Introduction

Across many countries, Indigenous peoples—women and girls in particular—are disproportionately affected by violence.¹ In the United States, 84% of American Indian and Alaskan Native (AI/AN) women and 82% of AI/AN men reported experiencing violent victimization in their lifetime, which is significantly higher than the rate of lifetime violence experienced by non-Hispanic White women and men.² Studies have also shown that AI/AN children are more likely to experience abuse and trauma than their non-Native peers.³ Additionally, as of June 2023, of the 23,300 missing persons included in the National Missing and Unidentified Persons System (NamUs), 820 (3.5%) were identified as AI/AN.⁴ The proportion of missing people who were identified as AI/AN is more than three times the AI/AN percentage of the U.S. population identified in the 2020 census (1.1%).⁵ Advocacy by Native American and other Indigenous communities has brought increased attention to experiences of violence in Indigenous communities using the terms Missing and Murdered Indigenous People (MMIP) and Missing and Murdered Indigenous Women and Girls (MMIWG). In recent years, the federal government has made efforts to address MMIP and the high rate of violence experienced by Native American women, girls, and two-spirit people.⁶

This report provides an overview of recent research about and commonly cited barriers to addressing MMIP and background on legislation and programming to improve data collection and services for Native Americans. It concludes with selected policy issues Congress may consider when conducting oversight or considering legislation related to MMIP.

MMIP is an issue that bridges several policy domains of interest to many in Congress, including tribal jurisdiction and self-determination, violent crime, and human trafficking. The broader scope and history of this issue could encompass events as early as the first arrival of Europeans in the Americas. As stated in a January 2021 article in the Department of Justice Journal of Federal Law and Practice,

The issue is steeped in centuries of interracial physical and cultural violence carried out through colonial oppression of Indigenous peoples. What began with European colonialization and the kidnapping and murdering of Indigenous people continued with U.S. colonizing policies throughout the 18^th, 19^th, and 20^th centuries. These policies included wars, massacres, and attacks on Indigenous civilian populations, boarding schools with assimilatory policies, laws suppressing cultural and religious practices, and forced removal of Indigenous peoples from their traditional lands.⁷

A full elucidation of this history and its relationship to modern patterns of victimization are beyond the scope of this report. Similarly, the long history of Native American advocacy for equal justice and self-determination is germane to the topic of MMIP but not a focus of this report.

Data on Violence Experienced by Native Americans

There is no single source for data on MMIP; instead, one can begin to gain an understanding of the violence experienced by Native Americans by examining several federal databases as well as data gathered by researchers. However, researchers and advocates have identified significant gaps in available data, indicating that they do not provide a comprehensive picture of the issue. This section presents available data and later portions of this report discuss both potential reasons for data gaps and actions Congress could take to address them.

FBI Uniform Crime Reporting Program

The Federal Bureau of Investigation's (FBI's) Uniform Crime Reporting (UCR) program collects annual data on reported crime in the United States as well as demographic data on violent crime victims.¹¹ The FBI uses these data to create an aggregate measure of reported violent crime, which includes homicide (i.e., murder/nonnegligent manslaughter), rape, robbery, and aggravated assault. In 2021, the FBI retired the Summary Reporting System (SRS) in favor of the National Incident-Based Reporting System (NIBRS). As 2021 was the first year of the transition to NIBRS and there were lower agency participation rates in UCR stemming from this change, the FBI has stated that 2021 data should be considered separately from data collected in prior years. As such, in the following discussion, 2021 data are summarized separately from prior years and are not included in any graphs. ¹²

From 2010 to 2020, 1.0% of violent crime victims were identified as AI/AN.¹³ This rate remains consistent when looking at the data separately for homicide, rape, robbery, and aggravated assault. In 2021, 1.6% of all violent crime victims were identified as AI/AN, and the data for AI/AN victims of homicide (1.3%), rape (2.0%), robbery (1.1%), and aggravated assault (1.7%) were relatively consistent with prior years. Figure 1 demonstrates that the number of violent crime victims identified as AI/AN in UCR has increased since 2010 (blue line, right axis). Similarly, the rate of violent crime victimization has increased from 60 per 100,000 AI/AN people in 2010 to 206 in 2020 (orange line, left axis).

Figure 1. AI/AN Victims of Violent Crime 2010–2020

Source: Victimization data are from Federal Bureau of Investigation, Crime Data Explorer, https://crime-data-explorer.fr.cloud.gov/pages/explorer/crime/crime-trend. Population estimates for 2010-2020 are from U.S. Census Bureau.

Figure 2 shows that the number of homicide victims identified as AI/AN in the UCR data has been increasing since 2012, but has markedly increased since 2018 (blue line, right axis). The rate of homicide victimization has increased from 0.7 per 100,000 AI/AN people in 2010 to 3.0 in 2020 (orange line, left axis).

Figure 2. AI/AN Victims of Homicide 2010–2020

Source: Victimization data are from Federal Bureau of Investigation, Crime Data Explorer, https://crime-data-explorer.fr.cloud.gov/pages/explorer/crime/crime-trend. Population estimates for 2010-2020 are from U.S. Census Bureau.

These data alone do not necessarily mean that the number of violent crimes committed against Native Americans has changed. It may be the case that the violence experienced by Native Americans has remained steady but other factors, such as increased crime data reporting by tribal law enforcement,¹⁴ greater willingness to report crimes to the police,¹⁵ or improved practices in identifying Native American victims, may have changed.¹⁶

CDC National Vital Statistics System

The Centers for Disease Control and Prevention (CDC) collects and publishes annual data on the leading causes of death in the United States through its National Vital Statistics System (NVSS). The most recent data are for 2020 and include homicide rates broken down by race and age.¹⁷ In 2020, homicide was the 12^th leading cause of death for AI/AN people across all ages and sexes¹⁸ and the 16^th leading cause in the United States overall.¹⁹ For persons 1 to 19 years of age, on average, homicide was the third leading cause of death for AI/AN people and for this age group in the overall population. For those who were 20 to 44 years of age, homicide was, on average, the fifth leading cause of death for AI/AN people and the fourth leading cause of death in the overall population. Homicide was a less common cause of death for those 45 to 64 in the AI/AN and overall populations, and it was not in the top 20 causes of death for those 65 and older in the AI/AN and overall populations.

The CDC also provides cause of death data for homicides. As shown in Figure 3, the cause of death for all victims (79%) and AI/AN (59%) victims in 2020 was most commonly firearms. This was followed by other/unspecified causes (8% overall and 14% for AI/AN victims) and those homicides involving a cut or pierce (8% overall and 16% for AI/AN victims).

Figure 3. Cause of Death in Homicides Involving All and AI/AN Victims 2020

Source: Centers for Disease Control and Prevention (CDC), WISQARS- Web-based Injury Statistics Query and Reporting System, https://webappa.cdc.gov/sasweb/ncipc/leadcause.html. Notes: All victims includes AI/AN victims. AI/AN data are for those identifying only as non-Hispanic AI/AN. The Other/Unspecified category includes drowning, falls, and transportation related deaths as well as those listed only as "other" or "unspecified."

Additional Federal Data Sources

Other federal sources of data about violence experienced by AI/AN individuals include the National Crime Victimization Survey (NCVS), the National Violence Against Women Survey (NVAWS), and the National Intimate Partner and Sexual Violence Survey (NISVS). Dr. André B. Rosay, Professor of Justice & Associate Dean of the College of Health at the University of Alaska-Anchorage, published a review of the violent victimization data on Native Americans from these three surveys.²⁰ This section will provide an overview of the analyses summarized in Rosay's report, which included the work of several researchers as well as a report on NISVS authored by Rosay.

The National Crime Victimization Survey (NCVS)

The Bureau of Justice Statistics (BJS) administers the NCVS, which collects criminal victimization data via interviews with a nationally representative sample of households and captures both reported and unreported victimizations.²¹ Rosay summarized findings from several analyses of NCVS data collected from 1992 to 2005. The pattern of findings consistently demonstrated that violent victimizations were highest among participants who identified as AI/AN relative to other groups regardless of the crime, gender, age, location, and household income. One study summarized by Rosay found that AI/AN participants had a violent crime victimization rate 2.5 times the national rate and "experienced one violent crime for every eight residents, compared to the national average of one violent crime for every 20 residents."²² Analyses of NCVS data also indicated that participants identifying as AI/AN were more likely to report interracial victimizations, particularly for rape and sexual assault. The summarized studies found AI/AN participants reported that between 50% and 70% of perpetrators were not Native American.²³

The National Violence Against Women Survey (NVAWS)

The NVAWS, which was sponsored by Office of Justice Programs (OJP) and the National Institute of Justice (NIJ), used telephone surveys to collect data from men and women about both lifetime and past-year incidents of emotional abuse, physical assault, rape, and stalking during 1995 and 1996.²⁴ The analysis and interpretation of these data are limited as they were collected 25 years ago and included only 193 AI/AN participants (88 women and 105 men). However, lifetime prevalence rates estimated from these data appear to align with those found in the NCVS. Participants who identified as AI/AN reported

the highest lifetime prevalence rates for physical assault (61.4% for women and 75.2% for men). They also had the highest lifetime prevalence rates for stalking (17.0% for women and 4.8% for men). American Indian and Alaska Native women had the highest lifetime prevalence rates for rape (34.1%; estimates for men were not available due to low sample sizes).... When examining intimate partner violence (including physical, sexual, and psychological violence), women and men who identified themselves as American Indian or Alaska Native had significantly higher lifetime prevalence rates than women and men who identified themselves as White—38.2% of American Indian and Alaska Native women and 41.2% of American Indian and Alaska Native men had experienced intimate partner violence in their lifetime (compared to 29.3% of White women and 22.2% of White men).²⁵

The National Intimate Partner and Sexual Violence Survey (NISVS)

Since 2010, the CDC has conducted the NISVS, which uses telephone surveys to gather national and state-level data on both the past-year and lifetime prevalence rates of psychological aggression²⁶ by intimate partners²⁷, physical violence by intimate partners, stalking, and sexual violence.²⁸ In 2010, the NIJ partnered with the CDC to oversample AI/AN participants.²⁹ The NIJ and the CDC collected data from areas with large AI/AN populations, including rural areas and tribal lands that may not be as well represented in other victimization surveys.³⁰ The final sample (i.e., general population sample combined with the oversample participants) of AI/AN participants included 2,473 women and 1,505 men. Eighty-three percent of the women and 79% of the men reported an affiliation or enrollment³¹ with a tribe or village, and 54% of both the women and men had lived on a reservation or in an Alaska Native village during the past year.³²

In 2016, Rosay published a comprehensive report on the 2010 NISVS data regarding AI/AN experiences of victimization for NIJ.³³ The 2010 NISVS findings echo the high rates of violent victimization of Native Americans, and especially women, observed in previous surveys. The analyses looked separately at the past-year³⁴ and lifetime experiences of violent victimization of Native American men and women and compared these data to the experiences of non-Hispanic White women and men.³⁵

As shown in Table 1, the majority of both AI/AN women and men reported experiencing a violent victimization during their lifetimes.³⁶ Both AI/AN women and men were significantly more likely to have experienced violence in their lifetimes relative to non-Hispanic White participants, and AI/AN women were significantly more likely to have experienced violence in the past year than non-Hispanic White women.³⁷ AI/AN women were 1.2 times more likely to have experienced violence in their lifetimes relative to non-Hispanic White women, and 1.7 times more likely to have experienced violence in the past year.³⁸ AI/AN men were 1.3 times more likely to have experienced violence in their lifetimes relative to non-Hispanic White men.³⁹ There was not a significant difference in violence experienced in the past year by AI/AN and non-Hispanic White men.

This study also found that both AI/AN women and men were significantly more likely than non-Hispanic White participants to have been victimized by an interracial⁴⁰ perpetrator and significantly less likely than non-Hispanic White participants to have been victimized by an intraracial⁴¹ perpetrator.⁴² For example, among women who reported experiencing sexual violence, 96% of AI/AN victims experienced it at the hands of an interracial perpetrator compared to 32% of non-White Hispanic women, and 21% of the AI/AN victims experienced sexual violence at the hands of an intraracial perpetrator compared to 91% of non-White Hispanic women.

As shown in Table 3, among AI/AN participants who reported experiencing violence in their lifetime, the majority experienced it at the hands of interracial perpetrator in each category of crime measured.⁴³

The study also looked at how these experiences affected the lives of participants. For example, the results indicated that 67% of AI/AN women and 26% of AI/AN men reported feeling concerned for their safety, 41% of AI/AN women and 20% of AI/AN men were physically injured, and 41% of AI/AN women and 10% of AI/AN men missed days of work or school as a result of these victimizations.⁴⁴ Further, 49% of AI/AN women and 20% of AI/AN men reported they needed services⁴⁵ as a result of these victimizations.⁴⁶ The most commonly reported service needed was medical care. Thirty-eight percent of AI/AN women and 17% of AI/AN men reported they were unable to gain access to the services they required.⁴⁷ Compared to non-Hispanic White women, AI/AN women were significantly less likely to receive services; there was no significant difference between AI/AN and non-Hispanic White men.⁴⁸

Federal Data on Missing Persons

The federal government has two primary sources for data on missing persons: the National Crime Information Center (NCIC) and NamUs.⁴⁹ Although neither database captures the totality of missing persons in the United States, typically NCIC includes greater numbers of missing persons.⁵⁰

NCIC file data are not available to the public. NamUs displays some information to the public and allows for public submission pending review by an "appropriate criminal justice agency."⁵¹

National Crime Information Center

The NCIC is an index of criminal justice information, which includes criminal records, fugitives, stolen property, and missing persons, maintained by the FBI's Criminal Justice Information Services (CJIS) Division. The NCIC has maintained records of missing persons since October 1975; these data are obtained from state and local law enforcement agencies, several federal agencies, and select non-law enforcement agencies (e.g., courts).⁵² Missing person records are removed from the NCIC when the person is located or their remains are identified. The FBI releases an annual Missing Person and Unidentified Person Statistics report using records from NCIC. The NCIC missing person data are broken down by race, age, and sex.⁵³ The NCIC report also includes statistics on missing people who fall into the following categories:

• have a proven physical or mental disability,
• are missing under circumstances indicating that they may be in physical danger,
• are missing under circumstances indicating their disappearance may not have been voluntary,
• are under the age of 21 and do not meet the above criteria,
• are missing after a catastrophe, and
• are 21 and older and do not meet any of the above criteria but for whom there is a reasonable concern for their safety.

The 2022 NCIC Missing Person and Unidentified Person Statistics report included 10,123 missing persons who were identified as Native American. Of these persons, 54% were female and 46% were male, and 68% were 17 or younger and 32% were 18 or older.⁵⁴ As shown in Table 4, the percentage of missing persons in NCIC identified as Native American by age and sex was in many cases higher than the AI/AN percentage of the U.S. population (1.1%).⁵⁵

As shown in Table 5, the largest category of missing persons in NCIC among both female and male Native Americans in 2022 was juveniles. This was followed by "other" (i.e., 21 and older and do not meet any of the criteria listed above but for whom there is a reasonable concern for their safety) and those missing under circumstances indicating that they may be in physical danger.

National Missing and Unidentified Persons System

NamUs is a Department of Justice (DOJ) data collection effort operated by the University of North Texas (UNT) Health Center under a cooperative agreement with NIJ since 2011.⁵⁶ NamUs data are obtained from law enforcement agencies, coroners, and medical examiners. The majority of AI/AN cases included in this database are investigated by a non-tribal law enforcement agency.⁵⁷ NamUs data show a steady increase in the number of AI/AN cases published in its database since September 2019.⁵⁸ This could reflect a base rate increase in missing AI/AN persons, but it may also reflect increased rates of reporting and improved data collection. NamUs has stated it is working to improve its data on Indigenous persons and releases monthly data reports and maps about cases involving AI/AN individuals.⁵⁹ However, there may be racial misclassifications in data included in this database, particularly in cases when the absence of identifying documentation or positive identification by family and friends results in the race of victim being determined by law enforcement personnel.

NamUs Missing Persons Data

As of June 2023, the NamUs database of missing persons included 820 cases of missing AI/AN individuals: 256 females, 563 males, and 1 individual listed as "other." ⁶⁰ Among the 820 missing AI/AN persons in NamUs, 112 were 18 or younger at the time they went missing: 60 females and 52 males. Other characteristics of the missing AI/AN people include the following:

• 207 had a known tribal enrollment or affiliation,⁶¹ 18 had no affiliation, 373 had an unknown tribal affiliation, and 222 had no affiliation provided;
• 155 went missing from tribal land, 536 did not go missing from tribal land, and for 129 it was either unknown (21) or not provided (108) whether they went missing from tribal land; and
• 81 had their primary residence on tribal land, 358 did not have their primary residence on tribal land, and for 381 the primary residence locations were unknown (49) or not provided (332).

NamUs Unidentified and Unclaimed Persons Data

As of June 2023, the NamUs database included 196 cases (39 females, 148 males, 9 unsure) of AI/AN unidentified persons (i.e., unidentified decedents).⁶² Of these 196 decedents, 10 were found on tribal lands, 74 were not found on tribal land, and in 112 cases it was unknown or not provided whether the individuals were found on tribal land or not. The NamUs database also included 34 cases (7 females and 27 males) of unclaimed persons⁶³ identified as AI/AN.

National Center for Missing and Exploited Children (NCMEC) Data on Missing Native American Children

The National Center for Missing and Exploited Children (NCMEC) released a fact sheet in 2022 summarizing its data on missing Native American children from January 2012 to December 2021.⁶⁴ During this time, NCMEC had case records for nearly 3,000 Native American children who were reported missing from 44 states.⁶⁵ Fifty-five percent were female and 45% male, and the most common age range was 15 to 17 years old (69%). Forty percent of the missing Native American children recorded by NCMEC had at least one tribal affiliation.

Fifty-three percent of the Native American children were missing from foster homes and 89% of were considered endangered runaways.⁶⁶ The next most common category (8% of cases) was family abduction (i.e., "The taking, retention or concealment of a child, younger than 18 years of age, by a parent, other person with a family relationship to the child, or his or her agent, in violation of the custody rights, including visitation rights of a parent or legal guardian." ⁶⁷).

Urban Indian Health Institute Study on MMIWG

A study conducted by the Urban Indian Health Institute (UIHI) examined the rates of MMIWG in urban areas.⁷⁸ UIHI focused on these areas because the 2010 census data indicated that 71% of the AI/AN population lived in urban areas.⁷⁹ UIHI used Freedom of Information Act (FOIA) requests to law enforcement agencies, missing persons databases, local news media and online archives, social media, and direct contact with family and community members to gather data across 71 cities in 29 states. According to UIHI, "These cities were selected because they either have an urban Indian health center that is affiliated with UIHI, a significant population of urban Indians, or [were] found to have a large number of MMIWG cases in a preliminary consultation with key community leaders."⁸⁰ In its sample of 71 cities, UIHI identified 506 cases of MMIWG: 128 (25%) missing persons cases, 280 (56%) murder cases, and 98 (19%) unknown cases.⁸¹ In the 387 cases for which the victim's age was determined, ages ranged from younger than 1 to 83, with a mean age of 29. Three-quarters of the cases UIHI identified did not include tribal affiliation or enrollment information.

UIHI identified 153 cases that were not in law enforcement records obtained via FOIA requests.⁸² UIHI located these cases using government missing persons databases, media reports, social media and advocacy sites, and contact with families and communities.⁸³

UIHI identified racial misclassification as a common barrier to accurate data collection regarding missing and murdered Native Americans. Native American victims may be misreported as White or Hispanic, particularly in the absence of family or government identification.⁸⁴ UIHI also found technical shortcomings, such as data systems that cannot accurately identify Native American victims, which may result in racial misclassification or inaccuracies. For example, nine of the cities included in the study reported they were unable to search their data systems for American Indian, Native American, or Alaska Native victims because of missing race information and muddled race coding schemes, among other reasons.⁸⁵

Complications in Addressing MMIP

Several factors may contribute to complications in both capturing the true scope of violent victimization experienced by Native Americans and addressing MMIP. This section of the report discusses a selection of these complicating factors; however, this list is not comprehensive and may not represent the totality of concerns raised by researchers or Native American communities.

Gaps in Data and Services for Urban Native American Populations

The majority of Native Americans reside in urban areas outside of tribal lands.⁹⁵ Despite this fact, federal policies aimed at reducing violence against Native Americans often focus on tribal lands. Many Native American people moved away from tribal lands during World War II either to enlist in the military or for employment opportunities in war-related industries. After World War II, the federal government pursued policies of termination and relocation that resulted in great numbers of Native Americans moving away from tribal land from 1953 to 1968.⁹⁶ Termination refers to the federal policy involving "termination of the federal government's trust relationship with Indian tribes and, as a consequence, the elimination of federal benefits and support services to the terminated tribes."⁹⁷

The termination policy was coupled with relocations efforts. The Indian Relocation Act of 1956 (P.L. 84-959) appropriated federal funds to pay for vocational training and housing assistance to encourage assimilation and relocation. Some 100,000 Native Americans entered into these programs, and about a third ultimately returned home.⁹⁸ Although the policies of termination and relocation ended by the 1970s, the pattern of Native American migration toward urban areas has continued. The 2010 Census found that 71% of AI/AN individuals were living in urban areas.⁹⁹ The five cities with the largest populations identifying as AI/AN (alone or in combination with another racial identity) were New York City, Los Angeles, Phoenix, Oklahoma City, and Anchorage.¹⁰⁰

Although the available data demonstrate that Native Americans are more likely to experience violent victimizations than other racial and ethnic groups, limited information exists to determine how victimization rates may differ on and off tribal lands. Further, NamUs data demonstrate that the majority of missing and unidentified cases involving AI/AN persons occur off tribal land.¹⁰¹ In addition, the majority of NCMEC cases involving AI/AN children occurred outside of tribal lands.¹⁰² Given that most Native Americans reside outside of tribal lands, it is likely that a considerable percentage of violent victimizations of AI/AN people were also occurring off tribal lands. Native Americans living in urban areas and off tribal lands do have access to federal victim services resources; however, many federal programs and resources to specifically address the experiences of Native Americans are directed toward tribal communities rather than urban areas.¹⁰³

Jurisdictional Overlap

The Bureau of Indian Affairs (BIA) reports there are about 400 tribal justice systems nationwide.¹⁰⁴ Tribal justice systems vary widely in size, and tribal courts vary in their structure and judicial philosophy. Federally recognized tribal governments retain authority for self-governance in many respects, and thus may establish justice systems that differ from others in the United States. The concept of tribal sovereignty predates, but also finds some support in, the U.S. Constitution, which acknowledges Indian tribes as separate entities in a list that also includes foreign nations and the states.¹⁰⁵ In practice, tribal authority to pass and enforce laws has been restricted by acts of Congress, executive orders, federal administrative agreements, court decisions, and treaties.¹⁰⁶ The federal government has assumed the authority to regulate the powers and scope of tribal justice systems' jurisdiction and sentencing authority, although many tribes do not recognize this as a legitimate institutional power nor as an effective public safety strategy. A report on tribal justice systems mandated under the Tribal Law and Order Act of 2010 (P.L. 111-211; TLOA) states

For more than 200 years, the Federal government has undertaken to impose Federal laws, procedures, and values concerning criminal justice on American Indian nations. An oft-used justification for these jurisdictional modifications is that the overlay of Federal and State law will make Indian country safer. But, in practice, the opposite has occurred. Indian people today continue to experience disproportionate rates of violent crime in their own communities. An exceedingly complicated web of jurisdictional rules, asserted by Federal and State governmental departments and agencies whose policy priorities usually pre-date the modern era of Tribal sovereignty and self-determination contributes to what has become an institutionalized public safety crisis....

Because the systems that dispense justice originate in Federal and State law rather than in Native nation choice and consent, Tribal citizens tend to view them as illegitimate; these systems do not align with Tribal citizens' perceptions of the appropriate way to organize and exercise authority. The Commission heard this observation at virtually every one of its field hearings from the Eastern United States to Alaska.¹⁰⁷

Tribal Criminal Jurisdiction

Tribal courts have jurisdiction over certain types of criminal offenses. Generally, tribes only have jurisdiction to prosecute crimes that occur in Indian Country.¹⁰⁸ However, the responsibility for investigation and prosecution of a criminal offense could fall into multiple jurisdictions, including federal, state, and tribal (see the Appendix for a jurisdiction chart).¹⁰⁹ Jurisdiction for offenses committed on tribal lands is determined by a combination of the type of offense, the status of the encompassing state with regard to P.L. 83-280 (commonly referred to as "P.L. 280"), and the tribal membership status of both the victim and offender.

An Indian tribe has the inherent sovereignty to exercise criminal jurisdiction over crimes that occur on its land involving an Indian offender regardless of the victim's race.¹¹⁰ In 1885, the Major Crimes Act (MCA; 18 U.S.C. §1153) established federal jurisdiction for certain crimes committed within Indian Country by Indians.¹¹¹ Under current law, MCA offenses include murder, manslaughter, kidnapping, maiming, certain sexual abuse felonies, incest, assault against minors, felony child abuse or neglect, arson, burglary, robbery, and certain crimes within the special maritime and territorial jurisdiction of the United States.¹¹² Thus, if an offense committed by an Indian in Indian Country falls under the MCA and is contained in tribal code, both the tribal government and the federal government generally may choose to prosecute that offense, but a state government generally may not.¹¹³

There is a major exception to this general rule. P.L. 280 transferred responsibility for major crimes from the federal government to some states. The original statute, passed in 1953, identified six states that came to be known as mandatory P.L. 280 states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin).¹¹⁴ P.L. 280 extinguished the federal government's authority to prosecute MCA offenses in those six states.

Since the enactment of P.L. 280, several states have become optional P.L. 280 states by choosing to assume at least some jurisdiction to be exercised concurrently with the federal government.¹¹⁵ In both mandatory and optional P.L. 280 states, if an offense listed in the MCA is committed by an Indian in Indian Country, the state may also have jurisdiction. In non-P.L. 280 states, the same set of circumstances would fall under federal jurisdiction, exclusive of state jurisdiction. In optional P.L. 280 states, the federal government retains concurrent jurisdiction with the state to prosecute offenders under the MCA.¹¹⁶

P.L. 280 did not alter the extent of tribal jurisdiction. However, a process called retrocession allows the Secretary of Interior to grant a request made in agreement between a state and tribe for the removal of a state's P.L. 280 jurisdictional authority.¹¹⁷ In 1968, P.L. 280 was amended to require tribal consent for a state to assume optional P.L. 280 jurisdiction. No tribes have consented to state jurisdiction since the amendment's passage.¹¹⁸ TLOA also allows tribes in mandatory P.L. 280 states to petition the federal government to re-assume criminal jurisdiction from the state without the agreement of the state.¹¹⁹

The determination of jurisdiction for offenses that occur on tribal lands may also depend on the tribal membership status of the offender and the victim.¹²⁰ If the offender is a member of a tribe and the victim is not, then the tribe may have jurisdiction along with the state or federal government (as determined by the MCA and P.L. 280). If neither the offender nor the victim are members of a federally recognized tribe, but the offense occurs on tribal lands, then the federal or state government has jurisdiction, but the tribe generally does not. In most circumstances, tribes do not have jurisdiction over non-Indian offenders, even if the victim is a tribal member.¹²¹ However, the 2013 reauthorization of the Violence Against Women Act (VAWA; Title IV of P.L. 103-322) granted certain tribal courts special domestic violence jurisdiction over non-Indian offenders when the victim is Indian.¹²²

Tribal Law and Order Act

In 1968, Congress passed the Indian Civil Rights Act (ICRA), which, among other things, limited tribal justice systems' sentencing authority to one year of imprisonment and/or a $5,000 fine.¹²³ President Barack Obama signed TLOA into law in 2010, which, in part, encouraged coordination between federal, state, local, and tribal law enforcement as well as clarified and expanded tribal authority over criminal cases on tribal lands involving Indian offenders.¹²⁴ TLOA increased tribal justice systems' sentencing authority to up to three years of imprisonment and/or a $15,000 fine per felony offense, with a maximum of nine years total imprisonment for individuals convicted of multiple offenses. However, to exercise this authority tribal justice systems must meet certain standards, including the ability to convene a representative jury and meet certain due-process requirements.¹²⁵

Violence Against Women Act

The 2013 VAWA Reauthorization extended tribal criminal jurisdiction further to include non-Indian offenders in cases of domestic and dating violence, sexual violence, and stalking against Indian victims when the conduct occurs on tribal lands, as well as the enforcement of certain protection orders.¹²⁶ The 2022 VAWA Reauthorization (P.L. 117-103) added the following offenses to tribal criminal jurisdiction over non-Indian offenders: assault of tribal justice personnel, child violence,¹²⁷ obstruction of justice, and sex trafficking.¹²⁸ To exercise this expanded jurisdiction, tribes must meet certain requirements to protect a non-Indian defendant's constitutional rights. For a non-Indian to be prosecuted for a VAWA-related crime in a tribal court, they must have sufficient ties to the tribal community. Under current law, this may include residing in the territory of the prosecuting tribe, employment by the prosecuting tribe, or being the spouse, intimate partner, or dating partner of either a member of the prosecuting tribe or a member of a different tribe who resides in the territory of the prosecuting tribe.¹²⁹ The tribal court must guarantee the non-Indian defendant's constitutional rights, including the right to due process and habeas corpus, and if imprisonment may be imposed, the right to a trial by an impartial jury that is both a fair cross section of the community and does not "systematically exclude any distinctive group in the community, including non-Indians."¹³⁰ According to the National Congress of American Indians (NCAI), as of May 2022, 31 tribes exercise this expanded jurisdiction.¹³¹

The complicated laws governing tribal jurisdiction can adversely affect the ability of tribes, law enforcement, and both tribal and federal/state judicial systems to address MMIP. First, jurisdictional confusion can slow down investigations and waste resources.¹³² Another potential limitation is that tribal members may not have equivalent access to state or federal law enforcement or be as willing to rely on these external systems. The TLOA report states

Because Tribal nations and local groups are not participants in the decision making, the resulting Federal and State decisions, laws, rules, and regulations about criminal justice often are considered as lacking legitimacy. As widely reported in testimony to the Commission, nontribally administered criminal justice programs are less likely to garner Tribal citizen confidence and trust, resulting in diminished crime-fighting capacities. The consequences are many: victims are dissuaded from reporting and witnesses are reluctant to come forward to testify. In short, victims and witnesses frequently do not trust or agree with State or Federal justice procedures. Potential violators are undeterred.¹³³

Further, limitations on tribal justice systems can result in crimes commonly associated with domestic violence falling outside of tribal reach. A 2018 report on the expanded domestic violence jurisdiction found that five years after passage, implementing tribes reported being constrained by the inability to prosecute crimes that commonly co-occur with domestic violence such as drug and alcohol offenses.¹³⁴

Data Gaps

Another difficulty in understanding the victimization of Native Americans generally, and MMIP in particular, is incomplete data. There are several federal programs to gather data on crime, including the FBI's UCR program and the NCVS. Federal agencies, researchers, and advocates have identified gaps in tribal participation in these programs as a significant issue. Beyond gaps in tribal participation, tribes may also have difficulty accessing data resources (e.g., software, equipment, trained personnel) that can be helpful in preventing or addressing violence in tribal communities.

There are 574 federally recognized tribes, and the reasons underlying these gaps in participation and access vary widely. However, some commonly identified reasons are lack of funding and resources (e.g., personnel, equipment, and reliable internet access), state laws preventing tribal access to programs or resources, and tribal government decisions not to share information.¹⁴⁷ Additional causes of gaps in the data on violence experienced by Native Americans include racial misclassification, incorrect classification of a crime or cause of death, and hesitancy of victims or witnesses to report a crime due to poor relationships with or mistrust of law enforcement.¹⁴⁸

Federal Programs and Grants

The federal government has several programs that either directly or indirectly address MMIWG. Some of these programs were created specifically to address this issue, such as the recently launched Missing and Murdered Unit (MMU) at the BIA. Other programs may address MMIWG but were not explicitly developed for this purpose. For example, many DOJ grants address crime in Indian Country, which may include offenses related to MMIWG.

Federal Programs

In recent years, the federal government has launched initiatives to address MMIWG, including executive branch task forces to encourage collaboration and communication between federal agencies. Other programs created via legislation include Ashanti Alerts, among others.

Missing and Murdered Unit (MMU)

In April 2021, the Department of the Interior (DOI) announced the formation of the MMU within the BIA's Office of Justice Services. The MMU is an extension of the Operation Lady Justice task force, discussed below, launched under President Donald J. Trump to address unsolved MMIP cases. One focus of the MMU will be to increase cooperation between DOI and other federal entities such as the DOJ's NamUs, the U.S. Marshals' Missing Child Unit (MCU), and the FBI's Behavioral Analysis Units (BAU) and Forensic Laboratory.¹⁴⁹ The press release announcing the MMU also stated there will be new positions, such as a Unit Chief responsible for collaboration with stakeholders, as well as positions to manage services for the families of victims and to perform data collection and analysis. The BIA's 2024 budget justification states that the MMU funds 43 criminal investigators throughout Indian Country and 5 BIA Regional Evidence Recovery Teams (which include specialized vehicles, equipment, and supplies).¹⁵⁰

Operation Lady Justice Task Force

In November 2019, President Trump signed an executive order¹⁵¹ that created the Task Force on Missing and Murdered American Indians and Alaska Natives, also called Operation Lady Justice. The task force was comprised of members from DOJ, DOI, and HHS. The aims of this task force were to "enhance the operation of the criminal justice system and address the legitimate concerns of American Indian and Alaska Native communities regarding missing and murdered people—particularly missing and murdered women and girls."¹⁵²

The executive order also outlined particular purposes the task force was to fulfill, including

• consultations with tribal governments;
• developing new protocols for use in both new and unsolved cases, including improving law enforcement responses, strengthening procedures for data sharing between jurisdictions, and broader use of databases (e.g., NamUs or the Combined DNA Index System);¹⁵³
• creating a multi-disciplinary, multi-jurisdictional team, including members of tribal law enforcement as well as DOJ and DOI, to review cold cases; and
• clarifying responsibilities and jurisdiction throughout the investigation and prosecution of cases involving missing and murdered American Indians and Alaska Natives, including guidelines for communications with victims' families, commitments between jurisdictions to utilize both cooperative and trauma-informed approaches, and public awareness campaigns to prevent crime and educate affected communities about available resources.

In November 2020, the task force submitted a one-year progress report that includes accomplishments, project status reports, and recommendations for future actions; a final report is expected in November 2021. The one-year progress report lists the following accomplishments:

• holding five in-person listening sessions prior to COVID-19 mitigation measures and 12 virtual tribal consultations (one for each of the BIA regions);
• establishing and convening 10 working groups on topics including developing new protocols, solving cold cases, and outreach;
• developing "draft standard operating procedures and protocols;"¹⁵⁴ and
• opening six offices to "operationalize solving cold cases involving missing and murdered American Indians and Alaska Natives."¹⁵⁵

Advocates have criticized Operation Lady Justice most notably for a lack of participation from and communication with affected families and grassroots organizations. In May 2021, a group of MMIWG and MMIP grassroots advocates released a letter outlining their concerns, including

• lack of outreach and opportunities for families, advocates, and grassroots organizations to participate or testify in listening sessions;
• task force communications were conducted mainly using government websites and listservs that were not effective at reaching tribal community members and affected families;
• difficulty in accessing both in-person and digital listening sessions; participation in virtual meetings required strong internet connections to which many tribal communities do not have access;
• participants were only given three and a half minutes to testify on a first-come, first-served basis, which the authors' assert was not sufficient for all those interested to share their stories, nor was it sufficient time for affected families to communicate their losses; and
• no points of contact (e.g., a known phone line) to the cold case review teams for advocates or affected families.¹⁵⁶

Federal Alert Programs

While not specific to MMIP, the federal government has developed two national alert programs to aid in the search and recovery of missing persons:

• In 2003, The PROTECT Act (P.L. 108-21) created the AMBER (America's Missing: Broadcast Emergency Response) Alert system, which supports the recovery of children under the age of 17. The Office of Juvenile Justice and Delinquency Prevention (OJJDP) launched the AMBER Alert in Indian Country (AIIC) Initiative to expand tribal participation in this program.¹⁵⁷ A 2019 DOJ study found that among the 100 federally recognized tribes surveyed, 76 participated in state or regional AMBER alert programs.¹⁵⁸
• The Ashanti Alert Act of 2018 (P.L. 115-401) was enacted in December 2018 to create a similar voluntary national communications system to support the recovery of missing adults between the ages of 17 and 64. The Ashanti Alert pilot program was launched in 2020.

Federal legislation has been introduced in both chambers to create a national alert system for senior citizens, especially those with Alzheimer's disease or dementia (e.g., National Silver Alert Act of 2014, H.R. 5361); no federal law establishing the system has been enacted. Several states have Silver or Senior Alert systems that provide alerts about missing seniors.¹⁵⁹

Federal Efforts to Improve Data Collection

As discussed above, many researchers and advocates have highlighted data collection weaknesses as a significant barrier to federal work to address MMIP. Two laws enacted during the 116^th Congress aimed, in part, to improve data quality.

Savanna's Act

Congress enacted Savanna's Act (P.L. 116-165) in 2020 to clarify the responsibilities of law enforcement agencies at all levels of government in responding to MMIP, increase cooperation between law enforcement agencies, provide tribal governments with additional resources to address MMIP, and increase data collection and reporting on MMIP. The law authorizes grants to implement policies and report data on MMIP, requires the FBI to include gender in annual statistics publications about missing and unidentified persons, and includes new requirements for the DOJ to address MMIP. The included DOJ requirements are as follows:

• provide training to law enforcement agencies on how to record tribal enrollment for victims in federal databases;
• develop and implement a strategy to educate the public on the National Missing and Unidentified Persons System;
• conduct specific outreach to tribes, tribal organizations, and urban Indian organizations regarding the ability to publicly enter information through the National Missing and Unidentified Persons System or other non-law enforcement sensitive portal;
• develop regionally appropriate guidelines for response to cases of missing or murdered Native Americans;
• provide training and technical assistance to tribes and law enforcement agencies for implementation of the developed guidelines; and
• report statistics on missing or murdered Native Americans.¹⁶⁰

The law also states that tribes may submit individual guidelines for responding to MMIP cases to DOJ.

Not Invisible Act

The Not Invisible Act of 2019 (P.L. 116-166) was signed into law in 2020 with the broad purpose of reducing violent crime in Indian Country and against Native Americans through improved interagency coordination. This law requires DOI to designate within the BIA an official who is responsible for coordinating prevention initiatives, grants, and programs that pertain to MMIP as well as human trafficking. The law further requires DOI and DOJ to establish a joint commission on violent crime in Indian Country and against Native Americans. The commission is tasked with creating recommendations for improving the identification, reporting, and responses to missing, murdered, and trafficked Native Americans, and both DOI and DOJ must produce written responses to these recommendations.

A GAO study released in October 2021 found that neither the DOJ nor DOI had met all the requirements of Savanna's Act and the Not Invisible Act.¹⁶¹ The report included the following recommendations:

The Attorney General should develop a plan—including key steps, who will achieve them, and by when—for accomplishing ongoing analyses of data in existing federal databases and future data that may be gathered to identify relevant trends in cases of missing or murdered American Indian and Alaska Native women and areas of concern.

The Attorney General should develop a plan, including milestone dates, to develop and implement a dissemination strategy to educate the public about the National Missing and Unidentified Persons System (NamUs).

The Attorney General should develop a plan, including milestone dates, to conduct specific outreach to Indian tribes, tribal organizations, and urban Indian organizations regarding the ability to publicly enter information regarding missing persons through NamUs or other non-law enforcement sensitive portal.

The Secretary of the Interior, in coordination with the Attorney General, should finalize its draft plan establishing and appointing all members to the Joint Commission on Reducing Violent Crime Against Indians, as required by the Not Invisible Act of 2019, and include milestone dates for all steps in the process.¹⁶²

Federal Grants

Several federal grant programs are aimed at addressing the needs of tribal justice systems and the experiences of Native American women:

Coordinated Tribal Assistance Solicitation (CTAS): Since 2010, this solicitation has been an avenue by which federally recognized tribes can apply for many of DOJ's tribal grant programs across several agencies using a single application. The FY2021 CTAS purpose areas include Public Safety and Community Policing, Comprehensive Tribal Justice Systems Strategic Planning, Tribal Justice Systems, Tribal Justice System Infrastructure, Children's Justice Act Partnerships for Indian Communities, Juvenile Tribal Healing to Wellness Courts, and the Tribal Youth Program.¹⁶³ Two common critiques of the CTAS solicitation are that the competitive nature of these grants force tribes to compete with each other for resources, and the process may favor tribes with more resources to devote to grant writing.¹⁶⁴

Grants to Tribal Domestic Violence and Sexual Assault Coalitions Program: These grants are administered by DOJ's Office on Violence Against Women (OVW) for the development and operating costs of nonprofit, nongovernmental tribal domestic violence and sexual assault coalitions. This program is authorized at two points in statute, each defining distinct aims. Under 34 U.S.C. Section 10441(d)(1), the purpose areas for these grants include the following:

1. Increasing awareness of domestic violence and sexual assault against Indian women;

2. Enhancing the response to violence against Indian women at the federal, state, and tribal levels;

3. Identifying and providing [technical assistance] to coalition membership and tribal communities to enhance access to essential services to Indian women victimized by domestic and sexual violence, including sex trafficking;

4. Assisting Indian tribes in developing and promoting state, local, and tribal legislation and policies that enhance best practices for responding to violent crimes against Indian women, including the crimes of domestic violence, dating violence, sexual assault, sex trafficking, and stalking.¹⁶⁵

Additionally, under 34 U.S.C. Section 12511(d)(2), eligible coalitions may receive additional funding if they address the following purpose areas:

1. Work with local sexual assault programs and other providers of direct services for sexual assault victims to encourage appropriate responses to sexual assault within the state, territory, or tribe;

2. Work with judicial and law enforcement agencies to encourage appropriate responses to sexual assault cases;

3. Work with courts, child protective services agencies, and children's advocates to develop appropriate responses to child custody and visitation issues when sexual assault has been determined to be a factor;

4. Design and conduct public education campaigns on sexual assault;

5. Plan and monitor the distribution of grants and grant funds to their state, territory, or tribe; or

6. Collaborate with and inform federal, state, or local public officials and agencies to develop and implement policies to reduce or eliminate sexual assault.¹⁶⁶

Grants to Tribal Governments to Exercise Special Domestic Violence Criminal Jurisdiction (SDVCJ): These funds support tribes in implementing the expanded responsibilities of tribal justice systems to address domestic violence, dating violence, and violations of protection orders granted in the 2013 reauthorization of VAWA. These funds may be used to defray costs associated with law enforcement, prosecution, trial and appellate courts, probation systems, detention and correction facilities, alternative rehabilitation, culturally appropriate assistance for victims and families, providing counsel for indigent defendants, and empaneling juries.¹⁶⁷

Violence Against Women Tribal Special Assistant U.S. Attorney Project (SAUSA): This grant funds three-year fellowships for cross-designated prosecutors that work to address violence against women in cases in tribal and federal courts.¹⁶⁸ The SAUSA program aims to aid tribal governments in exercising the special domestic violence criminal jurisdiction granted under VAWA.¹⁶⁹ As such, the programs purpose areas include the following:

1. To strengthen tribal criminal justice systems to assist Indian tribes in exercising SDVCJ, including: (A) Law enforcement (including the capacity of law enforcement or court personnel to enter information into and obtain information from national crime information databases); (B) Prosecution; (C) Trial and appellate courts; (D) Probation systems; (E) Detention and correctional facilities; (F) Alternative rehabilitation centers; (G) Culturally appropriate services and assistance for victims and their families; (H) Criminal codes and rules of criminal procedure, appellate procedure, and evidence.

2. To provide indigent criminal defendants with the effective assistance of licensed defense counsel, at no cost to the defendant, in criminal proceedings in which a participating tribe prosecutes a crime of domestic violence or dating violence or a criminal violation of a protection order.

3. To ensure that, in criminal proceedings in which a participating tribe exercises SDVCJ, jurors are summoned, selected, and instructed in a manner consistent with all applicable requirements.

4. To accord victims of domestic violence, dating violence, and violations of protection orders rights that are similar to the rights of a crime victim described in section 3771(a) of Title 18, consistent with tribal law and custom.¹⁷⁰

Tribal Sexual Assault Services Program (TSASP): This program is administered by OVW to aid in the creation, maintenance, and growth of programs in Indian Country and Alaska Native villages that provide intervention and assistance to victims of sexual assault.¹⁷¹ Under 34 U.S.C. Section 12511, victims may include adult, youth, and child victims of sexual assault as well as victims' family and household members and those "collaterally affected by the victimization, except for the perpetrator."¹⁷² TSASP purpose areas include the following:

1. 24-hour hotline services providing crisis intervention services and referral.

2. Accompaniment and advocacy through medical, criminal justice, and social support systems, including medical facilities, police, and court proceedings.

3. Crisis intervention, short-term individual and group support services, and comprehensive service coordination and supervision to assist sexual assault victims and family or household members.

4. Information and referral to assist the sexual assault victim and family or household members.

5. Community-based, culturally specific services and support mechanisms, including outreach activities for underserved communities.

6. The development and distribution of materials on issues related to the services described in (1) – (5).¹⁷³

Tribal Access Program (TAP): This program provides tribes with access to national crime information systems and trainings on using these systems.¹⁷⁴ Through TAP, both criminal (e.g., law enforcement, prosecutors) and non-criminal tribal agencies (e.g., public housing, civil courts) can gain access to databases such as NCIC, the Next Generation Identification (NGI) system, the National Instant Criminal Background Check System (NICS), and the National Data Exchange (N-DEx).¹⁷⁵ Participating tribes can use these databases for several purposes relevant to MMIP and MMIWG; for example, entering orders of protection, registering sex offenders, entering arrest warrants, obtaining criminal histories, and checking the records for individuals with access to Native American children.¹⁷⁶

Recent Legislative History

This section includes details on a non-exhaustive selection of bills related to MMIP. A common theme in these legislative efforts is an interest in collecting more and better data on MMIP, increasing interagency cooperation, and tribal access and participation in federal criminal justice programs.

• AI/AN CAPTA (H.R. 1566 and S. 1868): This bill was introduced in the House and Senate during the 117^th Congress and would have addressed child abuse and neglect in tribal communities. The bill would "require that equitable distribution of assistance include equitable distribution to Indian tribes and tribal organizations and to increase amounts reserved for allotment to Indian tribes and tribal organizations under certain circumstances, and to provide for a Government Accountability Office report on child abuse and neglect in American Indian tribal communities."
• Native Youth and Tribal Officer Protection Act (H.R. 2740): This bill was introduced during the 117^th Congress and would have, among other things, expanded tribal criminal jurisdiction to include "violence committed against a child by a caregiver; violence against law enforcement officers involved in preventing, investigating, arresting, or prosecuting a person for domestic violence, dating violence, or child violence; attempted dating violence or domestic violence; or threatened dating violence or domestic violence."¹⁷⁷
• Extreme Risk Protection Order and Violence Prevention Act of 2021 (S. 292): This bill was introduced in the 117^th Congress and would have created a new grant program to help states and tribes implement extreme risk protection order laws (i.e., red flag laws), which "allow certain individuals (e.g., law enforcement officers or family members) to petition a court for a temporary order that prohibits an at-risk individual from purchasing and possessing firearms."
• Preventing Domestic Violence Homicides Through Assessment Training Act (H.R. 1907): This bill was introduced in the 117^th Congress and would have authorized DOJ to award technical assistance and training grants to states, local governments, tribes, and domestic violence victim service providers to implement and operate lethality assessment programs.
• Native American Child Protection Act (H.R. 1688 and S. 2326): This bill passed the House in May 2021 and was subsequently introduced in the Senate. The bill would have reauthorized through FY2027 certain programs related to the prevention, investigation, treatment, and prosecution of family violence, child abuse, and child neglect involving Indian children and families. It also, among other things, would have required National Indian Child Resource and Family Services Centers to "(1) provide advice, technical assistance, and training to urban Indian organizations; (2) develop certain technical assistance materials for Indian tribes, tribal organizations, and urban Indian organizations; and (3) develop model intergovernmental agreements between tribes and states to prevent, investigate, treat, and prosecute incidents of family violence, child abuse, and child neglect involving Indian children and families."¹⁷⁸
• The People's Response Act (H.R. 4194): This bill was introduced in the 117^th Congress and would have created a division on Community Safety in HHS. This bill includes funds to help tribal communities to hire first responders and address community safety both on and off tribal lands.
• Tribal Reporting and Accountability to Congress Act (TRAC Act; S. 1892): Introduced in the 116^th Congress, this bill would have amended Section 13 of the Indian Law Enforcement Reform Act (25 U.S.C. §2810) to require an annual report on MMIP from each district's Assistant United States Attorney tribal liaison.
• Bridging Agency Data Gaps and Ensuring Safety for Native Communities Act (BADGES for Native Communities Act; H.R. 4289 and S. 1853): Versions of this bill were introduced in both the House and the Senate during the 116^th Congress. It was not taken up by either body. These bills would have addressed shortcomings in information sharing as well as the reporting and investigation of MMIP through technical assistance, grant programs, and increased mental health resources to tribal and BIA law enforcement. These bills also sought to increase tribal access to and participation in the NamUs and NCIC.
• Studying the Missing and Murdered Indian Crisis Act of 2019 (H.R. 2029): Introduced in the 116^th Congress, this bill would have required a report from GAO on law enforcement agencies' responses to MMIP and on recommendations to improve database and notification systems.

Issues for Congress

Services for Native American Populations in Urban Areas

As discussed previously, the majority of Native American people live in urban areas while most federal programs to address violence against Native Americans focus on tribal lands.¹⁷⁹ Although federal crime data collection programs are generally insufficient to compare Native American experiences of violent victimization on and off tribal lands, given that most Native Americans live in urban areas it seems likely that many victimizations are also occurring off tribal lands. Although Native Americans living off tribal lands would be eligible for federal victim resources, Congress may consider potential gaps in services to address violent victimizations of Native Americans in urban areas and the possible need for culturally specific services.

VAWA includes several grant programs that specifically serve Native American victims. For example, the Tribal Sexual Assault Services Program (Tribal SASP) provides "intervention, advocacy, accompaniment (e.g., accompanying victims to court, medical facilities, and police departments), support services, and related assistance for adult, youth, and child victims of sexual assault; non-offending family and household members of victims; and those collaterally affected by sexual assault."¹⁸⁰ Only federally recognized tribal governments, tribal organizations, and nonprofit tribal organizations are eligible to apply for these grants, so they may be limited in their ability to serve Native American victims residing in urban areas. For example, current grant funding may not be sufficient for tribal governments to serve victims living on tribal lands and to identify and meet the needs of Native American victims residing outside of tribal lands.

The Grants to Tribal Domestic Violence and Sexual Assault Coalitions Program is a formula grant program to support the development and operation of nonprofit, nongovernmental tribal domestic violence and sexual assault coalitions.¹⁸¹ Tribal coalitions provide education, support, and technical assistance to member Indian service providers and tribes to enhance their response to victims of domestic violence, dating violence, sexual assault, and stalking. These coalitions may also be limited in their ability to aid victims living in urban areas.¹⁸² Congress may consider amending the authorizations for these grant programs to expand services for Native Americans living off tribal lands. For example, Congress may consider providing funds to help tribal governments deliver services to members who are victimized while living off tribal lands.

Alternatively, Congress may consider leveraging existing programs to improve services for Native American crime victims. For example, VAWA funds three grants for culturally specific services and outreach to underserved populations:

• Grants to Enhance Culturally Specific Services for Victims of Domestic Violence, Dating Violence, Sexual Assault, and Stalking: This grant program helps develop and support community-based programs with the primary purpose of providing or enhancing access to culturally specific services for victims of domestic violence, dating violence, sexual assault, and stalking.
• Grants for Outreach and Services to Underserved Populations: This program supports nonprofit organizations in the development and implementation of outreach strategies targeted at adult or youth victims of sexual assault, domestic violence, dating violence, or stalking in underserved populations, and victim services for these populations.
• Sexual Assault Services Culturally Specific Program: This program funds nonprofit organizations that focus primarily on culturally specific communities to create, maintain, and expand sustainable sexual assault services provided by organizations that are uniquely situated to respond to the needs of sexual assault victims from culturally specific populations.¹⁸³

Congress may consider amending the authorizations for these programs to emphasize services for Native American victims living in urban areas or off tribal lands.¹⁸⁴

The Office for Victims of Crime's (OVC's) Vision 21 report emphasized the need for American Indian and Alaska Native crime victims to receive targeted, culturally specific support, though Vision 21 primarily conceived of this support being offered on tribal lands and in Alaska Native Villages.¹⁸⁵ OVC funds culturally responsive services for victims of crime; organizations that serve urban Native American populations may be eligible, but the only specific mention of Native Americans is in reference to tribal governments and organizations.¹⁸⁶ There are some OVC funds for collaborative programs to meet the needs of Native American victims in Indian Country; for example, OVC's Children's Justice Act (CJA) and Comprehensive Tribal Victim Assistance Discretionary Grant (CTVA) programs have encouraged partnerships between federal, state, local, and tribal stakeholders.¹⁸⁷ In one case, a partnership between the California CJA program and the Washoe Tribe of Nevada "contributed to a 62.5-percent increase in services provided to child abuse victims during the second phase of the grant program."¹⁸⁸ In another case, collaboration between the Prairie Band Potawatomi Nation CTVA program and law enforcement from several jurisdictions resulted in 115 partnerships to broaden access to victim services.¹⁸⁹

Native Americans who do not reside on tribal lands can receive federal, state, and local resources that support victims and at-risk populations of all races and ethnicities. Congress may consider programs that encourage partnerships between tribal governments and cities or states where large populations of Native Americans reside to provide culturally specific services or conduct outreach to Native American victims. Congress may also consider programs that provide targeted prevention or victim support services to Native Americans living in urban areas. For example, Congress may consider expanding eligibility criteria, objectives, or funding for existing programs that provide victim services and serve at-risk youth on tribal lands, such as the Victims of Crime Act (VOCA) tribal set-aside grants, to provide culturally specific services to Native Americans residing in urban areas. This would allow Native Americans who live in cities such as New York, Los Angeles, or Phoenix to access targeted programs. DOJ appropriations include a 5% set-aside in the Crime Victims Fund (CVF) for tribal victim services.¹⁹⁰ Only federally recognized Indian tribes, tribal designees, and tribal consortia consisting of two or more federally recognized Indian tribes are eligible to receive these funds. Grantees may not have the resources or partnerships in place to direct these funds toward services for Native Americans victims living in urban areas.

Tribal Law Enforcement and Criminal Jurisdiction over MMIP

Tribal jurisdiction over criminal offenses related to MMIP is complex. Although tribal governments have jurisdiction over offenses on their lands involving Indian offenders, they are limited in their sentencing authorities. Some have suggested that these sentencing limitations may decrease the likelihood a tribal justice system will pursue a case that falls under the MCA, particularly when the federal government is also pursuing the case.¹⁹¹ In addition, with the exception of those offenses included in the VAWA special domestic violence criminal jurisdiction, tribes do not have criminal jurisdiction over non-Indian offenders. This may be of particular concern given the high rates of interracial violence associated with crimes against Native Americans. Congress could keep tribal jurisdiction in its present form or it may address or alter tribal jurisdiction in any number of ways. For example, Congress could address this issue by expanding tribal jurisdiction over non-Indian offenders to include additional offenses. Alternatively, Congress could preserve current limitations on tribal jurisdiction and instead invest greater resources in federal and state programs that address violent crime in Indian Country.

Justice System Resource Shortages and Low Federal and State Prosecution Rates

Federal, or some state criminal justice systems, have jurisdiction over MCA offenses that occur in Indian Country, regardless of the victim's or offender's tribal status. Some data has been used to argue that both states and the federal government may not be adequately resourced to meet this responsibility. In P.L. 280 states, some argue there are often insufficient funds to address crime on Indian lands.¹⁹²

Similar underfunding concerns have been identified at the federal level. A Senate report that accompanied TLOA stated declination statistics (i.e., cases referred to the U.S. Attorney's Office [USAO] that they decline to prosecute) in Indian Country, "likely reflect difficulties caused by the justice system in place"; for example, shortages in law enforcement personnel on tribal lands, training, and equipment.¹⁹³ GAO found that the USAO declined to prosecute violent crime cases in Indian Country 52% of the time and nonviolent crime cases were declined 40% of the time.¹⁹⁴ The two most common offenses referred to the USAO by the FBI and BIA were assault and "sexual abuse and related matters." The USAO declined to prosecute 46% of referred assaults cases and 67% of sexual abuse and related matters. Further, jurisdictional confusion can result in the loss of time and resources when a violent victimization occurs on tribal lands.¹⁹⁵

Past efforts to address low prosecution rates in Indian Country have included efforts to increase USAO staff. Congress may also address this issue by encouraging greater collaboration between federal, state, local, and tribal law enforcement. For example, Congress may consider programs to expand the use of cross-deputization, which can give jurisdictional powers to tribal law enforcement officers equivalent to that of state or federal officers and allow for mutual enforcement of federal, tribal, or state law.¹⁹⁶ Congress may consider creating or expanding grant programs to encourage collaboration between tribal governments and law enforcement agencies in cities with large Native American populations.

Communication and Notification of Tribal Governments

There is also no federal requirement to notify a tribal nation if one of its members is the victim of a crime or killed while outside of tribal lands. This differs from how the United States typically handles relations with other sovereign nations; for example, the United States has mutual legal assistance treaties with many foreign nations.¹⁹⁷ Also, if a foreign person were to be killed in the United States, it would not be unusual for the deceased's nation representatives to be notified and cooperation to be extended in providing documentation and resources to the victim's family.¹⁹⁸ Congress may consider action to encourage or require notification of tribes when their members are victims of crimes outside of Indian Country.

Competitive Grant Funding for Tribal Justice Systems

Congress currently funds several grants that address MMIP through competitive or short-term grant programs like the CTAS. Some tribes have criticized competitive grant programs that require tribal communities to compete against each other for finite resources and they also argue that this may favor larger, more resourced tribes that can employ grant writers.¹⁹⁹ Tribes have also expressed concern about the viability of funding public safety initiatives through short-term grants.²⁰⁰ Congress may wish to preserve current grant structures or may shift tribal grant funding to different models, such as formula grants.

Tribal Law Enforcement Funding Shortages

Congress may also provide additional funding for tribal law enforcement. On average, law enforcement agencies have 3.5 officers per 1,000 residents nationwide; in comparison, tribal agencies have an average of 1.9 officers per 1,000 residents.²⁰¹ In 2023, the BIA submitted a report to Congress analyzing estimated needs for law enforcement in Indian Country for 2020 and found that $1.4 billion was needed for tribal law enforcement, $247.7 million for existing detention/corrections programs, and $1.2 billion for tribal courts.²⁰² DOI's FY2024 budget request includes a proposed $62.1 million increase from the 2023 enacted funding ($641.8 million total) for Public Safety & Justice.²⁰³ This budget includes a $33.5 million increase for Criminal Investigations and Police Services to grow the number of officers and investigators in Indian Country.²⁰⁴ DOI's 2024 budget request also includes a $16.5 million increase to address MMIP, including funding to support the MMU.²⁰⁵

Data and Crime Reporting Gaps

Tribal communities' limited access to and participation in federal crime data collection efforts have been cited as significant limitations to understanding and addressing MMIP. As discussed above, the federal government has recently passed legislation to try to enhance data collection about crime on tribal lands. DOJ has also made efforts to improve tribal access to federal crime databases. For example, the FBI's CJIS Division made efforts to increase tribal access to federal crime data resources and databases beginning in 2010. In 2015, CJIS launched an outreach program called the Tribal Engagement Program (TEP) with this same focus.²⁰⁶

Congress may consider further efforts to expand tribal access to federal data resources, both to share crime data and to access data that may aid law enforcement on tribal lands. Congress might also consider programs to expand the reporting of crimes involving Native Americans occurring outside of tribal lands. For example, Congress may consider requiring agencies that accept federal criminal or juvenile justice grant funding to report Native American crime victims and offenders by nation and tribal affiliation,²⁰⁷ and notify tribes when police interact with members outside reservations.²⁰⁸

Another contributing factor to data gaps is limited access to broadband internet in Indian Country.²⁰⁹ The federal government has launched initiatives in the past to expand tribal internet access. The BIA administers the National Tribal Broadband Grant program to bring Native American communities greater high-speed internet access.²¹⁰ In June 2021, the Department of Commerce announced that nearly $1 billion would be made available to expand internet access on tribal lands via National Telecommunications and Information Administration (NTIA) grants.²¹¹ In June 2023, the Biden Administration announced that the Department of Commerce would oversee the $42.45 billion Broadband Equity Access and Deployment (BEAD) program, which was created by the Infrastructure Investment and Jobs Act (P.L. 117-58).²¹² The BEAD program aims to "expand high-speed internet access by funding planning, infrastructure deployment and adoption programs."²¹³ States and territories are eligible to receive BEAD funds and tribal governments are eligible subgrantees.²¹⁴ The law also requires formal consultations with tribal governments.²¹⁵ The Infrastructure Investment and Jobs Act also authorized funding for the Affordable Connectivity Program (ACP), which provides funds to eligible households to cover internet bills, including up to $75 a month for households on qualifying tribal lands and additional funding for the Tribal Broadband Connectivity Program.²¹⁶ Congress may consider continuing or changing efforts to expand internet access.

In 2018, the NCAI adopted a resolution in support of indigenous data sovereignty.²¹⁷ Indigenous data sovereignty is defined as "the right of a nation to govern the collection, ownership, and application of its own data. It derives from tribes' inherent right to govern their peoples, lands, and resources."²¹⁸ Congress may consider adopting measures to support Native American ownership or management of data collections about their members.²¹⁹ Congress may also consider directing agencies to include Native American community representatives on advisory boards such as the NCIC's Advisory Policy Board. Alternatively, Congress could preserve data collection and ownership practices as they are currently structured.

Appendix. Jurisdictional Responsibility Diagram

Source: Indian Law and Order Commission, A Roadmap for Making Native America Safer: A Report to the President and Congress of the United States, Chapter 1 – Jurisdiction: Bringing Clarity Out of Chaos, May 2015, p. 7. Notes: "Non-Public Law 83-280" and "Public Law 83-280 States" headings refer to whether the federal government has transferred responsibility for major crimes to the state in which the alleged offense occurred. For more information on Public Law 83-280, see page 19 of this report. *Under the Tribal Law and Order Act of 2010 (P.L. 111-211), tribes can opt for added concurrent federal jurisdiction, with federal consent. Neither this tribe-by-tribe issue nor the various configurations of "Optional 280" status are shown in this chart. **Under the Violence Against Women Act Reauthorization of 2013 (VAWA Amendments), after 2015 tribes may exercise special domestic violence jurisdiction with the federal government and with states for certain domestic violence crimes.