For generations, Native American women have been victimized at astonishing rates, with federal figures showing that more than half have encountered sexual and domestic violence at some point during their lives — even amid a wave of efforts aimed at reducing such crimes.
The statistics reinforce arguments that the criminal justice system still fails to protect these women, and its shortcomings again are being exposed as another crisis gains attention: the disappearances of hundreds of Native American and Alaska Native women and girls from across the United States.
In the past decade, Congress responded to the problem of violence against Native American women with intensely debated legislation seeking to close legal loopholes, improve data collection and increase funding for training of tribal police. Those efforts have proven severely limited, however, prompting advocates to again push for more reforms.
"I think the reason that Native women may go missing at higher rates than other groups of people is very similar to the reason that they are at higher risk for domestic violence and sexual assault,'' said Sarah Deer, a University of Kansas professor, member of the Muscogee (Creek) Nation and author of a book on sexual violence in Indian Country. "The legal system is simply not functioning properly [to prevent] these types of things from happening.''
At the end of 2017, the FBI's National Crime Information Center database had 633 open missing-person cases for Native American women, who make up 0.4 percent of the U.S. population but 0.7 percent of cases in the figures obtained by The Associated Press. African-American women were the only other group to be over-represented in the caseload compared with their proportion of the population.
Figures too low
The numbers are considered an undercount, however, given that reporting is largely voluntary and some tribes didn't gain full access to the database until 2015, under a Justice Department program launched that year.
Just 47 of the nation's more than 570 federally recognized tribes are part of DOJ's Tribal Access Program, which allows them to exchange data with national crime information systems for civil and criminal purposes. The Justice Department has gradually allocated funding to bring more tribes on board, and up to 25 are expected to join the program in the next year, officials said. Other tribes have limited access via state, federal or local law enforcement agencies.
"We think that's an important way of ensuring that tribes have the ability to directly deal with the issues on the ground that their families and their community are dealing with,'' said Tracy Toulou, head of the Justice Department's Office of Tribal Justice.
That program was one of many crime-fighting measures in the Tribal Law and Order Act of 2010, which gave tribes authority to hand down longer sentences while mandating that federal officials do more to train tribal police on evidence collection and provide an annual report on Indian Country crime statistics.
Years later, those data collection and reporting efforts are still in development, funding for law enforcement training remains limited, and the Justice Department's assistance with public safety on reservations — a role referenced in multiple treaties with tribes — has fallen short of officials' expressed commitment to Indian Country, according to the Justice Department's Office of the Inspector General.
Prosecutors' track record
In a 2017 report, the inspector general also highlighted U.S. attorneys' uneven track record with prosecuting serious violent crimes on reservations, citing data that must be collected under the 2010 law to help improve those prosecution rates.
Before the law, the U.S. Government Accountability Office found, U.S. attorneys declined to prosecute half of cases on reservations, leading to concerns that the practice was creating a safe haven for criminals on tribal lands. The latest figures, from 2016, show U.S. attorneys declined to prosecute 46 percent of reservation cases, marking only marginal improvement. That included rejecting more than 550 assault and sexual assault cases — more than any other type of crime. (Domestic violence cases typically fall under assault.) Prosecutors blamed the vast majority of rejections on insufficient evidence.
A few weeks ago, at an annual meeting between tribal and federal officials about violence against Native women, Jesse Panuccio, the Justice Department's acting associate attorney general, identified domestic violence and sex trafficking as two underlying issues that may be linked to disappearances of women in Indian Country. He said improving law enforcement's response to those crimes could help.
"Many tribal leaders have testified that the disappearance and deaths of American Indian and Alaska Native women are not taken seriously enough, and that increased awareness and a stronger law enforcement response are critical to saving Native women's lives,'' Panuccio said.
Some tribal leaders and victims' families contend authorities too often are unwilling to help search for missing loved ones or even file a report.
In Alaska, state authorities — who handle criminal investigations in more than 200 Alaska Native villages — have been accused of classifying fatalities as suicides when families feel certain their loved ones died from a homicide, according to representatives from the Akiak, Emmonak and Tetlin communities. The state, which has the highest percentage of Native residents in the U.S., also has some of the biggest crime disparities in the nation, including the highest rate of women murdered by men.
A 2013 report found that at least 75 Alaska Native communities had no law enforcement presence, and Alaska Native officials spoke candidly in a federal report last year about barriers victims face in seeking justice. Some victims needing a sexual assault forensic exam must take a boat or plane to an urban area, according to Michelle Demmert, chief justice for the Central Council of Tlingit and Haida Indian Tribes.
As a result of complaints about police response nationwide, proposals have begun to emerge to address how officers respond, with calls for the Justice Department to establish standardized protocols.
One of those proposals, included in draft legislation to renew and broaden the Violence Against Women Act, would expand tribal jurisdiction over a range of crimes. For example, tribal police would be able to arrest non-Native Americans suspected of selling women for sex or running trafficking rings.
A problem of resources
An earlier version of the Violence Against Women Act gave tribal authorities the ability to prosecute non-Indians in domestic violence cases. However, only 18 tribes have met the mandates to do so, the National Congress of American Indians reported in March. Those mandates include requiring tribes to provide an attorney to suspects who cannot afford one — a costly ask for cash-strapped nations.
"We can't guarantee that, because we don't have the funding to guarantee it,'' said Robert LaFountain, a prosecutor on Montana's Crow Reservation, where the per capita annual income of roughly $15,000 is about half the national average. "The funding is always difficult.''
Another measure included in the VAWA reauthorization calls for annual reports on the number of missing and murdered Native Americans, one of multiple federal proposals aimed at measuring the full scope of the problem.
The Violence Against Women Act expires this fall, and prospects for passing any new changes are uncertain. There are no Republican co-sponsors, and the U.S. Justice Department has not signaled its support for amendments. As a senator, U.S. Attorney General Jeff Sessions opposed the legislation in 2013, citing an objection to expanding tribes' authority over non-Indians and other provisions.
