Tribal Crime, Justice, and Safety (Part 1)

SPEAKER 1: Welcome to Justice Today, the official podcast of the Department of Justice’s Office of Justice Programs, where we shine a light on cutting edge research and practices and offer an in-depth look at what we’re doing to meet the biggest public safety challenges of our time. Join us as we explore how funding, science, and technology help us achieve strong communities.

STACY LEE REYNOLDS: Welcome, everyone. I’m Stacy Lee Reynolds, a Communications Assistant with the National Institute of Justice, or NIJ, and your host for today’s show. NIJ funds important research on tribal crime, justice, and safety. Today we have the Senior Social and Behavioral Scientist in charge of the research portfolio, Christine Crosland, who also goes by Tina. Welcome, Tina.

TINA CROSSLAND: Hello, Stacy, thank you for having me.

STACY LEE REYNOLDS: Now, can you speak more about NIJ’s tribal crime justice and safety research portfolio?

TINA CROSSLAND: I’d love to. NIJ has been supporting and directing research and evaluation in this area since about the 1980s. We’ve been really trying to get an accurate recording of the crime and violence that’s happening in these communities, so that we can provide reliable and valid estimates about the scope of the problem, while also identifying barriers and possible solutions for dealing with these very significant public safety issues. Of course, as we’re doing this work, we have to keep in the forefront of our minds the government-to-government relationship that we have that is between the federal government and all of the tribes in the United States that are sovereign nations. We need to ensure that our research efforts are very much tribally engaged, and we’re committed to doing that while also maintaining a high scientific integrity, rigor, and ethics so that we can fill our federal trust responsibility.

We have also been making a point of consulting with tribal governments and stakeholders so that we can continually improve our funding priorities and processes, and this is done in a number of ways. By way of illustration in 2018, NIJ established a brand new program to build and increase capacity to conduct rigorous research and evaluation in tribal communities, or settings through the promotion of engagement between research, scientists, and tribal nation citizens and stakeholders. We call this program the Tribal Researcher Capacity Building Program. And it’s designed to support planning grants for projects that will promote activities between scientists and these tribal entities so that they can address together criminal justice issues that are the most relevant for our tribal partners. Some examples of these projects include a study to examine gender-based violence interventions at tribal colleges and universities, an investigation to address violence towards youth and young adults and indigenous communities, a project to investigate the effectiveness of trauma-informed healing initiatives implemented by tribal courts, an investigation to explore the barriers to reporting and investigating missing American Indian and Alaska Native people, and a project that’s inspecting risk assessments and technology used in Indian and tribal courts. And finally, we also have a project funded that’s going to be examining the Native American Graves Protection and Repatriation Act or NAGPRA, and whether medical examiner’s and coroner’s offices are complying with those regulations.

All of the projects that I just described to you they’re all tribe-centered approaches to developing a tangible and mutually beneficial research study that is going to be both rigorous and culturally appropriate. And because of that, we should be able to address the challenges of fighting crime, strengthening justice systems, and most importantly promoting healing amongst those impacted. Well, we’ve had a lot of success in this area, but one of the other most significant parts of NIJ’s tribal portfolio is our Violence Against Indian Women Research Program. Now, this particular program was authorized by Title IX of the section 904 of the Violence Against Women Department of Justice Reauthorization Act, also referred to as VAWA 2005. So for the first time, that act authorized NIJ in consultation with our partners in the Office on Violence Against Women to specifically focus our research on Violence against American Indian and Alaska Native women who are living in tribal communities that would include Indian Country in the Lower 48 and Alaska. And the types of topics that we’re looking at happened to be dating violence, domestic violence, sex trafficking, sexual assault, stalking, and murder. And we’re also going to be looking and evaluating the effectiveness of both, or all, federal state, tribal, and local responses to those violence against Indian women crimes.

NIJ refers to this mandate as a program because multiple studies, both small and large, will need to be designed, implemented, and executed to address the varied topics. The authorizing statute also requires establishing a task force subject to the Federal Advisory Committee Act. Members of this task force are comprised of representatives from National Tribal Domestic Violence and Sexual Assault, nonprofit organizations, tribal governments, and national tribal organizations. The task force’s primary function is to provide advice and recommendations on the development and implementation of NIJ’s program, and eventually suggestions to improve federal state, tribal, and local responses to this violence. A significant research challenge identified early on for this program was the lack of available data and where data existed, restrictions on who could access it. Our in-depth review noted that much of the data required to address the scope of work was not available from data systems or sources. It has also not been collected to date or if it had been collected, it was very incomplete. So as a result, it was clear that NIJ would have to start from scratch for much of the work proposed.

So, as I noted earlier, we’re well aware of some historical trials in which studies have been conducted in tribal communities, and later published were perhaps inappropriate and deceptive, leading to the reluctance of many tribal nations and citizens at those nations to participate in research. And because of those well-documented cases, we have made it a goal at NIJ to ensure that this particular program is collaborative and participatory to ensure that the research and evaluation studies conducted will be sensitive to tribal culture and the worldviews, as well as the diversity of tribal cultures and language.

Now, the research funded and directed by NIJ for this particular program can best be described in the following into three categories, primary data collection, secondary data collection, and evaluation. And for the latter category, we really are seeking to evaluate programs or interventions to enhance law enforcement, prosecutorial, and judicial responses to violence against indigenous women and programs or interventions to improve victim engagement with the criminal justice system.

STACY LEE REYNOLDS: That sounds like really important research. A widely publicized NIJ funded study by Dr. Andre Rosay, several years ago, said that more than four out of five American Indian and Alaskan Native women and men had experienced violence in their lifetime. Can you talk more about that study and its impact?

TINA CROSSLAND: Yes, I can. And that was a very important study, Dr. Rosay helped not only make that study possible, but I should first talk about the collaboration that made that data possible, which was between the Centers for Disease Control and Prevention or CDC, the Department of Defense, and NIJ. So collectively, we came together and we implemented the National Intimate Partner and Sexual Violence Survey, also known as NISVS. So, in addition to the federal partners, before I go further, I do want to mention and acknowledge the women and men who participated in that particular study because without their shared stories, we would not be better informed about the experiences on how to improve prevention and intervention efforts.

So, going back to the partnership, the reason why it’s important, and it’s important to the programs that we have at NIJ, is that the statute authorizing our violence against Indian women research limited the catchment area, or the place that is in which we can conduct that research. Specifically, we were told to focus on Indian country, or Alaska villages. However, the Federal Advisory Task Force that I talked about earlier, they raised it as an issue of concern and wanted us to consider possible other studies. And the reason for that is that there’s a large population of Native Americans who reside outside the defined catchment area, especially those living in urban areas. So we took that recommendation from the task force, happened to be working at the time with our CDC partners and saw an opportunity to leverage resources, and we were able to collect this data. The report which is titled Violence Against American Indian and Alaska Native Women and Men is important because it’s the first set of estimates that we’ve been able to get of sexual violence, physical violence by intimate partners, stalking, and psychological aggression by intimate partners over the lifetime of adult self-identified American Indian and Alaska Native women and men, as well as victimization estimates over the past year. It also provides estimates of interracial and intra-racial victimizations and briefly explains the impact of violence.

Now, these were important key findings, things that we had not ever had before that were actually helping policymakers and practitioners really assess the programs and services they had available. So, you’ve already mentioned one of the key findings. You know, we had additional findings about the disproportionate impacts on American Indian and Alaska Native victims, particularly Native American women are more likely to be injured and more likely to need medical care. However, they were also less likely to get those services that they needed. And that’s another finding that highlights the continual disparity in health outcomes and access to healthcare. The other important part of that particular report was also the data looking at interracial violence, in citing that interracial violence is more prevalent than intra-racial violence. And this finding support some earlier work published by NIJ’s sister agency, the Bureau of Justice Statistics, or BJS. For example, BJS published a report titled American Indians and Crime, and it was published in 1999, with a follow up in 2004. And that particular report raised concerns about who is perpetrating these crimes.

STACY LEE REYNOLDS: Now have any of the studies published to date indicated who the perpetrators of this violence are?

TINA CROSSLAND: Well, that’s a very interesting question. And the question is actually mixed. So it’s very important that we understand a study’s research methods and its project design in order to determine whether the questions that we want answered can actually be answered with the project design. For example, there have been some criticisms around the BJS report that I mentioned, specifically that it was not representative of Indian Country. And what do I mean by that? Well, it wasn’t part of an oversample of American Indian, Alaska Native people, nor was it designed to target American Indian and Alaska Native people on or off tribal lands. Now, the participants in that particular study were asked did they live in Indian Country, however, very few indicated that they did live there. In addition, the study focused on incidences, and what I mean by that is the number of times something happened. It was not talking about prevalence, which is looking at the proportion of the population impacted or affected by something.

Now, on the other hand, the 2016 NIJ report that Dr. Rosay authored, it did comprise a sample where the majority were of men and women who participated in the study indicated that they were affiliated or enrolled with a tribe or village, and more than half of them reported having lived within reservation boundaries, or in an Alaska Native village in the last year. Also, that particular study shows the prevalence of violence. In other words, the results show the number of American Indian and Alaska Native women and men who have experienced violence. Alternatively, the BJS report focused on how often, or how many times participants had experienced violence. This study design differences are significant, so we have to keep that in mind when we are trying to figure out who is perpetrating these crimes.

So, the 2016 Rosay report indicated that at least once in their lifetime, Native American men and women have been victimized by a non-Indian, that finding does not say non-Indians commit more crimes. To reiterate, the results from the Rosay study cannot support the idea that most violence against Native American victims is interracial. Instead, the results show that interracial victimizations are more prevalent than intra-racial victimizations. Fewer victims, about one in three had experienced violence by an interracial perpetrator at least once in their lifetime. So as you can see, Stacy, it’s a very complex question, and we have to answer it very carefully.

STACY LEE REYNOLDS: Yeah, that sounds very complex. Now, what complications arise out of the different jurisdictional rules between tribal, local, and federal law enforcement?

TINA CROSSLAND: Well, it is a very complicated system because there’s multiple justice systems that govern tribal communities. And many people in the United States really don’t understand this. So federal and tribal laws apply to members of a tribe unless a federal statute provides otherwise, and tribal courts cannot prosecute non-Indians who commit crimes on tribal lands except in some specific cases for select crimes. So, for instance Title IX of the Violence Against Women Act allowed for special domestic violence criminal jurisdiction provisions, affirming the inherent sovereign authority of an Indian tribal government to exercise criminal jurisdiction over certain non-Indians who violate qualifying protective orders or commit domestic or dating violence against Indian victims on tribal lands. In addition, federal law state that the U.S. Department of Justice has primary jurisdiction over most felonies, many crimes that we refer to as major crimes, those that occur on Indian lands. So consequently, the FBI and the United States Attorney’s Office are the primary federal law enforcement agencies responsible for investigating as well as prosecuting felony crimes that occur in Indian Country.

But to complicate matters, in 1953, Congress gave six states, Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin, criminal jurisdiction over tribal members and other people on reservation. Those six states could not refuse jurisdiction, and the law did not provide for the consent of the affected tribes. Thus, the criminal laws in those states apply to Indians within as well as outside of Indian country. Now, this legislation, known as Public Law 280 or PL 280, permitted other states to opt-in for similar jurisdiction. But again, tribal consent was never required and tribes were never consulted. So, what has happened as a result of the PL 280 is, unfortunately, it doesn’t provide financial support for the expanded state law enforcement responsibility. At the same time, most tribal nations depend on state and federal governments for various resources, such as funding, technology facilities, and most importantly law enforcement. In addition, many tribes have their own government and justice systems, as we’ve mentioned before. So despite federal and Public Law 280 jurisdictions, most tribes actually have their own tribal court systems and facilities to detain tribal members convicted of misdemeanor offenses within reservation boundaries.

However, Public Law 280 has drastically altered criminal justice in Native American communities. Before Public Law 280 criminal jurisdiction was shared between the federal government and tribal governments. And there was very little interference with state governments. And, as a result, there’s been some very notable consequences. So first, some have said that the act violates tribal sovereignty by giving states criminal jurisdiction. Others have stated that, you know, because of this Public Law 280, it has provided a rationale for denying these Public Law 280 tribes funding for law enforcement, which they desperately need. The act also provides non-tribal law enforcement with greater authority on tribal reservations. So for instance, before PL 280, a minor crime committed by a Native American was the responsibility of the tribe. And under PL 280, however, minor crimes can actually be penalized by state laws as well. And finally, and probably most importantly, Public Law 280 has impacted crime in general. But unfortunately, we’re having a hard time measuring that because there’s a big knowledge gap when it comes to how much crime is actually happening with these jurisdictional problems. And part of that is because many crimes go underreported or not reported at all. So the landscape is very complex with multiple overlapping and jurisdictional boundaries and gaps. And I can say it takes someone who works in these areas a very long time to come to a really deep understanding of these issues. Even myself every day, I’m learning something new.

STACY LEE REYNOLDS: Yeah, that sounds very complex. What has already been done to study this jurisdictional maze?

TINA CROSSLAND: So NIJ has funded a study to look at identifying significant gaps, especially when it comes to data concerning crime and law enforcement, with Public Law 280 reservations. However, we fully acknowledge and we seek additional applications and proposals that would conduct quantitative research that will compare reported crime rates in Indian Country affected by the Public Law 280 with rates from reservations not affected by Public Law 280. In addition, we’re looking at quantitative research on the quality of state law enforcement services under PL 280 just so that we have a better idea of what we know is being offered or not offered. And further, there should be some qualitative assessment of law enforcement under the Public Law 280. We need documentation and evaluation of the federal law enforcement funding and services to Public Law 280 tribes, as well as evaluate the impacts of retrocession and concurrent tribal jurisdiction. And we hope to concentrate on those particular areas of research gaps in the years to come.

STACY LEE REYNOLDS: Thanks for listening to part one of my conversation with Tina and tune into part two for the rest of our discussion of tribal justice research.

SPEAKER 2: To learn more about today’s topic, or about NIJ, visit the links in the episode description and join us for new episodes every month.

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