THE NOT INVISIBLE ACT COMMISSION: ADDRESSING VIOLENCE AGAINST INDIGENOUS WOMEN

Author: Madison Dorris, Associate Editor

In general, two variations of law govern issues that arise among the 570+ native territories recognized across the United States.[i] Tribal law concerns the inner workings of a designated tribe and is developed by tribes and native nations to govern their tribal territories. However, tribal law does not impact non-natives outside of those designated territories.[ii] In contrast, Federal American Indian Law governs the relationship between tribes and the federal and state governments. Under this body of law, the U.S. government and state governments have power over tribal members and their territories.[iii] This dual system of authority creates a jurisdictional maze that often permits perpetrators to evade prosecution. For example, under the 2013 reauthorization of the Violence Against Women Act, non-Native perpetrators who committed sexual violence against tribe members could not be prosecuted under tribal law.[iv] Among native territories, domestic abuse, sexual violence, missing and murdered persons cases have been astronomically high and remained unaddressed due to the confusing power dynamic between the two variations of governing law and misallocation of law enforcement resources to remedy resurfacing issues.[v]

Amnesty International (“Amnesty”), an international non-governmental human rights organization, released a report on May 17, 2022 that 56.1% of American Indian and Alaskan Native women suffered from some sort of sexual violence, while one in three experienced rape (29.5%). These statistics remained relatively stagnant since 2007, when Amnesty conducted its last report.[vi] The rates of gender-based violence are heavily intertwined with an ongoing national crisis concerning Missing and Murdered Indigenous Women. The Center for Disease Control conducted a study in 2017 that revealed homicide rates are 10 times the national average on some reservations and homicide is the third leading cause of death among indigenous women and girls. Additionally, the study determined that the disappearances and murders are often related to domestic violence, sex trafficking, and sexual assault.[vii]  However, these statistics fail to reflect accurate rates that are irrefutably higher because of failed responses from authorities to prevent violence, the U.S. government’s distribution of emaciated resources for law enforcement agencies and Indigenous health service providers, and the longstanding legacy of human rights violations and abuses against Indigenous peoples who continually face entrenched marginalization.[viii]

Law enforcement coordination between federal, state and tribal law is direly inadequate. Funding for tribal law enforcement agencies is barren, which creates which creates issues with understaffing, poor hiring practices, and lower quality of work performed by tribal law enforcement.While state and federal law enforcement presence is significantly lower than non-Native communities and often does not stretch to rural areas of territories.[ix] In the absence of law enforcement, whether the absence stems from governmental or tribal entities, victims inevitably fall through the cracks. Victims are deprived of opportunities to report crimes and when crimes are reported, reports are often lost in the shuffle between different law enforcement agencies. Often, reports are subsumed in confusion and fear of overstepping between the two justice systems.[x]  Even if federal jurisdiction over a case is properly established, there’s a risk that prosecution may still be denied due to the reduced percentage of available prosecutors for Native country and lack of funding. Recent data revealed that U.S. Attorney’s Offices declined to prosecute 67% of sexual abuse cases and 46% of sexual assaults in Native country, which left indigenous survivors with no recourse.[xi] 

On October 10, 2020, the Not Invisible Act (“the Act”) was enacted to address the national crisis of Missing and Murdered Indigenous Peoples (MMIP).[xii] Before enactment, efforts to combat the massive gaps in information chains and data collection fell short in preventing egregious human rights violations and domestic abuse against Indigenous people.[xiii] On May 5, 2022, Attorney General Merrick Garland and Secretary Deb Haaland established the Not Invisible Act Commission (“The Commission”). The Commission serves to make recommendations to the Departments of Interior and Justice to reduce the high rates of domestic abuse, sexual violence, murders, and missing persons cases among Native communities[xiv] [xv][xvi]

 In conclusion, the Commission’s efforts are aimed to collect and report statistical data on the number of cases of MMIP and human trafficking, develop and execute legislation for federal programs, properties, and resources to fulfill the Commission’s goals, coordinate and resolve issues related to Tribal-state-federal resources, hiring, and retention among law enforcement offices on Native lands, and implement processes that ensure information regarding violent crimes, investigations, and prosecutions are effectively shared with Tribal governments.[xvii]

[i]  American Indian Law: A Beginner’s Guide, Library of Congress, https://guides.loc.gov/american-indian-law/Tribal-Law (last visited Nov. 6, 2022).

[ii] Id.

[iii] Id.

[iv] The Never-Ending Maze: Continued Failure to Protect Indigenous Women From Sexual Violence in the USA, Amnesty Int’l 9 (May 17, 2022), https://www.amnesty.org/en/documents/amr51/5484/2022/en/.  

[v] Id.

[vi] Id.

[vii] Id. at 25.

[viii] Id. at 8.

[ix] Id. at 10.

[x] Amnesty Int’l, supra note iv.

[xi] Id. at 11.

[xii] Not Invisible Act Commission, U.S. Dep’t of the Interior, https://www.doi.gov/priorities/strengthening-indian-country/not-invisible-act-commission (last visited Nov. 6, 2022).

[xiii] Joyce Hanson, Amnesty Int'l Slams US 'Failure' To Protect Native Women (Jay Jackson ed., 2022), Lexis (database updated May 2022). [Where is this? Do you have a URL? I found the same article on Law360 and this is the cite:

Joyce Hanson, Amnesty Int’l Slams US ‘Failure’ to Protect Native Women, Law360 (May 20, 2022, 5:16 PM EDT), https://www.law360.com/articles/1495486/amnesty-int-l-slams-us-failure-to-protect-native-women.

[xiv] Dep’t of the Interior, supra note xii.

[xv] Id.

[xvi] Justice Department and the Department of the Interior Take Important Step in Addressing Missing and Murdered Indigenous Peoples Crisis, Department of Justice (Thursday, May 5, 2022), https://www.justice.gov/opa/pr/justice-department-and-department-interior-take-important-step-addressing-missing-and-0.

[xvii] Id.