Abstract: On behalf of the National Congress of American Indians, we are pleased to present testimony to the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security on the need to reauthorize the Violence Against Women Act. NCAI is the oldest and largest national organization representing American Indian and Alaska Native tribal governments in the United States. We are steadfastly dedicated to protecting the rights of tribal governments to achieve self-determination and self-sufficiency, and to the safety and security of all persons who reside within or visit Indian Country. In 2000, NCAI’s member tribes adopted resolution STP-00-081, establishing the NCAI Task Force on Violence Against Native Women. Since that time, the Task Force has worked to identify needed policy reforms at the tribal and federal levels.
On behalf of the National Congress of American Indians, we are pleased to present testimony to the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security on the need to reauthorize the Violence Against Women Act. NCAI is the oldest and largest national organization representing American Indian and Alaska Native tribal governments in the United States. We are steadfastly dedicated to protecting the rights of tribal governments to achieve self-determination and self-sufficiency, and to the safety and security of all persons who reside within or visit Indian Country. In 2000, NCAI’s member tribes adopted resolution STP-00-081, establishing the NCAI Task Force on Violence Against Native Women. Since that time, the Task Force has worked to identify needed policy reforms at the tribal and federal levels.
NCAI has been actively involved in the development of the tribal provisions of VAWA in the past reauthorizations of the bill. Each time VAWA has been reauthorized, it has included important provisions aimed at improving safety and justice for Native women. We welcome the opportunity to work with the Committee to enact legislation that continues to build on VAWA’s promise. Last month, NCAI adopted resolution ECWS-19-005 (attached), which sets forth five priorities for reauthorization of the Violence Against Women Act in 2019:
1) include provisions, like those included in the bipartisan Native Youth and Tribal Officer Protection Act and Justice for Native Survivors of Sexual Violence Act, that amend 25 U.S.C. 1304 to address jurisdictional gaps including: child abuse and endangerment; assaults against law enforcement officers; sexual violence; stalking; trafficking; and the exclusion of certain tribes from the law;
2) create a permanent authorization for DOJ’s Tribal Access to National Crime Information Program and ensure that TAP is available to all tribes;
3) improve the response to cases of missing and murdered women in tribal communities;
4) identify and address the unique barriers to safety for Alaska Native women and provide access to all programs; and
5) reauthorize VAWA’s tribal grant programs and ensure that funding is available to cover costs incurred by tribes who are exercising jurisdiction pursuant to 25 U.S.C. 1304.
Jurisdictional Gaps
Six years ago today, when Congress passed VAWA 2013, it included a provision, known as Special Domestic Violence Criminal Jurisdiction (SDVCJ), 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.1 Since passage of VAWA 2013, NCAI has been providing technical assistance to the tribes who are implementing the law. 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 tribes’ early exercise of SDVCJ suggests that it is working as Congress intended—the law has enhanced the ability of tribal governments to combat domestic violence against Native women, while at the same time protecting non-Indians’ rights in impartial, tribal forums.2 By exercising SDVCJ, many tribal communities have increased safety and justice for victims who had previously seen little of either. As the Department of Justice (DOJ) testified before the Senate Committee on Indian Affairs in 2016, SDVCJ has allowed tribes to “respond to long?time abusers who previously had evaded justice”3 and has given hope to victims and communities that safety can be restored.
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. Implementation of SDVCJ has also resulted in increased collaboration among tribes and between the local, state, federal, and tribal governments.
Implementation of VAWA 2013 has also revealed, however, places where federal administrative policies and practices needed to be strengthened to enhance justice, and it has shown where the jurisdictional framework continues to leave victims—including victims of sexual violence, children, and law enforcement—vulnerable.
The tribes implementing SDVCJ report that children have been involved as victims or witnesses in SDVCJ cases nearly 60% 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.4 However, federal law currently limits SDVCJ to crimes committed only against intimate partners or persons covered by a qualifying protection order. 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 only able to refer these cases to state or federal authorities, who may or may not pursue them.
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.5 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 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., and suicide is the second-leading cause of death (after accidental injury) for Native youth aged 15-24.6 Due to exposure to violence, Native children experience post-traumatic stress disorder at a rate of 22% - the same levels as Iraq and Afghanistan war veterans and triple the rate of the rest of the population.7
A bill introduced by Representatives Cole and O’Halleran, H.R. 958, the Native Youth and Tribal Officer Protection Act, would amend 25 U.S.C. 1304 to reaffirm tribal jurisdiction over certain non-Indians who commit crimes against Native children in Indian Country. NCAI supports this bill and encourages this Committee to include similar provisions in VAWA reauthorization legislation.
H.R. 958 would also 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 under federal law. Domestic violence cases are both the most common and the most dangerous calls that law enforcement responds to, and the limits on tribal authority to prosecute these crimes creates an obvious public safety concern.
Federal law also 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% of Native women experience sexual violence within their lifetime, with 1 in 7 experiencing it in the past year.8 Nearly 1 in 2 report being stalked.9 Contrary to 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% of Native women and 89% of male victims reported being victimized by a non-Indian.10 Native victims of sexual violence are three times as likely to have experienced sexual violence by an interracial perpetrator as non-
Hispanic White victims.11 Similarly, Native stalking victims are nearly 4 times as likely to be stalked by someone of a different race, with 89% of female stalking victims and 90% of male stalking victims reporting inter-racial victimization.12 The higher rate of inter-racial violence would not necessarily be significant if it were not for the jurisdictional complexities unique to Indian Country and the limitations imposed by federal law on tribal authority to hold non-Indians accountable for crimes they commit on tribal lands.
A recent example 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. This kidnapping and rape of a minor could have been prevented if the tribe had been able to exercise jurisdiction in the first case.
Senators Murkowski, Smith, and Udall have introduced a bill, S. 288, Justice for Native Survivors of Sexual Violence, that would amend 25 U.S.C. 1304 to include sexual assault, stalking, and trafficking crimes committed in Indian Country. NCAI supports this bipartisan legislation and encourages this Committee to include similar provisions in VAWA reauthorization legislation.
We are grateful for the leadership of Congressmen Cole and O’Halleran and Senators Murkowski, Smith, and Udall for their efforts to address some of the most egregious gaps in the existing law. As this Committee moves forward with reauthorization of VAWA, we urge you to include amendments that would help ensure that all victims in Indian Country have access to the life-saving provisions of VAWA 2013.
DOJ’s TAP Program
VAWA 2005 and the Tribal Law & Order Act of 2010 both included provisions directing the Attorney General to permit Indian tribes to enter information into and obtain information from federal criminal information databases. This has been a long-standing issue that Indian tribes have raised for years. In response to these concerns, in 2015 DOJ announced the Tribal Access Program for National Crime Information (TAP), which provides eligible tribes with access to the Criminal Justice Information Services systems. There are now 30 tribes participating in TAP, which will greatly facilitate their ability to enter protection orders and criminal history into the federal databases.
A dedicated funding stream should be created for expanding the TAP program and making it available to all interested tribes who meet the requirements. All tribes should have the ability to access federal databases not only for the purpose of obtaining criminal history information for criminal or civil law purposes, but also for entering protection orders and other relevant information, including NICS disqualifying events, into the databases.
Missing and Murdered Native Women
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.”13
In 2016, NCAI adopted resolution PHX-16-077 (attached) calling on Congress to improve the response to missing and murdered Indians by developing protocols and guidelines, providing services to victims’ families, and improving coordination among jurisdictions. We encourage the Committee to include provisions like these in any reauthorization of VAWA.
Safety for Alaska Native Women
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. 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 Indian 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.” 14 Without a strong law enforcement presence, crime regularly occurs with impunity. Victims live in small, close-knit communities where access to basic criminal justice services is non-existent and health care is often provided remotely through telemedicine technology. Providing comprehensive services and justice to victims in these circumstances presents unique challenges. In many of these communities, tribal members receive services in informal ways. Domestic violence victims, for example, may be offered shelter in a home that is a known “safe house” in the village.
In addition, Alaska tribes face jurisdictional challenges unlike any in the nation, as none of the tribes, with the exception of Metlakatla, a reservation created by legislative act still in existence post Alaska Native Claims Settlement Act, has a defined territorial jurisdiction.15 Territorial jurisdiction is necessary for the exercise of criminal jurisdiction whether among tribal members or for those subject to special domestic violence court jurisdiction. Solutions need to considered and advanced to bring back local control to issues that have gone unaddressed for these 228 tribes in Alaska. A pilot project that provides a jurisdictional framework identifying the reach of criminal jurisdiction would be a significant move in that direction. As this Committee moves forward with VAWA reauthorization, we encourage you to work closely with the Alaska delegation and the Alaska Native Women’s Resource Center to include provisions that will address the needs of Alaska Native victims.
VAWA’s Tribal Grant Programs
In addition to the challenges created by jurisdictional complexities and limits on tribal authority, the safety of Native women continues to be undermined by a lack of resources for victim services and tribal criminal justice systems. In previous reauthorizations of VAWA, Congress created several new grant programs for Indian tribes including the Grants to Tribal Governments Program, the Tribal Sexual Assault Services Program, the Tribal Coalitions Program, and the Tribal Jurisdiction Program. These programs have made a significant difference in some tribal communities and should be reauthorized. They are simply not sufficient, however, to meet the need. While we understand that it is likely outside the scope of what will be addressed in a VAWA reauthorization bill, NCAI has long advocated for Congress to amend the Victims of Crime Act (VOCA) to end the exclusion of tribal governments from the Crime Victims Fund (CVF). This would provide much-needed funding for victim services and compensation to victims of violence in tribal communities. We are grateful that a portion of the CVF disbursements have been made available to tribal governments in the last two appropriations cycles. It is important, however, that the authorizing language in VOCA is amended to make this change permanent.
Conclusion
Public safety has been the leading concern of tribal leaders throughout the country for many years. NCAI encourages Congress to take action on all of the fronts that we have identified above. Taken together – removing the gaps in tribal jurisdiction, expanding access to federal criminal databases, responding to the need for thorough criminal investigation of every case for the murdered and missing, addressing the unique challenges in Alaska, and ensuring there are resources available for victim services– we can dramatically change the environment for criminal activity on Indian reservations. Our goal and our mission is sending the message that domestic violence, sexual assault, stalking, and trafficking will not be tolerated on tribal lands. This effort will bring great benefits to Indian communities and our neighbors in public safety, but also in health, productivity, economic development, and the well-being of our people. We thank you in advance, and look forward to starting our joint efforts without delay.
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1 25 U.S.C. §1304.
2 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.”).
3 Tracy Toulou, “Director Tracy Toulou of the Office of Tribal Justice Testifies Before the Senate Committee on Indian Affairs Oversight Hearing on Draft Legislation to Protect Native Children and Promote Public Safety in Indian Country,” (May 18. 2016), https://www.justice.gov/opa/speech/director-tracy-toulou-office-tribal-justice-testifies-senate-committee-indian-affairs-0.
4 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).
5 Id.
6 SAMHSA, National Survey on Drug Use and Health, 2003.
7 AG Advisory Committee, supra, note 12, at 38.
8 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.
9 Id., at 29.
10 Id., at 18.
11 Id., at 29.
12 Id., at 32.
13 U.S. Department of Justice, Office on Violence Against Women, “2017 Update on the Status of Tribal Consultation Recommendations,” (2017).
14 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/.
15 25 U.S.C. § 150 (1891)