Visibility is Key to Solving the Issue of Missing and Murdered Indigenous Women

How Federal Recognition Can Support the #MMIW Cause

Welcome back to Chaise Lounge, a newsletter focusing on issues important to women. This week we start the first of a two-part series of articles looking at the issue of Missing and Murdered Indigenous Women (MMIW).

Global News

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In January, Estonia became the first country to have both a female prime minister and president. Kersti Kaljulaid is the first female President of Estonia since 2016. She is a proponent of a liberal market economy, the digital economy, and cybersecurity. The Prime Minister is the leader of the Reform Party Kaja Kallas. One of Kallas’s major priorities is to speed up the progress of numerous infrastructure projects.

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Poland’s Law and Justice party passed a law banning abortion in nearly all cases, including those involving fetal abnormalities. The ban brought immediate protests as the country continues its polarization between the ruling party and those with more Western values.

National News

Visibility is Key to Solving the issues of MMIW

How Federal Recognition Can Support the #MMIW Cause

Within the Indigenous communities stretched across this nation and into Canada, there are thousands of missing and murdered women. In fact, according to a 2017 Centers for Disease Control report, “Native women suffer from the second-highest homicide rate in the United States.” In recent years, there have been calls to solve many of these cases, primarily by the Missing and Murdered Indigenous Women’s movement (MMIW). While there are many barriers to a solution for this problem, one unspoken issue impedes any significant progress. Who is actually responsible for investigating cases of missing Indigenous people?

The laws are complicated, and the federal government does not even recognize many Indian tribes. Most tribes have only state recognition, but this gives them no power or authority for investigating crimes against tribal members. Without federal recognition, anyone who is missing or murdered from their tribe is not included in the federal statistics. This situation leads to a gross undercounting of MMIW. According to a 2016 report by the Urban Indian Health Institute, out of 5,712 reported cases of missing Indigenous women, only 116 were logged by the Department of Justice. If we cannot even collect data correctly on who is missing or murdered, how can we understand the depth and breadth of the problem or identify patterns?

But even for tribes with federal recognition, the laws make it challenging for perpetrators to be caught or convicted. PL 280, which only applies to six states, transferred prosecutorial power from the federal government to state governments within those states. Concurrently, it defunded tribal criminal justice systems and did not fund the state governments, creating an unfunded mandate. Tribal justice systems cannot prosecute non-Indians. And prosecutorial discretion at the state level is uneven and sometimes corrupt, leading to a vacuum of authority. If a perpetrator crosses state lines, the case can go cold due to a lack of jurisdiction. All of these issues lead to a lack of investigation in MMIW cases.

In Robeson County, North Carolina, where there are many cases of unsolved missing and murdered Lumbee Indigenous people, especially women, it comes down to an issue of invisibility. The Lumbee tribe has been seeking federal recognition for years, but so far has been unsuccessful.

I interviewed Heather McMillan Nakai, an attorney specializing in Indian law. She is seeking federal recognition for the Lumbee Tribe centered in Robeson County, the largest tribe east of the Mississippi River. She believes that the MMIW issue and federal recognition are issues that are connected. Below is an edited transcript of our conversation. Please note that some answers have been edited for length and clarity.

Chaise Lounge: Hi Heather, Thanks so much for joining me today. Can you help our readers understand how the complexity of the laws surrounding Indigenous tribes contributes to the MMIW issue?

Heather McMillan Nakai: Sure, let's pick Utah. Let's say we're on the Navajo Reservation in Utah. PL 280 does not apply. So the only people with jurisdiction over a kidnapping, murder, etc, would be federal law enforcement or tribal law enforcement. If someone goes missing in this corner of Utah, the federal law enforcement officials are anywhere from two to six hours away. So the grandma of the missing person can't just go to their local police official. They've got to go somewhere far away to report it. And then the investigation is going to take place when someone can get to the location where the person went missing. So you have this inability to recognize the crime in any kind of immediate way. There is a delay.

Chaise Lounge: What are the issues specific to the Lumbee tribe?

Heather McMillan Nakai: Here in Robeson County, we have what most people would deem a serious missing and murdered Indigenous peoples problem. Lumbees tend to live much further away from the seat of government, which happens all over Indian country. But unlike the rest of Indian country, our numbers aren't being included in the national databases and national statistics. And so when there are federal programming dollars and federal resources being geared towards the missing and murdered Indigenous peoples of America, they're not flowing here. If there was federal recognition, that would give the tribe an additional seat of government that would be closer to Indian country. So when a mother calls to report that her daughter is missing, the law enforcement officer is only a few miles away instead of a few hours. While yes, the law can be very complicated, it really does come down to invisibility, either in statistics or in awareness.

CL: So if you were in charge, how would you want the laws to change? Obviously, you would like for the Lumbee to be federally recognized. But earlier, you said we don't even really know what the problem is because we can't really look at it and identify patterns and so forth.

HMN: We can start by recognizing the prevalence of the problem, and evaluating where it's taking place, and how frequently. We can look at jurisprudence and legal trends to see whether the US Attorney's offices in the area are prosecuting certain crimes at a particular level or not. I do think there's something to be said for funding based on an evaluation of what's being prosecuted and what's not. Often we do see trends in the numbers tied to a certain particular activity. For example in North Dakota, when the oil boom hit, we saw exponential growth in missing and murdered Indigenous women there because of the oil camps. And eventually, enough research was done and enough data analysis was done to be able to tie those two things together.

So I want there to be a commission somewhere, literally funded to study why this is happening because it isn't just that these people who are going missing and being murdered are Indians. There probably are some very distinct causes, figuring out what those are, does require quite a bit of data analysis. That requires people with expertise, and it costs money to hire those people. So whether it's a grant program, where tribes who are experiencing this problem can reach out and apply for the grants to hire a data analyst, whether it's someone who becomes a federal employee, and their job is to just go out and analyze data on missing and murdered Indigenous people, or some compromise that allows people to look at their local problems and figure it out, but not in a bubble, so that we don't figure out what's happening in North Dakota, and leave South Dakota out.

So I just think that some way that we can fund data analysis, and information sharing on a nationwide level in a way that catches everyone, not just those with a particular legal relationship with the United States.

CL: So you've talked about funding for crime reasons. Are there other big drivers for seeking federal recognition?

HMK: For me, federal recognition is not about funding. It's about justice.

It is hard for non-Indians to understand the level of injustice and what that really means to the day to day lives of their fellow citizens who are Indians, the knowledge of what that feels like.

Justice comes in acknowledging things that have happened in our past. It's easy to overlook the injustice that Lumbee people have faced because of this lack of acknowledgment, right. Acknowledging that we exist and that our rights exist.

Only once that happens, will we be able to address it. We'll be able to say that the reason we see such value in holding onto our land is because of the land loss our ancestors experienced, that it's historical trauma.

There is a federal movement toward obtaining better data and organization of efforts to solve MMIW cases. In 2019, a federal task force consisting of members of the Departments of Justice, Health and Human Services, and Interior named Operation Lady Justice began looking at issues surrounding the MMIW problem. Some of the items within the task force’s purview are:

  • Develop model protocols and procedures to apply to new and unsolved cases of missing or murdered persons in AI/AN communities, including best practices for:

    • Improving the way law enforcement investigators and prosecutors respond to the high volume of such cases, and to the investigative challenges that might be presented in cases involving female victims;

    • Collecting and sharing data among various jurisdictions and law enforcement agencies

Unfortunately, the task force is only communicating with federally recognized tribes. So, once again, those tribes that are not federally recognized are being ignored again. The MMIW problem is complex but is solvable. Writing to elected officials and lobbying those agencies that are in charge of Operation Lady Justice to include all people of Indian country, not just recognized tribes, is a step that we can all take to support those missing women and their families. While it is early in the Biden administration’s days, now is the time to get this issue in front of the administration for immediate action.

Heather L. McMillan Nakai is an enrolled member of the Lumbee Tribe of North Carolina. Heather received her A.B. from Dartmouth College in History and Native American Studies and her J.D. from the University of California at Los Angeles with a concentration in Indian law and corporate law. Heather is licensed to practice law in North Carolina and practices federal Indian law full time. In her personal capacity, Heather is engaged in litigation against the United States seeking enforcement of individual Indian rights as her effort to correct the unjust treatment of Lumbee people.

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