to do something
with it.
As we hear this testimony today, we must listen to these
witnesses, hear their suggestions and work to implement them. I
look forward to working with the members of this Committee to
ensure that the next several years are not filled with studies
and stories. So thank you, Mr. Chairman, and thanks to all the
witnesses for being here today.
The Chairman. We will now hear from our panel of witnesses.
We will begin with Mr. Tracy Toulou, Director, Office of Tribal
Justice
U.S. Department of Justice, then Mr. Charles Addington,
Deputy Bureau Director, Office of Justice Services, Bureau of
Indian Affairs, U.S. Department of the Interior, Washington,
D.C., the Honorable Michelle Demmert, Chief Justice, Central
Council, Tlingit and Haida Indian Tribes of Alaska, Juneau,
Alaska, and Honorable Lynn Malerba, Secretary, United South and
Eastern Tribes Protection, Washington, D.C.
I want to remind the witnesses; your full testimony will be
made part of the official hearing record. Please keep your
statement to five minutes, if you would, so that we have time
for questions. With that, we will begin with Mr. Toulou.
STATEMENT OF TRACY TOULOU, DIRECTOR, OFFICE OF TRIBAL JUSTICE,
U.S. DEPARTMENT OF JUSTICE
Mr. Toulou. Chairman Hoeven, Vice Chairman Udall, members
of the Committee, thank you for the opportunity to discuss
these five bills which address a number of longstanding threats
to public safety throughout tribal communities. We have worked
with the Senate Committee on Indian Affairs staff on numerous
occasions on the development of these bills, and we would like
to express our appreciation for your efforts to address
difficult and sometimes complex issues collaboratively.
Thank you for the outreach by your staff. This level of
outreach is unprecedented in my 25 years of working on public
safety issues with Indian communities.
Attorney General Barr's visit to Alaska villages earlier
this month gave leadership at the Department of Justice an
opportunity to hear directly from tribal representatives about
public safety challenges in their communities, and to bear
witness to the consequences of historically inadequate support.
The issues that were raised by tribal leaders, service
providers and community members overlap with many of the issues
in the five bills under discussion today.
During the trip, Attorney General Barr promised to remain
mindful of the urgency that underscores the request for support
from public communities. He charged the department with moving
on an expedited basis to address the public safety issues we
saw represented in Napaskiak, Galena and Bethel.
The five bills under discussion today build on an ongoing
effort to meet a higher standard for supporting law enforcement
and victims services in tribal communities, by making better
use of resources, further improving interagency coordination,
and demanding accountability for results. The department is
committed to meeting a higher standard across these areas to
achieve substantial, sustainable improvements in public safety
in Native communities.
The Department appreciates that many of these bills under
discussion today address numbers of missing and murdered
people, especially women in Native communities. From a legal
perspective, missing persons and murder cases are two different
issues that require different law enforcement responses.
However, the term ``missing and murdered'' outside a strict
legal perspective goes far beyond investigating procedures and
legal definitions. ``Missing and murdered'' has become a call
to action to address crimes and public safety conditions that
result in loved ones lost and domestic violence, sexual
assault, substance abuse, and inadequate law enforcement
resources. The department supports efforts by this Committee to
answer the call to action and we stand ready to do our part.
The current draft of Savanna's Act reflects a number of
discussions between the department and the Committee staff. The
result is a series of clear and targeted actions that are
intended to help the department operate more efficiently,
partner more effectively with tribal, State and local agencies
responding to these reports, and enhance tribal governments'
capacity to develop their resources as well. The department
would like to work with the Committee to address the impact of
the newly drafted Section 7 on existing grant opportunities,
and will reach out to Committee staff to discuss these
technical issues.
The BADGES for Native Communities Act is the most recent of
the five under discussion today, and is still under review by
the department. We are encouraged by the language that supports
further expansion of our Tribal Access Program. TAP has
developed into a program of great benefit to participating
tribes and their agencies, from law enforcement to courts to
sex offender registries. This bill would help the department
continue to develop TAP and deepen our ability to support
effective law enforcement partnerships in and around Native
communities.
Both the Justice for Native Survivors of Sexual Violence
Act and the Native Youth and Tribal Office of Protection Act
would expand tribal special domestic violence jurisdiction over
non-Native offenders, which responds to feedback that we have
heard for years from tribal representatives. Because exercising
criminal jurisdiction is such a crucial aspect of sovereignty,
the department would welcome an opportunity to work with the
Committee to ensure that the legislation will weather judicial
challenges.
We appreciate the sustained focus of this Committee on
improving law enforcement coordination. The department would
like to work with the Committee on the Not Invisible Act of
2019 to ensure that it achieves the important goals of this
legislation, which includes increasing coordination and
identifying and combating violent crime in Native communities.
The Department of Justice works to enhance public safety,
and continues to be shaped by our commitment to tribal
governments, to improving coordination and collaboration at
Federal, tribal, State and local levels, and to be
appropriately accountable for the work we do. The department
and tribes are partners in ensuring public safety in Indian
Country. We recognize the challenges faced by tribes are
generally best met by tribal solutions.
Our most effective policies and practices in Native
communities are a result of the close collaboration with tribal
experts and joint implementation with tribal partners. The
department appreciates the work of this Committee to continue
to improve public safety in Indian Country. We thank you again
for the chance to provide testimony today.
[The prepared statement of Mr. Toulou follows:]
Prepared Statement of Tracy Toulou, Director, Office of Tribal Justice,
U.S. Department of Justice
Chairman Hoeven, Vice Chairman Udall, and Members of the Committee:
Thank you for the opportunity to discuss S. 227, Savanna's Act; S.
288, Justice for Native Survivors of Sexual Violence Act; S. 290,
Native Youth and Tribal Officer Protection Act; S. 982, Not Invisible
Act of 2019; and S. 1853, Bridging Agency Data Gaps and Ensuring Safety
(BADGES) for Native Communities Act, which address a number of long-
standing threats to public safety throughout Tribal communities. We
have worked with the Senate Committee for Indian Affairs staff on
numerous occasions in the development of these bills. These discussions
have been productive and substantive; we would like to express our
appreciation for your efforts to address difficult and sometimes
complex issues collaboratively. Thank you for that outreach, which we
hope will continue as these bills progress and new legislation is
developed.
Attorney General Barr's visit to Alaska earlier this month gave
leadership at the Department of Justice (Department) an opportunity to
hear directly from Tribal representatives about the public safety
challenges in their communities and to bear witness to the consequences
of historically inadequate support. The issues that were raised by
Tribal leaders, service providers and community members overlap with
many of the issues in the five bills under discussion today. During the
trip Attorney General Barr promised to be mindful of the urgency that
underscores requests for support from Native communities. As a result
of time spent in Alaska, Department leadership at the highest levels
have expressed a renewed commitment to improving public safety in
Indian country and Native villages and is directly engaged in seeing
that commitment through.
The Tribal Law and Order Act of 2010 changed the way the Department
works in and provides support to Native communities. The five bills
under discussion today build on current efforts to meet a higher
standard for supporting law enforcement and victim services in Tribal
communities by making better use of resources, further improving
interagency coordination, and demanding accountability for results. The
Department is committed to meeting a higher standard across these areas
to achieve substantial, sustainable improvements in public safety in
Native communities.
The Department appreciates that so many of the bills under
discussion today address the numbers of missing and murdered people,
especially women, in Native communities. From a legal perspective,
missing persons and murder cases are two very different issues that
require different law enforcement responses. However, the term
``missing and murdered'' outside of a strict legal perspective goes far
beyond investigative procedures or legal definitions. ``Missing and
murdered'' has become a call to action to address the crimes and public
safety conditions that result in loved ones lost to domestic violence,
sexual assault, substance abuse, and inadequate law enforcement
resources. The Department supports efforts by this Committee to answer
this call to action and stands ready to do our part.
Savanna's Act focuses on the need for improved protocols in
responding to reports of missing persons, the need for improved access
to law enforcement databases, and accountability for increased
Departmental engagement in investigations and cases of missing persons
or murder cases in Indian country. Committee staff have reached out to
the Department a number of times on this particular bill and we
continue to appreciate the opportunities to provide technical
assistance. In the course of these discussions with Committee staff, we
have been able to describe ongoing efforts by the Department to better
respond to these critical issues and impediments to progress, such as
jurisdictional constraints and lack of law enforcement resources. The
current draft language reflects those discussions and the result is a
series of clear and targeted actions that are intended to help the
Department operate more efficiently, partner more effectively with
Tribal, State, and local agencies responding to these reports, and
enhance Tribal governments' capacity to develop their responses as
well. The Department would like to work with the committee to address
the impact of the newly-drafted Section 7 on existing grant
opportunities and will reach out to Committee staff to discuss these
technical issues.
The BADGES for Native Communities Act also seeks to improve
information sharing practices and programs, establishing a Tribal
liaison for the National Missing and Unidentified Persons System
(NamUs), addressing hiring issues at the Bureau of Indian Affairs,
establishing grant resources to respond to missing persons and murder
cases, and establishing accountability measures. This bill is the most
recent of the five under discussion today, and is still under review by
the Department. We are encouraged by the language that supports further
expansion of our Tribal Access Program (TAP). TAP was created to
fulfill information sharing mandates established in the Tribal Law and
Order Act of 2010, thus helping Tribes protect their communities. It
has developed into a program of great benefit to participating Tribes
and their agencies, from law enforcement to courts to sex offender
registries. This bill would help the Department continue to develop TAP
and deepen our ability to support effective law enforcement
partnerships in and around Native communities. This bill also responds
to concerns we hear from Tribal representatives about the need for
dedicated resources and better information sharing to respond more
effectively to reports of crime in their communities, including missing
persons reports. The Department would like to work with the Committee
on some of the current language. For example, we see opportunities to
address compatibility issues between Federal Bureau of Investigation
Criminal Justice Information Services databases and NamUs, to ensure
improved information sharing, as intended. The Department also proposes
a technical fix to add ``or Tribal'' after ``if authorized by State''
and ``, Tribal,'' after ``to officials of State'' in 34 U.S.C. 41101
(commonly known as PL 92-544). This would allow Tribes, consistent with
authority that States already possess through this law, to authorize
the use of criminal justice databases for official non-criminal justice
record checks such as checks for those working with the elderly,
developmentally-disabled adults, candidates for elections, and others.
Both the Justice for Native Survivors of Sexual Violence Act and
the Native Youth and Tribal Officer Protection Act would expand Tribal
special domestic violence criminal jurisdiction over non-Native
offenders, which responds to feedback we have heard for years from
Tribal representatives. The Native Youth and Tribal Officer Protection
Act in particular addresses a number of scenarios often related to
incidents of domestic violence: crimes against children and crimes
against first responders in these incidents. The Department has
repeatedly expressed support for the existing special domestic violence
jurisdiction, but has taken a measured approach to ensure that
jurisdictional expansion will be supported by the courts. Because
exercising criminal jurisdiction is such a crucial aspect of
sovereignty, the Department would welcome an opportunity to work with
the Committee to ensure that the legislation will weather judicial
challenges.
The Native Youth and Tribal Officer Protection Act also mandates
that Federal agencies coordinate more effectively on support for Tribal
justice systems and for programs providing services to victims.
Increased interagency coordination was a critical component of the
Tribal Law and Order Act that has led to more effective partnerships
and improvements in Federal support to Tribal governments. The
Department appreciates that this bill would apply similar measures to
specifically support Tribal justice systems and victims of crime in
Indian country. Importantly, the Native Youth and Tribal Officer
Protection Act would require that training on recognizing and
responding to domestic violence be available to both Tribal and Federal
employees working in Native communities. This is responsive to feedback
the Department has received from Tribal representatives about the need
for more community-based platforms to address public safety issues.
The Not Invisible Act of 2019 addresses the broader issue of
violent crime in Native communities. In addition to forming an advisory
committee to examine violent crime in Native communities, the bill
would establish more centralized oversight of activities, grants, and
programs at the Department of the Interior. The Department would like
to work with the Committee on the language of this bill to ensure it
achieves its stated goals of increasing coordination, and identifying
and combatting violent crime in Native communities.
The Department of Justice's work to enhance public safety continues
to be shaped by our commitment to empowering tribal governments; to
improving coordination and collaboration at the Federal, Tribal, State,
and local levels; and to be appropriately accountable for the work we
do. The Department and Tribes are partners in ensuring public safety in
Indian country, and we recognize that challenges faced by the Tribes
are generally best met by Tribal solutions. Indeed, the best success
stories and the most effective policies and practices in Indian country
are the result of close collaboration with Tribal experts and joint
implementation with Tribal partners. The Department appreciates the
work of this Committee to improve public safety in Indian country, to
hold the agencies to the high standards that Tribes deserve and
urgently need, and to collaborate on legislative development to ensure
the best results. Thank you again for the chance to provide testimony
today and we would welcome the additional opportunity to work with the
Committee on the development of these bills. I would be happy to answer
any questions you may have.
The Chairman. Director Toulou, I would like you to put on
record the reason for the late testimony.
Mr. Toulou. Yes. And I understand why the Committee wants
that testimony in advance, and I apologize for the delay in
providing the testimony. These are very complicated bills,
there are a lot of different, moving pieces, has a lot of
different equities for the department. That is not an excuse,
but there were a lot of people that needed to weigh in. We are
going to work to more effectively get it through our process in
the future.
The Chairman. Thank you.
Mr. Charles Addington, Deputy Bureau Director, Office of
Justice Services, BIA. Mr. Addington.
STATEMENT OF CHARLES ADDINGTON, DIRECTOR, OFFICE OF JUSTICE
SERVICES, BUREAU OF INDIAN AFFAIRS, U.S.
DEPARTMENT OF THE INTERIOR
Mr. Addington. Thank you, and good afternoon, Chairman
Hoeven, Vice Chairman Udall and members of the Committee. My
name is Charles Addington, I am the Director for the Office of
Justice Services for the Bureau of Indian Affairs of the
Department of Interior.
Thank you for the opportunity to provide testimony on
behalf of the department regarding the following bills: S. 288,
Justice for Native Survivors of Sexual Violence Act; S. 290,
Native Youth and Tribal Officer Protection Act; and S. 982, Not
Invisible Act of 2019, and S. 1853, Bridging Agency Data Gaps
and Ensuring Safety for Native Communities Act, which is
BADGES.
S. 288, Justice for Native Survivors of Sexual Violence
Act, amends the Indian Civil Rights Act of 1968 to expand the
definitions of domestic and dating violence to include not just
violence but any violation of the criminal law of the Indian
tribe that has jurisdiction over the Indian Country where the
violation occurs that is committed by a Native victim's
intimate or dating partner. The bill also extends the criminal
jurisdiction of tribal courts over non-Indians to cover crimes
involving sex trafficking, stalking, and sexual violence. We
support continued the dialogue and efforts to address these
serious offenses that occur in Indian Country communities. We
applaud the effort to equip tribes with additional tools to
address domestic violence and sex crimes occurring within
Indian Country.
S. 290, the Native Youth and Tribal Officer Protection Act,
amends the Indian Civil Rights Act of 1968 to extend the
criminal jurisdiction of tribal courts over non-Indians to
cover crimes including violence against children committed by
their caregivers and against officers who respond to calls
involving the exercise of tribal criminal jurisdiction over
non-Indians.
S. 290 also calls on the Secretary of the Interior and the
Secretary of Health and Human Services to coordinate with the
Attorney General to ensure that Federal programs to support
Tribal justice systems and the provision of victim services
work together, and that training materials on recognizing and
responding to domestic violence are available to the Bureaus
that directly serve Indian Country.
We look forward to working with the Committee to equip
tribes with additional tools to address criminal offenses
occurring within Indian Country.
S. 982, the Not Invisible Act of 2019, requires the
Secretary of the Interior to designate an official within BIA
Office of Justice Services to coordinate interagency efforts to
address the issue of missing, murdered, and trafficked Indians.
The bill establishes a Joint Advisory Committee composed of
members from the BIA Office of Justice Services; Federal,
state, local, and tribal law enforcement agencies; tribal
judges and officials; health care practitioners; advocacy
organizations; and Indian individuals who have been personally
affected by violence or human trafficking.
The Joint Advisory Committee will develop strategies, best
practices, and recommendations for the Secretary of the
Interior to better address violent crime in Indian Country. We
applaud the intent of the bill, but would like to work with the
Committee to ensure that the bill effectively improves
coordination across all Federal agencies.
S. 1853, the Bridging Agency Data Gaps and Ensuring Safety,
or BADGES, for Native Communities Act, requires Federal law
enforcement agencies to report on cases of missing or murdered
Indians. The department provides the following comments on the
draft bill.
Section 101, entitled Federal Law Enforcement Database
Reporting Requirements, addresses the collection of verifiable
data, which continues to be a gap in identifying crime trends
in Indian Country. The department looks forward to working with
the Committee on this important issue, and coordinating with
other Federal partners to strengthen crime data reporting.
Section 201 establishes a demonstration program that allows
the Director of BIA Office of Justice Services to conduct or
adjudicate personnel background investigations for law
enforcement officers. This would assist BIA in eliminating one
of the biggest obstacles we face with regard to recruitment and
result in the expedited hiring of qualified law enforcement
officers and getting boots on the ground. I applaud the
Committee for its efforts to assist BIA OJS on this critical
issue.
We are also pleased that Section 204, BIA and Tribal Law
Enforcement Officer Counseling Resources Interdepartmental
Coordination, establishes and maintains a mental health
wellness program for Indian Country law enforcement officers.
These much-needed resources would help ensure our most precious
public safety resource, which is our staff, have access to the
mental health resources needed when they experience
occupational stress.
Section 202, Missing and Murdered Response Coordination
Grant Program, establishes a grant program that will build
capacity to better respond to missing and murdered cases of
interest to Indian tribes. However, as drafted, entities
eligible to apply for the grant program include ``relevant
Tribal stakeholder'' which is defined in Section 2(14) and
includes Indian tribes, tribal organizations, national or
regional organizations that represent a substantial Indian
constituency and have expertise in human trafficking, violence
against women and children, or tribal justice systems.
By using ``relevant Tribal stakeholder,'' grant eligibility
is open to a variety of entities. National and regional
organizations would be able to compete with Indian tribes for
grant program funding. However, Indian tribes should not have
to compete for this important Federal grant funding with other
entities who are not directly responsible for tribal citizens
in Indian Country.
The department supports the intent of S. 1853 and looks
forward to working with the Committee on these and additional
technical issues.
In conclusion Mr. Chairman, thank you for the opportunity
to provide testimony on these important matters. We can, and
must, do more to address violence in Indian Country and shine a
light on this crisis. Although we have implemented some sound
strategies to enhance public safety in Indian Country, we have
a lot of work ahead of us. I am encouraged by Congress's
efforts to address these important issues through legislation.
The department will continue to work with the Committee and our
Federal, tribal and state partners to strengthen our efforts to
keep our Indian Country communities safe.
I am happy to answer any questions you may have. Also, for
the record, I want to apologize for our testimony being late.
It did get held up in the clearance process, and we were able
to finally work through and resolve some testimony issues. So
we do apologize, and we will do a better job of getting it to
the Committee in a timely manner.
[The prepared statement of Mr. Addington follows:]
Prepared Statement of Charles Addington, Director, Office of Justice
Services, Bureau of Indian Affairs, U.S. Department of the Interior
Good afternoon Chairman Hoeven, Vice Chairman Udall and Members of
the Committee. My name is Charles Addington and I am the Director of
the Office of Justice Services (OJS) in the Bureau of Indian Affairs
(BIA) at the Department of the Interior (the Department).
Thank you for the opportunity to present this statement on behalf
of the Department regarding the following bills: S. 288, Justice for
Native Survivors of Sexual Violence Act; S. 290, Native Youth and
Tribal Officer Protection Act; and S. 982, Not Invisible Act of 2019,
and S. 1853, Bridging Agency Data Gaps and Ensuring Safety (BADGES) for
Native Communities Act. Each of these bills is discussed below.
S. 288
S. 288, Justice for Native Survivors of Sexual Violence Act, amends
the Indian Civil Rights Act of 1968 (25 U.S.C. 1304) to expand the
definitions of domestic and dating violence to include not just
``violence'' but ``any violation of the criminal law of the Indian
tribe that has jurisdiction over the Indian Country where the violation
occurs'' that is committed by a Native victim's intimate or dating
partner. The bill also extends the criminal jurisdiction of tribal
courts over non-Indians to cover crimes involving sex trafficking,
stalking, and sexual violence. We support continued dialogue and
efforts to address these serious offenses that often occur in Indian
Country communities. We applaud the effort to equip tribes with
additional tools to address domestic violence and sex crimes occurring
within Indian Country.
S. 290
S. 290, Native Youth and Tribal Officer Protection Act, amends the
Indian Civil Rights Act of 1968 (25 U.S.C. 1304) to extend the
criminal jurisdiction of tribal courts over non-Indians to cover crimes
including violence against children committed by their caregivers and
against officers who respond to calls involving the exercise of tribal
criminal jurisdiction over non-Indians. S. 290 also calls on the
Secretary of the Interior and the Secretary of Health and Human
Services to coordinate with the Attorney General to ensure that Federal
programs to support Tribal justice systems and the provision of victim
services work together, and that training materials on recognizing and
responding to domestic violence are available to the Bureaus that
directly serve Indian Country (BIA, Bureau of Indian Education and the
Indian Health Service). We look forward to working with the Committee
to equip tribes with additional tools to address criminal offenses
occurring within Indian Country.
S. 982
S. 982, Not Invisible Act of 2019, requires the Secretary of the
Interior to designate an official within BIA OJS to coordinate
interagency efforts to address the issue of missing, murdered, and
trafficked Indians. The bill establishes a Joint Advisory Committee
composed of members from BIA OJS; federal, state, local, and tribal law
enforcement agencies; tribal judges and officials; health care
practitioners; advocacy organizations; and Indian individuals who have
been personally affected by violence or human trafficking. The Joint
Advisory Committee will develop strategies, best practices, and
recommendations for the Secretary of the Interior to better address
violent crime in Indian Country. We applaud the intent of the bill, but
would like to work with the Committee to ensure that the bill
effectively improves coordination across all federal agencies.
S. 1853
S. 1853, the Bridging Agency Data Gaps and Ensuring Safety (BADGES)
for Native Communities Act, requires Federal law enforcement agencies
to report on cases of missing or murdered Indians. The Department
provides the following comments on the draft bill:
Section 101, entitled Federal Law Enforcement Database Reporting
Requirements, addresses the collection of verifiable data, which
continues to be a gap in identifying crime trends in Indian Country.
The Department looks forward to working with the Committee on this
important issue, and coordinating with other Federal partners to
strengthen crime data reporting.
Section 201 establishes a demonstration program that allows the
Director of BIA OJS to conduct or adjudicate personnel background
investigations for law enforcement officers (LEOs). This would assist
BIA in eliminating one of the biggest obstacles we face with regard to
recruitment and result in the expedited hiring of qualified LEOs. I
applaud the Committee for its efforts to assist BIA OJS on this
critical issue.
We are also pleased that Section 204, BIA and Tribal Law
Enforcement Officer Counseling Resources Interdepartmental
Coordination, establishes and maintains mental health wellness programs
for Indian Country LEOs. These much-needed resources would help ensure
our most precious public safety resource, our staff, have access to the
mental health resources needed when they experience occupational
stress.
Section 202, Missing and Murdered Response Coordination Grant
Program, establishes a grant program that will build capacity to better
respond to missing and murdered cases of interest to Indian tribes.
However, as drafted, entities eligible to apply for this grant program
include ``relevant Tribal stakeholder'' which is defined in Section
2(14) and includes Indian tribes, tribal organizations, national or
regional organizations that represent a substantial Indian constituency
and have expertise in human trafficking, violence against women and
children, or tribal justice systems. By using ``relevant Tribal
stakeholder'', grant eligibility is open to a variety of entities.
National and regional organizations would be able to compete with
Indian tribes for grant program funding. However, Indian tribes should
not have to compete for this important federal grant funding with other
entities who are not directly responsible for tribal citizens in Indian
Country.
The Department supports the intent of S. 1853 and looks forward to
working with the Committee on these and additional technical issues.
Conclusion
Mr. Chairman, thank you for the opportunity to provide testimony on
these important matters. We can, and must, do more to address violence
in Indian Country and shine a light on this crisis. Although we have
implemented some sound strategies to enhance public safety in Indian
Country, we have a lot of work ahead of us. I am encouraged by
Congress's efforts to address these important issues through
legislation. The Department will continue to work with the Committee
and our federal, tribal and state partners to strengthen our efforts to
keep our Indian Country communities safe.
I am happy to answer any questions you may have.
The Chairman. Thank you. Chief Justice Demmert.
STATEMENT OF HON. MICHELLE DEMMERT, CHIEF JUSTICE, CENTRAL
COUNCIL TLINGIT AND HAIDA INDIAN TRIBES OF ALASKA SUPREME COURT
Ms. Demmert. Good afternoon. Thank you, Chairman Hoeven,
Vice Chairman Udall, Senator Murkowski, members of the
Committee, for inviting me to testify today on legislation that
is critically important to Indian Country.
My name is Michelle Demmert, and I am an enrolled citizen
of the Central Council of Tlingit and Haida Indian Tribes of
Alaska where I am also the elected Chief Justice of our Supreme
Court. Tlingit and Haida is a federally recognized tribal
government with over 30,000 citizens serving 18 villages and
communities spread over 43,000 square miles within Southeast
Alaska. Our citizens are among the largest, most isolated, and
most geographically dispersed tribal populations nationwide.
Most of our communities have no roads in or out, and must rely
on planes and boats for both day-to-day needs and emergencies.
About one-half of our citizens live in our villages, and the
other half in urban areas like Seattle, Juneau and Anchorage.
The bills before you provide a path to change. We welcome
many of the reforms included in the bills under discussion
today, and recognize the importance of improving protocols,
data sharing and coordination. However, real, lasting change
will come only when the essential role that tribal governments
must play in developing and implementing solutions is fully
recognized.
For the 229 Indian tribes in Alaska, it requires our full
inclusion under current and any future legislation. These bills
continue the progress made under VAWA 2013. The VAWA 2013
tribal provisions, reaffirming the inherent authority of Indian
tribes to prosecute non-Indians for some DV-related crimes, was
a positive step forward. But more is needed.
The current criminal system fails to protect tribal people
and tribal communities. Unfortunately, as the members of the
Committee and Indian tribes know, Native victims are more
likely to be injured as a result of violent victimization, more
likely to need services, and are significantly less likely to
have access to services compared to non-Native counterparts.
Alaska Native women are especially at risk and are over-
represented in domestic violence crimes by 250 percent.
The urgent question of the day is immediate passage and
implementation of the necessary legislation to provide Native
children and other victims with the same protections as what
was provided for women in VAWA 2013.
I also want to note that DV is rarely, if ever, a crime
committed in isolation. There are often other victims. The
National Congress of American Indians' five-year report on the
exercise of VAWA jurisdiction has reported positive results
with the recognition of the tribes' inherent authority over DV
crimes. Tribal legal systems are working. People are being
convicted or acquitted as the facts dictate. Many of the
concerns expressed by opponents of the provisions have not come
true. Tribal courts are upholding the rights of defendants, and
no defendant has requested Federal court review.
On the other side, the concerns of tribes, of crimes not
being punished, is still occurring. Perpetrators of crimes
against children and elders in the home, crimes against law
enforcement, corrections and the courts, related to the DV
incident, cannot be prosecuted by tribal governments. In
addition, we are seeing the lack of prosecutions within Indian
Country and on Indian lands and crimes of sexual assault,
stalking and/or trafficking committed by a non-Indian.
I will provide you an illustration from a tribe located in
the State of Michigan. A non-Indian man in an intimate
relationship with a tribal member from the Sault Ste. Marie
Tribe moved in with her and her 16-year old daughter. After the
man began unwanted sexual advances on the girl, sending
inappropriate text messages and on one occasion groping the
daughter, the tribe charged the defendant with domestic abuse
and attempted to tie the sexual assault against the daughter
against the mother in order to fit it into VAWA.
The tribal court dismissed the charges for lack of
jurisdiction, and the defendant left the victim's home. Four
months later, he was arrested by State police for kidnapping
and repeatedly raping a 14-year old tribal member.
The kidnapping and rape of a minor could have been
prevented if the tribe had been able to exercise jurisdiction
in the first case. The 14-year old will suffer from this
violence her entire life. Change did not happen in time for
these victims.
Two of the bills before you today, S. 290 and S. 288, would
change that, and I strongly support their passage. In Alaska,
228 of the 229 tribes are effectively unable to take advantage
of the protections of VAWA 2013 because it requires a crime to
have occurred within Indian Country, which Alaska does not
have. Similarly, we would be unable to make use of the
authorities in these two bills, and ask that you adopt H.R.
1585 language around Alaska, and create a pilot project that
will enable tribes to build the infrastructure necessary for
our communities.
Our communities are suffering with high rates of murders,
many of which remain unsolved. In our Alaska communities, our
tribal women and leaders are the first responders to crime
scenes and must await hours or even days for law enforcement to
arrive and begin their investigation. Sadly, the evidence is
often stale or unusable even with safeguards.
As for the MMIW crisis, substantial change is needed. While
increasing the response to MMIW cases is important,
prioritizing the attention to providing advocacy and support to
women and girls to prevent abductions and murders is critical.
Support is needed at the front line where women and girls are
experiencing sexual violence from birth to death. Support from
the Federal Government for these much-needed services now, in
addition to the criminal justice reform, will help save Native
women's lives.
I thank you for your attention to these bills and to your
support for really meaningful change. The bills before you are
urgently needed, and will save lives across Indian Country. I
urge every member of this Committee to support them.
Gunalcheesh. Haw'aa. Thank you.
[The prepared statement of Ms. Demmert follows:]
Prepared Statement of Hon. Michelle Demmert, Chief Justice, Central
Council Tlingit and Haida Indian Tribes of Alaska Supreme Court
My name is Michelle Demmert, and I am an enrolled citizen of the
Central Council of Tlingit and Haida Indian Tribes of Alaska (Tlingit &
Haida), and the elected Chief Justice of our Supreme Court.
Tlingit & Haida is a federally-recognized tribal government with
over 30,000 citizens worldwide, and has an active, government-to-
government relationship with the United States. The Tribe serves 18
villages and communities spread over 43,000 square miles within
Southeast Alaska. More than 7,000 tribal citizens reside in Juneau,
with several thousand more located in Anchorage. Beyond that, a
significant amount of tribal citizens reside in Washington State (more
than 6,000), and smaller numbers stretch into Oregon and the rest of
the world. Tlingit & Haida tribal citizens are among the largest, most
isolated, and most geographically dispersed tribal populations
nationwide. In Southeast Alaska, where the Tribe provides the majority
of its services, most communities have no roads in or out, and must
rely on planes and boats for both day-to-day needs and emergencies.
I am also the co-chair of the National Congress of American
Indians' Task Force on Violence Against Women and the Alaska Native
Women's Resource Center's Law and Policy Consultant. The NCAI Task
Force, since its establishment in 2003 has assisted Indian tribes in
advocating for national legislative and policy reforms to strengthen
tribal government authority and access increased resources to safeguard
the lives of American Indian and Alaska Native women. The Alaska Native
Women's Resource Center is a nonprofit organization dedicated to ending
violence against women in partnership with Alaska's 229 tribes and
allied organizations.
Thank you for inviting me to testify on behalf of my Tribe on
Savanna's Act, Justice for Native Survivors of Sexual Violence Act,
Native Youth and Tribal Officer Protection Act (NYTOPA), Not Invisible
Act, and Bridging Agency Data Gaps & Ensuring Safety for Native
Communities Act (BADGES). I would like to clarify that unfortunately
two of these bills, NYTOPA and Justice For Native Survivors, do not
address the specific challenges confronting Alaska Indian tribes. The
testimony I provide on these two bills will be from our perspective in
the larger context of the importance to Indian tribes in the lower
forty-eight. I have a unique perspective on many of these proposed laws
as I was the point of contact for one of the original three Pilot
Project Tribes exercising special domestic violence court jurisdiction
beginning February 2014, as well as the point of contact during the
Pilot User Feedback Phase of the Tribal Access Program (TAP). I saw
first-hand the benefits of the restoration of jurisdiction over non-
Indian perpetrators of domestic violence as well as the process for
utilizing the National Crime Information Center database for purposes
intended through the creation of the Tribal Access Program. Factor in
my role in Alaska, I can address first-hand the importance of the
enhanced jurisdictional improvements as well as the challenges that we
face, and how these laws will impact those realities in our
communities.
I would like to begin by providing an overview of the challenges
confronting Alaska Indian tribes in creating safe villages for our
citizens, specifically women, and provide recommendations to address
these challenges. In this context, I will also provide an overview of
the importance of the tribal provisions of Violence Against Women
Reauthorization Act, H.B. 1585, especially the provisions that open
these protections to tribes in Alaska and creating a pilot project.
I. Jurisdictional challenge: exclusion of Alaska tribes under the
definition of Indian country
The 2013 Indian Law and Order Commission (ILOC) issued the Report,
``A Roadmap for Making Native America Safer'' and devoted a chapter to
the unique issues in Alaska. \1\ The Report found that the absence of
an effective justice system has disproportionately harmed Alaska Native
women who are continually targeted for all forms of violence. The
Commission found that Alaska Native women are over-represented in the
domestic violence victim population by 250 percent; they comprise 19
percent of the state population but are 47 percent of reported rape
victims. And among other Indian Tribes, Alaska Native women suffer the
highest rates of domestic and sexual violence in the country. Alaska
Indian tribes lack and desperately need access to tribal and state
justice services, those services are centered in a handful of Alaska's
urban areas, making them often more theoretical than real. As
mentioned, many tribes have no advocacy services, law enforcement, no
911, no state official they could conceive of raising a complaint to,
given the separation of geography, language, and culture.
Jurisdictional issues in Alaska create extremely dangerous conditions
for our small, remote communities.
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\1\ A Roadmap for Making Native America Safer: Report to the
President and Congress of the United States (November 2013), available
at http://www.aisc.ucla.edu/iloc/report/.
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An instructive statement contained in the ILOC report states: ``The
strongly centralized law enforcement and justice systems of the State
of Alaska . . . do not serve local and Native communities adequately,
if at all. The Commission believes that devolving authority to Alaska
Native communities is essential for addressing local crime. Their
governments are best positioned to effectively arrest, prosecute, and
punish, and they should have the authority to do so--or to work out
voluntary agreements with each other, and with local governments and
the State on mutually beneficial terms.''--Indian Law and Order
Commission Report, 2013 (emphasis added).
Historically, Alaska tribes have been treated differently than
lower 48 tribes, confusing the fundamentals of tribal court
jurisdiction resulting in recognized disparities which justified the
FY17 appropriations for an Alaska Native Tribal Resource Center on
Domestic Violence. \2\ With the passage of the Alaska Native Claims
Settlement Act (ANCSA) in 1971, the only remaining reservation in the
state is the Annette Island Reserve in Southeast Alaska. \3\ Rather
than recognize sovereign tribal lands, ANCSA tasked the for-profit
corporations to manage more than 40 million acres of fee land. ANCSA
divided the state into 12 regional corporations and over 200 village
corporations that would identify with their regional corporation. Many
of these villages had corresponding tribal village governments, but
with the passage of ANCSA, the tribal governments were left with no
meaningful land base. As a result, unlike most court systems that have
defined territorial jurisdiction and personal jurisdiction, Alaska
Tribal courts generally exercise jurisdiction through tribal
citizenship, and not through a geographic space defined as ``Indian
country'' because of ANCSA and in part due to a United States Supreme
Court case.
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\2\ ``A Tribal Perspective on VAWA 2018,'' Restoration-V15.3-
October 2018. www.NIWRC.org.
\3\ 25 U.S.C. 495 (1891).
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As a result of the United States Supreme Court's unfavorable
decision in Alaska v. Native Village of Venetie Tribal Government, 522
U.S. 520 (1998), most of the tribes' traditional territory is not
considered ``Indian country.'' Without the ability to tax, without
Indian gaming, and without consistent and predictable tribal justice
appropriations, Alaska tribes lack the revenue typically available to
other tribal governments to fund and sustain essential governmental
programs. All Alaska tribes are in a similar position and must find
innovative ways to raise government revenue and to leverage other
resources to sustain their tribal courts and public safety programs. As
a result of this resource dilemma, available grants for developing and
maintaining programs are incredibly important for Alaska tribes.
Domestic violence and sexual assault survivors in Alaska Native
villages are often left without any means to seek help and justice for
the crime against them because many villages lack advocacy services and
law enforcement. When law enforcement does finally arrive, sometimes
the evidence is stale, or the chain of custody can no longer meet
applicable legal standards, and the case cannot be prosecuted. In
addition, tribal victims of domestic violence crimes may need to leave
their home village to seek safety for themselves and their children. In
a 2018 case in a small remote interior village, a victim waited 17 days
to get out of the village to safety. During this time the victim had
been treated at the clinic, called law enforcement (Alaska State
Troopers) located in a hub community one hour away by plane. The
weather was unflyable for 3 weeks and the victim could not even get a
charter plane to pick her up so she could go to a neighboring village
to relatives, she could not get to a regional medical clinic for
further treatment, or law enforcement could not get into the community
for an investigative report. There was no safe home or safe housing
available and so she had to wait, afraid that her partner would find
out that she was trying to leave. Whether a tribe has advocacy services
or public safety personnel makes a difference if victims have support
and someone to call for help.
Recent studies such as the newly released, National Institute of
Justice, Research Report on the Violence Against American Indian and
Native Women and Men, document the dire safety circumstances that
Alaska Native villages are in as a result of their unique geographic
situation. One startling statistic is that 38 percent of Native victims
are unable to receive necessary services compared to 15 percent of non-
Hispanic white female victims. \4\ Our young woman described above
waited in fear for more than two weeks to get to safety.
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\4\ Rosay, Andre B., ``Violence Against American Indian and Alaska
Native Women and Men,'' NIJ Journal 277 (2016): 38-45, available at
http://nij.gov/journals/277/Pages/violence-against-american-indians-
alaska-natives.aspx.
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II. S. 290, Native Youth and Tribal Officer Protection Act & S. 288,
Justice for Native Survivors of Sexual Violence Act
The expanded jurisdiction under S. 290 and S. 288, as currently
written, will not benefit the 228 Alaska Indian tribes who are
currently ineligible to exercise Special Domestic Violence Criminal
Jurisdiction pursuant to VAWA 2013. We call on Congress for a
jurisdictional fix to the Alaska Native Indian country issue, and were
pleased to see the Alaska Native pilot project included in the House
VAWA bill, HR 1585. I urge the Senate to include a similar provision in
S. 290 and S. 288. Outside of Alaska, many tribes have been exercising
jurisdiction over non-Indians pursuant to VAWA 2013 for over 6 years. I
have had the privilege of working with many of the tribes through an
Inter-tribal Working Group on Special Domestic Violence Criminal
Jurisdiction. They have held serial offenders accountable and have
brought justice and safety to hundreds of victims and their families.
Tribes have done so while upholding the due process rights of all
defendants in tribal courts. Despite these successes, there are gaps in
the law. Even after implementing VAWA 2013, tribal prosecutors are
unable to charge defendants for crimes related to abuse or endangerment
of a child; for sexual assault, stalking or trafficking committed by a
stranger or acquaintance; or for crimes that a defendant might commit
within the criminal justice system like assault of an officer,
resisting arrest, obstruction of justice, or perjury.
The tribes prosecuting non-Indians report that children are
involved in their cases over 60 percent of the time as victims and
witnesses. These children deserve justice. A 2016 study from the
National Institute for Justice (NIJ), found that approximately 56
percent of Native women experience sexual violence within their
lifetime, with 1 in 7 experiencing it in the past year. \5\ Nearly 1 in
2 report being stalked. \6\ Unlike the general population where rape,
sexual assault, and intimate partner violence are usually intra-racial,
Native women are more likely to be raped or assaulted by someone of a
different race. NIJ found that 96 percent of Native women and 89
percent of male victims reported being victimized by a non-Indian. \7\
Native victims of sexual violence are three times as likely to have
experienced sexual violence by an interracial perpetrator as non-
Hispanic White victims. \8\ Similarly, Native stalking victims are
nearly 4 times as likely to be stalked by someone of a different race,
with 89 percent of female stalking victims and 90 percent of male
stalking victims reporting inter-racial victimization. \9\ S. 288,
Justice for Native Survivors of Sexual Violence, would amend 25 U.S.C.
1304 to include sexual assault, stalking, and trafficking crimes
committed in Indian Country. It would untie the hands of tribal
governments and allow them to extend the same protections to victims of
sexual violence and stalking as are available to domestic violence
victims. All victims of sexual violence, child abuse, stalking,
trafficking, and assaults against law enforcement officers deserve the
same protections that Congress afforded to domestic violence victims in
VAWA 2013. S. 290 and S. 288 would close these gaps.
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\5\ Andre B. Rosay, Nat'l Inst. of Justice, Violence Against
American Indian and Alaska Native Women and Men: 2010 Findings from the
National Intimate Partner and Sexual Violence Survey, U.S. Dep't of
Justice 11 (2016), available at https://www.ncjrs.gov/pdffiles1/nij/
249736.pdf.
\6\ Id., at 29.
\7\ Id., at 18.
\8\ Id., at 29.
\9\ Id., at 32.
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The repeal of section 910 of VAWA 2013 was a victory as it was a
necessary step towards removing a discriminatory provision in the law
that excluded all but one Alaska tribe from enhancing their response to
violence against Native women in ways afforded other federally
recognized tribes. Nevertheless, because of the Venetie decision,
additional reforms are needed before Alaska tribes will be able to
increase safety for Alaska Native women and hold all offenders
accountable. This is because section 904 of VAWA 2013 limits the
exercise of the special domestic violence criminal jurisdiction
restored to tribes to certain crimes committed in ``Indian country.''
Yet, at the same time, the State does not have the resources to provide
the level of justice needed in tribal communities and ultimately the
State is not the local, tribal authority. In the NIJ report, we learned
that American Indian and Alaska Native women are 3 times more likely to
experience sexual violence by an interracial perpetrator than non-
Hispanic White-only females. \10\ Alaska Indian tribes need to be able
to exercise special domestic violence criminal jurisdiction to address
these staggering statistics.
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\10\ Id. at 18.
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H.R. 1585 begins to address these jurisdictional challenges. It
recognizes a tribe's territorial jurisdiction equivalent to the
corresponding village corporation's land base and traditional territory
AND our own Representative Young, who voted in favor of HB 1585,
expanded the jurisdiction definition of the pilot project to include
``all lands within any Alaska Native village with a population that is
at least 75 percent Alaska Native.'' \11\ In addition, removing the
requirement of ``Indian country'' to enforce a protection order would
assist Alaska Tribal villages and provide stronger footing for
enforcing protection order violations.
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\11\ A federal regulation was developed after the U.S. District
Court for the District of the Columbia held that exclusion of Alaska
tribes from the land-into-process was not lawful. See Akiachak Native
Community v. Salazar, 935 F. Supp. 2d 195 (D.D.C. 2013). The State of
Alaska appealed the decision and its motion to stay was granted to
prevent the DOI from considering specific applications or taking lands
into trust in Alaska until resolution of the appeal. On December 18,
2014, the DOI published its final rule rescinding the ``Alaska
Exception,'' which became effective on January 22, 2015. 79 Fed. Reg.
76888. However, this process was essentially suspended by Solicitor's
opinion, M- 37043, June 29, 2018, which withdrew the Solicitor's
Opinion on taking land into trust in Alaska.
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We have a desperate need for the reforms included in S. 290 and S.
288 as is illustrated in the following story from an implementing
tribe: A non-Indian man in an intimate relationship with a tribal
member from the Sault Sainte Marie tribe moved in with her and her 16-
year-old daughter. After the man began making unwanted sexual advances
on the girl, sending inappropriate text messages, and on one occasion
groping the daughter, the tribe charged the defendant with domestic
abuse and attempted to tie the sexual assault against the daughter to a
pattern of abuse against the mother. The tribal court dismissed the
charges for lack of jurisdiction and the defendant left the victim's
home. Four months later, he was arrested by city police for kidnapping
and repeatedly raping a 14-year old tribal member. Unfortunately, he
was ultimately allowed to plead no contest to two less serious charges
and was sentenced to 11 months in jail. This kidnapping and rape of a
minor could have been prevented if the tribe had been able to exercise
jurisdiction in the first case. Her life will never be the same. \12\
---------------------------------------------------------------------------
\12\ VAWA 2013'S Special Domestic Violence Criminal Jurisdiction
Five-Year Report,'' p. 24, (March 2018), vailable athttp://
www.ncai.org/resources/ncai-publications/SDVCJ_5_Year_Report.pdf.
---------------------------------------------------------------------------
The United States has a federal Indian trust responsibility to the
first people of the United States. In several cases discussing the
trust responsibility, the Supreme Court has used language suggesting
that it entails legal duties, moral obligations, and the fulfillment of
understandings and expectations that have arisen over the entire course
of the relationship between the United States and the federally
recognized tribes. However, since Alaska entered the Union, the State
has been ceded the federal jurisdiction among tribes and as a result
left us without access to necessary resources.
NYTOPA and Justice for Native Survivors Act Recommendations: We
strongly support the Native Youth and Tribal Officer Protection Act.
NYTOPA recognizes that Native children and law enforcement personnel
involved in domestic violence incidents on tribal lands are equally in
need of the protections that were extended to adult domestic violence
victims in VAWA 2013. We also strongly support the Justice for Native
Survivors of Sexual Violence Act to close another loophole in the SDVCJ
provision of VAWA 2013 to ensure that Tribes have authority to
prosecute sexual assault, sex trafficking, and stalking crimes. We
appreciate Senator Udall, Senator Murkowski, and Senator Smith's effort
to advance legislation that will fill some of the gaps in jurisdiction
that continue to leave women and children without adequate protection
on tribal lands. As the Committee continues its work, we have some
technical suggestions to strengthen these bills--many of which were
included in the tribal provisions included in HR 1585--that we look
forward to discussing with you.
III. S. 227, Savanna's Act
The outrage and anguish of the Native families who have lost loved
ones to violence--who's mothers, daughters, sisters, and aunties have
disappeared or been murdered--has recently propelled a conversation
about missing and murdered indigenous women to the national level. But
these deaths, these missing women, are the devastating manifestation of
centuries of oppression and broken systems that have failed to protect
Native women and children from birth to death for generations. It is
the outgrowth of imposed poverty, institutional and individual racism
that stems from the colonialism that as recently as my father's
generation required attendance at boarding schools and forbade him from
speaking his native language. Today we have no closure with many of our
women dying unexpectedly and unnaturally. The manner of death, while it
is far too often considered ``suspicious'' and often with visible
injuries, they are classified as accidental, suicidal, or undetermined.
In the village of Klawock, where my family is from, police suspected
``foul play'' in the unnatural death of Francile Ella Turpin (37) on
January 14, 2018, a year later, there is no resolution. \13\ Why is it
that our women and families do not get the closure regarding the cause
of death that other nationalities and the general population take for
granted? Many of our communities lack law enforcement or even any 911
services to speak of, so who do they call? The first responders are
often volunteer medics whose first inclination is to address the
injury. The possibility that there could be a crime committed is not
even contemplated, and the scene can easily be contaminated before a
semi-qualified individual can preserve the scene. Other potential first
responders are tribal leaders, and our volunteer women advocates go to
attempt to preserve any crime.
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\13\ https://www.ktva.com/story/37289178/klawock-police-say-foul-
play-suspected-in-womans-death
---------------------------------------------------------------------------
How do we track the missing and murdered? We don't. NamUs is about
the only database that tracks MMIW and while it does contain valuable
information, it is a volunteer system and it does not currently talk to
the FBI CJIS's Missing persons file, which is the system law
enforcement is most likely to use. Anyone can have access to NamUs. All
they have to do is set up an account and enter the information they
want to enter about a missing person. The NamUs staff take that
information and confirm with Law Enforcement before it can go out
publicly. There are fewer missing Native persons in NamUs than there
are in FBI CJIS's missing persons file, likely because law enforcement
does not use it in the same way. NamUs is completely voluntary and was
originally set up to try to match remains found with people who were
missing. FBI CJIS's database is also voluntary except for entry of
missing persons under age 18 which is mandatory, and then some states
have mandatory missing person reports to CJIS by their state law, but
it is way less than half. A tribe, and every person, have access to
initiate cases in NamUs, however, the net effect of going that route is
unknown. In addition, what does reliance on NamUs tell our MMIW
families? Law enforcement has failed you, therefore you must now take
on this duty. If they do not embrace this philosophy what happens? Will
they be blamed for the lack of data?
According to National Institute of Justice, the NamUs team was in
Alaska October 2018 to do outreach with several law enforcement
agencies, the Alaska medical examiner, Department of Public Safety, and
others. During those discussions it was raised that there is a backlog
in digitizing about 200 missing persons cases. Apparently, there is
only one person currently working the backlog (Search and Rescue
Program Coordinator, Missing Persons Clearinghouse Manager, Alaska
State Troopers). That is not to say those cases are not being worked,
.just that they are not digitized thus unknown how many of those 1200
cases are American Indian and Alaska Natives.
As for missing persons, Alaska has the highest number of any state
in the union and these are not per capita numbers. As of January 2019,
out of the 347 missing Alaska Native and American Indian people in the
NamUs system 74 of those were from Alaska--the most of any state.
Overall, 92 percent have been missing for less than a year, and the
majority of cases are male--about 1/3 to 2/3 respectfully. Why does it
take so long to work our cases compared to other populations?
As for the murder epidemic, the Violence Policy Center reports that
Alaska is ranked first among states with the highest homicide rates of
women by men and is the most violent state, with Anchorage as the most
violent city within the Union. The Seattle-based Urban Indian Health
Institute reports that Alaska is among the top ten states with the
highest number of missing and murdered Native Americans and Alaska
Natives. We respectfully request that we protect the health and
wellness of our urban American Indian and Alaska Native community by
adding key elements throughout the legislation
The House version of Savanna's Act, H.R. 2733, contains provisions
that amended and corrected errors identified by tribes and tribal
advocates in the original Senate version of the bill, S. 277. While we
support the passage of Savanna's Act, our support currently extends to
H.R. 2733. As to both versions of the bill, we remain concerned that
both bills lack new funding--a resource that has been identified as
critical in addressing the crisis of MMIW.
Significant changes in H.R. 2733 from the S. 277 include provisions
that expand the requirement for the creation of law enforcement
guidelines to all U.S. Attorneys, not just those with Indian Country
jurisdiction, and require such guidelines to be regionally appropriate.
This change is critical as is demonstrated by a recent OIG study that
found that the Tribal Law and Order Act requirements to the US
Attorney's Offices has not worked well and creates inconsistent
programs. \14\ Requiring all US Attorneys to create regionally
appropriate guidelines will not accomplish what you all intend if there
is not more local participation and control from the tribes.
---------------------------------------------------------------------------
\14\ ``We found that not all districts ensure that TLOA
requirements are being met and most Tribal Liaisons work autonomously
and carry out duties at their own discretion.'' OIG Review of the
Department's Tribal Law Enforcement Efforts Pursuant to the Tribal Law
and Order Act of 2010, Evaluations and Inspections Division 19
(December 2017).
---------------------------------------------------------------------------
Recommendations to Savanna's Act: We urge the Senate to utilize
H.R. 2733 as a starting point, but we continue to express concerns
regarding the lack of new funds and recommend the Senate address these
concerns in the mark-up of the bill.
The resources under the Act are proposed by allowing tribes
to use existing, limited funds they currently receive under the
Tribal Governments Grant Program to address the development of
a protocol to respond to MMIW cases.
Current funding under the Tribal Governments Grant Program
is inadequate and does not reach all Indian Tribes. If tribal
governments had adequate funds, they would already be
developing such protocols and increased responses.
Thus, funds for the incentives to tribes complying with
Savanna's Act will be taken from the funds currently received
by all Indian Tribes under the grant program, these funds are
already less than adequate to respond.
Indian tribes need additional resources to broaden and
address the crisis of MMIW. Further stretching of existing
funds, a tribe receives to provide incentives to others, falls
short of ``increasing support'' to Indian tribes.
Broadening the purpose areas for these grant programs does
not address the reality or restore the authority that the
Supreme Court's decision in Oliphant erased, leaving tribes
unable to investigate, arrest, and prosecute the perpetrators
who commit the majority of violent crimes on tribal lands.
We need to include references to urban Indian communities
and data in the legislative findings.
We should create or include urban conferral policies where
tribal consultation is included for tribal governments, as long
conference does not threaten or undermine tribal sovereignty
and the government-to-government relationship.
The Definitions section should be inclusive of urban Indian
people and organizations. As mentioned, we have over 6000
citizens in Washington State, with most in the Seattle area.
Other urban areas have similarly significant populations that
need to be considered.
Adopt the House approach of requiring the Attorney General
to publicly list the law enforcement agencies that comply with
the provisions of the legislation (rather than list those that
do not comply); and
Replace the affirmative preference subsections with an
implementation and incentive section that provides grant
authority to law enforcement organizations to implement the
provisions of the legislation and offers an incentive for those
that state and local agencies that comply, while removing the
preference provision in S. 277 that will punish Tribal Nations
lacking sufficient resources to implement the guidelines their
local U.S. Attorney creates.
IV. S. 982, Not Invisible Act of 2019
As required by a provision included in VAWA 2005, DOJ holds an
annual consultation with tribal governments on violence against women.
For several years tribal leaders have raised concerns at the annual
consultation about the inadequate response to cases of missing or
murdered Native women. DOJ summarized tribal leader testimony on this
issue in 2016:
``At the 2016 consultation, many tribal leaders testified that the
disappearance and deaths of American Indian and Alaska Native (AI/AN)
women are not taken seriously enough, and that increased awareness and
a stronger law enforcement response are critical to saving Native
women's lives. They noted that missing AI/AN women may have been
trafficked, and they also provided examples of abusers who murdered
their partners after engaging in a pattern of escalating violence for
which they were not held accountable. Tribal leaders also raised
concerns that cases involving Native victims are often mislabeled as
runaways or suicides, and that cold cases are not given sufficient
priority. Recommendations included the creation of a national working
group to address these issues and an alert system to help locate
victims soon after they disappear, as well as the development of an
Indian country-wide protocol for missing Native women, children, and
men.'' \15\ With the creation of the task force within this act, you
will be acting on the recommendations of tribal nations at the 2016 OVW
Consultation.
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\15\ U.S. Department of Justice, Office on Violence Against Women,
``2017 Update on the Status of Tribal Consultation Recommendations,''
(20).
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Recommendations to the Not Invisible Act: We support the Not
Invisible Act as a bipartisan bill to increase national focus on the
silent crisis of missing and murdered Indigenous women. The increased
awareness and attention to the issue of missing and murdered Indigenous
women is long overdue and a critical first step to fully understanding
the injustices and defining solutions. However, as written, the burden
falls primarily on DOI to meet the requirements of the law and there is
very little included to ensure that DOJ comes to the table as a full
partner; as a matter of practice, it can be extremely difficult to
require meaningful coordination and collaboration across Departments,
and this must be a joint responsibility. We encourage you to include
language that requires DOJ to also designate a lead staffer and point
of contact for the work and to include reporting requirements for each
agency to facilitate ongoing congressional oversight. We also recommend
clarifying that victim advocates and the tribal domestic violence and
sexual assault coalitions should be represented on the Advisory
Committee.
V. Bridging Agency Data Gaps and Ensuring Safety for Native Communities
Act or ``BADGES''
BADGES contains proposals that will offer many remedies to the data
access issues. We need to go further and include a legislative fix that
addresses the concerns of the Criminal Justice Information System
(CJIS) about tribal access to federal databases for governmental
purposes. Currently access may be authorized through federal statutes
providing some access for certain situations to tribes and then
deferring to state law to define and provide access. Such access is
difficult for tribes to map out, determine who at what agency needs to
authorize, develop a process, get User Agreements, Memoranda of
Understandings, or Management Control Agreements in place; many of
these barriers could be addressed by providing general authority to
tribes to legislate access for governmental purposes just as the states
and the federal government.
28 USC 534(d) authorizes release of criminal history information to
tribal law enforcement agencies, but doesn't allow release of criminal
information to other tribal agencies for important, legitimate civil
purposes, such as Emergency Placement of Children or ``Purpose Code
X,'' employees that work with elders and vulnerable adults, etc. CJIS
interprets the appropriations rider language from 92-544 (and in the
notes of 28 USC 534) as a permanent statute that prevents sharing this
information with tribal governments. In their view, for example,
criminal history for the emergency placement of children (Purpose Code
X) can only be shared ``if authorized by State statute and approved by
the Attorney General, to officials of State and local governments for
purposes of employment and licensing.'' We should be authorized to
define our needs within the given parameters to legislate according to
our needs.
While there is tremendous diversity among all tribes, it is worth
noting that many of the 229 tribes in Alaska experience extreme
conditions that differ significantly from tribes outside Alaska. The
Findings section of BADGES demonstrate that Indian Tribes are
understaffed with law enforcement by about nearly 50 percent when
compared to the national averages. Alaska tribes are in an even more
difficult situation. Most of the Alaska Native villages are located in
remote areas that are often inaccessible by road and have no local law
enforcement presence. The Tribal Law and Order Commission found that
``Alaska Department of Public Safety (ADPS) officers have primary
responsibility for law enforcement in rural Alaska, but ADPS provides
for only 1.0-1.4 field officers per million acres.'' \16\ Without a
strong law enforcement presence, crime regularly occurs with impunity.
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\16\ A Roadmap for Making Native America Safer: Report to the
President and Congress of the United States (November 2013), available
at http://www.aisc.ucla.edu/iloc/report/.
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Recommendations BADGES: We need to amend federal law to authorize
the sharing of this information with tribal governments for any
legitimate purpose.
Sec. 103. LAW ENFORCEMENT DATA SHARING WITH INDIAN TRIBES. \17\
Codifies the DOJ's Tribal Access Program (TAP), which enhances the
ability of Tribal governments to access, enter, and obtain information
from federally-maintained law enforcement databases, in statute and
authorizes $3 million per year for five years to fund continuation of
the program. TAP has done everything that it is authorized to do,
however, at times access is limited by federal law and tribes can
access the databases for only what is authorized by federal law through
TAP. Many states are legislating around data entry and collection of
MMIW issues. A tribe that wanted to create a legislative process, would
be unable to fully implement their laws, because there is no general
federal statute that gives tribes this level of access and
determination. However, you could amend 28 USC 534, to authorize this
level of tribal input. So for example, federal laws allow tribes to
investigate people who will work with children but it doesn't allow
access for people who work with our elders or vulnerable adults.
Similarly, most tribes require that elected officials, and key
personnel obtain background checks. A state can legislate to authorize
this access, whereas a tribe does not have that direct access and often
has to use channelers or use Lexis/Nexus. Also, the TAP program needs
permanent funding otherwise it could be discontinued at any time.
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\17\ Previously Sec. 5.
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Report on Indian Country Law Enforcement Personnel Resources and Need
We agree that it is important to gain an understanding of existing
personnel resources and case load to truly understand the needs for
increased recruitment of agents. We also suggest including law
enforcement agencies within DOI and other federal agencies that
interface with Indian Country.
In addition Sections 101 and 102 of BADGES leave out tribes in PL
280 states who will not be able to participate with the law because it
specifies BIA, FBI, etc., who exercise law enforcement in Indian
country, which Alaska does not have.
We support the development of new resources to address the MMIW
crisis. We do express concern with eligible entities for this important
new source of funding. In the definitions section of BADGES, the
definition of ``relevant tribal stakeholder'' raises significant
concern as it is inclusive of ``Indian Tribes,'' Indian Tribes as
sovereigns should never be considered a relevant stakeholder, but
generally eligible based on the unique relationship Tribes have with
the federal government.
We have significant concern that new funding addressing a tribal
issue is inclusive of states and non-tribal national or regional
organizations as eligible entities. New funding to address a tribal
issue should first and foremost be distributed to tribes as sovereigns.
States have sufficient funding to contribute to this work without
dipping into the limited funding that tribes have.
Furthermore, the lack of clarity in what constitutes ``represents
substantial Indian constituency'' for a non-tribal national or regional
organization also raises concern. Without clarity, any national or
regional organization could claim that they represent a tribal
constituency.
Specific Recommendations for Bridging Agency Data Gaps and Ensuring
Safety for Native Communities Act: Addressing Criminal Justice
Information System Access Issues To improve Tribal access to CJIS is to
amend 28 U.S.C. 534 by adding a new subsection:
``If authorized by tribal law and approved by the Attorney
General, the Attorney General shall also permit access to
officials of tribal governments for non-criminal justice, non-
law enforcement employment, licensing purposes or any other
legitimate government purpose identified in tribal
legislation.''
Another possible solution is to insert , ``civil'' before
``background checks'' and adding after ``background checks,'' ``if
authorized by Tribal law and approved by the Attorney General.'' It is
critical that civil authority be included within this section too, so
that once and for all the piecemeal, inefficient barriers to full
legitimate access is resolved.
Definitions
We recommend removing tribal governments from the definition of
``tribal stakeholder'' and inserting ``Indian tribes and relevant
tribal stakeholders'' throughout the bill wherever relevant.
VI. Support for the Reauthorization of the Violence Against Women's Act
Tlingit & Haida strongly supports the ``Violence Against Women's
Act of 2019'' (VAWA) (H.R. 1585) which passed the House on April 4,
2019, and urges the Senate Committee on Indian Affairs to support
bringing VAWA to the Senate floor. Since its enactment in 1995, each
reauthorization of VAWA, has resulted in significant victories in
support of the tribal authority and secured resources needed for
increasing the safety of Native women across the United States. H.R.
1585 includes important life-saving enhancements Tribes have repeatedly
called for including:
Addressing Jurisdictional Gaps
expands prosecution of non-Indians to include obstruction of
justice-type crimes, sexual assault crimes, sex trafficking and
stalking;
Recognizes that Native children are equally in need of the
protections that were extended to adult domestic violence
victims in VAWA 2013. The tribes implementing VAWA 2013 report
that children have been involved as victims in their cases
nearly 60 percent of the time, including as witnesses. However,
federal law currently limits tribal jurisdiction to prosecute
these crimes. H.R. 1585 would recognize tribal authority to
protect our children in tribal justice systems; and
Contains important amendments to clarify that Tribes in
Maine are able to exercise SDVCJ under VAWA 2013 and any
amendments.
Addressing Unique Jurisdictional Challenges in Alaska
Creates pilot project for five Alaska Tribes and expands the
definition of Indian Country to include ANCSA lands, townsites
and communities that are 75 percent native.
Improving the Response to Missing and Murdered Native Women and
Girls
Directs the Government Accountability Organization (GAO) to
submit a report on the response of law enforcement agencies to
reports of missing or murdered Indians, including
recommendations for legislative solutions; and
Addresses MMIW off tribal lands by amending the DOJ STOP
Formula Grant Program for states (authorized by 34 U.S.C
10441) to address the lack of victim resources for Native
American women in urban areas by providing for the inclusion of
victim advocates/resources in state courts for urban American
Indians/Alaskan Natives where 71 percent of the Native American
population resides due to federal relocation and termination
policies.
Clarifies that federal criminal information database sharing
extends to entities designated by a tribe as maintaining public
safety within a tribe's territorial jurisdiction that have no
federal or state arrest authority.
VII. Conclusion
There is a unique opportunity to recognize these issues and make
corrections to the laws.
In Ling!t Yoo X'atangi, the Tlingit Language, as with other
language groups in Alaska, we had no words or description for violence
within a family home. We had traditional forms of justice that kept our
community in check and women valued as the life giver of the family. We
had community justice, which we are now returning to. Restoring and
enhancing local, tribal governmental capacity to respond to violence
against women provides for greater local control, safety,
accountability, and transparency. We will have safer communities and a
pathway for long lasting justice. We believe that it is critical that
we work together to change laws, policies and that the federal
government create additional funding opportunities to address and to
eradicate the disproportionate violence against our women. We welcome
many of the reforms included in the bills under discussion today and
recognize the importance of improving protocols, data-sharing, and
coordination. Our tribal governments are the frontline, and we need the
federal government to uphold its responsibilities to assist us in
safeguarding the lives of Native people by respecting our inherent
authority while also adequately funding its trust and treaty
responsibilities.
Gunalcheesh! Haw'aa! Thank You!
The Chairman. Thank you, Chief Justice.
And now the Secretary, Lynn Malerba.
STATEMENT OF HON. LYNN MALERBA, SECRETARY, UNITED SOUTH AND
EASTERN TRIBES SOVEREIGNTY PROTECTION FUND
Ms. Malerba. Chairman Hoeven, Vice Chairman Udall, and
members of the Committee, thank you for the opportunity to
provide testimony on this important legislation.
[Greeting in Native tongue.] I am called Chief Many Hearts,
Lynn Malerba, Chief of the Mohegan Tribe, Secretary for the
USET Sovereignty Protection Fund and member of the Department
of Justice Tribal Nations Leadership Council.
We are here today because the Federal Government is failing
in its obligation to see that justice is served for tribal
nations and Native people. Native women face murder rates up to
ten times the national average. Approximately 56 percent of
Native women experience sexual violence in their lifetime.
Murder is the third leading cause of death for Native women 10
to 24 years of age.
These statistics are a stain on a nation that purports to
be a nation of laws, a nation of justice. As our people are
slaughtered and go missing, the United States turns a blind eye
while denying our right to prosecute offenders and access law
enforcement resources. The loss of our people due to this
crisis should inspire deep shame within every branch of
government and every American citizen.
Through the murders of our women, we lose our sisters, our
mothers, our friends, and importantly, subsequent generations
of our tribal nations, and all of their potential. These losses
are largely invisible, as the Federal Government neglects to
even track them.
Today, we ask this body and the Federal witnesses, how will
you work to ensure that generations of Native people are not
lost because of government policy neglect and inaction? You
must examine your own hearts, your own sense of honor and
consider whether your moral compass allows you to remain
silent.
Increased crime in Indian Country is a result of the
shameful policies of the United States. The Federal Government
took our homelands, banned our cultures, kidnapped our children
and limited the exercise of our inherent sovereign rights and
authorities. A gap in criminal jurisdiction stems from this
failure to recognize our inherent sovereignty.
When tribal nations are barred from prosecuting offenders
and the Federal Government fails in its obligations, criminals
are free to offend with impunity. This gap is further
compounded for some tribal nations in our region who are
subject to settlement acts that States argue prevent laws like
VAWA and TOLOA from applying.
The Federal Government has long failed to provide resources
to fill the void left by its refusal to recognize our criminal
jurisdiction. Even when it is clear that the Federal Government
has jurisdiction, prosecutors often decline to prosecute. In
fact, in 2019, Federal prosecutors declined a full 50 percent
of cases in Indian Country.
Despite the Federal trust obligation, Indian Country's
police staffing does not meet national coverage standards. In
fiscal year 2010, Indian Country only had 1.9 officers per
1,000 residents, compared to a national average of 3.5 officers
per 1,000 residents.
These commonsense bills, if enacted, would address critical
gaps in the exercise of VAWA jurisdiction and ensure that the
U.S. fulfills more of its obligations to us. We urge the bills'
sponsors to ensure that they apply to all tribal nations
equally.
Savanna's Act would increase the use of crime data bases,
increase law enforcement cooperation, and increase data on
missing and murdered Native people. We extend our appreciation
to Senators Murkowski and Cortez Masto for their reintroduction
of the bill and their willingness to make the requested
changes.
The Justice for Native Survivors of Sexual Violence Act
would extend our restored jurisdiction to include crimes
related to sexual violence, addressing a critical gap under
VAWA, which tribal nations, the Department of Justice and
others have reported just as an oversight in the drafting in
the law.
We must also do more to protect our greatest resource, our
children, as well as the officers who work so hard to keep our
communities safe. But due to another oversight in VAWA, tribal
nations cannot prosecute crimes against them. The Eastern Band
of Cherokee Indians, for example, reported that during an
arrest, an offender threatened to kill the officers and carry
out a mass shooting, and later struck a jailer, none of which
was actionable under VAWA. We do not believe that this was the
intent of those drafting the 2013 reauthorization. NYTOPA would
ensure crimes against children and officers are included again
in recognition of our inherent sovereignty.
The Not Invisible Act would increase coordination within
the Federal Government, including through a joint advisory
committee on reducing violent crimes against Native people.
However, we note that only three tribal leaders would be
appointed, despite a large Federal presence. We urge that full
diversity of Indian Country is reflected on this Committee.
Finally, the BADGES for Native Communities Act would
improve access to the Federal criminal data bases and data,
promote recruitment of tribal police and improve law
enforcement coordination and Federal handling of evidence. We
ask that the funding mechanism for these critical provisions be
reconsidered, as grants are not reflective of our government-
to-government relationship.
In conclusion, we envision a future in which our children,
our women, our elders and all Native people can live in healthy
communities without fear of violence, knowing that justice will
be served. While we ultimately seek the restoration of full
criminal jurisdiction over our lands, these bills represent a
very important advancement toward that goal.
Thank you. I am happy to answer any questions you may have.
And we do have full detailed comments in our written testimony.
I would say [phrase in Native tongue], thank you very much.
[The prepared statement of Ms. Malerba follows:]
Prepared Statement of Hon. Lynn Malerba, Secretary, United South and
Eastern Tribes Sovereignty Protection Fund
Chairman Hoeven, Vice Chairman Udall, and members of the Committee,
thank you for this opportunity to provide testimony on important
pending legislation related to public safety in Indian Country,
including: Savanna's Act, S. 227; the Justice for Native Survivors of
Sexual Violence Act, S. 288; the Native Youth and Tribal Officer
Protection Act (NYTOPA), S. 290; the Not Invisible Act of 2019, S. 982;
and the Bridging Agency Data Gaps and Ensuring Safety (BADGES) for
Native Communities Act.
United South and Eastern Tribes Sovereignty Protection Fund (USET
SPF) is appreciative of the efforts of this body in strengthening and
improving public safety across Indian Country, and supports these bills
and the goals they seek to accomplish, while highlighting limited areas
of concern below. For far too long, the United States has neglected its
public safety obligations to Tribal Nations--both by failing to
recognize and promote our inherent sovereign authorities, as well as
failing to devote adequate resources to law enforcement and judicial
infrastructure. This has created a crisis in Indian Country, as our
people go missing and are murdered, and are denied the opportunity for
safe and healthy communities enjoyed by other Americans. These bills,
if enacted, would address critical gaps in the exercise of special
domestic violence criminal jurisdiction and ensure that the United
States fulfills more of its obligation to Indian Country by providing
necessary resources. In doing so, we envision a future in which our
children, women, elders, and all Native people can live in healthy,
vibrant communities without fear of violence knowing that justice will
be served. While we ultimately seek the restoration of full criminal
jurisdiction over our lands, these bills represent important
advancements toward that goal.
USET SPF is a non-profit, inter-Tribal Nation organization
representing 27 federally recognized Tribal Nations from Texas across
to Florida and up to Maine. \1\ USET SPF is dedicated to maintaining an
active federal agenda and supporting its Tribal Nation members in their
relations with local, state, federal, and international governments.
USET SPF advocates for actions that will address the needs of Native
people, increase the ability of Tribal Nations to exercise our inherent
sovereignty and right to self-governance, and carry out and uphold the
government-to-government relationships between the United States and
Tribal Nations as well as the unique obligations owed by the United
States to Tribal Nations and Native people.
---------------------------------------------------------------------------
\1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian
Nation (SC), Cayuga Nation (NY), Chitimacha Tribe of Louisiana (LA),
Coushatta Tribe of Louisiana (LA), Eastern Band of Cherokee Indians
(NC), Houlton Band of Maliseet Indians (ME), Jena Band of Choctaw
Indians (LA), Mashantucket Pequot Indian Tribe (CT), Mashpee Wampanoag
Tribe (MA), Miccosukee Tribe of Indians of Florida (FL), Mississippi
Band of Choctaw Indians (MS), Mohegan Tribe of Indians of Connecticut
(CT), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY),
Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian Township
(ME), Passamaquoddy Tribe at Pleasant Point (ME), Penobscot Indian
Nation (ME), Poarch Band of Creek Indians (AL), Saint Regis Mohawk
Tribe (NY), Seminole Tribe of Florida (FL), Seneca Nation of Indians
(NY), Shinnecock Indian Nation (NY), Tunica-Biloxi Tribe of Louisiana
(LA), and Wampanoag Tribe of Gay Head (Aquinnah) (MA).
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I. High Rate of Crime in Indian Country is Directly Attributable to
U.S.
Policy
As you are well aware, Indian Country currently faces some of the
highest rates of crime, with Tribal citizens 2.5 times more likely to
become victims of violent crime and Native women, in particular,
subject to higher rates of domestic violence and abuse. Many of the
perpetrators of these crimes are non-Native people. The reasons behind
the increased crime in Indian Country are complicated, but the United
States holds much of the responsibility and that is at the root of
today's challenges.
A. Historical Trauma Caused by United States Policies and Actions
Increased crime in Indian Country flows, first and foremost, from
the shameful policies of the United States. The United States took our
homelands and placed us on reservations, often in remote areas with
little or no resources or economies, prohibited exercise of our
cultural practices, kidnapped our children, and took actions to limit
the exercise of our inherent sovereign rights and authorities.
These United States policies of termination and assimilation have
caused ongoing trauma for Native people, and this trauma has left
scars. Dehumanization of Native people over time is a tool to justify
harms done to us--including colonizing our land. It marginalizes us in
a way that makes us invisible within our own lands. And the larger
society is desensitized to us, turning a blind eye to its role in
continued injustices to our people and our governments.
This historical trauma affects the crimes committed against us.
Native people are viewed as less worthy of safety--less human. This
mindset allows perpetrators to commit crimes against our bodies with
less remorse. And it leads to law enforcement personnel and judicial
systems not treating Native peoples' concerns as seriously. When our
people go missing or are murdered, their loss is invisible, as it is
most often ignored by the law enforcement community and society in
general.
The current crime rate in Indian Country is not surprising. It is a
continuation of the genocide Native people have endured since first
contact. It is time to address these issues at their root to stop the
cycle of violence.
B. Failure of United States to Recognize Tribal Nations' Sovereign
Criminal
Jurisdiction
One important reason for increased crime in Indian Country is the
gap in jurisdiction stemming from the United States' failure to
recognize our inherent criminal jurisdiction, allowing those who seek
to do harm to hide in the darkness away from justice. When Tribal
Nations are barred from prosecuting offenders and the federal
government fails in the execution of its obligations, criminals are
free to offend over and over again. And this gap is the U.S.' own
doing.
Tribal Nations are political, sovereign entities whose status stems
from the inherent sovereignty we have as self-governing peoples, pre-
dating the founding of the Republic. A critical aspect of our inherent
sovereignty is jurisdiction over our land and people, including
inherent jurisdiction over crimes. Early Supreme Court decisions
recognized this broad jurisdictional authority. See, e.g., United
States v. Wheeler, 435 U.S. 313 (1978); Ex parte Crow Dog, 109 U.S. 556
(1883). And Tribal Nations exercised jurisdiction over everyone who set
foot on our lands, in parity with other units of government.
But the United States has slowly chipped away at Tribal Nations'
jurisdiction. At first, it found ways to put restrictions on the
exercise of our inherent rights and authorities. And eventually, as its
power grew, the United States shifted from acknowledging Tribal
Nations' inherent rights and authorities to treating these rights and
authorizes as grants from the United States. With this shift in
mindset, recognition of our inherent sovereignty diminished, including
our jurisdictional authorities.
For example, in the 1978 decision of Oliphant v. Suquamish Indian
Tribe, the Supreme Court struck what may be the biggest and most
harmful blow to Tribal Nations' criminal jurisdiction. In that case, it
held Tribal Nations lacked criminal jurisdiction over non-Native
people, even for crimes committed within Indian Country. 435 U.S. 191
(1978). It based this harmful decision on the faulty reasoning that--
while Supreme Court precedent recognizes that Tribal Nations possess
aspects of our inherent sovereignty unless expressly divested--in the
case of criminal jurisdiction over non-Native people the exercise of
such inherent sovereignty was simply impractical for the United States.
It said that, while Tribal Nations' jurisdiction flows from our
inherent sovereignty, continued existence of criminal jurisdiction over
non-Native people would be ``inconsistent'' with Tribal Nations'
status, where our inherent sovereignty is now ``constrained so as not
to conflict with the interests of [the United States'] overriding
sovereignty.'' Id. at 208-10. Not only is this decision immoral and
harmful, it is also illogical, as other units of government, such as
states, exercise criminal jurisdiction over non-citizens present in
their boundaries as a matter of routine. It is this very exercise of
jurisdiction that keeps everyone safe--something that is clearly in the
United States' best interests. Following Oliphant, Tribal Nations were
barred from exercising criminal jurisdiction over non-Native peoples'
crimes on our own land and against our own people--an authority held by
virtually every other unit of government in this country.
Congress, in the Indian Civil Rights Act, also acted to restrict
Tribal Nations' criminal jurisdiction. Under the Indian Civil Rights
Act, regardless of the crime, Tribal Nations were prohibited from
imposing more than one year of incarceration and a $5,000 fine for an
offense. 25 U.S.C. 1302(a)(7)(B). After this statute was enacted,
Tribal Nations were not able to exercise criminal jurisdiction even
over our own people in excess of the relatively low penalty amounts.
Some have even argued the Major Crimes Act bars Tribal Nations'
jurisdiction over serious crimes committed by our own people.
The United States justifies its failure to recognize Tribal
Nations' inherent sovereign power with legal fictions that satisfy its
own interests. The federal government has continually moved to deny our
authority, as it sought to build systems to reflect its assumed
supremacy. It does not have this authority, and there are very real and
practical consequences of the United States' wrongful taking of Tribal
Nations' criminal jurisdiction; including leaving a vacuum that allows
crime to grow unabated and the very need for the legislation this body
is considering.
These failures on behalf of the United States must be addressed in
order to resolve the issue of crime in Indian Country and enable Tribal
Nations to exercise our inherent authority as governments to care for
our people. The benefits of safe, healthy, and prosperous Tribal
communities stretch far beyond Indian Country. By recognizing Tribal
Nations' inherent criminal jurisdiction over our land, the United
States would facilitate our ability to function side-by-side with other
sovereign entities in the fight to keep all Americans safe.
C. Failure of United States to Invest Resources Necessary to Fulfill
Trust Obligations
As a result of the cession of millions of acres of land and natural
resources, oftentimes by force, the United States has taken on unique
legal and moral trust and treaty obligations to Tribal Nations and
Native people. One of the most fundamental aspects of those obligations
is to keep our people healthy and safe. This is especially true in the
law enforcement context, where the United States has stripped Tribal
Nations of the jurisdiction and resources we need to protect our
people. At the same time, the United States has not invested in the
infrastructure necessary to fulfill this obligation.
The federal government has long failed to allocate the resources
necessary to fill the void left by its refusal to recognize Tribal
Nations' criminal jurisdiction over our land. Each time a crime takes
place, the legal jurisprudence created by the United States requires a
time consuming and complicated analysis necessary to determine who has
jurisdiction. This determination requires an analysis of the
perpetrator, the victim, the land on which the crime took place, the
type of crime, and whether any statute applies that shifts the
jurisdictional analysis, such as a restrictive settlement act. This
murkiness leads to lost time--which can be deadly when a Native person
is in danger.
The federal government is also not dedicating the necessary
resources to prosecuting crimes in Indian Country. Even when it is
clear that the federal government (or a state government) has
jurisdiction over a particular crime and the Tribal Nation does not,
prosecutors often decline to prosecute, citing lack of resources or
evidence. This leaves known perpetrators walking free in Indian
Country, now armed with the knowledge that they are impervious to the
law.
The federal government is also failing to invest the resources
required to properly coordinate information sharing and decisions about
investigation and prosecution across law enforcement agencies. With
extremely complicated overlapping jurisdiction, swift transmission of
the necessary information and decisions about who will take the lead on
a case is imperative. And cooperative agreements allow governmental
entities to work together as partners, including Tribal Nations.
Additionally, the federal government is not providing the resources
necessary to combat crime in Indian Country. For example, Indian
Country's police staffing does not meet the national police coverage
standards. In FY 2020, Indian Country only had 1.9 officers per 1,000
residents compared to an average of 3.5 officers per 1,000 residents
nationwide. Again, cooperation across governmental entities, including
with Tribal Nations, can help resolve police staffing issues.
The federal government is also not upholding its trust
responsibility and obligations to provide the funding necessary for
Tribal Nations to exercise enhanced sentencing and expanded criminal
jurisdiction under the Tribal Law and Order Act (TLOA) and the Tribal
Nation provisions of the 2013 reauthorization of the Violence Against
Women Act (VAWA). For Tribal Nations to fully exercise these
authorities, Congress mandated that we must first put into place
certain procedural protections for defendants. At the same time,
following centuries of termination and assimilationist policy, the
federal government has consistently and chronically underfunded line
items and accounts dedicated to rebuild and support judicial
infrastructure in Indian Country. It is incumbent upon the federal
government to ensure Tribal Nations have funding and other resources to
comply with these procedural requirements.
D. Restrictive Settlement Acts
Some Tribal Nations, including some USET SPF member Tribal Nations,
are living under restrictive settlement acts that further limit the
ability to exercise criminal jurisdiction over their lands. These
restrictive settlement acts flow from difficult circumstances in which
states demanded unfair restrictions on Tribal Nations' rights in order
for the Tribal Nations to have recognized rights to their lands or
federal recognition. When Congress enacted these demands by the states
into law, it allowed for diminishment of certain sovereign authorities
exercised by other Tribal Nations across the United States.
Some restrictive settlement acts purport to limit Tribal Nations'
jurisdiction over their land or to give states jurisdiction over Tribal
Nations' land, which is itself a problem. But, to make matters worse,
there have been situations where a state has wrongly argued the
existence of the restrictive settlement act prohibits application of
later-enacted federal statutes that would restore to Tribal Nations
aspects of our jurisdictional authority. In fact, some USET SPF member
Tribal Nations report being threatened with lawsuits should they
attempt to implement TLOA's enhanced sentencing provisions. Congress is
often unaware of these arguments when enacting new legislation. USET
SPF asserts that Congress did not intend these land claim settlements
to forever prevent a handful of Tribal Nations from taking advantage of
beneficial laws meant to improve the health, general welfare, and
safety of Tribal citizens. We would like to further explore shortand
long-term solutions to this problem with the Committee.
II. Past Congressional Actions to Recognize Tribal Nations' Sovereign
Jurisdiction
Congress can and has-at the urging of Indian Country-taken steps to
remove the restrictions the United States placed on Tribal Nations'
exercise of our inherent sovereign criminal jurisdiction. Through these
actions, Congress has moved to legally recognize our inherent
authorities even after the United States acted to stomp them out. For
example, although the Supreme Court initially ruled Tribal Nations lack
criminal jurisdiction over Native people who are not their own
citizens, Duro v. Reina, 495 U.S. 676 (1990), Congress swiftly restored
that inherent jurisdiction, 25 U.S.C. 1301(2), and the Supreme Court
recognized its restoration, United States v. Lara, 541 U.S. 193 (2004).
In 2010, Congress enacted TLOA to amend the Indian Civil Rights
Act. See 25 U.S.C. 1302. It increased the penalties a Tribal Nation
may impose in cases where we have jurisdiction--allowing incarceration
sentences of up to three years and a $15,000 fine per offense, with up
to nine years of incarceration per criminal proceeding. 25 U.S.C.
1302(a)(7)(C)-(D), (b). But TLOA requires Tribal Nations to provide
certain procedural rights to defendants in order to exercise this
enhanced sentencing. 25 U.S.C. 1302(c).
In 2013, Congress included Tribal provisions when it reauthorized
VAWA. See 25 U.S.C. 1304. Through VAWA, Congress restored the
exercise of criminal jurisdiction (called special domestic violence
criminal jurisdiction (SDVCJ)) over non-Native people in limited
circumstances related to domestic and dating violence. 25 U.S.C.
1304(b)(1). VAWA allows participating Tribal Nations to exercise SDVCJ
over Indian Country crimes that: are dating or domestic violence
(defined to require a certain type of relationship) or in furtherance
of certain protection orders, 25 U.S.C. 1304(a)(1), (2), (5); when
the victim or perpetrator is Native, 25 U.S.C. 1304(b)(4)(a); and
when the perpetrator has certain ties to the Tribal Nation, 25 U.S.C.
1304(b)(4)(B). Like TLOA, VAWA requires Tribal Nations to provide
certain procedural rights to defendants to exercise SDVCJ, including
the right to a trial. 25 U.S.C. 1304(d).
The Tribal Nations that have been able to exercise jurisdiction
under VAWA report success in bringing perpetrators to justice and
keeping our people safe. As the Department of Justice (DOJ) testified
before this Committee in 2016, VAWA has allowed Tribal Nations to
``respond to long-time abusers who previously had evaded justice.''
Although they are steps in the right direction, these existing laws
do not do enough to provide for the exercise Tribal Nations' criminal
jurisdiction, which rightfully belongs to us as a function of our
inherent sovereignty. And they do not do enough to protect Native
people from the violence that lives in the void left by limitations
placed on Tribal Nations' exercise of criminal jurisdiction.
III. USET SPF Supports Pending Legislation
Each of the bills before you today addresses some of the causes of
the increased crime rate in Indian Country, as well as gaps in existing
law. Some of the bills re-recognize our inherent sovereign criminal
jurisdiction, while others facilitate information collection and
sharing and cooperation across law enforcement agencies in furtherance
of the United States' trust responsibility. USET SPF supports these
bills as opportunities to support Tribal self-determination, better
deliver upon the trust responsibility and obligations, and ultimately
serve as pieces to the puzzle that lead to safer and stronger
communities.
A. Savanna's Act, S. 227
Savanna's Act is designed to enhance the use of crime databases,
increase cooperation and standardization across law enforcement
agencies with overlapping jurisdiction, and facilitate gathering data
on missing and murdered Native people in furtherance of the United
States' trust responsibility to provide the resources necessary to keep
our people safe.
Collecting and sharing criminal justice data in Indian Country is a
well-known barrier to ensuring public safety for many Native
communities, with criminal case information still fragmented and
compartmentalized between different law enforcement agency data
systems. Savanna's Act would require the DOJ, in consultation with
Tribal Nations, to take certain actions to increase access to and use
of crime databases to track Indian Country crimes. It would also
require DOJ to train law enforcement agencies on how to take and record
pertinent information and to train Tribal Nations and the public on how
to access these databases. And it would require DOJ to collect and then
report to Congress on information related to missing and murdered
Native people.
The high rate at which the federal government declines to prosecute
crimes in Indian Country, including those over which Tribal Nations are
not permitted to exercise their inherent jurisdiction, is a significant
problem and a deep failure to uphold the sacred duty to our Nations and
people. Savanna's Act would require DOJ to direct United States
Attorneys with jurisdiction to prosecute Indian Country crimes.
Coordination in information collecting and sharing across law
enforcement agencies is a major barrier to solving crimes in Indian
Country, which is made even more significant due to the complicated
overlapping jurisdiction in Indian Country. Savanna's Act would require
DOJ in consultation with Tribal Nations and others to develop
standardized guidelines for responding to cases of missing and murdered
Native people. The guidelines would include ways to better coordinate
among law enforcement agencies and to increase response and follow up
rates, best practices for conducting searches and identifying and
handling remains, standards for collecting, reporting, and analyzing
data and inputting it into criminal databases, and ways to ensure
access to culturally appropriate victim services. Each Tribal Nation,
federal, state, and local law enforcement agency would be directed to
adopt the guidelines, and DOJ would be required to offer trainings.
However, we note some language in S. 227, as currently drafted,
that would serve to penalize Tribal Nations lacking the resources
necessary to adopt and implement the guidelines DOJ creates. We support
Savanna's Act as a tool for facilitating information collection and
sharing as well as cooperation between law enforcement agencies for
crimes in Indian Country in furtherance of the United States' trust
responsibility to provide the resources necessary to keep our people
safe. USET SPF has been informed that the bill's sponsors intend to
correct this oversight during mark-up. We strongly support this
amendment and extend our appreciation to Sens. Murkowski and Cortez-
Masto for the reintroduction of the bill and their willingness to make
requested changes.
B. Justice for Native Survivors of Sexual Violence Act, S. 288
The Justice for Native Survivors of Sexual Violence Act would
extend Tribal Nations' restored jurisdiction over non-Native people, as
authorized under VAWA, to include crimes related to sexual violence. In
this way, it would recognize Tribal Nations' inherent sovereign
authority to exercise criminal jurisdiction over our lands to address a
critical gap in the SDVCJ under VAWA.
According to a 2016 study by the National Institute for Justice,
approximately 56 percent of Native women experience sexual violence in
their lifetime, with one in seven experiencing that violence within the
past year. Almost one in two Native women report being stalked. And the
vast majority of these perpetrators are non-Native, preventing Tribal
Nations from exercising criminal jurisdiction over them outside VAWA.
However, VAWA as currently enacted does not extend to these crimes,
which Tribal Nations, DOJ, and others involved in implementation of
VAWA's SDVCJ have reported as an oversight in the drafting of the law.
One such area is its application to sexual violence outside of a
domestic relationship. The Justice for Native Survivors of Sexual
Violence Act would extend VAWA's SDVCJ to include sex trafficking,
sexual violence, and stalking. It would also add crimes of related
conduct, defined to include violations of a Tribal Nation's criminal
law occurring in connection with the exercise of VAWA SDVCJ.
Additionally, Tribal Nations exercising VAWA's SDVCJ report that
certain actions, such as attempted assaults, are difficult to prosecute
because they may not qualify as ``violence'' under VAWA. Instead, law
enforcement officers are forced to wait until the perpetrator comes
back to inflict more violence on the victim. The Justice for Native
Survivors of Sexual Violence Act would replace references to
``violence'' within the definitions of dating violence and domestic
violence with references to violations of the Tribal Nation's criminal
laws, thereby making it clear the perpetrator need not have actually
physically assaulted the victim. The crime of sexual violence added by
the legislation is similarly defined by reference to nonconsensual
sexual acts or contact prohibited by law.
Those implementing VAWA also report that it does not function to
protect Native people against sexual crimes committed while
perpetrators are only briefly in Indian Country--such as during a visit
to a casino. The legislation would remove VAWA's requirement that a
defendant has ties to the Tribal Nation. In this way, Indian Country
would no longer be open to perpetrators seeking out safe harbors for
crime.
However, the Justice for Native Survivors of Sexual Violence Act
raises important implications for Tribal Nations living under
restrictive settlement acts. To avoid any wrongful arguments that the
legislation does not apply to Tribal Nations with restrictive
settlement acts, we request you include the following language: ``All
provisions of this Act apply to all federally recognized tribes, no
matter where located, notwithstanding any prior acts of Congress
limiting tribal jurisdiction or the application of federal law.''
USET SPF supports the Justice for Native Survivors of Sexual
Violence Act as an opportunity for this Congress to fix a dangerous
oversight in the SDVCJ VAWA provision through the affirmation of
inherent Tribal sovereignty and authority. We request the Committee
consider amending the bill to include language that would prevent any
wrongful arguments that it does not apply to Tribal Nations with
restrictive settlement acts.
C. Native Youth and Tribal Officer Protection Act (NYTOPA), S. 290
NYTOPA would address another serious gap in the SDVCJ VAWA
provision by ensuring that it includes crimes against children and law
enforcement officers-again, in recognition of our inherent sovereign
rights and authorities. It would also provide important funding for
VAWA implementation in furtherance of the United States' trust
responsibility and obligations to provide the resources necessary to
keep our people safe.
Another oversight in the drafting of VAWA is its inapplicability to
children involved in cases where a Tribal Nation is otherwise
exercising VAWA's SDVCJ. Tribal Nations implementing VAWA report that
children have been involved as victims or witnesses in nearly 60
percent of the instances in which they exercised VAWA's SDVCJ. But VAWA
does not extend to protect them. NYTOPA would amend VAWA to extend
Tribal Nations' SDVCJ to crimes committed against a child by a
caregiver that are related to physical force and violate a Tribal
Nation's law.
Yet another oversight in the drafting of VAWA is its
inapplicability to police officers involved in cases where a Tribal
Nation is otherwise exercising VAWA's SDVCJ. Implementing Tribal
Nations have reported assaults on officers and other personnel involved
in the criminal justice system. Domestic violence cases are the most
common and most dangerous calls to which law enforcement respond, and
VAWA does not give Tribal Nations the tools to protect officers when
they carry out VAWA's SDVCJ. The Eastern Band of Cherokee Indians, for
example, reported that a perpetrator during arrest under VAWA's SDVCJ
threatened to kill officers and carry out a mass shooting and later
struck a jailer--none of which was actionable under VAWA's SDVCJ. To
remedy this problem, NYTOPA would amend VAWA to extend jurisdiction to
crimes committed by a perpetrator already covered under VAWA's SDJPC
against a Tribal Nation's officer or employee in the course of carrying
out VAWA's SDJPC when the crime is related to exercise of VAWA's SDJPC
and violates the Tribal Nation's law.
Additionally, like the Justice for Native Survivors of Sexual
Violence Act, NYTOPA would ensure crimes beyond actual assault are
actionable under VAWA. It would do so by clarifying that attempts at
and threats of physical force that violate a Tribal Nations' laws are
covered.
NYTOPA would also carry out important functions related to funding
and coordination. It would authorize additional appropriations through
2024 to carry out VAWA's SDJPC. And it would call for increased
interagency coordination to ensure that federal programs that support
Tribal Nations' justice systems and victim services are working
effectively together and training on recognizing and responding to
domestic violence. It would also require federal agencies to report to
Congress on the effectiveness of federal programs intended to build the
capacity of Tribal Nations to respond to crimes covered by VAWA as well
as on federal coordination and training efforts.
However, NYTOPA raises similar concerns for Tribal Nations with
restrictive settlement acts that the Justice for Native Survivors of
Sexual Violence Act raises, and we therefore request addition of the
language provided above.
USET SPF strongly supports NYTOPA as another opportunity for a more
complete and appropriate application of VAWA's SDVCJ, as well as a more
thorough recognition of Tribal jurisdiction in this space. We also
support NYTOPA for its VAWA funding, does more to deliver upon the
United States' trust responsibility and obligations to provide the
resources necessary to keep our people safe. As with the Justice for
Native Survivors Act, USET SPF requests the Committee consider amending
the bill to include language that would prevent any wrongful arguments
that it does not apply to Tribal Nations with restrictive settlement
acts.
D. Not Invisible Act of 2019, S. 982
The Not Invisible Act of 2019 would increase coordination within
the federal government in furtherance of the United States' trust
responsibility and obligations to provide for public safety in Indian
Country. It would also provide a mechanism for Tribal Nations, Native
people, and others with relevant expertise to advise the federal
government on combatting violent crime within Indian Country and
against Native people, addressing some of the historical trauma that
leads to crime in Indian Country.
Like lack of coordination between law enforcement agencies, lack of
coordination within the federal government hampers efforts to keep
Indian Country safe. The various agencies and bureaus with specific
programs or grants aimed at reducing crime in Indian Country do not
coordinate with each other to maximize efficiency. The Not Invisible
Act of 2019 would require the Department of the Interior (DOI) to
designate an official who reports directly to the Secretary to
coordinate efforts related to violent crime in Indian Country and
against Native people. This official would coordinate programs and
grants across agencies and would work to provide training on how to
effectively identify, respond to, and report violent crime in Indian
Country or against Native people.
The absence of Native peoples' voices in the federal government's
decision making regarding efforts to reduce crime in Indian Country
makes the federal government's efforts doomed from the beginning and
flies in the face of its consultative responsibilities to Tribal
Nations. The Not Invisible Act of 2019 would establish a DOI and DOJ
joint advisory committee on reducing violent crime against Native
people, which would include Tribal Nation representatives and other
Native people with relevant expertise and life experience. However,
USET SPF notes that only three Tribal leaders will be appointed to the
Committee, despite the large federal presence provided for in the Act.
Since this Committee would be broadly charged with making
recommendations to DOI and DOJ on combatting violent crime in Indian
Country and against Native people, it is vital that the full diversity
of be reflected in its representation. We urge that the bill language
be amended to include on the Committee representatives from each of the
Bureau of Indian Affairs' 12 regions.
USET SPF supports the Not Invisible Act of 2019 as a tool for
enabling the federal government to increase its efficiency with regard
to addressing the issue of crime in Indian Country in furtherance of
the United States' trust responsibility to provide the resources
necessary to keep our people safe. We also support the legislation for
its efforts to ensure Native voices are part of decisionmaking, for it
is through facilitating our voices to be heard that we will stop being
invisible. However, we maintain that the Committee must reflect the
full diversity of Indian Country, if it is to be successful.
E. Bridging Agency Data Gaps and Ensuring Safety (BADGES) for Native
Communities Act
The BADGES for Native Communities Act would address inefficiencies
in federal criminal databases, increase Tribal Nations' access to those
databases, and improve public data on crimes and staffing. The
legislation would also promote more efficient recruitment and retention
of Bureau of Indian Affairs law enforcement personnel, provide
resources to Tribal Nations for improved coordination with other law
enforcement agencies, and mitigate federal law enforcement mishandling
of evidence.
While DOJ operates two databases for missing person cases--the
National Crime Information Center database for law enforcement and the
publicly accessible National Missing and Unidentified Persons System--
the systems do not share data with each other. And Tribal Nation,
federal, state, and local authorities are not required to add missing
adults to the systems. This leads to high numbers of our missing
falling through the cracks. An Urban Indian Health Institute found that
of 5,712 reported missing Native women and girls in 2016, only 116 had
been logged in DOJ's database. This is unconscionable.
The BADGES for Native Communities Act would ensure the National
Missing and Unidentified Persons System contains information related to
Indian Country cases and facilitate Indian Country access to it. It
would call on DOJ to transmit information on missing persons and
unidentified remains contained in national crime information databases
to the National Missing and Unidentified Persons System, thereby
sharing information between the systems. In the interim, it would
require DOJ to enter into the National Missing and Unidentified Persons
System information related to missing persons and unidentified remains
when the victim is a Native person or last seen on Indian land. It
would require DOJ, with the help of designated Tribal Nation liaisons,
to ensure Tribal Nations gain access to the National Missing and
Unidentified Persons System. The legislation would require DOJ to
report to Congress on these efforts.
The BADGES for Native Communities Act would also ensure Indian
Country has access to the National Crime Information Center. Through
VAWA, Tribal Nations were authorized to access the National Crime
Information Center database, but DOJ did not facilitate this access
until launching the Tribal Access Program (TAP) pilot project in 2015.
Many Tribal Nations remain on the waitlist to access TAP. The BADGES
for Native Communities Act would require DOJ to ensure Tribal law
enforcement officials have access to the National Crime Information
Center. It would also codify TAP and authorize additional funding for
the program, which we continue to support.
Additionally, the BADGES for Native Communities Act would create a
grant program for addressing the issue of missing and murdered Native
people. Grants would be available for establishing centers to document
and track missing and murdered person cases when the victim is a Native
person or last seen on Indian land, for establishing a commission to
coordinate between Tribal Nation, federal, state, and local law
enforcement regarding such cases, and to develop resources related to
such cases. While we strongly support dedicated funding for these
activities, we request that the mechanism be reconsidered. Grant
funding fails to reflect the unique nature of the federal trust
obligation and Tribal Nations' sovereignty by treating Tribal Nations
as non-profits rather than governments. Further, all Tribal Nations,
and not only those with funding to participate in grant-writing
processes, should have access to this important funding.
The BADGES for Native Communities Act would also address the issue
of law enforcement personnel in Indian Country. It would provide a
streamlined system for obtaining background checks on Bureau of Indian
Affairs law enforcement applicants, making the hiring process easier.
It would also address retention by creating resources for mental health
wellness programs for Indian Country law enforcement officers. The
legislation would require DOJ to report to Congress on Indian Country
law enforcement personnel resources and need.
Last, the legislation would call for the Government Accountability
Office to conduct a study on federal law enforcement evidence
collection, handling, and processing and the extent to which it affects
the rate at which United States Attorneys decline to prosecute cases.
As with other legislation before you today, BADGES would likely
benefit from language confirming its application to all federally-
recognized Tribal Nations notwithstanding existing settlement acts. We
look forward to working with Vice Chairman Udall to ensure final
legislative language accomplishes this goal.
USET SPF supports the BADGES for Native Communities Act as it seeks
to provide parity for Tribal Nations in access to federal crime
information, collection, and tracking. This is an important step toward
building a stronger public safety foundation in Indian Country. USET
SPF also supports the legislation for its efforts to resolve cases
related to missing and murdered Native people take steps towards
increasing acquisition and retention of law enforcement personnel and
understanding the issue of mishandling of evidence. As with other
legislation before you today, these provisions seek to do more to
uphold the federal trust responsibility and obligations, as well as
support Tribal Nation efforts to see that justice is served for our
people.
IV. Conclusion
The public safety crisis facing Tribal Nations and our people is
directly attributable, at least in part, to U.S. policies of
colonialism, termination, and assimilation, as well as the chronic
failure to deliver upon the trust responsibility and obligations. These
policies stole our homelands, tried to steal our cultures, and limited
our ability to exercise our inherent sovereign rights and authorities.
The United States, including all branches of government must act to
provide parity to Tribal Nations in the exercise of our inherent
sovereign rights and authorities. Our people cannot remain invisible
and forgotten, as Tribal Nations work to navigate the jurisdictional
maze that has grown up around Indian Country while the United States
turns a blind eye.
USET SPF supports the legislation before you for consideration
today and believes it represents a major step in the right direction
toward the United States recognizing Tribal Nations' inherent sovereign
rights and authorities. These bills recognize Tribal Nations' inherent
sovereign right to exercise criminal jurisdiction over our land, and
they provide the resources the United States owes to keep our people
safe. As sovereign governments, Tribal Nations have a duty to protect
our citizens, and provide for safe and productive communities. This
cannot truly be accomplished without the full restoration of criminal
jurisdiction to our governments through a fix to the Supreme Court
decision in Oliphant. While we call upon this Congress to take up and
pass today's legislation, we strongly urge this Committee to consider
how it might take action to fully recognize Tribal criminal
jurisdiction over all persons and activities in our homelands for all
Tribal Nations. Only then will we have the ability to truly protect our
people. We thank you for holding today's important hearing and look
forward to further opportunities to discuss improved public safety in
Indian Country.
The Chairman. Thank you. Now we will start with five-minute
rounds of questions. We do have five votes through this, so we
are going to do our best to continue. Vice Chairman Udall has
already gone to cover the first vote. He will be back.
Given the number of witnesses and the number of questions
that they will want to ask, we are going to try to keep going
through the votes. We will see how that goes. If we get into
later rounds of votes, and we need to suspend for a short
period of time, we may do that. But at least for the time
being, we will proceed.
My first question is for Mr. Toulou. In the proposed
substitute amendment for Savanna's Act, to be offered by
Senators Murkowski and Cortez Masto, there is a requirement for
the Department of Justice to publicly list law enforcement
agencies that are in compliance with the proposed provisions of
the substitute amendment. This is different from the introduced
bill that requires the DOJ to list the law enforcement agencies
that do not comply with the implementation.
So I want to know if that creates any challenges for the
DOJ, to publicly list law enforcement agencies that are in
compliance.
Mr. Toulou. Thank you for that question, Chairman. It is
hard for me to comment for the whole department on this, but
let me explain why our initial, why we initially had problems
with some of the issues around announcing or not announcing
grant related, I don't know, penalties is probably the wrong
word, around agencies that don't comply. That is that we work
closely with law enforcement, and we prefer to work them
through issues when they are not doing what they need to do,
rather than have a punitive result for them not doing what was
included in the bill.
This seems to me, this is me personally, like a reasonable
way of doing that. Because what we are doing is, we are letting
the agencies who are doing the right job get the credit they
deserve. But I would want to take it back to my folks at the
department and discuss it with them. We deal with grants and
deal with agencies directly.
The Chairman. That is exactly why I brought it up, because
we would want you to work with the bill's sponsors.
Mr. Toulou. Yes, I will do that.
The Chairman. So the Department of Justice, again for you,
Mr. Toulou, the Department of Justice operates two data bases
that track missing person cases. The first is the FBI's
National Crime Information Center Database for Law Enforcement.
The second is the National Institute of Justice's National
Missing and Unidentified Persons System, the NaMus system,
which is a publicly accessible data clearinghouse.
So, should both data bases be able to talk to each other,
to make sure that information is being shared?
Mr. Toulou. We think that would be, given the parameters
that we would need to work through with CJIS and NaMus, we
think that is a good idea.
The Chairman. And is that effort underway?
Mr. Toulou. Yes, they are talking together. We have made
efforts already to try to put those two databases in contact.
Keep in mind, one is a criminal justice database, and some of
the information in that should not be available to the general
public, just for the reason we don't release other criminal
justice information. But we think there is a way of doing it
where we can get the relevant information out and shield the
criminal justice information. It is underway, it is tricky. But
we agree, the two databases should speak to each other.
The Chairman. All right. Mr. Addington, you testified
before this Committee in December on the issue of crime data,
and highlighted the fact that BIA had partnered with DOJ's
missing and unidentified, the NaMus system. Can you provide the
Committee with an update on how this is going?
Mr. Addington. Yes, thank you for the question, Chairman.
We did work with NaMus to make those data fields for tribal
affiliation and some different data fields that we could
collect data. Those went live, I believe, at the end of
February. The Bureau of Indian Affairs actually worked with the
NaMus staff to send up our program analysts to actually be
trained in how to enter data, so we could go back and start
entering all the data from the Bureau of Indian Affairs direct
services agencies, and then begin working with the tribal law
enforcement programs to try to get them to enter their data as
well.
I pulled a report from the system a couple of weeks ago,
and there was about 372 Native entries in the system. Those are
not all just from Indian Country; they are from everywhere. We
are hoping once we get all of our data entered, that we will be
able to actually pull data specifically from Indian Country
locations, because that is some of the data fields that were
added to it, so we can tell you how many actual people are
missing from the reservations, from Indian Country, and how
many people are missing that are not from Indian Country.
So we are entering our data and we are hoping as we move
forward, we get the tribal programs to start entering their
data. There is a lot, Alaska has done a fabulous job with
entering a lot of their missing persons in the system already.
But our program analysts are actually working with tribal
programs to encourage them to enter the data as well.
So we are hoping this year we get most of those cases
entered into the system, so we can actually pull a report and
have a good idea actually how many missing persons cases are
unsolved in Indian Country.
The Chairman. Same hearing back in December, you testified
about the need to better equip law enforcement on collecting
evidence, especially with regard to missing and murdered Indian
people. Who is responsible for collecting this type of evidence
for missing and murdered Indian people? Do tribal law
enforcement officers need to perform better, BIA law
enforcement, or the FBI? In your opinion, which entity needs
the most training in this area?
Mr. Addington. I think all three could use more training in
that area. It depends on who is operating the program, if it is
a tribal law enforcement program, we have had issues with being
able to get the data collected, better respond to a missing
person call. And if you don't process the scene like you would
if someone, if it was a crime, then sometimes you miss
collecting very important evidence. We have seen that across
Indian Country in different pockets.
But we have put a lot better training out there in our
Indian police academy, and are working with BIA and DOJ. So we
do have some specific training on evidence collection and those
kinds of things that we put out there. So we are providing that
the best we can.
I think everybody can always use more training in those
areas. As times change, and how you collect evidence, and how
the missing person, we learn more all the time of different
stories about a missing person case that didn't get done
correctly. I think training everyone in the proper way to do it
would be beneficial across the board.
The Chairman. Senator Cortez Masto.
Senator Cortez Masto. Thank you, and thank you to the
Chairman for holding these hearings on these important bills. I
appreciate it.
Mr. Toulou, let me jump back to Savanna's Act, in section
7, that you just were talking about. I think you characterized
it, what we are trying to do is provide a carrot, not a stick.
That is what the amended language does. I didn't hear that you
had concerns about it, other than you had to run it up the
chain to make sure everybody signs off on it within DOJ. Is
that correct?
Mr. Toulou. I do not personally have concerns about it. I
don't speak for the entire department. I think we have had a
lot of back and forth on this bill, we feel pretty comfortable
where it is. There are some technical issues we want to work
through with your staff on section 7.
Senator Cortez Masto. And that is the only section that you
have concerns or technical concerns about?
Mr. Toulou. Yes.
Senator Cortez Masto. Thank you.
Mr. Addington, Savanna's Act, do you have any concerns
about Savanna's Act at all? Do you support it?
Mr. Addington. Yes, we support it. We don't have any
concerns at this time.
Senator Cortez Masto. Thank you. So let me then talk about
the Not Invisible Act. Mr. Toulou, let me jump back to you.
In your testimony, you said the Department of Justice would
like to work with the Committee on language in the bill, the
Not Invisible Act, to ensure it achieves its stated goals. What
it is trying to do is create the advisory committee and create
a point person within the Bureau of Indian Affairs. What is
your concern that it won't achieve its stated goals?
Mr. Toulou. I think we have a complicated process where we
work with other agencies and we have special responsibilities
and duties at the Department of Justice. We coordinate well
with the Department of Interior. But who is coordinating those
activities outside the department and is the forward-facing
face of the department is something we want to talk to you
about, and how that gets done?
In the U.S. Attorney's offices, for instance, the U.S.
attorneys are the chief Federal law enforcement in that area.
We want to make sure that the existing, and the largely
successful, understanding their issues, processes for
communicating with our law enforcement partners are preserved
in a way we can move forward.
Senator Cortez Masto. Is that type of activity not
happening now?
Mr. Toulou. Yes, it is.
Senator Cortez Masto. So it is happening.
Mr. Toulou. We are talking, and I think Charlie and I have
a good relationship, the people in the field have a good
relationship.
Senator Cortez Masto. So this would be just a codification
of what you are already doing.
Mr. Toulou. I think the way it is structured is different
than what is already going on, particularly having the
coordinator within the Bureau of Indian Affairs.
Senator Cortez Masto. Okay. So what it is really doing is
looking to not only coordinate the agencies, but looking at
best practices and bringing in our Native communities to be a
part of that discussion. Do you have concerns about that at
all?
Mr. Toulou. We don't have concerns as far as working with
Native communities on these issues. We would, I think, want to
talk to you about how the bill is structured. I can't speak for
the entire department, but there were a lot of moving pieces in
that bill. We think the intent of the bill, and I think I said
that in my testimony, is something we applaud and support. But
this is a bill that I think we would really like to sit down
and talk with you about.
Senator Cortez Masto. So what I would prefer, and we had
asked back in March to get information from both of the
agencies to go through this, and we haven't received any
response until today, and what I am hearing is that you have
some concerns about the structure, but that doesn't give me
specifics. That is what I am looking for. So can I get a
commitment from you that within the next couple of weeks you
will sit down with us to identify your concerns in the Not
Invisible Act so we can address those?
Mr. Toulou. Yes, I would be happy to talk to you.
Senator Cortez Masto. And Mr. Addington, the same?
Mr. Addington. Absolutely. I think we have already been in
contact with someone from your staff to do that.
Senator Cortez Masto. I appreciate that. Thank you very
much.
Let me jump over then to Chief Justice Demmert and Ms.
Malerba. Thank you so much for being here. Let me just say, I
don't disagree with anything that you have said. You are living
it every single day. We have really a responsibility here at
the Federal level to address every single concern that you have
talked about.
I can tell you, somebody that was on the ground, as the
attorney general, working with our tribal communities in
Nevada, this is something that is happening across the Country.
Everybody should be outraged; everybody should be looking to
address. And when I say everyone, not just us here in Congress
that are Federal agencies. On a local, State, everybody should
be working with you to address this issue and making sure that
we are all communicating and talking to one another, and
listening.
So I cannot thank you enough for being here. I support this
legislation. Thank you for the feedback. If you have any other
feedback or any other ideas or issues that we should be
addressing here at the Federal level, I look forward to talking
with you. Thank you again for being here.
The Chairman. Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman.
Mr. Toulou, I want to begin with you. You indicated in your
testimony that you felt that the engagement from members on
these matters in front of us was unprecedented, unprecedented
engagement. You mentioned a sense of urgency that the Attorney
General has placed on addressing these issues of public safety
and the crisis.
I would ask those of you within the Department of Justice
and within the Department of the Interior, let's have an
unprecedented engagement, not just amongst the members. I am
looking forward, and am working with Senator Cortez Masto as we
work on not only Savanna's, but on Not Invisible, and all these
others, we need unprecedented engagement. Because the urgency
of this situation is just not as to these bills: it is bigger,
it is broader.
So I want to take my question with you. The visit that the
Attorney General had, that you have had, really, it makes clear
that the system that we have in place in Alaska to provide
basic public safety is just not working for so many Alaskans.
We know that we have to be working together with the tribes,
the local residents, the State, the Federal level.
You have noted that you see the overlap in these five
bills, that is good. I appreciate what you have said, that we
need to have a renewed commitment to improving public safety in
Indian Country and Native villages.
But back home, I am wondering, as they saw not only the
buildup to the Attorney General's office played out in the
evening news, and in the newspapers, they saw what happened on
the ground, they saw the discussions, the expectations are
high. Certainly our staffs are working, but what can you say
publicly is happening within the Department of Justice in terms
of next steps? I am talking with my friend, Mr. Moran here, as
the chairman of the CJS subcommittee. I am saying, Jerry, we
need to make sure that these programs that you have oversight
on, that they are going to be working to address some of the
challenges that the Attorney General and that you have seen.
Can you give me any specifics here today?
Mr. Toulou. I should not steal my boss's thunder as these
things come out, but he has been working, and tasked us to
work, since we have been back, we have met on at least a weekly
basis. I have reached out to the tribal partners up there,
particularly the AVCP and TCC about how we can provide better
support to the field.
I expect we will see something coming out in the next few
weeks. He was very concerned about law enforcement resources.
He has asked us to look at that very closely. We will be
talking to the U.S. Attorney later this week about matters we
can take in hand.
I understand the urgency, and I understand that people want
to see a reaction. We wanted to make sure this trip wasn't just
a photo opportunity and we thank you for your support in making
it a meaningful opportunity. We intend to take meaningful
action.
Senator Murkowski. And know that, again, as he works to
roll things out, you have a lot of folks who are willing to
work with you. We are going to need all of us to address this.
Next question is also to you, and specific to Alaska. I
mentioned the pilot program that Congressman Young has included
in the House VAWA bill. This is the Alaska pilot. Is DOJ
supportive of this concept?
Mr. Toulou. We understand that much of the jurisdictional
issues that Alaska has is not similar to other areas.
Senator Murkowski. Right.
Mr. Toulou. We see this as an opportunity to work on that.
We would like to talk to you about it, but it does seem to us
to be a very good option for discussion.
Senator Murkowski. Well, we do want to talk to you about it
and I think the statements that have been made in the past
about support for existing special domestic violence
jurisdiction, there has been kind of a measured response and
concern about the judicial aspect. You wanted to know that it
has been supported; it is going to be supported in the courts,
we understand that you have reiterated that again. But I think
we know we have a unique situation in the State of Alaska. You
recognize it, the Attorney General recognizes it.
Justice Demmert, I want to thank you for your comments and
reiterate what Senator Cortez Masto has said. Thank you, not
only for your input as it relates to the situations with Alaska
tribes, but your leadership within NCAI and your work on the
VAWA task force.
As you have heard, and you know, I am supportive of
establishing the pilot for the exercise of the special domestic
violence criminal jurisdiction in the State. You have mentioned
the statistics. Over 250 percent, Native women over-
represented. So our statistics almost shock the conscience.
Then when you look at the level of public safety, knowing that
one in three communities in the State of Alaska have no local
law enforcement. For those who are sitting behind you, let me
say it again, one in three communities in the State of Alaska
have no local law enforcement. That means no State troopers, no
VPSOs, no TPOs, tribal police officers. We have a situation
that is just not sustainable.
Then of course what you have is, in these communities that
don't have law enforcement, that can't be reached by the road,
you have four times as many sex offenders that are there per
capita than the national average. Why is that? Well, because
they know they are home free. They can live the life of a
perpetrator, knowing that nobody is going to be able to
prosecute them.
So this is more of a thank you to you for the effort that
you are doing. But know that we have work to do with the VAWA
legislation moving forward. I know that the narrowness of the
VAWA 2013 is an ongoing source of frustration for implementing
by the tribes. We know we have some gaps that we need to fill.
There is legislation out there that would allow for
expansion to crimes against children, law enforcement officers.
I think that is a specific piece of it. But know that this is a
time for us to address the deficiencies that we know exist with
VAWA 2013. So we want to work with you on that.
Mr. Chairman, my time is well over, and we have votes. I am
going to try to come back, though, because these are big
issues. Thank you all for your testimony here today.
Senator Udall. [Presiding] Thank you, Senator Murkowski.
Chief Malerba and Chief Justice Demmert, in 2018, the
National Congress of American Indians published a report on
lessons learned from the first five years of VAWA 2013 tribal
jurisdiction. Notably, tribes reported that about 58 percent of
domestic violence they deal with involved children, yet
children are not protected under the 2013 Tribal Special
Domestic Violence Criminal Jurisdiction provisions.
Have either of you seen the impact of this jurisdictional
gap on Native communities? Chief, why don't you start?
Ms. Malerba. Absolutely. What you see is there is a term,
my background is nursing. So there is a term called ACEs, and
it is Adverse Childhood Events. What happens is that affects
that child right throughout their entire life. You see more
substance abuse, you see less achievement in school, you see
children that will then also become perpetrators, because that
has been their way of life.
So it is something that is pervasive. It not only affects
that child, but it affects the next generations, and it affects
the entire family. So this is something that needs to be
corrected, it just can't continue to be sustained.
The Chairman. Great. Thank you. Chief Justice?
Ms. Demmert. Yes, I would echo those comments. One of the
implementing tribes in NCAI's five-year report says that an
Indian woman who was assaulted and raped by the non-Indian
father of her children, the couple's eight-year old son
disclosed in his statement to police that he was punched in the
face by his father. That is not an unusual situation. Children
are in the home. Very often, we look at law enforcement and
medics as being the first responders. Our children are really
the first responders. They are the ones who are in the home
when these situations are happening.
The rate is about 60 percent of the cases involve children
in our Special Domestic Violence Court Jurisdiction cases. To
not have those cases picked up by any other authority is just
really a tragic situation that fuels the perpetrators and
emboldens them to commit these crimes. Thank you for the
question, Senator Udall.
Senator Udall. Thank you. According to the data I have
seen, some of the most dangerous calls police respond to are
related to domestic violence and domestic disturbances. One of
my home State tribes, the Navajo Nation, has had five of its
police officers die in the line of duty since 2011. Three of
those deaths were related to domestic violence incidents.
Mr. Addington, does BIA have any data on the total number
of OJS and tribal officers assaulted or killed in the line of
duty as a result of domestic disturbance calls?
Mr. Addington. Thank you for that question, Chairman. We
don't have specific data just on domestic violence calls, but
we do have the data on the number of officers, tribal officers
or officers in Indian Country, that have been assaulted. In
just over the last eight years, it is about 5,150 officers that
have been assaulted in Indian Country, a very high number.
A lot of these are responding to domestic violence calls.
When they get there, responding to domestic violence calls, it
is one of the most extremely dangerous calls that an officer
will go on. Because when they get there, things have already
escalated to the point where someone has to call law
enforcement. So you have one or both parties that is already
agitated, and sometimes they become aggressive toward the law
enforcement officer.
So we try to tailor our training as well to these types of
calls in rural settings, because the officers are responding to
these calls with little or no backup. That is what we are
trying to mirror our training, tailor it to those types of
calls and try to expand our training footprint, not only
throughout the United States and put in more training for the
tribes up north. We already have our Indian Police Academy down
in New Mexico as well. So we are trying to expand those
training opportunities, so we can get it out to the field, get
those officers trained, as times change, and they are
responding to more violent calls.
Senator Udall. Do you think it makes sense for tribal
jurisdiction to be able to be assumed over these kinds of law
enforcement assaults that we are talking about?
Mr. Addington. Absolutely. Absolutely. Our tribal law
enforcement out there is some of the best law enforcement. I
would put them up against anyone in the Nation. They are
extremely talented law enforcement officers. But they are
sometimes put in rural areas where they have little or no
backup and they deal with it every day. These calls are
extremely dangerous that they go on. Lots of domestic violence
calls in Indian Country. So we need to give them the tools and
the training so they can make sure that they are keeping it as
safe as possible out there.
Senator Udall. And my additional point was tribal courts,
and what this legislation does give them authority to
prosecute, assaults against law enforcement officers.
Mr. Addington. Absolutely.
Senator Udall. Yes. Senator Daines.
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Senator Udall.
I want to thank you all for coming here today as we
continue to work to put an end to the missing and murdered
indigenous women crisis. As I travel around Montana, I often
hear, too often, that it takes up to two weeks to receive
reports of missing family members, because of inefficient law
enforcement. I also know many of these horrendous crimes in
Indian Country are related to substance abuse, meth, alcohol,
other.
That is why today I am introducing two bills to address
both these issues, both supported by tribal communities in
Montana. First, the Finding and Investigating Native
Disappearances Act, or the FIND Act, would help improve trust
between tribal families, law enforcement and other agencies so
that reporting from families in Indian Country will increase.
It also confronts the impacts of meth and other drugs on
violent crimes in Indian Country and will help ensure that
tribes and Congress fully understand this tragic connection
between the two.
I also introduced the Tribal Accountability and Reporting
to Congress Act, or the TRAC Act, which would require the
tribal liaisons at the U.S. Attorneys' offices to provide
Congress with an annual report on incidences of missing and
murdered people in Indian Country. This transparency and
accountability will compel Federal law enforcement to
prioritize this growing crisis and hopefully will save lives.
Mr. Addington, does the Office of Justice Services at the
BIA have a specific program to put in place to work on building
trust in the community so that families feel more confident and
more comfortable coming to law enforcement?
Mr. Addington. Thank you for that question, Senator. We do
have community policing programs that we do training to tribal
officers to try to engage them with the tribal communities, to
make sure that officers are not just someone that you see in
the car driving by, they are actually getting out and getting
in touch with the communities that they work in. In some areas,
it depends on the level of participation.
Senator Daines. Is there room for improvement?
Mr. Addington. There is always room for improvement, and a
lot of times what we see is the tribal officer just doesn't
have the resources. They are too busy going on calls, rather
than to do something proactive.
Senator Daines. My question is, would you work with me on
this FIND Act, to help address these shortcomings?
Mr. Addington. Absolutely.
Senator Daines. The most vital resource in any missing
persons case is time. We simply have to find ways to increase
trust between our tribal communities to ensure we protect this
very valuable resources. Thank you, Mr. Chairman.
Senator Udall. Thank you very much, Senator Daines.
Let me ask Chief Malerba, I recently spoke on the Senate
Floor about an incident on the Eastern Band of Cherokee Indian
Reservation where a non-Indian individual charged with beating
and strangling his girlfriend assaulted a corrections officer
after his arrest. The tribe referred this case for Federal
prosecution, but the U.S. Attorney's office ultimate dropped
the case.
Chief, do you believe that tribes need the authority to
hold domestic violence defendants accountable if they assault
tribal justice personnel during the course of their arrest,
trial or incarceration?
Ms. Malerba. Thank you, Senator Udall. I absolutely believe
that the tribes have jurisdiction and should have jurisdiction
no matter who is committing the crime on our reservation. In
fact, the statistic is that 96 percent of assaults on
reservations occur and are perpetrated by non-Natives.
Connecticut would no longer be responsible for jurisdiction
for a crime committed in Rhode Island by a Connecticut citizen.
So why wouldn't it be the same for Indian Country, to be able
to prosecute the crimes that happen within their territory? We
have the resources. We have the ability. And I think that it is
time that our sovereignty has been recognized in just that way.
I really appreciate your asking that question.
Senator Udall. Great. Thank you for that answer.
Mr. Toulou, what does the Department of Justice's research
into officer assaults and fatalities tell us about the dangers
of responding to domestic disputes?
Mr. Toulou. Unfortunately, I can't respond to the specifics
about the report. I can get back to you on that. I will say
that as a former assistant U.S. Attorney who used to do
domestic violence cases, I knew from the officers I dealt with
that one of the most dangerous calls they could take was a
domestic violence call. It was frightening, and the work they
do is amazing.
So I will get back to you on that issue, but we understand
it is an issue.
Senator Udall. Thank you. Give us a good answer for the
record, that will be terrific. Thank you.
The BADGES for Native Communities Act seeks to remove the
barriers that prevent the BIA from getting trained officers out
in the field, as well as provide officers who are already out
in Native communities with the resources, they need to keep
doing their jobs effectively. Section 204 of my bill would
require the Departments of Justice and Health and Human
Services to work with BIA's office of Justice Services to make
certain BIA and tribal police departments have access to
Federal resources for PTSD and other line of duty related
mental health traumas they might encounter.
Mr. Addington, do your officers and tribal officers need
additional mental health resources to address on the stress
they encounter in the line of duty and do you believe access to
more culturally appropriate resources would decrease officer
burnout?
Mr. Addington. Thank you for the question, Senator. I
absolutely believe it will decrease officer burnout. Our police
officers in Indian Country, they are work in a very, very
stressful, dangerous environment where they respond to a myriad
of calls involving a lot of visual trauma to adults and
children. Officers a lot of times, this causes PTSD or
depression or anxiety, or as they work a lot of hours without
days off just because of shortage. And there is not any real
counseling or services out there for those tribal officers.
I talked to one of the tribes in your district, and they
were asking me, look, we have to drive a long way just to
contract services with a counselor in another town, a long way
away. And that is unacceptable. Officers need to have those
resources at their fingertips. And it needs to be culturally
appropriate. Just bringing someone in, we have tried it in the
past, we would bring a contractor in to talk to some of our
officers. And of course, they come in and say the wrong thing
and offend someone, the officers are not going to talk to those
folks.
So we do need the resources out there. We don't have them.
We have a peer support group that goes around after we have
officer involved shootings or traumatic incidents. But that is
after the fact. We need some mental health first aid for our
folks, so they know who to call if they need something and get
that support.
Senator Udall. Would BIA support having the Department of
Justice and HHS assistance in building up these resources?
Mr. Addington. Absolutely. I have, with the assistance of
the Administration of Native Americans Commissioner, we have
already been in a few calls with SAMHSA about resources as
well. I welcome any support from any programs that we can get
as much help for our officers out in Indian Country that we
can. It is a much-needed resources.
Senator Udall. Yes. Mr. Toulou, do you have any thoughts on
the role of the Department of Justice in this?
Mr. Toulou. I know that the department, through the Office
of Justice Programs, has funds available for tribal officers. I
am not sure how they interface with another Federal agency, but
these are Federal partners. We understand the stress that is on
them. I would be willing to talk to BIA after this and the
folks back in our grant-making components, and figure out if
there are any compatibility issues. Because it is an important
need.
Senator Udall. Great. Thank you. The 2017 Indian Country
Investigations and Prosecutions Report from the Department of
Justice says that the declination rate has been relatively
steady at 37 percent. In April, I received a letter from 16
former U.S. Attorneys expressing their full support for the
Native Youth and Tribal Officer Protection Act, and linking the
disproportionately high rates of violent crime in Indian
Country to this near-static Federal declination rate.
So I would like to add this letter to the record, and
without any objection, I would see that it has been added.
Reading from the letter now, they note that, ``Too often,
United States Attorneys offices with jurisdiction declined to
prosecute a non-Indian perpetrated crime committed on tribal
lands. The fact that many violent crimes committed against
American Indians are never prosecuted is contributing to the
high rates of violence Native women and children face.'' These
former U.S. Attorneys go on to stress that restoring tribal
jurisdiction over crimes against tribal law enforcement and
children, like S. 290 proposes to do, is critically important.
So Mr. Toulou, as a former assistant U.S. Attorney in
Montana, do you agree with your colleagues that the low
prosecution rates are linked to higher rates of violence in
Indian Country?
Mr. Toulou. I think the more we can do with prosecutions,
the better. That is going to probably have positive results on
what happens in Indian Country moving forward.
Senator Udall. Yes. And I know you gave testimony in 2016
before the Committee, and you said too many cases of domestic
violence and dating violence committed by non-Indians against
their Indian spouses and dating partners went unprosecuted and
unpunished. As a result of this jurisdictional gap, as well as
other factors, Native American women have suffered some of the
highest rates of violence at the hands of intimate partners in
the United States. So you, I think, stated it pretty strongly
there.
Chief Justice Demmert, do you agree that restoring tribal
jurisdiction over violent crimes like those covered by S. 290
and S. 288 is necessary to get known violent offenders off the
streets of Indian Country before their dangerous behavior
escalates to deadly levels?
Ms. Demmert. Absolutely. We need to have all the tools that
our Federal and State counterparts have, and the ability to
prosecute. So we need that authority and resources to combat
these issues. And authority is to describe the jurisdiction in
a way that is meaningful and doesn't provide loopholes to these
perpetrators who seem to just understand those problems in our
ability to hold them accountable. So thank you for the
question, but absolutely.
Senator Udall. Mr. Addington, the Tribal Law and Order Act
of 2010 requires the BIA to submit an annual report to Congress
on the unmet staffing needs of law enforcement, corrections and
tribal court programs. The 2017 annual report reflects the
BIA's direct service law enforcement program's staffing, but
leaves several open questions. Mr. Addington, for example, what
are the current national and regional law enforcement vacancy
rates for BIA, and does the department track officer attrition
rates or causes?
Mr. Addington. Thank you for that question, Senator. Yes,
our direct service programs and tribal law enforcement programs
across the Nation may vary anywhere still from 1.8 to 3.2
officers per 1,000 residents. A lot of that is attributed to
being able to get law enforcement officers recruited and get
them through the background. Of course, the BADGES will help us
with that, because that is one of the biggest obstacles we have
under the Tribal Law and Order Act. We do have to do tribal
backgrounds for tribal law enforcement officers if requested by
the tribe, the BIA has to do those.
So getting them through a background process and getting
them boots on the ground quicker, we do track, if we do have
folks that leave, if we can do an exit interview with them, if
it is not something abruptly, and then we do track why they
left, and an attrition rate, to say, okay, why are you leaving.
We have a lot that leave just because of working long hours and
then family issues as well, which has contributed to some of
the things that they go through as law enforcement officers.
Senator Udall. Yes. Chief Justice Demmert, do you have any
recommendations for how Congress might improve the usefulness
of BIA's Law Enforcement Unmet Staffing Needs report?
Ms. Demmert. Well, interestingly, we really don't have BIA
law enforcement in Alaska. So give us some of those staff, and
that would greatly improve a lot of our situation.
As you heard Senator Murkowski say, one in three or nearly
40 percent of our communities lack any law enforcement
whatsoever. Because of how P.L. 280 has been funded and
applied, many of the law enforcement and tribal court resources
fail to reach us in Alaska. We would really like to see that
change.
So we thank you for the question. I just want to say, if I
could, about the declination issue, our tribal liaisons are
working very hard to meet the requirements of their jobs, which
includes training and education, as well as prosecuting cases
that may be all around the State, and many hours away. It is no
wonder that the declination rate is so high, and that they are
unable to reach the communities that they need to.
So again, getting back to your original question to me
about would this benefit our communities, having this improved
jurisdiction, absolutely. Because no one is doing it,
especially in Alaska. We have so many crimes that go
unprosecuted and uninvestigated. So we look forward to these
improvements in the jurisdictional components of both of those
bills. Thank you very much, Senator Udall, for the question.
Senator Udall. We are in the middle of back and forth in
votes and everything, so from everything we can tell, everybody
has asked all their questions. There will be, from what you can
tell, no more questions today. I want to remind all of you that
the hearing record will be open for two weeks. We really
appreciate your time and effort here.
With that, the hearing will be adjourned. Thank you.
[Whereupon, at 4:08 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of the National Indigenous Women's Resource Center
On behalf of the National Indigenous Women's Resource Center
(NIWRC), we are pleased to provide testimony to the Senate Committee on
Indian Affairs on Savanna's Act, the Justice for Native Survivors of
Sexual Violence, the Native Youth and Tribal Officer Protection Act
(NYTOPA), the Not Invisible Act, and the Bridging Agency Data Gaps &
Ensuring Safety for Native Communities Act (BADGES). NIWRC is also
using this opportunity to urge the Committee to support bringing the
House version of the Violence Against Women Act (VAWA), H.R. 1585, to a
vote on the Senate floor.
NIWRC is a Native nonprofit organization that was created
specifically to serve as the National Indian Resource Center (NIRC)
Addressing Domestic Violence and Safety for Indian Women. NIWRC is
dedicated to reclaiming the sovereignty of Native Nations and
safeguarding Native women and their children. Through public awareness
and resource development, training and technical assistance, policy
development, and research activities, we provide leadership across the
Nation to show that offenders can and should be held accountable and
that Native women and their children are entitled to: (1) safety from
violence within their homes and in their community; (2) justice both on
and off tribal lands; and (3) access to services designed by and for
Native women based on their tribal beliefs and practices.
The National Institute of Justice, through the USDOJ, released an
alarming study in May 2016, \1\ confirming what many of us working to
protect Indian women and children already knew. American Indian and
Alaska Native (AI/AN) women experience severe rates of violence in
their lifetimes, including:
38 percent who were unable to receive necessary services,
including medical care and legal services
56.1 percent have experienced sexual violence;
55.5 percent have experienced physical violence by an
intimate partner;
48.8 percent have experienced stalking; and
66.4 percent have experienced psychological aggression by an
intimate partner.
These are not just statistics. These numbers represent the lived
experiences of many Native women. Continued systemic change is needed
if we are to address this violence in a meaningful way for AI/AN women.
It is in these numbers that we see the effect of the devastatingly
complex legal framework and various intersections that Native survivors
of this violence must confront. It is also in these numbers that we are
able to fully grasp the failure of the Federal Government to completely
fulfill its federal trust responsibility to Tribes and Indian people.
The Federal Government is obliged under the doctrine of trust
responsibility to Tribal Nations, as the United States ``has charged
itself with moral obligations of the highest responsibility and trust,
. .. to the fulfillment of which the national honor has been
committed.'', \2\ This trust relationship originates from the hundreds
of treaties and other agreements that the United States government
entered into with Tribal Nations., \3\
Current System Response Inadequate
As the Committee is aware, there are countless examples of missing
and murdered Native women and children where insufficient resources and
lack of clarity on jurisdictional responsibilities have exacerbated the
efforts to locate those that are missing.
In 2006, Vicky Eagleman went missing, just after the 2005
reauthorization of the Violence Against Women Act and inclusion of the
historic Title IX Safety for Indian Women. It really seemed change was
coming. The events that took place over the days following Vicky's
disappearance, however, made clear that all of the changes won through
VAWA fell short of what was needed. June Left Hand, Vicky's mother,
reported her disappearance. Deep within her, June felt strongly that
something was wrong. When she called the BIA, their response was:
``Vicky was off partying, don't worry Vicky will show up, she ran off
with a biker to Sturgis.'' The lack of response and regard for a
missing Native woman was unacceptable then, and it is unacceptable now.
The response has always been slow and ineffective. 27 days later,
community members found Vicky's body, and 13 years later, the case
remains unsolved with no one held accountable for her murder.
Her disappearance created a sinking feeling that it would take
decades, lifetimes--even generations--to overhaul this system that has
never protected Native women, and that many more lives would be taken
before the Federal Government would take action to right this wrong.
In 2013, Malinda Limberhand, on the Northern Cheyenne reservation,
also tried to report her daughter Hanna Harris as missing. The
similarities in the response--or lack of response--from law enforcement
between Vicky and Hanna are so close that it is a gut punch. Malinda
was told, ``Hanna is just too scared to come home.'' Like June, Malinda
was told she could search for Hanna herself. And, like in Vicky's case,
Malinda and the community did find Hanna, but it was too late.
NIWRC has covered the crisis of MMIW consistently over the years,
since 2008, through our quarterly publication Restoration. The outrage
of the families, the Tribes, and so many others across the United
States and the world has finally elevated this issue from a local to a
national level, and from an issue most treated as merely a family
responsibility to an issue many now recognize as one of Congressional
and United Nations' responsibility. Now that the injustices are in the
public's eye, has the response of the system changed? The answer is a
resounding no, it has not changed. Kimberly Loring Heavy Runner's
recent testimony before the Senate Committee on Indian Affairs hearing
on MMIW described the same failures in her sister's disappearance and
murder., \4\ Ashley Loring Heavy Runner went missing June 12, 2017, on
the Blackfeet Reservation. The family received the same response
Malinda and June received. They were not taken seriously and told:
``Ashley is of age and can leave whenever she wants to.''
From Vicky's disappearance on July 28, 2006, to Hanna's
disappearance on July 4, 2013, to Ashley's on June 12, 2017, little has
changed, and the system's failed response remains the same.
During this period of more than a decade, it is apparent that not
much has changed; hundreds of Native women and girls have gone missing
and have been murdered.
The current system response is inadequate and the rate at which we
are losing Native women is unacceptable. NIWRC calls on this Committee
and all of Congress to provide a deeper and broader response to the
crisis of MMIW. In 2018, the U.S. Commission on Civil Rights released
the Broken Promises Report, \5\ which continued to affirm the need for
the Federal Government to fulfill its trust responsibility with
appropriate allocation of resources to law enforcement and Tribal
Nations. MMIW and the perpetuation of injustice impacting Native women
disproportionately reflects the lack of resources available to Tribes
to provide victim services and justice and the failure of local, state
and federal responses to these crimes. NIWRC is committed to working
with federal lawmakers to strengthen local, tribal authority to respond
to these crimes and ensure availability of resources for Tribes.
Addressing the injustices Native women endure adequately will require
reforming the legal framework which diminishes tribal authority. To
truly meet its trust responsibility to assist Tribes in safeguarding
Native women, the Federal Government will have to provide adequate
resources for victims through the tribal advocacy programs they need.
Ultimately, the Federal Government must restore local tribal authority
and jurisdiction.
Challenges Created by Legal Framework
The crisis of missing and murdered Native women in the context of
gender-based violence is the result of legal barriers rooted in the
federal legal framework. This on-going crisis has been raised by tribal
leaders at every VAWA mandated government-to-government annual
consultation since 2006. A strong national response is needed to
respond to the countless reports of missing and murdered Native women
and girls. Tribal Nations and family members continue to witness daily
reports of another sister, mother, daughter, granddaughter, relative,
or community member lost to violence, which sends shock waves across
all of Indian Country.
Although the Supreme Court made clear in Oliphant that Congress has
the constitutional authority to restore the tribal criminal
jurisdiction that the Supreme Court has removed,, \6\ until tribal
criminal jurisdiction over non-Indian perpetrated crimes of murder is
restored, whether a Tribal Government has authority to investigate,
arrest, and/or prosecute when a Native woman is missing depends upon
the Indian/non-Indian status of the offender, the location of the
crime, the nature of the crime, and the status of the land where the
crime was committed. \7\
The consequence of this current jurisdictional quagmire is that,
most times, when a Native woman goes missing on tribal lands and the
local Tribal Government cannot demonstrate that the perpetrator was
Indian-or that the crime took place on lands that qualify as ``Indian
country'' under 18 U.S.C.
1151(a)--then the Tribal Government is without jurisdiction,
although the Federal Government could have jurisdiction, the
Federal Government most often declines to intervene or take on
the case. \8\
The non-existent response of law enforcement leaves the
responsibility of a search effort to the family members or tribal
community. There is no question that the pillars beneath the crisis of
missing and murdered are the restrictions on tribal authority to
prosecute non-Natives for crimes committed on tribal lands and the
severe resource disparity in Indian Country at large. The current legal
framework fails to respond to the abduction, disappearance and murder
of Native women and girls because that same framework was born during
an era of termination of Indian Tribes and a prejudiced belief that
Tribal Nations' responses to such crimes were not just as defined by
Western standards of justice. We often speak of a ``broken system'' or
of legal reform, but the truth is that the legal framework that applies
in Indian Country was not designed to protect Native women and girls.
We know that the restoration of tribal criminal jurisdiction over
non-Indians works. Five years ago, when Congress passed the Violence
Against Women in 2013, the re-authorization of VAWA included a
provision, known as Special Domestic Violence Criminal Jurisdiction
(SDVCJ), that reaffirmed the inherent sovereign authority of Tribal
Governments to exercise criminal jurisdiction over certain non-Indians
who criminally violate qualifying protection orders or commit domestic
or dating violence crimes against Indian victims on tribal lands. \9\
In the six years since VAWA was reauthorized in 2013, over two
dozen Tribal Governments have begun exercising criminal jurisdiction
over non-Indians and several dozen more are in varying stages of
planning to implement the law.
From 2013 to 2018, the implementing Tribes reported making 143
arrests of 128 non-Indian abusers. These arrests ultimately led to 74
convictions, 5 acquittals, and as of 2018, there were 24 cases then
pending. There has not been a single petition for habeas corpus review
brought in federal court in an SDVCJ case. Although some argued, prior
to VAWA 2013's passage, that Tribal Courts would be incapable of fairly
implementing SDVCJ, the absence of even a single habeas petition in the
first five years reveals that those arguments were unfounded and likely
based on prejudice alone. Moreover, for the Tribes that have
implemented SDVCJ, their juries acquitted more often than they
convicted non-Indian defendants. The bias that many previously asserted
should prevent Tribal Nations from arresting and prosecuting non-
Indians simply does not exist.
The National Congress of American Indians has issued a report
summarizing the experiences of the Tribal Nations that implemented VAWA
SDVCJ, showing the true difference that the 2013 Reauthorization has
been making on the ground for Native victims. NIWRC encourages you to
review this report in its entirety as the information, data, and
analysis contained in the report demonstrates that the restored tribal
criminal jurisdiction in VAWA 2013 (SDVCJ) increased public safety for
all of those-both Indian and non-Indian- living on tribal lands and in
tribal communities. By all accounts, it has been an incredible success.
Until or unless the inherent authority of Tribal Nations to protect
their citizens on tribal lands is fully restored, our Native women and
children will not be safe living in their own homes. The restoration of
tribal criminal jurisdiction is a critical and requisite component to
effectively addressing the murdered and missing indigenous women's
crisis in the United States.
Meeting the Federal Trust Responsibility
We applaud the efforts of members of this Committee and other
Congressional champions for demanding accountability and proposing
amendments to federal law to safeguard Native women and their children
and address the injustices of missing and murdered Indian women. NIWRC
is hopeful that these actions are just the beginning of the reforms to
come.
Reforms in Indian Country are rooted in the federal trust
responsibility to assist Indian Tribes in safeguarding the lives on
Indian women. It is imperative that reforms address the entire spectrum
of violence Native women experience--birth to death.
It is critical to have tribal programs in place that provide
meaningful interventions to Indian victims before domestic and sexual
violence, including sex trafficking, escalates to abductions, homicide
or murder. Funding for such services is needed in Indian Country and
urban areas. Less than one-half of all Indian Tribes receive funding to
serve victims of crimes enumerated under VAWA. The vast majority of
Indian Tribes lack any services for victims and many of these Tribes
are geographically isolated in rural or remote areas. Generally, more
funding is available for victim services programs in urban areas than
for Indian Tribes. Many Tribes continue to serve their people wherever
they are located, including urban areas, with what limited resources
they have.
However, the funding for tribal services remains insufficient.
According to the National Institute of Justice, 38 percent of Indian
victims were unable to receive necessary services, including medical
care and legal services., \10\ Resources like the StrongHearts Native
Helpline, a culturally appropriate, confidential service for Native
Americans affected by domestic violence and dating violence, have found
that there is a severe tribal resources disparity that limits how and
what advocacy and justice services Tribal Governments are able to
develop and provide to citizens and non-Indian residents.
This resource disparity is, in large part, due to the fact that
Tribes did not have direct access to the Crime Victims Fund (CVF)
through the Victims of Crime Act (VOCA) until 2018. Though the FY18
Omnibus Spending Bill included a 3 percent set aside for Tribal
Governments, a permanent fix is needed. There must be a government-to-
government funding stream legislatively established for Tribal
Governments accessing the CVF, and DOJ must consult on the best ways to
distribute these direly needed funds to Indian Country.
While Tribes were grateful for the opportunity to access VOCA funds
to improve services in their communities, DOJ failed to consult on the
administration and distribution of the funding; this failure to consult
resulted in funding being returned to the CVF. Of the $133.1 million
appropriated for tribal crime victim services in FY 2018, less than
$100 million of it was disbursed to Tribes as directed by Congress. It
is very concerning that $24 million of appropriated funds were returned
to the CVF. Tribes have worked for years to educate members of Congress
and the Administration about the dire need for victim services in
tribal communities. At every opportunity over the past several years,
Tribes have urged DOJ to administer this funding on a non-competitive,
streamlined basis, in order to ensure that these funds are disbursed
efficiently and equitably in a way that works for the tribal
communities they are intended to serve. DOJ's attempts to administer
this funding to date raises grave concerns about DOJ's capacity to
successfully administer this funding.
In 2019, DOJ unilaterally made the decision to utilize CTAS process
for FY 2019 funding. As such, DOJ received only 59 applications for
funding through the CTAS process, which at most would allow DOJ to
allocate about $29 million of the $167 million available.
Critical resources like the StrongHearts Native Helpline, Tribal
Domestic Violence and Sexual Assault Coalitions, tribally-run or Native
based shelter and sexual assault services, services designed to address
sex trafficking, tribal housing, legal services, comprehensive medical
and forensic services, mental health services, services for Native
children and youth affected by domestic and sexual violence, other
culturally appropriate programs and services, and technical assistance
supporting tribal response development are absolutely vital to any
meaningful response to violence in tribal communities. The current
funding available in Indian Country is inadequate to address these
needs--from the provision of basic, emergency services and responses to
more comprehensive, long term services--the failure to distribute the
funding to Tribal Nations who administer these services and programs
constitutes a breach of the federal trust responsibility to assist
Indian Tribes in safeguarding the lives of Indian women., \11\ Without
adequate federal assistance and improved distribution of existing
resources for Indian Tribes, Indian women will continue to go missing
and be murdered at the highest rates in the country.
Key Policy Recommendations to Improve System Response
NIWRC's technical expertise and experience makes clear that an
effective response to the crisis of missing and murdered Indian women
is inextricably linked to the restoring the inherent authority of
Tribal Nations to prosecute all five of the crimes identified in VAWA
Title IX--domestic violence, dating violence, sexual assault, stalking
and sex trafficking. Native women experience a continuum of violence,
with MMIW at the extreme end of the continuum.
Responding to MMIW is not an issue that can be addressed in
isolation, but rather needs to be seen as one manifestation of the
violence that threatens Native women and girls throughout their
lifetimes. In doing so, the policy recommendations that we put forward
below relate heavily to reforms that are needed in the context of
gender-based violence. NIWRC's response to MMIW centers on following
essential standards of safety: access to local support services for
victims, local authority to respond and hold offenders accountable,
coordination between law enforcement agencies, and access to national
victim services resources.
To achieve these standards, specific reforms are required to
increase protections to safeguard Native women and their children, and
address the injustices of missing and murdered Indian women:
1. Access to local support services: Legislation should focus
on prevention by addressing underlying infrastructure concerns
as represented by tribal leaders, advocates, and survivors. It
is particularly important to address the current housing and
shelter deficiency that exists in tribal communities. To ensure
there is access to local support services, the long-standing
resource disparity faced by Indian Tribes must be addressed.
2. Local authority to respond and hold offenders accountable:
Experts agree that to achieve accountability of offenders, an
immediate, consistent, and appropriate response is required. In
order to be immediate and consistent in tribal communities, the
local Tribal Government must be able to respond. It is
necessary to consider adopting legislation that would
strengthen the local tribal response, including but not limited
to:
a. Closing the non-Indian offender loophole: We urge the
Senate to enact legislation to strengthen tribal sovereignty by
addressing the remaining jurisdictional gaps with respect to
the Special Domestic Violence Criminal Jurisdiction (SDVCJ)
provisions in the Violence Against Women Act (VAWA) by adopting
provisions in VAWA 2019 included in House bill H.R. 1585,
including provisions in the Native Youth and Tribal Officer
Protection Act and in the Justice for Native Survivors Act
House bill, as well as ensuring Tribes in Maine and Alaska are
able to exercise SDVCJ like the rest of Indian Country;
b. Improving tribal access to national crime information
systems: Expand and create a dedicated funding stream to
support permanent authorization for the Department of Justice's
Tribal Access Program (TAP) to ensure that all Tribes have
access to federal Criminal Justice Information Service systems;
3. Coordination between law enforcement agencies: It is
imperative that tribal, federal, and state law enforcement
agencies coordinate their response to cases of missing and
murdered Native women and girls. Coordination includes the
development of local and inter-jurisdictional protocols,
establishing standardized protocols based on best practices, in
consultation with Tribal Governments as mandated by VAWA, and
improving data collection without hampering funding for Tribal
Governments and tribal programs; and
4. Access to national victim services resources: To increase
access to victim resources at the local level, Indian Tribes
must have access to funding resources. Establishing permanent
funding for victim services in tribal communities is key. Set
aside resources for local, tribal responses to MMIW, such as a
permanent tribal Victims of Crime Act (VOCA) set aside for
tribal victim assistance and compensation programs.
When implementation is considered in the context of the 229 Indian
Tribes located in Alaska, these standards require reforms to address
the unique jurisdictional challenges Alaska Tribes face. The proposed
pilot project for Alaska Tribes to exercise SDVCJ over non-Indian
perpetrators committing acts of domestic and sexual violence, as
contained within the House bill H.R. 1585, sets into motion the
beginning of the complex set of reforms required to achieve these
standards of safety.
NIWRC Position on Proposed Legislation
Reauthorization of the Violence Against Women's Act
NIWRC strongly supports H.R. 1585, the ``Violence Against Women's
Act of 2019'' (VAWA), which passed the House on April 4, 2019, and
urges the Senate Committee on Indian Affairs to support bringing VAWA
to the Senate floor.
Since its enactment in 1995, each reauthorization of VAWA, has
resulted in significant victories in support of tribal authority, and
each VAWA reauthorization has secured resources needed for increasing
the safety of Native women across the United States.
1994--VAWA included a 4 percent dedicated funding stream for
American Indians and Alaska Natives Tribes with a statutory
purpose of ``developing, enlarging, or strengthening programs
addressing the needs and circumstances of Indian tribes in
dealing with violent crimes, including sexual assault and
domestic violence, against women;"
2000--VAWA increased the tribal dedicated funding stream
from 4 percent to 5 percent, provided increased clarity
regarding Tribal Court protection orders and enforcement, and
created a tribal coalition grant program;
2005--VAWA included a Safety for Indian Women Title,
recognizing the unique legal relationship of the United States
to Indian Tribes and women. Congress explicitly provided that
the title was ``to strengthen the capacity of Indian tribes to
exercise their sovereign authority to respond to violent crimes
committed against women.'' It authorized the creation of a
single VAWA tribal grant program, increased the tribal funding
to 10 percent generally, created a Deputy Director for Tribal
Affairs, and mandated annual tribal-federal VAWA consultations.
VAWA 2005 also added dating violence as a new purpose area; and
2013--VAWA included a historic amendment affirming inherent
tribal authority over non-Indians committing specific acts of
domestic violence, dating violence or violation of certain
protection orders in the Indian country of the Tribe, provided
increased funding for the tribal coalitions program, and
recognized sex trafficking as a new purpose area under the
tribal grants program.
H.R. 1585 includes important life-saving enhancements that Tribes
and NIWRC have repeatedly called for including:
Addressing Jurisdictional Gaps
Reauthorizes 2013 provisions and expands prosecution of non-
Indians to include obstruction of justice-type crimes, sexual
assault crimes, sex trafficking and stalking;
Recognizes that Native children are equally in need of the
protections that were extended to adult domestic violence
victims in VAWA 2013. The Tribes implementing VAWA 2013 report
that children have been involved as victims in their cases
nearly 60 percent of the time, including as witnesses. However,
federal law currently limits tribal jurisdiction to prosecute
these crimes. H.R. 1585 would recognize tribal authority to
protect our children in tribal justice systems; and
Contains important amendments to ensure Tribes in Maine and
Alaska are able to exercise SDVCJ.
As discussed in their recent analysis of H.R. 1585,, \12\ the DOJ
has expressed support for section 903(5) amending 25 U.S.C.
1304(b)(1) to permit participating Tribes in the State of Maine to
exercise SDVCJ. This provision addresses an omission in the original
legislation, which failed to explicitly mention Maine Tribes, as
required by the Maine Indian Claims Settlement Act.
Addressing Unique Jurisdictional Challenges in Alaska
Creates pilot project for five Alaska Tribes and expands the
definition of Indian country to include ANCSA lands, townsites
and communities that are 75 percent Native.
DOJ has also expressed support for section 903(9) of H.R. 1585,
authorizing a pilot project to allow up to five Indian Tribes in Alaska
to implement SDVCJ.
Improving the Response to Missing and Murdered Native Women and
Girls
Directs the Government Accountability Organization (GAO) to
submit a report on the response of law enforcement agencies to
reports of missing or murdered Indians, including
recommendations for legislative solutions; and
Addresses MMIW off tribal lands by amending the DOJ STOP
Formula Grant Program for states (authorized by 34 U.S.C
10441) to address the lack of victim resources for Native
American women in urban areas and providing for the inclusion
of victim advocates/resources in state courts for urban
American Indians/Alaskan Natives where 71 percent of the Native
American population resides due to federal relocation and
termination policies.
Clarifies that federal criminal information database sharing
extends to entities designated by a Tribe as maintaining public
safety within a Tribe's territorial jurisdiction that have no
federal or state arrest authority.
Dedicated Funding Stream for DOJ's Tribal Access Program
Creates a dedicated funding stream to support permanent
authorization for the Department of Justice's Tribal Access
Program (TAP) to ensure that all Tribes have access to federal
Criminal Justice Information Service systems.
DOJ supports this proposed amendment but also requests an
additional amendment., \13\ The proposed amendment would authorize an
annual appropriation of $3 million to enhance the ability of Tribal
Governments to access, enter information into, and obtain information
from Federal criminal information databases. Since August 2015, the
Department has supported such access through its Tribal Access Program
for National Crime Information (TAP), but has lacked a stable and
consistent funding source for the program, which this amendment would
provide. DOJ also requested that the proposed amendment authorize the
Attorney General to use prior year unobligated balances appropriated
under 34 U.S.C. 20903 (for tribal protection order and sex offender
registries) to support TAP with the following language. NIWRC strongly
supports the proposed amendment DOJ includes in their analysis quoted
below:
``(b)ADDITIONAL FUNDING.--
The Attorney General is authorized to use any balances
remaining under the heading ``State and Local Law Enforcement
Activities, Office on Violence Against Women, Violence Against
Women Prevention and Prosecution Programs'' from prior year
appropriations for tracking violence against Indian women, as
authorized by section 905 of the Violence Against Women and
Department of Justice Reauthorization Act of 2005 (Public Law
109-162), to enhance the ability of tribal government entities
to access, enter information into, and obtain information from,
federal criminal information databases, as authorized by
section 534 of title 28, United States Code. Some or all of
such balances may be transferred, at the discretion of the
Attorney General, to any Department of Justice account, as
needed to support the tribal access program for national crime
information in furtherance of this purpose.''
Addressing the Resource Disparity
Alleviates the costs Tribes incur due to the expansion of
criminal jurisdiction and allows the Attorney General to
reimburse Tribes for costs incurred from implementing SDVCJ.
Violence Against Women's Act 2019 Recommendations: Pass a Senate
bill identical to H.R. 1585 in support of the tribal authority and
resources needed for increasing the safety of Native women across the
United States.
S.277 Savanna's Act 2019
NIWRC appreciates the attention to these issues and would like to
see the Senate version amended to reflect the changes that are included
in the House bill, H.R. 2733, which we support.
The House version of Savanna's Act, H.R. 2733, contains provisions
that amended and corrected errors identified by Tribes and tribal
advocates in the original Senate version of the bill, S. 277, and thus
although NIWRC supports the passage of Savanna's Act, NIWRC's support
currently extends to H.R. 2733. As to both versions of the bill, NIWRC
remains concerned that both lack new funding--a resource that has been
identified as critical to addressing the crisis of MMIW.
Significant changes in H.R. 2733 from the S.277 include provisions
that:
Expand the requirement for the creation of law enforcement
guidelines to all U.S. Attorneys, not just those with ``Indian
country'' jurisdiction, and require such guidelines to be
regionally appropriate;
Require the Attorney General to publicly list the law
enforcement agencies that comply with the provisions of the
legislation (rather than listing those that don't comply); and
Replace the affirmative preference subsections with an
implementation and incentive section that provides grant
authority to law enforcement organizations to implement the
provisions of the legislation and increases the amount of those
grants for those that comply, while removing the preference
provision in S. 277 that will punish Tribal Nations lacking
sufficient resources to implement the guidelines their local
U.S. Attorney creates.
Savanna's Act Recommendations: NIWRC urges the Senate to utilize
H.R. 2733 as a starting point, but we continue to express concerns
regarding the lack of new funds and recommend the Senate address these
concerns in the mark-up of the bill.
The resources under the Act are proposed by allowing Tribes
to use existing, limited funds they currently receive under the
Tribal Governments Grant Program to address the development of
a protocol to respond to MMIW cases.
Current funding under the Tribal Governments Grant Program
is inadequate and does not reach all Indian Tribes. If Tribal
Governments had adequate funds, they would already be
developing such protocols and increased responses.
Thus, funds for the incentives to Tribes complying with
Savanna's Act will be taken from the funds currently received
by all Indian Tribes under the grant program, and without
increased or new funding, the other lifesaving services that
Tribes provide with this grant funding will be reduced.
Indian Tribes need increased, additional resources to
broaden and address the crisis of MMIW. Further stretching of
the existing funds that a Tribe receives, to provide incentives
to others, falls short of ``increasing support'' to Indian
Tribes.
Finally, broadening the purpose areas for these grant
programs does not address the reality or restore the authority
that the Supreme Court's decision in Oliphant decision erased,
leaving Tribes unable to investigate, arrest, and prosecute the
perpetrators who commit the majority of violent crimes on
tribal lands.
S.290 Native Youth and Tribal Officer Protection Act (NYTOPA)
NIWRC strongly supports protecting Native children and law
enforcement personnel involved in domestic violence incidents on tribal
lands. Native children and law enforcement personnel are equally in
need of the protections that were extended to adult domestic violence
victims in VAWA 2013.
The expanded jurisdiction under S. 290, as currently written, will
not benefit the 228 Alaska Indian tribes who are currently ineligible
to exercise Special Domestic Violence Criminal Jurisdiction pursuant to
VAWA 2013. We call on Congress for a jurisdictional fix to the Alaska
Native Indian country issue, and were pleased to see the Alaska Native
pilot project included in the House VAWA bill, H.R. 1585.
We have additional concerns with NYTOPA as written. Amending the
current VAWA 904 to limit the restored jurisdiction to-as drafted in
NYTOPA--crimes that constitute ``covered conduct'' will place many of
our tribal police officers, as well as domestic violence victims, in
harm's way. The current draft of NYTOPA defines ``covered conduct'' as:
(4) COVERED CONDUCT.--The term `covered conduct' means conduct
that--
(A) involves the use, attempted use, or threatened use of
physical force against the person or property of another; and
(B) violates the criminal law of the Indian tribe that has
jurisdiction over the Indian country where the conduct occurs.
Thus, NYTOPA amends the definitions of ``dating violence'' and ``
domestic violence'' in the current VAWA 904, and instead states that
VAWA 904's restored tribal criminal jurisdiction only extends to
``covered conduct,'' which requires ``the use, attempted use, or
threatened use of physical force.''
Tethering restored tribal criminal jurisdiction to this definition
will require Tribes, for jurisdictional purposes, to establish that the
non-Indian perpetrator ``threatened the use of physical force'' before
the Tribe can determine whether the domestic violence crime committed
against the tribal citizen is a crime for which the police officer may
arrest. This ambiguity may seem negligent on paper, but in real life,
our law enforcement officers--especially when answering a domestic
violence call--should not be put in a place where they have to
determine whether a perpetrator's threats or acts of violence
incorporate sufficient ``physical force'' such that they can exercise
tribal jurisdiction and permit the officer to arrest the perpetrator
and protect the victim. Prior to NYTOPA, the definition of ``dating
violence'' and domestic violence'' under VAWA 904 simply referred to
``violence committed by a person who is'' in a specified relationship
with the victim, in line with the understanding that many domestic
violence perpetrators use various means of violence and intimidation
against their victims that do not all fall within the narrowly defined
window of ``physical force.'' \14\
Native Youth and Tribal Officer Protection Act Recommendations: To
address our concerns with regard to Alaska Tribes' inability to
exercise SDVCJ, we urge the Senate to include a provision similar to
the Alaska Native Pilot Project included in H.R. 1585 in both S. 290
and S. 288.
To address our concerns regarding definitions within NYTOPA, we
suggest first amending section 1304(c) ``CRIMINAL CONDUCT'' to include
the following crimes (in addition to the three crimes of dating
violence, domestic violence, and violations of protective orders
already listed: (1) assault of a law enforcement or correctional
officer; (2) attendant crime. Next, we recommend eliminating the
reference to ``covered conduct'' altogether, as well as ``related
conduct,'' and using the following proposed amended definitions
instead:
Amend 25 U.S.C. 1304 to read as follows:
(a) Definitions.--In this section:
(1) Assault of a law enforcement or correctional officer.--The
term `assault of a law enforcement or correctional officer'
means any criminal violation of the law of the Indian tribe
that has jurisdiction over the Indian country where the
violation occurs that involves the threatened, attempted, or
actual harmful or offensive touching of a law enforcement or
correctional officer.
(2) Attendant Crime.--The term `attendant crime' means any
criminal violation of the law of the Indian tribe that has
jurisdiction over the Indian country where the violation occurs
that occurs with, as a result of, or near in time to an act
which there is reasonable suspicion to believe is a crime of
dating violence, domestic violence, violation of a protection
order, sex trafficking, sexual violence, or stalking.
(3) Dating Violence.--The term `dating violence' means
violence any violation of the criminal law of the Indian tribe
that has jurisdiction over the Indian country where the
violation occurs committed by a person who is or has been in a
social relationship of a romantic or intimate nature with the
victim, as determined by the length of the relationship, the
type of relationship, and the frequency of interaction between
the persons involved in the relationship.
(4) Domestic Violence.--The term `domestic violence' means
violence any violation of the criminal law of the Indian tribe
that has jurisdiction over the Indian country where the
violation occurs where
(A) The act is committed by a current or former spouse or intimate
partner of the victim, by a person with whom the victim shares a child
in common, by a person who is cohabitating with or has cohabitated with
the victim as a spouse or intimate partner, or by a person similarly
situated to a spouse of the victim under the domestic- or family-
violence laws of an Indian tribe that has jurisdiction over the Indian
country where the violence act occurs; or
(B) The victim is a child, an individual under the age of
18, or an elder as defined by tribal law who resides or has
resided in the same household as the defendant.
These proposed definition changes would keep NYTOPA more closely
tied to VAWA's purpose and would also encompass attendant crimes,
crimes against cops, and crimes involving threats to court staff,
witness tampering, lying to police, juror intimidation, etc., that can
and do arise during prosecution of VAWA cases. These proposed
definitions would also extend tribal criminal jurisdiction to domestic
violence crimes committed against children, in line with the purpose
behind NYTOPA.
S.288 Justice for Native Survivors of Sexual Violence Act
NIWRC supports the Justice for Native Survivors of Sexual Violence
Act to close another loophole in the SDVCJ provision of VAWA 2013.
Passage of S. 288 will ensure that Tribes have authority to prosecute
sexual assault, sex trafficking, and stalking crimes; however we
express concern that the expanded jurisdiction under S. 288, as
currently written, will not benefit the 228 Alaska Indian Tribes who
are currently ineligible to exercise Special Domestic Violence Criminal
Jurisdiction pursuant to VAWA 2013. We call on Congress for a
jurisdictional fix to the Alaska Native Indian country issue, and were
pleased to see the Alaska Native pilot project included in the House
VAWA bill, H.R. 1585.
Justice for Native Survivors of Sexual Violence Act
Recommendations: NIWRC recommends that the Senate pass the Justice for
Native Survivors of Sexual Violence Act as an important enhancement to
VAWA to hold non-Indian offenders accountable for sexual assault, sex
trafficking, and stalking crimes through the passage of a bill with
provisions identical to those found in H.R. 1585, including the Alaska
Native Pilot Project.
S. 982 The Not Invisible Act
NIWRC supports the Not Invisible Act as a bipartisan bill to
increase national focus on the injustice of missing and murdered
Indigenous women. The increased awareness and attention to the issue of
missing and murdered Indigenous women is long overdue and a critical
first step to fully understanding the injustices and supporting tribal
defined solutions. As affirmed in the 2009 Apology to Native Peoples,
the U.S. recognized that there have been years of official
depredations, ill-conceived policies, and the breaking of covenants by
the Federal Government regarding Indian tribes; and apologized for the
many instances of violence, maltreatment, and neglect inflicted on
Native Peoples. In 2018, the U.S. Commission on Civil Rights released
the Broken Promises Report which continued to affirm the need for the
Federal Government to fulfill its trust responsibility with appropriate
allocation of resources. MMIW and the perpetuation of injustice
impacting Native women disproportionately reflects the lack of
resources for Tribes to provide victim and justice service, as well as
the failure of local, state and federal responses to these crimes.
NIWRC is committed to working with federal lawmakers to strengthen
local, tribal authority to respond to these crimes and ensure
availability of resources for Tribes.
Not Invisible Act Recommendations: NIWRC recommends increasing the
number of elected tribal leaders on the advisory committee to at least
1 per DOI region to ensure that perspectives from across Indian Country
are included.
S.1853 Bridging Agency Data Gaps and Ensuring Safety for Native
Communities Act
NIWRC supports aspects of the Bridging Agency Data Gaps and
Ensuring Safety for Native Communities Act (BADGES), as the NIWRC
acknowledges that database access continues to be of concern, however,
BADGES does not address the lack of access to the extent that is needed
or necessary to effectively address the MMIW crisis.
Addressing Criminal Justice Information System Access Issues
While in the Tribal Law and Order Act of 2010 Congress required the
Attorney General to ensure that tribal agencies that met applicable
requirements would be permitted access to national crime information
databases, the ability of Tribes to fully participate in national
criminal justice information sharing via state networks has been
dependent upon various regulations, statutes and policies of the
respective state in which a Tribe's land is located. Tribes have
learned during implementation of the Tribal Access Program (TAP) that
tribal access is piecemeal and incredibly challenging.
We need a legislative fix that addresses the barriers Tribes face
in accessing the Criminal Justice Information System (CJIS) for
governmental purposes. Currently access may be authorized through
federal statutes providing some access for certain situations to Tribes
and then deferring to state law to define and provide that access. Such
access is difficult for Tribes to map out, determine who at what agency
needs to authorize, develop a process, get User Agreements, Memoranda
of Understandings, or Management Control Agreements in place just to
ensure that those who are employed in positions of trust are safe to be
around sensitive data concerning our most vulnerable populations.
28 USC 534(d) authorizes release of criminal history information to
tribal law enforcement agencies, but doesn't allow release of criminal
information to other tribal agencies for important, legitimate civil
purposes, such as Emergency Placement of Children or ``Purpose Code
X,'' the evaluation of employees that work with elders and vulnerable
adults, etc.
CJIS interprets the appropriations rider language from 92-544 (and
in the notes of 28 USC 534) as a permanent statute that prevents
sharing this information with Tribal Governments. In their view, for
example, criminal history for the emergency placement of children
(Purpose Code X) can only be shared ``if authorized by State statute
and approved by the Attorney General, to officials of State and local
governments for purposes of employment and licensing.''
We need to amend federal law to authorize the sharing of this
information with Tribal Governments for any legitimate purpose.
Report on Indian Country Law Enforcement Personnel Resources and Need
NIWRC agrees that it is important to gain an understanding of
existing personnel resources and case load to truly understand the
needs for increased recruitment of agents. We also suggest including
law enforcement agencies within DOI and other federal agencies that
interface with Indian Country.
Missing and Murdered Response Coordination Grant Program
NIWRC supports the development of new resources for Tribal
Governments to address the MMIW crisis at a local level. We are
concerned with eligible entities for this important new source of
funding. In the definitions section of BADGES, the definition of
``relevant tribal stakeholder'' raises significant concern as it is
inclusive of ``Indian Tribes.'' Indian Tribes, as separate sovereigns,
should never be considered a ``relevant stakeholder'' because they are
eligible for federal funding based on the unique relationship Tribes
maintain with the federal government and the concomitant federal trust
duties and responsibilities that are the result of this continued
relationship.
NIWRC has significant concerns that new funding addressing a tribal
issue is being offered to states and non-tribal national or regional
organizations. New funding to address a tribal issue should first and
foremost be distributed to Tribes as sovereigns. States have had
multiple sources of funding for law enforcement to contribute to this
work without dipping into the limited funding that Tribes have.
Furthermore, the lack of clarity in what constitutes ``represents
substantial Indian constituency'' for a non-tribal national or regional
organization also raises concern. Without clarity, any national or
regional organization could claim that they represent a tribal
constituency.
Bridging Agency Data Gaps and Ensuring Safety for Native
Communities Act Recommendations:
Addressing Criminal Justice Information System Access Issues
The most direct and effective route to improve tribal access to
CJIS would be to simply amend the Tribal Law and Order Act by
renumbering 534(d) and adding a new subsection:
``If authorized by tribal law and approved by the Attorney
General, the Attorney General shall also permit access to
officials of Tribal Governments for non-criminal justice, non-
law enforcement employment, licensing purposes or any other
legitimate government purpose identified in tribal
legislation.''
Another possible solution is to insert on Page 10, line 5, the
addition ``civil'' before ``background checks'' and adding after
``background checks,'' ``if authorized by Tribal law and approved by
the Attorney General.'' It is critical that civil authority be included
to ensure full tribal governmental access.
Report on Indian Country Law Enforcement Personnel Resources and Need
NIWRC recommends the report be inclusive of DOI and other law
enforcement agencies that interface with Indian country.
Missing and Murdered Response Coordination Grant Program
Focus eligibility on Indian Tribes and tribal organizations.
Include Indian Tribes as eligible entities outside of the
relevant tribal stakeholder definition.
Conclusion
As discussed above, the current system response is inadequate and
the rate at which we are losing Native women is devastating to our
tribal communities and to the Nation as a whole. The federal Indian
legal framework is complex and creates many barriers for victims and
Tribes working to protect their citizens. Furthermore, resources are
scarce, and culturally appropriate resources are practically non-
existent. In this context, we appreciate this Committee's work to
improve the system response and ask you to seriously consider the
recommendations set forth in this testimony to further improve each of
these important pieces of legislation. Tribal sovereignty and safety
for Native women are wholly intertwined, and we wish to close by
reminding Congress of their obligation to assist Indian Tribes in
safeguarding the lives of Native women.
Thank you for the opportunity to provide testimony on the crisis
that our Tribal Governments face in protecting our women and children.
ENDNOTES
1. DEPARTMENT OF JUSTICE, NAT'L INST. OF JUSTICE, VIOLENCE AGAINST
AMERICAN INDIAN AND ALASKA NATIVE WOMEN AND MEN: 2010 FINDINGS FROM THE
NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY 26 (May 2016),
https://www.ncjrs.gov/pdffiles1/nij/249736.pdf.
2. United States v. Jicarilla Apache Tribe, 131 S. Ct. at 2324,
citing Seminole Nation v. United States, 316, U.S. 286, 296-97 (1942)
and Heckman v. United States, 224 U.S. 413, 437 (1912).
3. Cherokee Nation v. Georgia, 30 U.S. 1 (1831), Worcester v.
Georgia, 31 U.S. 515 (1832).
4. https://www.indian.senate.gov/sites/default/files/
Kimberly%20Loring%20Heavy%20Runner%20Final.pdf.
5. https://www.usccr.gov/pubs/2018/12-20-Broken-Promises.pdf
6. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) at 206-
212 (``Congress has the constitutional authority to decide whether
Indian tribes should be authorized to try and to punish non-Indians.'')
7. See The General Crimes Act, 18 U.S.C. 1152 (providing that
federal courts have jurisdiction over interracial crimes committed in
Indian country); the Assimilative Crimes Act, 18 U.S.C. 1; the Major
Crimes Act, 18 U.S.C. 1153 (providing federal criminal jurisdiction
over ten enumerated major crimes committed in Indian country that is
exclusive of the states); Public Law 83-280, 18 U.S.C. 1162
(delegating federal jurisdiction to six states over most crimes
throughout most of Indian country within their state borders); Oliphant
v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (holding that Tribes
lack criminal jurisdiction over non-Indian defendants); Violence
Against Women Reauthorization Act of 2013, S. 47, 113th Congress, Title
IX (2013) (expanding tribal criminal jurisdiction to non-Indians for
the crimes of domestic violence, dating violence and the violation of
protection orders so long as the defendant has certain ties to the
community and the tribe provides certain due process protections).
8. From 2005-2009, the Government Accountability Office (GAO) found
that U.S. Attorneys declined to prosecute nearly 52 percent of violent
crimes in Indian country. U.S. GAO, U.S. Department of Justice
Declinations of Indian Country Criminal Matters, Report No. GAO-11-
167R, 3 (2010).
9. 5 U.S.C. 1304.
10. Andre B. Rosay, Violence Against American Indian and Alaska
Native Women and Men: 2010 Findings from the National Intimate Partner
and Sexual Violence Survey. Washington, D.C.: U.S. Dept. of Justice,
National Institute of Justice, 2016, NCJ 249736.
11. 34 USC 10452 Note
12. Administration Comments on H.R. 1585, The Violence Against
Women Reauthorization Act of 2015, page 22. File attached.
13. Administration Comments on H.R. 1585, The Violence Against
Women Reauthorization Act of 2015, pages 19--21.
14. NYTOPA's proposed amendment to VAWA 904s definition of ``dating
violence'' and ``domestic violence'' is all the more concerning now,
given the Supreme Court's recent decisions in Johnson and Castleman
where the Supreme Court, in a separate federal statute, interpreted
``physical force'' to be more narrow than the common law definition of
assault and common understanding of what constitutes ``domestic
violence.'' See United States v. Castleman, 527 U.S. 157 (2014);
Johnson v. United States, 559 U.S. 133 (2010).
______
Prepared Statement of Lacina Tangnaqudo Onco, Congressional Advocate on
Native American Policy, Friends Committee on National Legislation
The Friends Committee on National Legislation urges members of the
Senate Committee on Indian Affairs to support all five bills pertaining
to the public safety of Native communities that will receive testimony
today. We ask that this statement be included in today's hearing
record.
Thank you for receiving testimony today on five paramount bills
which address the violence against Native Americans and Alaska Natives
that currently afflicts Indigenous communities across the nation. The
Indian Affairs Committee has clearly listened to and responded to what
you have heard from Indian Country in order to introduce legislation
that is effectual and constructive. The recent introduction of
B.A.D.G.E.S. (S. 1853) demonstrates the priority that the Committee is
giving to the issue of the advancement of Native public safety.
The Friends Committee on National Legislation supports the passage
of the following legislation: The Justice for Native Survivors of
Sexual Violence Act (S. 288), Savanna's Act (S. 227), the Not Invisible
Act of 2019 (S. 982), the Native Youth and Tribal Officer Protection
Act (S. 290), and Bridging Agency Data Gaps and Ensuring Safety for
Native Communities (S. 1853). These bills ameliorate communications
between tribal and non-Native law enforcement agencies, improve how
homicide and missing persons cases are carried out in Indian Country,
provide protections for children and tribal officers who are also
victims of domestic violence, and honor the memory of these victims
through powerful legislation designed to curb this high prevalence of
violence committed against Indigenous women by largely non-Native
perpetrators.
FCNL has committed itself as a Quaker organization to the
improvement of the historic relationship between tribes and faith
groups while speaking out on current concerns for tribes. Recently FCNL
has advocated for the introduction of a Senate version of H.R. 1585,
the Violence Against Women Reauthorization Act of 2019. We are
particularly supportive of that bill's tribal provisions. It is
essential that non-Native allies support legislation that secures equal
rights for Indigenous peoples. Several of the bills being discussed
into today's hearing were included in H.R. 1585 and have made this
reauthorization of VAWA crucial for the protection of Native women.
This epidemic of violence against Native women must be more than
simply addressed by Congress; it must be acted upon. We urge you to
support these five bills and encourage their passage through the Senate
whether as a part of VAWA reauthorization or as stand-alone bills.
______
Prepared Statement of the National Congress of American Indians
We are pleased to offer testimony on five pending bills aimed at
improving public safety in Indian Country. As this Committee has long
recognized, the system for administering justice on tribal lands is
simply not working. The federal government has drastically underfunded
tribal justice systems for decades. At the same time, under federal
law, the hands of tribal governments to administer justice on their own
lands are often tied, and Indian communities are largely dependent on
the Department of Justice or state law enforcement agencies for
investigation and prosecution of violent crimes and other felonies
committed on Indian reservations. For too long these outside agencies
have had, at best, a culture of apathy toward their responsibilities in
Indian Country. As a result, Native people in the United States are
left with little protection from violent crime and often no access to
justice when they are victimized.
Twelve years ago, the National Congress of American Indians (NCAI)
passed a resolution at its Midyear conference in Anchorage, Alaska, and
provided testimony to this Committee calling for Congress to empower
tribal justice systems to address crime in their communities. This was
followed by several years of hearings and legislative drafting in the
Senate Committee on Indian Affairs. From that resolution, as well as a
great deal of effort from many tribes and the leadership of this
Committee, Congress enacted the Tribal Law and Order Act of 2010 (TLOA)
and set the stage for a partial reaffirmation of inherent tribal
jurisdiction through the Violence Against Women Act Reauthorization of
2013 (VAWA 2013). We recognize your commitment in introducing the
legislation that is the subject of this hearing, and greatly appreciate
your continuing efforts to build on those laws as a partner supporting
and assisting our tribal governments in fulfilling our governmental
responsibilities to our citizens. This testimony addresses each of the
bills included on the hearing agenda.
S. 290, The Native Youth and Tribal Officer Protection Act and S. 288,
The Justice for Native Survivors of Sexual Violence Act
``We'll give you a head start.'' In 2014 a man attacked his
wife in a public parking lot. He bit and hit her in a car. When
she ran out of the car and rushed into a women's restroom to
seek shelter, he followed her and continued to hit, punch, and
kick her. The police were called. In any other case, the man
would have been arrested and charged. But this assault took
place on the Sisseton-Wahpeton Oyate's reservation land and the
Native victim was assaulted by a non-Indian. Under federal law,
neither the tribal nor the state government had jurisdiction to
prosecute the man. So, the tribal and state police who
responded did the best they could do. They held the man in
custody and told the woman they would try to give her a ``head
start.'' Fortunately for the victim during this particular
incident, the non-Indian perpetrator caused enough of a scene
in the presence of the state police that he was arrested for
disorderly conduct, which is considered a victimless crime that
falls under state jurisdiction. Ultimately, after the enactment
of VAWA 2013, Sisseton-Wahpeton Oyate was finally able to bring
the man who beat his wife in the parking lot to justice. When
he beat his wife again, the tribal government was able to
arrest and charge the man with assault. He eventually pled
guilty in tribal court.
We share this story because it demonstrates that the tribal
jurisdiction provisions that were included in VAWA 2013, commonly
referred to as Special Domestic Violence Criminal Jurisdiction (SDVCJ),
are making a real difference for victims in Indian Country. Quite
simply, that change in the law is saving lives. Since passage of VAWA
2013, NCAI has been providing technical assistance to the tribes who
are implementing the law. Through this work, we have witnessed the ways
in which the reaffirmation of inherent tribal jurisdiction has
transformed safety for some victims in Indian Country and also the ways
in which it falls short. We have included as an attachment to this
testimony a detailed report that analyzes the impacts of VAWA 2013's
landmark tribal jurisdiction provision in the six years after its
enactment.
Our examination of the tribal nations' early exercise of SDVCJ
demonstrates that the law has enhanced the ability of tribal
governments to combat domestic violence perpetrated by non-Indians on
tribal lands, while at the same time protecting non-Indians' rights in
impartial, tribal forums. \1\ As the above example from Sisseton-
Wahpeton illustrates, by exercising SDVCJ, many tribal communities have
increased safety and justice for victims who had previously seen little
of either. Implementation of SDVCJ has had other positive outcomes as
well. For many tribes, it has led to much-needed community
conversations about domestic violence. For others it has provided an
impetus to more comprehensively update tribal criminal codes and court
processes. Implementation of SDVCJ has also resulted in increased
collaboration among tribes and between the local, state, federal, and
tribal governments.
---------------------------------------------------------------------------
\1\ See Angela R. Riley, Crime and Governance in Indian Country, 63
UCLA L. REV. 1564, 1572 (2016) (``[I]mplementation has been a success
in several respects. Tribes have provided defendants with the requisite
procedural protections, and the preliminary data reveal that the laws
are improving the safety and security of reservation residents.'').
---------------------------------------------------------------------------
Implementation of VAWA 2013 has also revealed, however, places
where the jurisdictional framework continues to leave victims--
including children, law enforcement, and victims of sexual violence,
stalking, and trafficking--vulnerable.
The tribes implementing SDVCJ report that children have been
involved as victims or witnesses in SDVCJ cases nearly 60 percent of
the time. These children have been assaulted or have faced physical
intimidation and threats, are living in fear, and are at risk for
developing school-related problems, medical illnesses, post-traumatic
stress disorder, and other impairments. \2\
---------------------------------------------------------------------------
\2\ See U.S. Department of Justice, ATTORNEY GENERAL'S ADVISORY
COMMITTEE ON AMERICAN INDIAN AND ALASKA NATIVE CHILDREN EXPOSED TO
VIOLENCE, REPORT OF THE ADVISORY COMMITTEE ON AMERICAN INDIAN AND
ALASKA NATIVE CHILDREN EXPOSED TO VIOLENCE: ENDING VIOLENCE SO CHILDREN
CAN THRIVE (Nov. 2014).
---------------------------------------------------------------------------
Like many state codes, many tribal codes define ``domestic
violence'' to include crimes committed against children by their
caregivers or others in the household. \3\ Federal law, however,
currently limits SDVCJ to crimes committed only against intimate
partners or dating partners, and tribes are therefore unable to
prosecute crimes involving children against non-Indian offenders. The
common scenario reported by tribes is that they are only able to charge
a non-Indian batterer for violence against the mother, and can do
nothing about violence against the children. Instead, tribes are left
to refer these cases to state or federal authorities, who may or may
not pursue them.
---------------------------------------------------------------------------
\3\ Child Welfare Information Gateway. (2017). Definitions of
Domestic Violence: State Statutes. Washington, DC: U.S. Department of
Health and Human Services, Children's Bureau. Available at https://
www.childwelfare.gov/pubPDFs/defdomvio.pdf#page=1&view=Introduction.
---------------------------------------------------------------------------
This frustration is further compounded by the prevalence and
severity of this problem. According to DOJ, American Indian and Alaska
Native children suffer exposure to violence at rates higher than any
other race in the United States. \4\ This violence has immediate and
long term effects, including: increased rates of altered neurological
development, poor physical and mental health, poor school performance,
substance abuse, and overrepresentation in the juvenile justice system.
Children who experience abuse and neglect or witness violence are at
higher risk for depression, suicidal thoughts, and suicide attempts.
Indian youth have the highest rate of suicide among all ethnic groups
in the U.S. \5\ Due to exposure to violence, Native children experience
post-traumatic stress disorder at a rate of 22 percent--the same levels
as Iraq and Afghanistan war veterans and triple the rate of the rest of
the population. \6\ There is a growing trend among the states to
recognize that even when children are not the direct victims of
domestic violence, they experience real and lasting harm from
witnessing it. \7\ According to the National Conference of State
Legislatures, ``approximately 23 states address child witnessing of
domestic violence somewhere in statute. While some consider it an
aggravating circumstance when sentencing a perpetrator, other states
have created a separate offense that may be levied.'' \8\
---------------------------------------------------------------------------
\4\ AG Advisory Committee, supra, note 2.
\5\ Centers for Disease Control and Prevention, ``Suicides Among
American Indian/Alaska Natives--National Violent Death Reporting
System, 18 States, 2003-2014,'' (2018), available at https://
www.cdc.gov/mmwr/volumes/67/wr/mm6708a1.htm.
\6\ AG Advisory Committee, supra, note 2, at 38.
\7\ Child Welfare Information Gateway. (2016). Child Witnesses to
Domestic Violence: State Statutes. Washington, DC: U.S. Department of
Health and Human Services, Children's Bureau. Available at https://
www.childwelfare.gov/pubPDFs/witnessdv.pdf.
\8\ National Conference of State Legislatures, ``Domestic Violence/
Domestic Abuse Definitions and Relationships,'' June 13, 2019,
available at http://www.ncsl.org/research/human-services/domestic-
violence-domestic-abuse-definitions-and-relationships.aspx.
---------------------------------------------------------------------------
The legislation under consideration today responds to many of the
gaps identified in NCAI's report, and we appreciate Senator Udall,
Senator Murkowski, and Senator Smith's leadership in introducing the
Native Youth and Tribal Officer Protection Act (NYTOPA), S. 290, and
the Justice for Native Survivors of Sexual Violence Act (JNSSV), S.
288, both of which NCAI strongly supports. Both of these bills would
build on the success of the VAWA 2013 provision that reaffirmed the
inherent sovereign authority of Indian tribal governments to exercise
criminal jurisdiction over certain non-Indians who criminally violate
qualifying protection orders or commit domestic or dating violence
crimes against Indian victims on tribal lands. \9\ NCAI has long
supported full reaffirmation of tribal authority on tribal lands, and
we welcome the important steps in that direction in these bills.
---------------------------------------------------------------------------
\9\ 25 U.S.C. 1304.
---------------------------------------------------------------------------
NYTOPA, would amend 25 U.S.C. 1304 to remove barriers that
currently prevent tribes from exercising their inherent tribal
jurisdiction over certain non-Indians who commit crimes against Native
children in Indian Country. A recent case from the Sault Sainte Marie
Tribe of Chippewa Indians, located in Michigan, illustrates how this
gap in the law has real consequences for Native victims:
A non-Indian man in an intimate relationship with a tribal
member moved in with her and her 16 year-old daughter. After
the man began making unwanted sexual advances on the girl,
sending inappropriate text messages, and on one occasion
groping the daughter, the tribe charged the defendant with
domestic abuse and attempted to tie the sexual assault against
the daughter to a pattern of abuse against the mother. The
tribal court dismissed the charges for lack of jurisdiction and
the defendant left the victim's home. Four months later, he was
arrested by city police for kidnapping and repeatedly raping a
14-year old tribal member. Unfortunately, he was ultimately
allowed to plead no contest to two less serious charges and was
sentenced to 11 months in jail. This kidnapping and rape of a
minor could have been prevented if the tribe had been able to
exercise jurisdiction in the first case. If NYTOPA had been
law, the tribe could have protected this victim.
NYTOPA would similarly address another significant gap in VAWA
2013. Since SDVCJ is limited to domestic violence, dating violence, and
protection order violations, tribes also lack jurisdiction to charge a
non-Indian offender for crimes that may occur within the context of the
criminal justice process. These crimes might include resisting arrest,
assaulting an officer, witness tampering, juror intimidation, or
obstruction of justice. Several tribes have reported assaults on their
officers or bailiffs committed by non-Indian SDVCJ defendants that the
tribe is unable to prosecute given the restrictions on tribal
jurisdiction under federal law. Domestic violence cases are both the
most common and the most lethal calls that law enforcement responds to,
and the limits on tribal authority to prosecute these crimes creates an
obvious public safety concern.
An example from the Eastern Band of Cherokee Indians illustrates
the need for the provision in NYTOPA that addresses this issue:
Tribal police for the Eastern Band of Cherokee Indians
responded to a domestic violence call that involved
strangulation of a female tribal member by a non-Indian. When
officers arrived on the scene, the defendant threatened to kill
the officers and to come back with a gun to shoot up the
reservation. In custody he struck a jailer, who was also an
enrolled tribal member, causing bruising and a split lip.
Because the tribe could not charge for the non-DV crimes, the
case was referred for federal prosecution. The
defendantultimately pled guilty to strangulation in federal
court, but the charges related to the assault on the jailer and
the threats of retaliation were dismissed.
JNSSV also includes important amendments that will help bring
justice to victims of violence in Indian Country. Federal law currently
prevents tribal governments from prosecuting crimes of sexual assault,
trafficking, and stalking when those crimes are committed by a non-
Indian against an Indian victim. A 2016 study from the National
Institute for Justice (NIJ), found that approximately 56 percent of
Native women experience sexual violence within their lifetime, with 1
in 7 experiencing it in the past year. \10\ Nearly 1 in 2 report being
stalked. \11\
---------------------------------------------------------------------------
\10\ Andre B. Rosay, Nat'l Inst. of Justice, Violence Against
American Indian and Alaska Native Women and Men: 2010 Findings from the
National Intimate Partner and Sexual Violence Survey, U.S. Dep't of
Justice 11 (2016), available at https://www.ncjrs.gov/pdffiles1/nij/
249736.pdf.
\11\ Id., at 29.
---------------------------------------------------------------------------
Unlike the general population where rape, sexual assault, and
intimate partner violence are usually intra-racial, Native women are
more likely to be raped or assaulted by someone of a different race.
NIJ found that 96 percent of Native women and 89 percent of male
victims reported being victimized by a non-Indian. \12\ Native victims
of sexual violence are three times as likely to have experienced sexual
violence by an interracial perpetrator as non-Hispanic White victims.
\13\ Similarly, Native stalking victims are nearly four times as likely
to be stalked by someone of a different race, with 89 percent of female
stalking victims and 90 percent of male stalking victims reporting
inter-racial victimization. \14\ JNSSV would amend 25 U.S.C. 1304 to
include sexual assault, stalking, and trafficking crimes committed in
Indian Country. It would untie the hands of tribal governments and
allow them to extend the same protections to victims of sexual violence
and stalking as are available to domestic violence victims. A case from
the Pascua Yaqui Tribe illustrates the importance of this provision:
---------------------------------------------------------------------------
\12\ Id., at 18.
\13\ Id., at 29.
\14\ Id., at 32.
---------------------------------------------------------------------------
A female tribal member who worked at the tribal casino was fixing
slot machines when she was harassed by a group of intoxicated, non-
Indian patrons. As casino security personnel arrived to remove the men
from the casino, one of them grabbed the female employee by her
genitals and squeezed. The casino surveillance system captured the
incident on camera and the employee wanted charges to be filed. Because
the offender was non-Indian, the tribe lacked jurisdiction and could
only refer the case to federal prosecutors. The U.S. Attorney's Office
did charge the case, but pled it down to a non-sex offense misdemeanor
despite the clear evidence and willingness of the victim to cooperate.
The tribe has said that while they are grateful that the U.S.
Attorney's Office charged the case, they are disappointed that the
criminal record will reflect only a simple assault and have stated that
this is a far more generous plea than the tribe would have offered if
they had jurisdiction to prosecute the case.
We appreciate Senator Udall, Senator Murkowski, and Senator Smith's
efforts to advance legislation that will fill some of the gaps in
jurisdiction that continue to leave vulnerable victims--including
children and law enforcement officers--without adequate protection on
tribal lands. NYTOPA and JNSSV will give tribal governments additional
tools to provide justice and safety to victims in Indian Country, and
we urge the Committee to prioritize passage of these bills.
As the Committee continues its work, we have some technical
suggestions to further strengthen these bills that have been developed
in conjunction with the tribal attorneys and prosecutors who have spent
the past six years implementing the underlying statute that these bills
seek to amend. Many of these suggestions have been incorporated in the
tribal provisions of H.R. 1585, which passed in the House with bi-
partisan support earlier this year. Specifically, we recommend that
NYTOPA be amended as follows:
Change the definition of ``domestic violence'' to refer to
the tribal code's definition. One of the primary concerns
tribal nations have had in implementing VAWA 2013 relates to
confusion about what the phrase ``violence committed'' means in
the definition of ``domestic violence'' used in 25 U.S.C.
1304. For example, the question has recently arisen whether
stalking of a victim by a domestic violence offender
constitutes ``violence committed'' for purposes of SDVCJ. The
tribal prosecutor who has raised the question thinks it likely
does not meet the federal definition and the tribe is in the
position of waiting for the defendant's conduct to escalate
before he can be punished. We urge you to change the language
in NYTOPA to replace ``violence committed'' with ``any
violation of the criminal law of the Indian tribe that has
jurisdiction over the Indian country where the violation
occurs.'' This language is very similar to what was included in
the Tribal Youth and Community Protection Act several years
ago. This definition will allow for prosecution of all crimes
typically deemed domestic violence under state and tribal
domestic violence codes.
Allow tribes to prosecute all crimes occurring in a
conjunction with a domestic violence incident. Another
significant issue tribes have faced in implementing VAWA 2013
is the inability to prosecute all of the crimes that occur
within a domestic violence situation. When someone assaults
their domestic partner, they often commit crimes beyond the
common law definition of assault. Those crimes often include
destruction of property, false imprisonment, endangering the
welfare of minors by committing the assault in front of
children (giving rise to lifelong trauma in those children),
reckless endangerment, assaults and threats against significant
others or loved ones intended to intimidate and harass the
domestic partner, and countless other crimes. Those crimes are
often easier to prosecute than the underlying domestic violence
assault, as domestic violence assaults often depend on the
cooperation of the victim, which can be difficult in a domestic
violence situation. Other accompanying crimes that often occur
in a domestic violence incident, however, are easier to prove
and thereby provide a mechanism for prosecutors to successfully
hold the perpetrator accountable. Tribal prosecutors have
described the limitations they face in prosecuting non-Indians
as trying some of the most difficult cases a prosecutor
confronts with one hand tied behind their back. For these
reasons, we encourage you to consider adding the ability to
prosecute crimes that are attendant to crimes of domestic
violence. A case from the Confederated Tribes of the Umatilla
Indian Reservation illustrates the importance of this
recommendation:
The defendant was a repeat domestic violence offender, and
when law enforcement arrived, he attempted to flee the scene in
his vehicle. He was intoxicated, however, and crashed the
vehicle into the neighbor's fence. If Umatilla had jurisdiction
to charge him for DUI and for destruction of property they
would have been able to charge and convict him quickly and
easily given the evidence. The tribal prosecutor may have also
been able to leverage the additional charges to secure a plea
on the domestic violence charge. Instead, the tribe was only
able to charge the domestic violence offense, which put the
most pressure on the victim to testify. Over the eight months
that the tribe spent prosecuting him for domestic violence, the
victim, who suffered a severe concussion in the incident,
changed her mind multiple times about whether to testify.
Eventually the defendant was sentenced to 24 months, one month
in custody, 23 months suspended sentence, followed by three
years probation.
Include obstruction of justice crimes. Protecting law
enforcement would be best accomplished by removing existing
restrictions on the ability of tribal nations to prosecute
assaults on law enforcement or correctional officers, and
obstruction of justice related crimes, generally. This approach
is simpler than attempting to define covered individuals and
related conduct under the current NYTOPA language and would not
require having to prove a domestic violence assault beyond a
reasonable doubt before establishing jurisdiction to prosecute
an assault on law enforcement as we believe could be required
under NYTOPA. It would also cover issues like witness
intimidation, jury tampering, lying to law enforcement, threats
to court staff, and other related crimes and issues that can
arise in investigations and prosecutions of domestic violence
crimes and undermine the integrity of the process.
Include children in the definition of domestic violence.
Finally, to best protect children, rather than attempting to
define caregiver, child violence, and covered conduct, we
recommend that a paragraph be added to the existing definition
of domestic violence to include situations where the victim is
a child (or elder) that resides or has resided in the same
household as the defendant or the defendant's current or former
partner as was done in H.R. 1585. We believe that this would
cover all of the crimes involving children that the
implementing tribes have encountered to date, many of which
involve endangering the welfare of a minor by committing the
act in their presence, which is a crime that NYTOPA does not
currently address.
We look forward to discussing these suggestions further as the
Committee considers this important legislation.
S. 227, Savanna's Act
When a Native woman goes missing or is murdered, her family,
friends, and community are devastated by the loss. Oftentimes her
family and community are left searching for answers for years, with
little help from local authorities. Many times tribal law enforcement
does not have the resources or the jurisdiction to investigate these
cases. The families of victims have no resources or services to turn to
and are left organizing their own searches and conducting their own
investigations. The outrage and pain of these families has propelled
the issue of missing and murdered Indian women from the local to the
national level, and we appreciate the various bills that have been
introduced at the state and federal levels in response.
In 2016, NCAI adopted a resolution, PHX-16-077, Addressing the
Crisis of Missing and Murdered Native Women, that called for increased
coordination across agencies; the review and revision of protocols for
responding to the disappearance of Native women; and access to services
for victims and their families. Savanna's Act would help to increase
accountability for federal and state officials with jurisdiction in
these cases and would improve information sharing among jurisdictions.
We appreciate the broad bipartisan support for the bill.
NCAI and other stakeholders have been in discussions with the
sponsors of the legislation in both the House and Senate about the
possible unintended consequences of some of the provisions currently
included in S. 227. We appreciate the changes that have been made to
the bill in the House and the Senate sponsors' willingness to adopt
those changes as well. There is also a need for new resources for
tribes to address these issues. Given the magnitude of this need,
Congress should provide new programming in addition to expanding tribal
access to existing grant programs. Finally, we understand that urban
Indian organizations have made recommendations to ensure that the needs
of the urban Native population are met. We support the inclusion of
additional language to ensure that Native women are protected across
the country and look forward to discussing specific recommendations
with you as the bill moves forward.
S. 982, Not Invisible Act of 2019
The Not Invisible Act is another important piece in the effort to
improve the response to missing and murdered Indians. The Advisory
Committee it creates will be an important mechanism for identifying
best practices and increasing collaboration and coordination among
stakeholders. The designated coordinator at the Department of the
Interior (DOI) will also help ensure that these issues are prioritized.
However, as written, the burden falls primarily on DOI to meet the
requirements of the law, and there is very little included to ensure
that the DOJ comes to the table as a full partner. We recommend
similarly requiring the Attorney General to designate a coordinator who
can work in partnership with the DOI designated coordinator.
S. 1853, BADGES Act
NCAI appreciates the attention to the issues addressed in the
BADGES Act. We are particularly pleased to see the inclusion of a $3
million authorization for DOJ's Tribal Access Program (TAP), which we
have previously supported. Ensuring that tribal governments have access
to the National Crime Information Center (NCIC) databases has been a
priority for NCAI for many years. With the TAP program, DOJ has finally
begun to make headway in addressing the challenges that have long
prevented tribal access, and this funding will help more tribal nations
to access the program.
We also echo the recommendations made by Justice Demmert on behalf
of the Central Council of Tlingit and Haida Indians of Alaska with
regard to the definition of ``tribal stakeholder'' used in the bill. We
recommend removing Indian tribes from that definition and changing
``tribal stakeholder'' to ``Indian tribes and tribal stakeholders'' as
appropriate throughout the bill. We think this approach more
appropriately recognizes the sovereignty of tribal nations and the
government-to-government relationship.
Conclusion
NCAI greatly appreciates the work of the Senators and the Committee
on these important bills. We urge continuing dialogue with tribal
leaders on the legislation and look forward to working with the
Committee as the bills move forward.
______
Prepared Statement of the Port Gamble S'Klallam Tribe
The Port Gamble S'Klallam Tribe (Tribe) thanks Chairman Hoeven,
Vice Chairman Udall, and members of the Committee for holding a
legislative hearing to consider important bills related to public
safety in Indian Country: Savanna's Act, S. 227; the Justice for Native
Survivors of Sexual Violence Act, S. 288; the Native Youth and Tribal
Officer Protection Act (NYTOPA), S. 290; the Not Invisible Act of 2019,
S. 982; and the Bridging Agency Data Gaps and Ensuring Safety (BADGES)
for Native Communities Act, S. 1853. Our Tribe supports these bills as
they will help address important issues related to the safety of Native
people.
Our Tribe also supports the testimony presented by the United South
and Eastern Tribes and the Chief Judge of the Central Council Tlingit
and Haida Indian Tribes of Alaska. We incorporate their testimony by
reference into our testimony.
I. Causes of Crime Against Native People
The high rates of crime in Indian Country and against Native people
are attributable to the United States' policies towards tribes and
Native people over time. Two elements of those policies are especially
detrimental to the effort to keep Native people safe:
(1) The limitations the United States has placed on tribes '
exercise of criminal jurisdiction on their land, especially
over non-Native people, which they possess as an aspect of
their inherent sovereignty; and
(2) The United States' failure to fulfill its trust
responsibility to ensure Native people are able to live in safe
and healthy communities, including by providing adequate law
enforcement and court resources.
Both of these elements must be addressed to successfully reduce the
rate of crime against Native people and in Indian Country.
II. Support for Pending Legislation
A. Restoration of Tribes' Inherent Criminal Jurisdiction
The Justice for Native Survivors of Sexual Violence Act, S. 288,
and NYTOPA, S. 290, would restore tribes' criminal jurisdiction over
domestic violence and sexual violence crimes, including when committed
by non-Native people. This legislation would serve as a step towards
the United States recognizing tribes' inherent criminal jurisdiction
over their land, and is an important step forward to fill certain gaps
left by the 2013 reauthorization of the Violence Against Women Act
(VAWA 2013).
In VAWA 2013, Congress included provisions specifically related to
tribes. See 25 U.S.C. 1304. Congress restored tribes' inherent
criminal jurisdiction over non-Native people in limited circumstances
related to domestic and dating violence. 25 U.S.C. 1304(b)(l). This
is known as special domestic violence criminal jurisdiction (SDVCJ).
Notably, to exercise this criminal jurisdiction, VA WA requires tribes
to provide certain procedural rights to defendants. 25 U.S.C.
1304(d).
In exercising VA W A criminal jurisdiction, tribes have found that
there are certain crimes that regularly occur alongside the crimes that
tribes can prosecute under VA W A 2013 that are shielded from tribal
law enforcement and prosecution. The Justice for Native Survivors of
Sexual Violence Act and NYTOPA would extend tribes' jurisdiction as
authorized under VA WA 2013's SDVCJ to cover some of these specific
types of crimes, thus filling an important gap in law enforcement and
protection for some of the most vulnerable tribal members.
The Justice for Native Survivors of Sexual Violence Act would
extend SDVCJ to sexual violence occurring outside a domestic
relationship, including sex trafficking, sexual violence, and stalking
as well as crimes of related conduct. NYTOPA would extend SDVCJ to
certain crimes committed against a child by a caregiver as well as to
certain crimes against law enforcement personnel that take place during
a domestic violence scenario.
Both bills would also make changes to VA W A 2013 to ensure it
extends to crimes that do not necessarily involve an actual physical
assault--such as attempted or threatened violence. Thus, tribes
exercising SDVCJ would not be forced to wait until a perpetrator
succeeded in his efforts to commit physical assault on his victim.
Additionally, the Justice for Native Survivors of Sexual Violence
Act would remove VA W A 2013's SDVCJ requirement that a defendant have
specific enumerated and long-lasting ties to the tribe. With the
passage of this bill, Indian Country would no longer be open to
perpetrators seeking out safe harbors for crime.
In its testimony, the Department of Justice (DOJ) noted its desire
to work with the Committee to ensure the Justice for Native Survivors
of Sexual Violence Act and NYTOP A ``weather judicial challenges.''
Yet, as DOJ said in its testimony, exercising criminal jurisdiction is
a crucial aspect of sovereignty, and Congress has authority to restore
to tribes the criminal jurisdiction they possess as an aspect of their
inherent sovereignty. See, e.g., United States v. Lara, 541 U.S. 193
(2004) (holding that Congress, via 25 U.S.C. 1301(2), was within its
authority to restore tribes' inherent criminal jurisdiction over Native
people who are not citizens of the particular tribe exercising
jurisdiction, even after the Supreme Court in Duro v. Reina, 495 U.S.
676 (1990), concluded such jurisdiction had been divested). Further, in
VAWA 2013, Congress was careful to require tribes to provide defendants
certain due process rights when exercising SDVCJ. See 25 U.S.C.
1304(d). Thus, the Justice for Native Survivors of Sexual Violence Act
and NYTOP A would withstand any judicial challenges that may be raised.
Our Tribe supports the extension of SDVCJ that these bills would
make. Tribes have the right as part of our inherent sovereignty to
exercise criminal jurisdiction over our land to keep our people safe.
Enactment of the Justice for Native Survivors of Sexual Violence Act
and NYTOPA would be a step toward restoring of this jurisdiction.
B. Increased Federal Resources As Required by Trust Responsibility
The bills before the Committee would also take steps to ensure the
United States fulfills its trust responsibility to ensure Native people
are able to live in safe and healthy communities, including by
providing resources to facilitate law enforcement and prosecution.
Significantly, some of the bills before the Committee would provide
federal funding. NYTOP A, S. 290, would authorize additional
appropriations through 2024 to aid tribes in carrying out VA W A's
criminal jurisdiction. The BADGES for Native Communities Act, S. 1853,
would create a grant program for information sharing and coordination.
It would also provide additional funding for tribes to access the
National Crime Information Center database.
Additionally, some of the bills would facilitate information
gathering for crimes against Native people or taking place in Indian
Country. Savanna's Act, S. 227, would call on the DOJ to create
standardized guidelines for responding to cases. The Not Invisible Act
of2019, S. 982, would require the Department of the Interior (DOl) to
designate an official to provide training on how to effectively
identify, respond to, and report crimes. The BADGES for Native
Communities Act would call on the Government Accountability Office to
conduct a study on federal law enforcement evidence collection,
handling, and processing.
Some of the bills would also facilitate information sharing across
law enforcement agencies. The BADGES for Native Communities Act would
direct the DOJ to ensure information related to certain cases is added
to the publicly accessible National Missing and Unidentified Persons
System. It would also direct the DOJ to facilitate tribes' access to
that database and the National Crime Information Center database.
Savanna's Act would also direct the DOJ to take certain actions to
increase access to and use of crime databases.
The bills would also work to ensure coordination across law
enforcement agencies and federal agencies relevant to the safety
ofNative people and in Indian Country. NYTOPA calls for increased
coordination between federal agencies, including by ensuring federal
programs supporting tribes' justice systems and victim services are
working effectively together. The Not Invisible Act of 2019 would
establish a DOI/DOJ joint advisory committee on reducing violent crime
against Native people, which would include tribal representatives. The
bill also calls for a DOl-designated official to coordinate programs
and grants across agencies.
The bills would also deal with federal prosecution of crime in
Indian Country. Savanna's Act would require the DOJ to direct United
States Attorneys with jurisdiction to prosecute Indian Country crimes.
The BADGES for Native Communities Act would examine the extent to which
federal law enforcement evidence collection, handling, and processing
affects the rate at which United States Attorneys decline to prosecute
cases.
Additionally, the BADGES for Native Communities Act would address
law enforcement personnel operating in Indian Country. It would
streamline the process for hiring law enforcement officers and provide
resources for mental health and wellness programs for them.
The Tribe supports these efforts to fulfill the federal
government's trust responsibility. Through provision of funding to
tribes, enhanced crime information gathering and sharing, increased
cooperation across law enforcement agencies and federal agencies,
increased federal prosecution, and law enforcement personnel retention,
the federal government will be taking a step towards fulfilling its
trust responsibility to keep Native people safe.
III. Conclusion
The United States must act to stop the crime Native people are
forced to live with every day. This can only be done through
recognizing tribes' inherent criminal jurisdiction over their land and
through providing the federal resources the federal trust
responsibility demands. One step towards addressing the ongoing crisis
is passage of the bills pending before the Committee. We urge you to
act quickly to move these bills forward to enactment. We also urge you
to work in the Senate to pass a comprehensive VAWA reauthorization bill
like H.R. 1585, which the House passed and includes many of these
bills' provisions.
______
Prepared Statement of Hon. Victor Joseph, Chief, Tanana Chiefs
Conference
The Tanana Chiefs Conference (TCC) is an intertribal consortium of
37 federally-recognized Indian tribes and 4 additional Alaska Native
communities located across the Interior region of Alaska. Our region
stretches from the Brooks Range on the north, to the Alaska Range on
the south, from the Canadian border on the east to almost Norton Sound
on the west. Our area covers some 235,000 square miles--150,400,000
acres--half again as large as California and almost as large as Texas.
With no roads to most of our communities, travel is by boat in the
summer, snow machine in the winter, and otherwise by small plane when
weather permits.
Our villages live a highly successful subsistence way of life, and
our languages, cultures and lifeways are intact. But historical events
outside of our control have made life particularly difficult. First,
the federal government turned over its own law enforcement functions to
the State through Public Law 280, saddling the State with a law
enforcement burden it had insufficient resources to carry out. Then
when Congress settled our land claims in 1971, the Alaska Native Claims
Settlement Act created new corporations to hold and invest most village
lands. As part of ANCSA, the core of our communities were designated
for current or future state-chartered municipal governments--
governments which in many villages were never formed. As a result, most
of the ``Indian country'' of our villages was eliminated (as the
Supreme Court would later hold in the Venetie case), severely
curtailing the ability of the villages to govern their own affairs.
With these changes in legal status and governing authority, along
with other pressures, our village governments have suffered and our
communities entered a period of increasing dysfunction and danger,
especially for women. Today, the statistics in Alaska are stunning:
Alaska domestic violence rates are 10 times the national
average, and sexual assaults against Alaska Native women are 12
times the national average. Many offenders are non-Native.
Alaska Native women are over-represented by 250 percent
among domestic violence victims. Although Alaska Natives
comprise just 19 percent of the state population, Native women
constitute 47 percent of all reported rape victims. Every 18
hours an Alaska Native woman is sexually assaulted.
One out of every 4 Alaska Native youth suffers post-
traumatic stress (PTSD) due to childhood exposure to violence--
the same rate as Afghanistan War veterans.
State-based law enforcement is virtually nonexistent in most
Alaska Native villages. State troopers are only present in hub
cities. VPSOs are only present in 40 out of 229 villages.
The suicide rate in village Alaska is 6 times the national
rate, the alcohol-related mortality rate is 3.5 times the
national rate, and 95 percent of rural crimes in Alaska are
alcohol related.
Although some laws and law reform proposals are tied to
``Indian Country,'' tribal territorial jurisdiction vanished
almost entirely with the enactment of the 1971 Alaska Native
Claims Settlement Act. Most crimes do not occur on the few
remaining lands that constitute ``Indian country'' under
federal law (allotments, townsite lots, trust lands). While
some law reform measures are also keyed to lands owned by
Alaska Native Corporations (ANCs), almost no one lives on ANC
lands.
In short, today there is a law enforcement crisis in our
communities of epic proportions. But under current law, there is no
effective means to combat it and the tribal governments who are closest
to the problem have virtually no tools whatsoever to address the issue
themselves.
It is with these observations that TCC has examined the several
bills now pending before this Committee. While all four bills are very
well-intentioned and all mention Alaska Natives, there is little in
these bills that is actually workable as a means for improving local
tribal law enforcement in our communities, and for protecting our most
vulnerable tribal members.
For instance, S. 227 (Savannah's Act) notes in section 2(a)(7) that
``the complicated jurisdictional scheme that exists in Indian country''
`` has a significant negative impact on the ability to provide public
safety to Indian communities;'' is ``exploited by criminals;'' and
demands ``a high degree of commitment and cooperation among Tribal
Federal, and State law enforcement officials.'' It also recites the
importance of ``empower[ing] tribal governments'' ``to effectively
respond to cases of missing and murdered Indians.''
Yet the bill's operative provisions are then tied to the very
jurisdictional hooks regarding ``Indian lands'' that have proven to be
so problematic for Alaska Tribes. For instance, Section 3(4) defines
Indian lands to include ``Indian country'' under 18 U.S.C. 1151, even
though for most practical purposes there isn't any Indian country in
Alaska outside of a few isolated tracts of trust and restricted fee
lands, and hardly any people actually live on those lands. Section
3(4)(B) also mentions Alaska Native corporation (ANC) lands, but again
virtually no people live on ANCSA lands. This makes the bill's
limitations to ``Indian land'' extremely problematic in Alaska. Alaska
Native villages are left out.
Later, section 5 of S. 227 builds on the federal government's
existing jurisdiction over ``Indian country'' crimes, but that
jurisdiction is again of little help in village Alaska, both because of
the small amount of Indian country in Alaska villages and because
Public Law 280 transferred the federal government's jurisdiction over
those areas to the State. Here, too, Alaska villages are left out.
S. 288 is similarly problematic for Tribes in Alaska because
sections 2(2) and 2(4)(C) focus on enhancing tribal criminal
jurisdiction in ``Indian country,'' thereby excluding Alaska Native
villages.
S. 290 in section 3(2)(G) seeks to expand tribal jurisdiction but
defines the term ``covered conduct'' to mean certain conduct that
``violates the criminal law of the Indian tribe that has jurisdiction
over the Indian country where the conduct occurs,'' again making these
measures largely ineffective in Alaska. Ultimately, with these
limitations it is difficult to see how the Report addressed in Section
5(b)(1) will help Alaska tribes, despite the critically important need
to focus on the ``effectiveness'' of ``Federal programs. . .intended to
build the capacity of criminal justice systems of Indian tribes to
investigate and prosecute offenses relating to dating violence,
domestic violence, child violence, and related conduct.''
S. 982 carries some of the same problems as the other bills,
including S. 227, such as by limiting ``Indian lands'' to Indian
country (including reservation and trust) lands or ANC-owned lands
(sec. 3(4)). The bill softens this limitation by frequently focusing
its provisions to speak of crimes ``within Indian lands and of
Indians,'' but this hardly overcomes the core problem that just as with
the other bills, S. 982 bill fails to focus on the extreme law
enforcement problems confronting Alaska Native villages.
As Congressman Young correctly noted earlier this year, the current
situation confronting Alaska Native villages, combined with the unique
history of congressional treatment of these areas, demands an Alaska
solution to a unique Alaska problem. Either the term ``Indian country''
needs to be redefined to include all lands within each Alaska Native
village, or Congress needs to simply declare that tribes shall have
criminal and civil jurisdiction in and around their villages without
regard to the term ``Indian country.'' Alaska Tribes cannot enforce the
rule of law in their communities and provide for civil society
according to tribal customs, traditions and laws without a fresh
declaration from Congress clearly declaring their authority to do so.
Alaska tribal authority should be declared to be broad and plenary
with respect to tribal members. In the case of non-Natives present in
the villages, it should at a minimum cover sexual violence, child
violence, alcohol, and related crimes, including the crimes identified
in S. 288. This should be done, not on a limited or pilot basis, but on
a broad basis to protect all women and children in all Alaska Native
villages. The time to wait while more women are raped or murdered is
over. While greater federal assistance is also critically needed, first
and foremost our tribes must be empowered to protect their own. They
are the front line, the first responders, and as a matter of basic
self-governance they must be returned the tools they need to protect
their communities.
Thank you for the opportunity to offer these views on S. 277, S.
288, S. 290 and S. 982.
______
Prepared Statement of Hon. Ryan Jackson, Chairman, Hoopa Valley Indian
Tribe of California
Chairman Hoeven, Vice Chairman Udall, and members of the Committee,
thank you for this opportunity to provide testimony on important bills
relating to public safety in Indian Country, including: Savanna's Act,
S. 227; Justice for Native Survivors of Sexual Violence Act, S. 288;
Native Youth and Tribal Officer Protection Act, S. 290; Not Invisible
Act of 2019, S. 982; and Bridging Agency Data Gaps and Ensuring Safety
for Native Communities Act, S. 1853.
The Hoopa Valley Indian Tribe of California appreciates the efforts
of the committee to strengthen public safety in Indian Country. We
support these bills and the goals they seek to accomplish.
In the past, the United States has neglected its public safety
obligations to Indian Tribes by failing to recognize and promote our
inherent sovereign authority as well as failing to devote adequate
resources to law enforcement and judicial infrastructure. These bills,
if enacted, would address gaps in the exercise of special domestic
violence criminal jurisdiction and help the United States fulfill more
of its obligations to Indian country by providing necessary financial
resources. We envision a future in which our children, women, elders,
and all Native people can live in healthy, vibrant communities without
fear of violence and with confidence that justice will be served. These
bills represent advancements toward that goal.
For thou sands of years before the white men came, the people of
Hoopa Valley occupied the area among the coastal mountains ofN01them
California along the final reaches of the Trinity River and its
confluence with the Klamath River. Theirs was a peaceful land, rarely
troubled by violence or threatened by outsiders. Although it was a rich
land, its abundant resources did not tempt the Hoopa people's neighbors
because the surrounding areas also had plentiful fish and game, and
anything they lacked could easily be obtained from trade. The coming of
European settlers, beginning with the Spanish in 1775, the British of
the Hudson's Bay Company in the 1820s, and ultimately the Americans and
the goldminers of the 1850s changed all of this.
The huge influx of white men had a disastrous impact on California
Indians. The State of California and Governor Newsom have recently
issued a formal apology for the genocide committed against California
Indians. In 1850, only two years after the United States acquired the
territory from Mexico, the federal government saw that something would
have to be done quickly for the Native people. Legislation in 1864
authorized the President to set apart tracts of land in California
``for the purposes of Indian reservations, which shall be of suitable
extent for the accommodation of the Indians of said State, and shall be
located as remote from white settlement as should be found practicable,
having due regard to their adaptation to the purposes for which they
were intended.'' Under this act, the original Hoopa Valley Reservation
was deliniated as a 12-mile square. It currently encompasses
approximately 100,000 acres.
The Hoopa Valley Tribe, along with other Indian Tribes in
California, was victimized by Public Law 280, which, in 1953,
transfeiTed criminal jurisdiction over the lands and peoples of the
Hoopa Valley Reservation from the United States to the State of
California, without any additional funding. Because of the Tribe's
isolation from more populated portions of Humboldt County, the transfer
of jurisdiction did nothing good for the preservation of law and order
within the Reservation. As a result, under the strong leadership of the
Hoopa Valley Tribal Council, the tribe has taken matters into its own
hands and has become a leader in exercising civil and criminal
jurisdiction over its Reservation. In the 1990s, the Hoopa Valley Tribe
obtained state legislation to facilitate the cross-deputization of
Hoopa Tribal Police with the Humboldt County Sheriffs Office. But that
arrangement bas proved inadequate as county authorities several times
have allowed the agreement to lapse due to shifting local politics.
Passage of the Tribal Law and Order Act of 2010 changed this by
authorizing federal reassumption of concurrent criminal jurisdiction
over the Hoopa Valley Reservation, a status that the Hoopa Valley Tribe
quickly sought.
Federal criminal jurisdiction over the Hoopa Valley Reservation
became effective in 2017, whereupon the Hoopa Valley Tribe entered into
a deputation agreement with the United States Department of the
Interior to provide law enforcement services to all persons who reside,
work, or visit the Reservation. Under that agreement, the Secretary of
the Interior issued Special Law Enforcement Commissions to officers of
the Hoopa Valley Tribal Police to enforce federal laws on the
Reservation and as well to enforce and make arrests under certain
circumstances for violation of California's criminal laws. However,
access to criminal information databases, such as the California Law
Enforcement Telecommunications System (CLETS) has been difficult,
sporatic, or nonexistent. Tribal Officer lives are put in danger when
they do not have access to criminal history information in CLETS and
cannot, for example, know whether a person who has been stopped or
detained is a violent felon for whom an outstanding arrest warrant has
been issued. In short, the Hoopa Valley Tribe has done its level best
to protect and promote public safety within the Hoopa Valley
Reservation under the constraints of current federal, state, and Tribal
law. The bills before this committee will ease some of those
constraints and help the tribe advance toward that goal.
Despite the Tribe's efforts, there are serious public safety
concerns in tbe mountains and bill sides of Hoopa Valley. Hoopa people
rely on gathering natural products such as acorns, mushrooms, bear
grass, hazel shoots, maple bark, and other materials for basket
weaving, food, and medicinal use. Yet, women and children are often
confronted by armed men guarding illegal drug sites up in our hills.
Our police lack the resources to patrol remote areas of the reservation
and, since many of the offenders are non-Indians, their detention and
prosecution is complex and expensive.
Savanna's Act will improve protocols for responding to reports of
missing persons and improve access to law enforcement databases. This
is urgently needecl We recommend adoption of the House version of that
Act, H.R. 2733. BADGES seeks to improve information sharing and to help
the Bureau of Indian Affairs respond to missing persons and murder
cases. Expansion of the Justice Department's Tribal Access Program will
assist in this process. There is an urgent need to address
compatibility issues between the Federal Bureau oflnvestigation
Criminal Justice Information Services databases and to increase
training and use by Tribal and state databases.
The Justice for Native Survivors of Sexual Violence Act and the
Native Youth and Tribal Officer Protection Act will improve Tribal
special domestic violence criminal jurisdiction over nonnative
offenders. As the committee is aware, the abi lity of Tribes to
exercise special domestic violence criminal jmisdiction of non-natives
requires substantial funding to rebuild and support Tribal judicial
infrastructure. That funding is not yet available. In addition, the
expanded jmisdiction was limited in unfortunate ways under the 2013
Reauthorization of the Violence Against Women Act (VAWA). Thus, VAWA
did not extend to sex trafficking, sexual violence, stalking, ctimes
against children, and attempted assault. These bills will address those
oversights.
Finally, the Not Invisible Act of 2019 addresses broad issues of
violent crime in Native communities and will establish more centralized
oversight of activities, grants, and programs at the Interior
Department.
For far too long, the United States has neglected its public safety
obligations to Tribal Nations. We urge the committee to address the
public safety crisis affecting Indian Country through enactment of
these bills. There is not one family in our small community that has
not been directly affected by the loss of a murdered or missing
indigenous woman.
Thanks for your consideration.
______
Tulalip Tribes
Tulalip, WA, June 19, 2019
Senator Jon Hoeven, Chairman;
Senator Tom Udall, Vice Chairman,
U.S. Senate Committee on Indian Affairs,
Washington, DC.
Dear Chairman Hoeven and Vice-Chainnan Udall
On behalf of the Tulalip Tribes, the successors in interest to the
Snohomish, Snoqualmie, and Skykomish tribes and others tribes and bands
signatory to the Treaty of Point Elliot of 1855, we submit this letter
for the hearing held June 19, 2019 on pending legislation aimed at
improving tribal safety and criminal justice in Indian communities. We
thank the Committee for holding this hearing and supporting the
``Special Domestic Violence Criminal Jurisdiction'' (SDVCJ) provision
in VAWA 2013 which reaffirmed the inherent sovereign authority of
Indian tribes to prosecute non-Indians for certain domestic violence
related crimes. We look forward to the opportunity to build on these
efforts in VAWA reauthorization legislation.
Out of 25 cases prosecuted under the Tulalip SDVCJ program, 18
of the incidents involved one or more children, and 8 children
were victims of crime. Of these 8 cases, only 1 case was
prosecuted by the federal government because of the
egregiousness of the crime. The remaining 7 cases went
unprosecuted because Tulalip had no authority under SDVCJ and
the State did not prosecute. These child victims did not see
justice. See example case incidents.
The Tulalip community is located on a 22,000-acre Reservation
bordering on the east to Interstate 5 Corridor 35 miles north of
Seattle. This area has recently experienced rapid population growth and
development. Tulalip has 4,000 enrolled members, but most Reservation
residents are non-Indian due to the history of allotments. Today, the
Tribe or Tribal members hold approximately 60 percent of the
Reservation lands with the balance being in non-Indian ownership. The
large number of non-Indian residents on the Tulalip Indian reservation
and the geographic location of the reservation increases leads to an
increased risk of being perpetrated on by non-Indian persons.
The Tulalip Tribes was selected as one of the first three pilot
tribes to implement SDVCJ under VAWA 2013. Since February 2014 Tulalip
has prosecuted 25 total cases under the SDVCJ authority against 18
defendants. The race of these defendants are as follows: 10 Caucasian;
2 African American; 4 Hispanic; 1 Middle Eastern; and 1 non-enrolled
Canadian Indian. Prior to their arrest and prosecution by the Tulalip
Tribes, the Tulalip Tribes Police Department had over 171 contacts with
these defendants since 2008.
Of the 25 cases, there have been 15 convictions, 1 acquittal, 5
cases pending, and 4 cases dismissed. These statistics demonstrate that
Tulalip ensures that each defendant is provided due process protections
as cases are dismissed if there is insufficient evidence, are
uncooperative witnesses, or for other legal reasons. To date, no
defendant has filed a petition for a writ of habeas corpus in federal
court. Overall, with the reaffirmed inherent authority under the SDVCJ
provisions, Tulalip's program has been extremely successful and has
greatly assisted in our efforts to combat domestic violence on the
Tulalip Indian reservation. The law is working as Congress intended.
However, there is more work to be done.
While we have had significant success in implementing the SDVCJ
provisions, our efforts have exposed significant gaps in the statute's
provisions that leave victims vulnerable, most often our children.
Short of a full Oliphant fix, the exercise of criminal jurisdiction in
domestic violence cases must include crimes perpetrated against
children, sexual violence, stranger rape, sex trafficking, stalking,
among other crimes so often associated with domestic violence
situations so that we can address the totality of the circumstances. It
is unconscionable that a four-year-old can be assaulted when she comes
to the aid of her mother as her mother is being assaulted, yet charges
are not brought against the non-Indian defendant for this assault.
Examples of cases of non-Indians were not prosecuted for crimes
committed against Tulalip children.
DEFENDANT 1
CASE 1--Victim Age: 2 years-old
Incident Details: 36 year-old non-Indian male commits DV against
his wife. The Defendant forcefully grabbed the baby out of his wife's
arms while assaulting the wife. He was intoxicated. Tulalip initially
charged the Defendant with Negligent Endangerment against a child. The
charges were later dropped because the harm to the child was not
covered by SDVCJ.
CASE 2--Victim Age: 3 years-old
Incident Details: 38 year-old non-Indian male commits Assault 1 DV
(strangulation) on wife. The victim's 11 year-old daughter witnesses'
mom being strangled. Defendant also damaged property belonging to the
daughter. Tulalip could not charge because the harm was not covered by
SDVCJ.
Children present: Male: Age 13 Female: Age 11 Female: Age 11 Male:
Age 4 Male:1
DEFENDANT 2
CASE 1--Victim Age: 20 months
Incident Details: 21 year-old male commits Assault 1 DV mother of
his 20 month old child while mother is holding the child. We originally
charged Criminal Endangerment, but could not proceed with the charge on
the child's endangerment because the harm to the child was not covered
by SDVCJ.
DEFENDANT 3
CASE 1--Victim Age: 13 months old and 4 years-old
Incident Details: 27 year-old non-Indian male Assault 1 DV mother
of his children. He threw knives at the wall above mom's head while she
sat in a chair holding their 13 month-old child. He also struck the 4
year-old with a lamp cord, causing injury. The incident occurred over a
period of 3 days as Defendant held them as virtual hostages. The United
States took the case against the 4 year-old but did not vindicate the
victimization of the 13 month-old. Tulalip could not charge the
defendant because the harm to the child was not covered by SDVCJ.
DEFENDANT 4
Case 1--Age of Child: 5-years-old
Incident Details: 43-year-old non-Indian male commits Assault DV
against the mother of his child. Had her down on the floor with arm on
her face holding her down. The 5 year-old daughter awoke and came to
investigate. She attempted to get dad off of mom. Dad thrust her aside
onto the floor causing physical harm. Could not charge assault on 5
year-old because the harm to the child was not covered by SDVCJ.
These children live in fear. And the perpetrators feel emboldened
to continue to commit these crimes. It is unfathomable that
jurisdictional gaps allow non-Indian perpetuators to evade
accountability for their criminal actions against native children.
According to the Department of Justice, American Indian and Alaskan
Native children suffer exposure to violence at rates higher than any
other race in the United States.
The provisions in S. 290, the ''Native Youth and Tribal Officer
Protection Act,'' would reaffirm inherent tribal authority to prosecute
non-Indians against Indian children in some circumstances. We urge the
Committee to build on the provisions in this bill and include this
language in the VAWA reauthorization legislation so that we can
adequately protect our children.
Another significant jurisdictional gap that currently exists is the
inability to prosecute non-Indians for sexual violence or date rape
committed against Indian women. Tulalip has dismissed multiple cases
that were not prosecuted because they did not meet the definition of
Domestic Violence under the current statute. The definition of Domestic
Violence limits criminal charges to acts committed by one intimate
partner against another. In other words, a relationship must already
exist between the victim and the perpetrator. A number of sexual
assaults occur between persons who are acquainted with each other but
who do not otherwise have a relationship, let alone an ``intimate
relationship.'' These victims, often minors targeted by adult men, are
unprotected by the current law. Tulalip Police have investigated nearly
a dozen cases since the beginning of 2019 in which non-Native adult men
have preyed upon native girls as young as 12 and 13 years old. Often,
younger girls with few resources or dysfunctional home situations are
particularly vulnerable to men with money who the girls often view as
sophisticated protectors.
This month, a case of stalking was reported. The non-Native
perpetrator and Tulalip victim had the required prior intimate
relationship, but the victim had ended the relationship. The
perpetrator continued to contact her, then came to her workplace,
confronting her as she left work. The perpetrator took victim's car
keys from her (a theft) and followed her in her own car as she fled.
Although there had been unreported violence in the relationship, the
stalking incident itself did not involve a crime of violence, so could
not be prosecuted by the Tribes. The provisions inS. 288, the ``Justice
for Native Survivors of Sexual Violence Act,'' would allow tribes to
prosecute non-Indians for these types of crimes. We urge the committee
to include these provisions in VAWA reauthorization legislation.
The increased responsibility Tulalip has embraced in addressing
crime and prosecuting cases under its SDVCJ program has strained tribal
budgets. The expense of hiring prosecutors, providing indigent defense,
DV investigators, and the costs of incarceration is very expensive.
Furthermore, prosecuting cases in which a defendant may face up to
three years in custody carries higher costs. In addition, these
defendants high a higher need for appropriate re-entry programs as
these crimes are severe and the perpetrators need more DV focused
reeducation and treatment to return to the tribal community. Tribal
governments must balance these needs with other important unmet needs
for their own citizens such as housing, education, and health care. We
urge the appropriation of additional financial resources in VAWA
reauthorization legislation to ensure adequate funding is available to
cover costs incurred by tribes who exercise SDVCJ.
It is imperative that Congress fill in the jurisdictional gaps that
have allowed non-Indian perpetuators to evade accountability for their
criminal actions against tribal members, particularly children. We
appreciate the opportunity to submit this letter and we urge the
Committee to support VAWA reauthorization legislation that will allow
us to better protect our children and tribal members.
Respectfully,
Hon. Teri Gobin, Tulalip Chairwoman.
______
Las Vegas Paiute Tribe
Las Vegas NV, March 26, 2019
Hon. Catherine Cortez Masto,
U.S. Senate Committee on Indian Affairs,
Washington, DC.
Dear Senator Cortez Masto:
I am writing on behalf of the Las Vegas Paiute Tribe to express our
appreciation and support for your legislation. the Not invisible Act of
2019.
As the title of this bill implies. sadly. we as a nation have paid
insufficient attention to the unacceptably high levels of violence,
historical trauma. and other factors that account for the elevated risk
of trafficking, murder, and missing persons in Indian Country and of
Native Americans and Alaska Natives.
When 80 percent of American Indian and Alaska Native men and women
have experienced violence in their lifetimes (and 56 percent of women
sexual violence) their plights--and the conditions that cause them--can
no longer be invisible.
As your legislation attempts to remedy. the lack of a comprehensive
effort by the federal government to address what can truly be described
as a crisis may. in part. be due to the paucity of data about its
extent and contributing factors.
The legislation's requirement that the Secretary of Interior
coordinate violent crime prevention efforts between the Bureau of
Indian Affairs (BIA) and the Department of Justice (DOJ) w1ll provide
vital assistance to tribes.
Such an effort could encourage training of tribal law enforcement,
health care providers and other tribal community members to identify.
respond to. and report on cases of missing persons, murder and human
trafficking.
Also noteworthy is the legislation's establishment of a joint DOJ/
Interior advisory committee composed of tribaL state. and local law
enforcement. advocacy organizations. representatives of relevant
federal agencies. tribal leaders. and survivors and family members.
Only through a coordinated effort led by the federal government
with tribes. states. communities and relevant outside organizations can
we begin to address this national problem.
Thank you again for all your work on behalf of Nevada tribes and
other American Native people. Please let me know if there is anything
the Las Vegas Paiute Tribe can do to assist you.
Sincerely,
Hon. Chris Spotted Eagle. Tribal Chairman
______
National Indigenous Women's Resource Center
April 2, 2019
Hon. Catherine Cortez Masto,
U.S. Senate Committee on Indian Affairs,
Washington, DC.
RE: Support for Not Invisible Act
Dear Senator Cortez Masto:
We write to express the urgent need to define the scope and address
human trafficking of American Indian and Alaska Native survivors (AI/
AN). We write to express our support for your proposed legislation, the
``Not Invisible Act.''
As stated in the findings of your proposed bill, Native women and
girls experience a heightened risk of victimization of trafficking due
to the multiple vulnerabi lities that AllAN individuals continuously
face. High rates of unemployment, the unavailability of affordable or
transitional housing (including shelter housing for human trafficking
victims), the lack of resources available to AI/AN tribal governments
and communities, the high rates of Native children who age-out of
foster care, the jurisdictional gaps created by long stand ing federal
law, and the high rates of victimization that AI/AN women face (which
increases risk of future victimization), are all illustrative of this
fact. Though anecdotally we know that human trafficking is a serious
and frequent issue affecting AI/AN communities, both on tribal land and
in urban settings, reliable data on the magnitude of this issue is not
available. Furthermore, the Government Accountability Office, from
2013-2016, found that there were only 14 federal investigations and 2
prosecutions of human trafficking offenses where at least one victim
was Indian. The federal response is inextricably at the root of the
disparities of human trafficking for AllAN communities: the perception
that this crime will go unpunished and that AI/AN victims continue to
be invisible in trafficking as they are in other forms of violence.
Professor Sarah Deer's testimony from 2011 before the Senate Committee
on Indian Affairs provides additional information.
These victims deserve better; they deserve safety. The National
Indigenous Women's Resource Center knows that any approach to human
trafficking in our communities, must be intersectional and focused on
prevention. By including victims, victim advocates, law enforcement,
the judicial system, tribal housing and various federal agencies, this
proposed legislation is a meaningful first step. We thank you for your
office's support of AI/AN victims of human trafficking, including your
staffer Jordan Warner who has consistently been available to our
organization and staff. We thank you, Senator Cortez Masto for your
dedication to continue the important work addressed by your proposed
legislation. The title of your bill implies that a meaningful response
to this issue will mean having to seriously address the erasure of our
communities by colonization and genocide, to address the way in which
violence on our communities has created generational trauma, and to
address that not all survivors are treated equally as they engage with
systems that were historically created to severely disadvantage them.
We hope that this legislation and its implementation continues to
prioritize the role of sovereign tribal responses and the role of the
federal government in carrying out its trust responsibility to assist
Indian tribes in safeguarding the lives of Indian people.
Respectfully,
Lucy Simpson, Executive Director
______
April 10, 2019
John Hoeven, Chairman, Senate Committee on Indian Affairs;
Tom Udall, Vice Chairman, Senate Committee on Indian Affairs;
Lindsey Graham, Chairman, Senate Judiciary Committee;
Diane Feinstein, Ranking Member, Senate Judiciary Committee,
U.S. Senate, Washington, DC.
RE: Native Youth and Tribal Officer Protection Act, S. 2233
(NYTOPA)
Honorable Chairman Hoeven, Honorable Vice-Chairman Udall, Honorable
Chaitman Graham and Honorable Ranking Member Feinstein:
We greatly appreciate the goals and objectives ofthe ``Native Youth
and Tribal Officer Protection Act,'' S. 2233 (NYTOPA). As former United
States Attorneys who prosecuted crimes committed in ``Indian country''
(as defined in 18 U.S.C. 1151), we have a unique understanding of why
the restoration of tribal criminal jurisdiction is so critical to
improve public safety in Tribal communities.
Because of the Supreme Court's 1978 decision in Oliphant v.
Suquamish, federal law severely limits Tribal Nations' ability to
prosecute crimes committed against Indians by non-Indians. At the
urging of the Department of Justice, Congress recognized the safety
concerns created by this arrangement and removed federal limits on the
inherent authority of tribal governments to prosecute certain non-
Indian domestic violence offenders in the 2013 reauthorization of the
Violence Against Women Act.
While United States Attorneys, in most circumstances, do have
jurisdiction over some nonIndian perpetrated crimes on tribal lands, or
``Indian country,'' the absence of tribal criminal jurisdiction over
some non-fndian perpetrated crimes contributes to the high rates of
violence against Native people living on tribal lands. Too often,
United States Attorney's Offices with jurisdiction decline to prosecute
a non-Indian perpetrated crime committed on tribal lands. This could be
for any number of reasons, ranging from competing priorities, lack of
sufficient resources to track and prosecute such crimes, to the
challenges in investigating crimes in remote tribal communities where
federal law enforcement may not be familiar with the population or
terrain. In our experience, public interest, safety, health, and
welfare all support the concept that, if possible, crimes committed on
tribal lands should be prosecuted by the local government--and in
``Indian country,'' that is the presiding tribal government. The fact
that the many, many violent crimes committed against American Indians
are never prosecuted is contributing to the high rates of violence
Native women and children face.
Additionally, NYTOPA reaffirms inherent tribal criminal
jurisdiction over non-Indian perpetrated crimes committed against
tribal law enforcement. We know all too well that law enforcement
officers face a serious safety risk when responding to a domestic
violence call involving a non-Indian perpetrator. Under the current
legal framework--and without the reaffirmation of tribal criminal
jurisdiction over non-Indian perpetrated crimes against law
enforcement--the tribal justice system has the authority to arrest and
prosecute a non-Indian domestic violence offender, but is completely
powerless if that same offender commits a crime against the responding
tribal public safety officer. That is nonsensical, and it is dangerous.
Likewise, all too often, when domestic violence crimes are committed,
children are victims too. Thus, the goal of NYTOPA--restoring tribal
criminal jurisdiction over crimes committed against tribal police
officers and children citizens of Tribal Nations--is critically
important. In the course of our time serving as United States
Attorneys, we had the opportunity to work with many tribal law
enforcement officers, prosecutors, and judges and have seen firsthand
the professionalism and integrity they bring to their work. They are
committed to serving their communities and are in the best position to
do so. Thus, we write to express our full support for NYTOPA. We thank
you for your time and consideration of this important legislation.
Sincerely,
Timothy Q. Purdon, Former United States Attorney, District of
North Dakota
Troy A. Eid, Former United States Attorney, District of
Colorado
Brendan V. Johnson, Former United States Attorney, District of
South Dakota
Thomas B. Heffelfinger, Former United States Attorney, District
of Minnesota
David C. Iglesias, Former United States Attorney, District
ofNew Mexico
John W. Vaudreuil, Former United States Attorney, Western
District of Wisconsin
Wendy J. Olson, Former United States Attorney, District of
Idaho
Dennis K. Burke, Former United States Attorney, District of
Arizona
Danny C. Williams, Former United States Attorney, Northern
District of Oklahoma
Jenny Durkan, Former United States Attorney, Western District
of Washington
Michael W. Cotter, Former United States Attorney, District of
Montana
Patrick A. Miles, Jr., Former United States Attorney, Western
District of Michigan
Anne M. Tompkins, Former United States Attorney, Western
District of North Carolina
John F. Walsh, Former United States Attorney, District of
Colorado
Daniel G. Bogden, Former United States Attorney, District of
Nevada
Paul K. Charlton, Former United States Attorney, District of
Arizona
______
Response to Written Questions Submitted by Hon. Tom Udall to
Charles Addington
Unmet Law Enforcement Staffing Needs
Question 1. Section 3 of the Indian Law Enforcement Reform Act (25
U.S.C. 2802) requires the Office of Justice Services (OJS) to submit a
list of ``unmet staffing needs of law enforcement, corrections, and
court personnel (including indigent defense and prosecution staff) at
tribal and Bureau of Indian Affairs justice agencies'' to Congress each
year. Is the report dated September 12,2017, the only unmet needs
report produced to date by the OJS?
Answer. No. Prior to September 12, 2017, we submitted reports on
appropriations for fiscal years 201 0 through 2013. The report dated
September 12, 2017, detailed the allocation and expenditure of our FY
20 I 4 and 2015 appropriations. A report submitted on June 11, 2018 was
for our FY 2016 appropriation. The report detailing our FY 2017
appropriation has been prepared and is under review by the Department
and will be provided to Congress in the coming weeks.
Question 1a. If the Office has not produced an unmet need report
each year since enactment of this requirement, what factors contributed
to the Office's challenges in complying with statute and publishing the
report annually?
Answer. We are currently delivering a report each year. With regard
to timing, a complete and accurate report cannot be produced until the
two-year availability of our appropriation has expired and all
obligations are recorded. Our latest expired appropriation is FY 2017,
and the corresponding report is under review.
Question 1b. How does the Office calculate or estimate unmet
staffing needs for Triballyoperated justice programs?
Answer. Law enforcement programs and Tribal courts are usually
sized to meet the needs of a resident service population range. Cost
estimates assume that all tribes of similar size have law enforcement
agencies or courts with the same composition. The report groups tribes
by population size, and then uses scalable cost models to create
estimates for operating law enforcement programs and Tribal courts for
each group. Cost estimates for BIA-funded detention/corrections centers
differ in that only existing centers are considered. Estimated total
costs are based on individual staffing models developed for each BIA-
funded facility, which is influenced by National Institute of
Corrections standards in connection with building layout, type of
prisoners housed, and programs/services offered.
Question 1c. How does the Office estimate the unmet staffing needs
for tribal and Bureau of Indian Affairs investigators?
Answer. Because of their similar structure and function, we utilize
the same scalable budget models to estimate costs for both tribal and
BIA programs.
Question 2. At the hearing, I asked for information on the current
law enforcement vacancy rates and officer attrition causes. You
responded, ``For direct service programs and Tribal law enforcement
programs across the nation, they vary anywhere from 1.8 to 3.2 officers
per thousand residents. . .We do track, if we do have folks that leave.
. .we do track why they left and attrition rate.'' Can you provide
specific information on the current national and regional law
enforcement vacancy rates for the BIA?
Answer. The current estimated vacancy rates for the Bureau oflndian
(BIA), Office of Justice Services (OJS) sworn staff in the field are
displayed in the below table.
------------------------------------------------------------------------
Vacancy Rate
Organizational Unit percentage
------------------------------------------------------------------------
District 1 44
District 2 21
District 3 41
District 4 34
District 5 45
District 6 33
District 7 25
District 8 67
District 9 0
OJS Overall (Field/Sworn) 39
------------------------------------------------------------------------
Question 2a. Would the OJS be able to include this information in
its annual unmet needs reports if directed to do so by Congress?
Answer. Yes.
Question 2b. Can you further clarify or provide any statistics on
the most frequently cited causes for officer attrition at the Bureau of
Indian Affairs?
Answer. In FY 2018, BIA-OJS hired 65 new personnel, but lost 96.
The respective figures for FY 2017 are 72 and 63. Retirement,
misconduct, remote location without adequate services (including
housing), competition from higher paying State and Federal law
enforcement agencies, and burn out were the most common reasons for
attrition.
Question 3. You noted at the hearing, ``Under the Tribal Law and
Order Act, we do have to do Tribal backgrounds for tribal law
enforcement if requested by the Tribe.'' Approximately how many Tribes
ask the OJS to conduct law enforcement background checks?
Answer. OJS has conducted background investigations for up to 20
tribes in a single year. However, the number of Tribes served annually
varies and is dependent on background cycles. For example, new hires
are normally done locally unless there is a mass hiring at a tribal
department. Five-year background updates may also be batched, which
increases Tribal requests of OJS. For example, the Seminole Tribe
requested that OJS conduct five-year background investigation renewals
for approximately 100 tribal officers.
Question 3a. Would section 201 of the BADGES for Native Communities
Act allow OJS to conduct law enforcement personnel background checks
for Tribal law enforcement, when requested to do so by Tribes, using
the new in-house demonstration authority?
Answer. No, the general purpose is for ``law enforcement positions
in the Bureau of Indian Affairs.'' See Section 201(a)(l). However,
under the Tribal Law & Order Act, if a tribal law enforcement program
operating under a P.L. 93-638 contract or selfgovernance compact
requests that OJS conduct background investigations for a tribal
officer, OJS has 60 days to do so after receiving all required
information. Funding for this mandate was not included in TLOA.
Committee Rule Compliance
Question 4. According to Committee Rule 4b, witnesses must submit
testimony to the Committee 48 hours before the start of a hearing. Your
testimony was received after the deadline. Please provide the date and
time you submitted testimony to the Office of Management and Budget for
clearance pursuant to Circular A-19.
Answer. Draft testimony was submitted to the Office of Management
and Budget on June 14,2019 at 11:33 am Eastern Time.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Charles Addington
Question 1. A 2017 Senate Committee on Indian Affairs hearing
highlighted the prevalence of child sexual exploitation, including the
online trading of child pornography, in communities with close
proximity to Native lands or within Native communities. From your work
with human trafficking investigations affecting Indian Country, is
there a need to support legislation that works to improve state, local,
tribal, and military law enforcement training and tools to further
investigate and prosecute child pornography? If so, is the Bureau of
Indian Affairs--and the Office of Justice Services specifically--
willing to collaborate with Congress in this effort?
Answer. The Bureau of Indian Affairs (BIA), Office of Justice
Services (OJS) has not encountered many child sexual abuse material
cases in Indian Country. Most sex crimes against children in Indian
Country that we are aware of are cases ofhands-on-only sexual abuse or
molestation. However, we would like to refer you to Homeland Security
Investigations and the Federal Bureau of Investigations for more
information on child sexual abuse material investigations. With ever
changing crime trends, BIA OJS welcomes any collaboration with Congress
and additional training that would enhance the skills of our Special
Agents in efforts to identify and prosecute child sexual exploitation
cases in Indian Country.
Question 2. A 2017 Government Accountability Office report found
that while data on child sexual exploitation is collected by Department
of Justice grantee programs, and by the Office of Juvenile Justice and
Delinquency Prevention for minors, but the only easily accessible data
comes from the National Human Trafficking Hotline. How can we improve
both the data collection and reporting on these crimes, to better help
policymakers craft effective solutions?
Answer. BIA OJS recommends enhancing Federal statutes to require
all Indian Country law enforcement programs receiving any federal funds
to use the same reporting format and submit the same statistical
reports to the BIA OJS as prescribed by the OJS Director and as are
required of all BIA law enforcement programs. This would assist BIA OJS
in standardizing and collecting the required crime statistics from
Indian Country law enforcement programs and allow public safety
programs to collect adequate crime data to be analyzed so they can
identify crime trends and apply resources to address the identified
trends. BIA OJS 's Indian Country crime data is compiled from the
monthly crime statistics submitted to BIA OJS by Tribal law enforcement
programs. However, Tribal law enforcement programs often submit
incomplete data or none at all. 25 CFR Part 12 requires Tribes to
submit the monthly crime data but it has little consequences if they do
not.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Hon. Lynn Malerba
Question 1. There is a correlation between the number of IP
addresses associated with the peer-to-peer trading of child pornography
in a given area, and communities with a high native population. It is
imperative that law enforcement officers be well trained and equipped
to identify, track, and prosecute these offenders. As an official
within your community, do you see the benefit of comprehensively
training all law enforcement--tribal, federal, state, local, and
military-on the best practices and tools to tackle online child
pornography offenses?
Answer. Tribal law enforcement must have access to the same
training and infrastructure opportunities as law enforcement for other
units of government, and in accordance with the trust responsibility
and obligations, the Administration and Congress must work to ensure
full funding is appropriated for this purpose. The funding must be
available to Tribal Nations directly and on a non-competitive basis.
With regard to child pornography specifically, Indian Country's
greatest and most precious resource is our children, as they represent
the future of our Tribal Nations. The federal government must do more
to ensure our children are protected from violence and exploitation.
This includes restoring criminal jurisdiction to Tribal Nations for
crimes against our children. As I noted in my verbal testimony during
the hearing, it is a stain upon the United States and fundamentally
immoral that our children continue to experience such
disproportionately high rates of violence and exploitation. Every
member of the Senate Committee on Indian Affairs and every member of
Congress should take swift action to correct this injustice.
Question 2. A 2017 Government Accountability Office report found
that while data on child sexual exploitation is collected by Department
of Justice grantee programs, and by the Office of Juvenile Justice and
Delinquency Prevention for minors, but the only easily accessible data
comes from the National Human Trafficking Hotline. How can we improve
both the data collection and reporting on these crimes, to better help
policymakers craft effective solutions?
Answer. As with all data related to violence against and the
exploitation of Native people in the United States, the reasons for
poor quality, incompleteness, and under-collection are myriad. These
include underreporting, racial misclassification, Tribal Nation lack of
access to crime information and reporting mechanisms, bias and poor
relationships with Tribal Nations on the parts of other units of
government, poor record-keeping protocols at all levels of government,
and a failure of the federal government to deliver upon the trust
responsibility and obligations--including ensuring the proper funding
is directly available to Tribal Nations for data collection. Currently,
Tribal Nations must navigate a maze of funding vehicles and mechanisms,
including negotiating agreements for the interagency transfer of funds
to improve data and reporting. All of these issues must be examined and
addressed in consultation with Tribal Nations, if we are to improve
data on Native child exploitation, as well as missing and murdered
Native people.
Question 3. An element of improving data collection and reporting
is the significance of identifying the Native status of women and youth
who are victims of trafficking and sexual exploitation. Do you agree
that it is necessary to include Native status in demographic data?
Could this disaggregated data be used to improve culturally appropriate
treatment and support programs for Native victims?
Tribal Nations, Congress, and the Administration all recognize that
poor data collection and reporting is a contributing factor to the
shameful injustice of missing, murdered, and exploited Native people
throughout the United States. Put simply, it is impossible for the
federal government to understand the full scope of this problem and its
own failures to address it without committing to the collection of
accurate data. That the federal government has not dedicated itself and
its resources to improving data collection and tracking of missing,
murdered, and exploited Native people is a violation of the trust
responsibility and obligations. Including Tribal affiliation, in
accordance with the unique government-to-government relationship
between the United States and Tribal Nations, in data collection is but
one step in correcting this failure. Improved data would have a variety
of critical applications, including ensuring Congress and the
Administration are appropriating critical resources for prevention, law
enforcement, Tribal judicial infrastructure, and prosecution, as well
as treatment and support.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Hon. Michelle Demmert
Question 1. There is a correlation between the number of IP
addresses associated with the peer-to-peer trading of child pornography
in a given area, and communities with a high native population. It is
imperative that law enforcement officers be well trained and equipped
to identify, track, and prosecute these offenders. As an official
within your community, do you see the benefit of comprehensively
training all law enforcementtribal, federal, state, local, and
military-on the best practices and tools to tackle online child
pornography offenses?
Answer. Yes, we do see a benefit to comprehensive training of all
law enforcement--tribal federal, state, local and military--on the best
practices and tools to tackle online child pornography offenses. If a
tribal community is being targeted by these offenders, we ask that you
engage, inform and collaborate with the nearby tribal communities so
that all will be informed and will be approaching the situation from a
unified approach to the extent possible.
The United States Department of Justice has testified to Congress
that jurisdictional complexity has made the investigation and
prosecution of criminal conduct in Indian country very difficult and
that some violent crimes' convictions are thrown into doubt,
recommending that the energy and resources spent on the jurisdictional
questions would be better spent on providing tangible public safety
benefits. \1\ The Indian Law and Order Commission, a bi-partisan
commission created by the Tribal Law & Order Act of 2010, concluded
that ``criminal jurisdiction in Indian country is an indefensible
morass of complex, conflicting, and illogical commands.'' \2\ While our
attention has been largely placed on combating the disproportionate
rate of domestic violence against our American Indian and Alaska Native
women, we know that the jurisdictional complexities make our women and
children targets for deviants and criminals.
---------------------------------------------------------------------------
\1\ Testimony of The Honorable Thomas B. Heffelfinger, U. S.
Attorney, Minneapolis, Minneapolis, Oversight Hearing before the Senate
Committee on Indian Affairs on Contemporary Tribal Governments:
Challenges in Law Enforcement Related to the Rulings of the United
States Supreme Court, July 11, 2002.
\2\ INDIAN LAW & ORDER COMM'N, A ROADMAP FOR MAKING NATIVE AMERICA
SAFER, (2013).
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For over three decades before amendments included in the
reauthorization of the Violence Against Women Act in 2013 (VAWA 2013),
tribes did not have jurisdiction over any crimes committed by non-
Indians on their reservations. \3\ In 1978, the Supreme Court ruled in
Oliphant v. Suquamish that, absent specific direction from Congress,
tribal nations do not have jurisdiction over crimes committed by non-
Indians in Indian country. \4\ Congress recognized the impacts of this
ruling. According to the Senate Committee on Indian Affairs' Report on
this issue, ``Criminals tend to see Indian reservations and Alaska
Native villages as places they have free reign, where they can hide
behind the current ineffectiveness of the judicial system. Without the
authority to prosecute crimes of violence against women, a cycle of
violence is perpetuated that allows, and even encourages, criminals to
act with impunity in Tribal communities and denies Native women
equality under the law by treating them differently than other women in
the United States.'' \5\ Numerous researchers and policy commissions
have concluded for decades that jurisdictional complexities in Indian
country were a part of the problem. And again, Alaska has a uniquely
complex jurisdictional arrangement and no solution has yet been
legislated. \6\ As the Ninth Circuit summarized in a 1994 report,
``Jurisdictional complexities, geographic isolation, and institutional
resistance impede effective protection of women subjected to violence
within Indian country.'' \7\ Unfortunately, the amendments included in
VAWA 2013 creating a framework for some tribes to exercise jurisdiction
over domestic violence crimes are limited in scope and do not reach sex
crimes.
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\3\ See, e.g., Angela R. Riley, Crime and Governance in Indian
country, 63 UCLA L. REV. 1564, 1567 (2016) (discussing the history of
criminal justice in Indian country, the resulting ``jurisdictional
maze,'' and the impacts of this maze on Native women).
\4\ Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
\5\ S. Rep. No. 112-265, at 7 (2012).
\6\ INDIAN LAW & ORDER COMM'N, A ROADMAP FOR MAKING NATIVE AMERICA
SAFER, (2013).
\7\ John C. Coughenour et al., The Effects of Gender in the Federal
Courts: The Final Report of the Ninth Circuit Gender Bias Task Force,
67 S. CAL. L. REV. 745, 906 (1994).
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Each of the three sovereigns has less than full jurisdiction, and
the consequent need for multiple rounds of investigation often leads to
a failure to act. Overall, law enforcement in Indian country requires a
degree of cooperation and mutual reliance between federal, tribal, and
state law enforcement that--while theoretically possible--has proven
difficult to sustain. As described by Theresa Pouley, former Chief
Judge at the Tulalip Tribes of Washington, ``The combination of the
silence that comes from victims who live in fear and a lack of
accountability by outside jurisdictions to prosecute that crime, you've
created if you will, the perfect storm.which is exactly what all of the
statistics would bear out.'' \8\ We need a unified approach and Tribes
need to be part of the solutions.
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\8\ Tribal Justice: Prosecuting non-Natives for sexual assault on
reservations, PBS NEWS HOUR (Sept. 5, 2015), https://www.pbs.org/
newshour/show/tribal-justice-prosecuting-non-natives-sexual-assault-
indian-reservations.
Question 2. A 2017 Government Accountability Office report found
that while data on child sexual exploitation is collected by Department
of Justice grantee programs, and by the Office of Juvenile Justice and
Delinquency Prevention for minors, but the only easily accessible data
comes from the National Human Trafficking Hotline. How can we improve
both the data collection and reporting on these crimes, to better help
policymakers craft effective solutions?
Answer. As for human trafficking, we firmly believe that tribes
need to be at the table to discuss solutions to human trafficking, data
collection and reporting on these crimes to help policymakers craft
effective solutions. Recently, there has been an increase in interest
from Congress regarding human trafficking in tribal communities. The
Government Accountability Office (GAO) released two reports on this
topic in 2017. \9\ On September 27, 2017, the Senate Committee on
Indian Affairs held a hearing on ``the GAO Reports on Human Trafficking
of Native Americans in the United States.'' \10\ Witnesses at that
hearing included the GAO, the Bureau of Indian Affairs' Office of
Justice Services (BIA OJS), the Department of Justice's Office of
Tribal Justice and the Executive Director of the Minnesota Indian
Women's Sexual Assault Coalition. I encourage you to review the
testimony from that hearing to get a greater understanding of how the
federal government attempts to address trafficking in tribal
communities and statistics from a tribal perspective in an urban area.
\11\
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\9\ GAO, Human Trafficking: Action Needed to Identify the Number of
Native American Victims Receiving Federally-funded Services, GAO-17-325
(Washington, D.C.: Mar. 30, 2017), and GAO, Human Trafficking:
Information on Cases in Indian country or that Involved Native
Americans, GAO-17-624 (Washington, D.C.: July 24, 2017).
\10\ https://www.indian.senate.gov/hearing/oversight-hearing-gao-
reports-human-trafficking-native-americans-united-states.
\11\ Farley M., N. Matthews, N. , Deer, S., Lopez, G., Stark, C,
Hudon, E., (2011)Garden of Truth: The Prostitution and Trafficking of
Native Women in Minnesota.
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Prevalence of trafficking on tribal lands
In the United States, as well as in Canada, ``there is no data
collection/tracking method that provides a complete picture of sexual
exploitation or human trafficking.'' \12\ The data that is available
supports the conclusion that AI/AN women are trafficked at
disproportionately high rates. Across four sites surveyed in the U.S.
and Canada as part of a 2015 report, an average of 40 percent of the
women who had been trafficked identified as AI/AN or First Nations:
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\12\ Sweet, V. (2014). Rising Waters, Rising Threats: The Human
Trafficking of Indigenous Women in the Circumpolar Region of the United
States and Canada. Social Science Research Network. Retrieved from:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399074.
``In Hennepin County, Minnesota, roughly 25 percent of the
women arrested for prostitution identified as American
Indian.In Anchorage, Alaska, 33 percent of the women arrested
for prostitution were Alaska Native.In Winnipeg, Manitoba, 50
percent of adult sex workers were defined as Aboriginal. and 52
percent of the women involved in the commercial sex trade in
Vancouver, British Columbia were identified as First Nations.''
\13\
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\13\ Sweet, V. (2015). Trafficking in Native Communities. Published
on 5/24/2015 by Indian Country Today Media Network. Retrieved from:
http://indiancountrytodaymedianetwork.com/2015/05/24/trafficking-
native-communities-160475.
It is important to note that in not one of these cities and
counties do Native women represent more than 10 percent of the general
population. And while these data are only snapshots of sex trafficking
in major cities, similar trends are emerging in more remote,
reservation communities. In 2015 alone, the White Earth DOVE Program
(Down On Violence Everyday), which serves the White Earth, Red Lake,
and Leech Lake Reservations in northwestern Minnesota, identified 17
adult victims of sex trafficking. \14\ In northeastern Montana, the
Montana Native Women's Coalition reported that they have observed a 12
to 15 percent increase over the previous year's program base (between
2014-2015) regarding the number of Native women who have been
trafficked. \15\
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\14\ Dalrymple, A. and Lymn, K. (2015). Native American populations
`hugely at risk' to sex trafficking. Published on 1/5/2015 by the
Bismarck Tribune. Retrieved from: http://bismarcktribune.com/bakken/
native-american-populations-hugely-at-risk-to-sex-trafficking/
article_46511e48-92c5-11e4-b040-c7db843de94f.html.
\15\ Armitage, L. (2015). `Human Trafficking Will Become One of the
Top Three Crimes Against Native Women.' Published on 7/15/2015 by
Indian country Today Media Network. Retrieved from: http://
indiancountrytodaymedianetwork.com/2015/07/15/human-trafficking-will-
become-one-top-three-crimes-againstnative-women-161083.
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In my home state of Alaska, the FBI and the BIA have warned tribal
leaders that traffickers were preying on Native women and would be
targeting young women who traveled to Anchorage for the Alaska
Federation of Natives conference. \16\ There has also been a great deal
of discussion about the dangerous situation created for Native women by
the oil boom in the Bakken region of North Dakota. \17\ ``Specifically,
the influx of well-paid male oil and gas workers, living in temporary
housing often referred to as `man camps,' has coincided with a
disturbing increase in sex trafficking of Native women.'' \18\
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\16\ https://www.adn.com/rural-alaska/article/i-can-t-get-my-
sister-back-investigators-warn-sex-traffickers-targeting-natives/2010/
12/03/
\17\ http://harvardjlg.com/wp-content/uploads/2012/01/jlg-winter-
3.pdf
\18\ Id.
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Human trafficking is a highly underreported crime for a variety of
reasons, including the fact that ``many trafficking victims do not
identify themselves as victims. Some may suffer from fear, shame, and
distrust of law enforcement. It is also not unusual for trafficking
victims to develop traumatic bonds with their traffickers because of
the manipulative nature of this crime.'' \19\ Human trafficking also
intersects with intimate partner violence in a way that can obscure the
scope of the problem. According to the National Network to End Domestic
Violence ``there is a marked overlap in the pattern of behaviors that
both abusers and traffickers use to exert power and control over a
victim. Intimate partner trafficking occurs when an abuser `[compels]
their partner to engage in commercial sex, forced labor, or involuntary
servitude.' Alternatively, trafficked individuals sometimes live with
their trafficker and are subjected to the physical violence, emotional
manipulation, and overbearing control that are hallmarks of domestic
violence.'' \20\ Domestic and sexual violence are crimes that also
disproportionately impact AI/AN women. The National Institute for
Justice has found that 84 percent of AI/AN women will experience
intimate partner violence, sexual violence, or stalking in their
lifetime, and one in three have experienced it in the past year. \21\
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\19\ PRC brief http://www.ncai.org/policy-research-center/research-
data/prc-publications/TraffickingBrief.pdf
\20\ https://nnedv.org/latest_update/intersections-domestic-
violence-human-trafficking/
\21\ DEPARTMENT OF JUSTICE, NAT'L INST. OF JUSTICE, VIOLENCE
AGAINST AMERICAN INDIAN AND ALASKA NATIVE WOMEN AND MEN: 2010 FINDINGS
FROM THE NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY 26 (May
2016), https://www.ncjrs.gov/pdffiles1/nij/249736.pdf.
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Heightened Risk for American Indians and Alaska Natives
Traffickers prey on persons perceived to be vulnerable. \22\ AI/AN
women and girls have many of the indicators that increase
vulnerability, including being a relatively young, high-poverty
population, high rates of homelessness and substance abuse,
exceptionally high rates of past violent victimization, and a lack of
resources and support services. \23\ An FBI agent involved with
prosecuting trafficking cases in Anchorage has said that Native women
are also particularly vulnerable because ``[t]here have been
traffickers and pimps who specifically target Native girls because they
feel that they're versatile and they can post them (online) as
Hawaiian, as Native, as Asian, as you name it.'' \24\
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\22\ Attorney General's Annual Report to Congress and Assessment of
U.S. Government Activities to Combat Trafficking in Persons, Fiscal
Year 2015.
\23\ https://www.indian.senate.gov/sites/default/files/upload/
Tracy%20Toulou%20Testimony_0.pdf
\24\ https://www.adn.com/rural-alaska/article/i-can-t-get-my-
sister-back-investigators-warn-sex-traffickers-targeting-natives/2010/
12/03/
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Compounding these demographic vulnerabilities is the lack of an
effective law enforcement and criminal justice system in many places.
Current federal law limits the authority of Indian nations to fully
protect victims of crime and respond to crimes of trafficking that
occur on their lands. Criminal jurisdiction in Indian country is
divided among federal, tribal, and state governments, depending on the
location of the crime, the type of crime, the race of the perpetrator,
and the race of the victim. The rules of tribal jurisdiction were
created over 200 years of Congressional legislation and Supreme Court
decisions--and are often referred to as a ``jurisdictional maze.'' \25\
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\25\ See Robert N. Clinton, Criminal Jurisdiction Over Indian
Lands: A Journey Through a Jurisdictional Maze, 18 ARIZ. L. REV. 503,
508-13 (1976).
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The complexity of the jurisdictional rules creates significant
impediments to effective law enforcement in Indian country. Each
criminal investigation involves a cumbersome procedure to establish who
has jurisdiction over the case according to the nature of the offense
committed, the identity of the offender, the identity of the victim,
and the exact legal status of the land where the crime took place. The
first law enforcement officials called to the scene are often tribal
police or BIA officers, and these officers may initiate investigations
and/or detain a suspect. Then a decision has to be made--based on the
race of the individuals involved in the crime, the type of crime
committed, and the legal status of the land where the crime occurred--
whether the crime is of the type warranting involvement by the FBI or
state law enforcement.
The United States Department of Justice has testified to Congress
that jurisdictional complexity has made the investigation and
prosecution of criminal conduct in Indian country very difficult and
that some violent crimes convictions are thrown into doubt,
recommending that the energy and resources spent on the jurisdictional
questions would be better spent on providing tangible public safety
benefits. \26\ The Indian Law and Order Commission, a bi-partisan
commission created by the Tribal Law & Order Act of 2010, concluded
that ``criminal jurisdiction in Indian country is an indefensible
morass of complex, conflicting, and illogical commands.'' \27\ These
challenges are not unique to trafficking cases, but they undoubtedly
complicate the justice response and make reservations an attractive
target for traffickers. Native women as a population are often viewed
as unprotected prey and the pleas of victims and their families for
help go unheard. One mother in Alaska, reported:
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\26\ Testimony of The Honorable Thomas B. Heffelfinger, U. S.
Attorney, Minneapolis, Minneapolis, Oversight Hearing before the Senate
Committee on Indian Affairs on Contemporary Tribal Governments:
Challenges in Law Enforcement Related to the Rulings of the United
States Supreme Court, July 11, 2002.
\27\ INDIAN LAW & ORDER COMM'N, A ROADMAP FOR MAKING NATIVE AMERICA
SAFER, (2013).
``[m]y daughter was and still is a victim of sex trafficked
women. I reported it to the authorities and received no help. I
told them the address, location, and names of her traffickers.
The Anchorage Police Department would not listen to me until I
got my two white friends to make a call for me. I contacted
Priceless Alaska but they would not help me unless a State
Trooper investigates and makes a referral to their
organization. No one would help me. I also called the FBI,
three times, and they did not respond. Through, my 2 white
friends, I reported her missing. My daughter was held, by
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traffickers, at Eagle River, Alaska, for 4 months.''
--Martina Post, Testimony of the Native Village of Alakanuk,
USDOJ Tribal Consultation, December 6, 2016
In Alaska 28 percent of the youth at Covenant House Alaska were
survivors of human trafficking and Alaska experiences the most heinous
cases of sex trafficking in the nation. The researcher, Dr. Laura
Murphy of Loyola University's Modern Slavery Research Project, reported
that from among all the Covenant House sites across the country, Alaska
had the most brutal cases of sex trafficking--worse than the big,
crime-filled cities of Los Angeles, Detroit, New Orleans and even New
York. \28\
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\28\ Murphy, L.T., (2017) Labor and Sex Trafficking Among Homeless
Youth 12.
Question 3. An element of improving data collection and reporting
is the significance of identifying the Native status of women and youth
who are victims of trafficking and sexual exploitation. Do you agree
that it is necessary to include Native status in demographic data?
Could this disaggregated data be used to improve culturally appropriate
treatment and support programs for Native victims?
Answer. When it comes to collecting data and reporting, it is
critical to identify the Native status of women and youth who are
victims of trafficking and sexual exploitation. Our women and
especially our women targeted with these crimes have great need for
assistance, as not only do they need services, but they also need
stable housing, medical and legal services. This disaggregated data can
be used to improve culturally appropriate treatment and support
programs for Native victims and also tell the true story of the grossly
disproportionate rate that our women are subjected to in crimes of
violence, trafficking and sexual exploitation.
Federal Response
Investigating and prosecuting trafficking crimes in tribal
communities is largely the responsibility of the federal government,
although in some cases the tribal or state government will have
concurrent jurisdiction. According to the GAO, there are four federal
agencies that investigate or prosecute human trafficking in Indian
country--the Federal Bureau of Investigation (FBI), the Bureau of
Indian Affairs (BIA), U.S. Immigration and Customs Enforcement (ICE),
and the U.S. Attorneys' Offices (USAOs). \29\ GAO reports that the BIA,
FBI, and USAOs record whether a trafficking case occurred in Indian
country in their case systems, but ICE does not. None of the federal
agencies track whether the victim is Native American or not. \30\ In
its recent report, the GAO found that from 2013-2016, there were only
14 federal investigations, and 2 federal prosecutions of human
trafficking offenses in Indian country. \31\ Given what we know about
the prevalence of trafficking in tribal communities and the
responsibility of the federal government to investigate and prosecute
this crimes, this is extremely concerning. The GAO released a second
report in July 2017 examining the extent to which local law enforcement
agencies or tribal governments were filling the void left by federal
law enforcement agencies and investigating and prosecuting trafficking
cases. The GAO surveyed 203 tribal law enforcement agencies and 86
major city law enforcement agencies. Of the 132 tribal law enforcement
agencies who responded, 27 of them reported that they initiated human
trafficking investigations between 2014-2016, for a total of 70
investigations involving 58 victims. The GAO asked tribal law
enforcement agencies about the number of human trafficking
investigations they conducted in Indian country. The question posed to
major city law enforcement agencies differed, however. They were asked
about the number of human trafficking investigations that involved at
least one Native American victim. Only 6 of the major city law
enforcement agencies reported human trafficking cases with at least one
Native American victim. Those 6 reported a total of 60 investigations
involving 81 Native American victims from 2014-2016. The Minneapolis
Police Department reported 49 of the 60 total investigations. GAO
reported that the Minneapolis Police ``made a concerted effort,
starting in 2012, to meet with tribal elders and service providers who
worked with the Native American population to demonstrate their
willingness to investigate human trafficking crimes. The officials
stated that, following those meetings, the number of human trafficking
crimes involving Native American victims that were reported to the
department increased.'' \32\
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\29\ https://www.indian.senate.gov/sites/default/files/upload/
Gretta%20Goodwin%20Testimony.pdf
\30\ https://www.indian.senate.gov/sites/default/files/upload/
Gretta%20Goodwin%20Testimony.pdf
\31\ https://www.indian.senate.gov/sites/default/files/upload/
Gretta%20Goodwin%20Testimony.pdf
\32\ https://www.gao.gov/assets/690/687396.pdf, at 10.
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GAO reported that tribal law enforcement agencies believe that
human trafficking is occurring at a higher rate than is being reported.
Unsurprisingly, when tribal law enforcement were asked to identify
factors that hampered their ability to hold traffickers accountable
several themes emerged: (1) victims are unwilling to cooperate; (2)
lack of resources, such as necessary training, equipment and funding
for sex crime investigations; (3) inter-agency cooperation is absent or
deficient; and (4) a lack of appropriate laws in place.
Conclusion
While human trafficking effects every community, there is a growing
awareness and concern that Native women and girls are particularly
vulnerable and are victims of sex trafficking at an alarming rate. We
have no reason to believe that given these facts, that when it comes to
online pornography, our women and children will be targeted by those
individuals too. There is a particular concern about the relationship
between both intimate partner violence and the extractive industries
and sex trafficking. It is important that Congress take action to hold
federal officials accountable for their failure to adequately
investigate and prosecute trafficking crimes in tribal communities,
while also ensuring that tribal governments have the resources and
authority that they need to address these issues. Gunalcheesh, Haw'aa,
or in other words, thank you for asking these important questions.
______
*RESPONSES TO THE FOLLOWING QUESTIONS FAILED TO BE
SUBMITTED AT THE TIME THIS HEARING WENT TO PRINT*
Written Questions Submitted by Hon. Tom Udall to
Tracy Toulou
Officer Response to Domestic Violence Calls
Question 1. According to an April 9, 2018, article by USA Today,
FBI data shows that more officers died responding to domestic
disturbances than during drug-related arrests between 1986 and 2016.
\1\ What does the Department's research into officer assaults and
fatalities indicate about the dangers of responding to domestic
violence and domestic disturbance calls?
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\1\ Natalie Schreyer, Domestic Abusers: Dangerous for Women--and
Lethal for Cops, USA TODAY, Apr. 9, 2018, https://www.usatoday.com/
story/news/nation/2018/04/09/domestic-abusers-dangerous-women-and-
lethal-cops/479241002/.
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Unmet Law Enforcement Staffing Needs
Question 2. The FBI's Uniform Crime Report estimates police
employee data by calculating the number of sworn officers and law
enforcement personnel per 1,000 inhabitants. The Bureau of Indian
Affairs used this same metric as the basis for determining its unmet
officers staffing need in its 2017 ``Report to the Congress on
Spending, Staffing, and Estimated Funding Costs for Public Safety and
Justice Programs in Indian Country''. Does the Department of Justice
measure staffing levels for criminal investigators and prosecutors? b.
What research, if any, is the Department of Justice aware of that
suggests minimum or recommended staffing levels for criminal
investigators and prosecutors?
Jurisdiction
Question 3. In your written testimony on S. 288 and S. 290, you
state, ``Because exercising criminal jurisdiction is such a crucial
aspect of sovereignty, the Department would welcome the opportunity to
work with the Committee to ensure that [S. 288 and S. 290] will weather
judicial challenges.''
a. Is the Department aware of any judicial challenges to date
regarding Tribal exercise of special domestic violence criminal
jurisdiction?
b. What suggestions would the Department make to ensure that
S. 288 and S. 290 can ``weather judicial challenges''?
Federal Criminal Databases
Question 4. The Government Accountability Office's recent report
GA0-16-515 included a recommendation that the Department of Justice
evaluate options to share information between NCIC and NamUs. According
to the report, the Department indicated that NamUs does not qualify
under federal law for access to the NCIC and is not authorized to
receive NCIC data. Does the Department still assert that it needs
statutory authorization from Congress to allow NamUs to access and
receive data from NCIC?
Question 5. In response to a question at the hearing about linking
the National Crime Information Center (NCIC) and the National Missing
and Unidentified Persons System (NamUs) to share information, you
stated, ``We've made efforts already to try to put those two databases
in contact. . .it's underway--it's tricky--but we agree the two
databases should speak to each other.'' Please describe the current
efforts underway at the Department of Justice to coordinate between
NCIC and NamUs you referenced in this response.
Question 6. According to testimony from Central Council Tlingit and
Haida Indian Tribes Chief Justice Michelle Demmert, ``28 USC 534(d)
authorizes release of criminal history information to Tribal law
enforcement agencies, but doesn't allow release of criminal information
to other Tribal agencies for important, legitimate civil purposes, such
as Emergency Placement of Children or 'Purpose Code X,' employees that
work with elders and vulnerable adults, etc. CJIS interprets the
appropriations rider language from 92-544 (and in the notes of 28 USC
534) as a permanent statute that prevents sharing this information with
Tribal governments. . .A state can legislate to authorize this access,
whereas a Tribe does not have that direct access and often has to use
channelers or use Lexis/Nexus.''
a. Can states access federal criminal databases for the civil
purposes referenced by Chief Justice Demmert? And, if so, what
federal statutory authority grants this access?
b. Can all Tribes with Tribal Access Program (TAP) terminals
access the FBI's criminal databases for the civil purposes
referenced by Chief Justice Demmert?
c. If Tribes cannot use these databases for civil purposes,
what statutory changes would Congress need to make to grant
Tribes access for these purposes?
Committee Rule Compliance
Question 7. According to Committee Rule 4b, witnesses must submit
testimony to the Committee 48 hours before the start of a hearing. Your
testimony was received after the deadline. Please provide the date and
time you submitted testimony to the Office of Management and Budget for
clearance pursuant to Circular A-19.
______
Written Questions Submitted by Hon. Brian Schatz to Tracy Toulou
Question 1. Communities with a high Native population, including
Hawaii, continue to have a disproportionately high number of child
sexual exploitation--including child pornography, child sexual abuse,
and child sex trafficking--victims. In many areas, this stems from a
lack of coordination between federal, state, local, tribal, and
military law enforcement agencies on issues stemming from child
pornography to child sex trafficking. For example, while the Federal
Bureau of Investigation, Homeland Security Investigations, 61 Internet
Crimes Against Children (ICAC) Task Forces, and over 4,000 state and
local law enforcement agencies are both trained on and use the ICAC
Child Online Protective Services (ICACCOPS) program to identify unique
Internet Protocol (IP) addresses used for the peer-to- peer file
trading of child pornography. Military criminal investigative
organizations, however, do not train on or use the ICACCOPS program.
Would the department be supportive of working with military law
enforcement agencies--in addition to continuing the current work with
state and local law enforcement--to incorporate training on how best to
identify, track, and combat the trading of child pornography?
Question 2. In discussions with stakeholders in Hawaii, a
consistent problem with addressing child sexual exploitation is the
issue of collecting and managing data on the number of victims
identified or rescued each year. Anecdotally, we have heard from
service providers that Native Hawaiian children make up over 90 percent
of victims of in Hawaii. What percentage of domestic child sexual
exploitation victims are Native American, including American Indian,
Alaska Native, and Native Hawaiian children?
Question 3. A 2017 Government Accountability Office report found
that while data on child sexual exploitation is collected by Department
of Justice grantee programs, and by the Office of Juvenile Justice and
Delinquency Prevention for minors, but the only easily accessible data
comes from the National Human Trafficking Hotline. How can we improve
both the data collection and reporting on these crimes, to better help
policymakers craft effective solutions?
[all]