Improving Public Safety and Criminal Justice for Native Americans and Addressing the Crisis of Missing or Murdered Indigenous People

Overview

Background and Intent

Executive Order 14053, issued by President Joseph R. Biden Jr. in November 2021, addresses the ongoing crisis of missing or murdered Indigenous people and the broader issues of public safety and criminal justice for Native Americans. This order is a recognition of the historical and systemic challenges Native American communities face in regard to violence and criminal justice. For decades, the high rates of violence against Native American communities, especially women, have been a significant social issue. The order aims to tackle these issues by implementing coordinated federal strategies in partnership with tribal nations, law enforcement, and community organizations.

The order highlights that Native Americans experience violent crimes at rates much higher than the national average. This includes sexual violence, intimate partner violence, and violence against the LGBTQ+ and Two-Spirit communities within the tribes. The intent is to address factors such as the complex jurisdictional challenges between tribal, state, and federal law enforcement agencies, which often leave Native American victims without justice. It calls for a comprehensive approach that spans prevention, intervention, and supportive services while recognizing the sovereignty of tribal nations.

This executive order builds upon legislative measures like the Violence Against Women Reauthorization Act of 2013, Savanna’s Act, and the Not Invisible Act of 2019, which sought to improve law enforcement protocols and data access in tackling the issue of missing and murdered Indigenous people. Despite some successes, previous efforts were deemed insufficient in reversing the crisis. The order places a strong emphasis on collaboration between various federal departments and local, state, and tribal authorities, aiming for effective intervention and rightful allocation of resources to these issues.

Legal and Policy Implications

Coordination Across Jurisdictions

From a legal standpoint, this executive order seeks to streamline the various jurisdictional challenges that have historically impeded justice for Native American communities. It calls for the development of a coordinated federal law enforcement strategy, led by the Attorney General, to address violence against Native Americans. This strategy includes special provisions to solve unsolved cases involving Native Americans and aims to strengthen participation in initiatives such as the Amber Alert in Indian Country. Furthermore, the order seeks to enhance training programs for federal agents and expand trauma-informed investigation techniques.

A significant legal implication of this order is its challenge to the current competency and scope of tribal law enforcement. By advocating for increased federal and state government support to tribal law enforcement entities, the order acknowledges existing gaps and seeks to bolster the capacities of tribal authorities to handle local crime, particularly domestic and dating violence. This reflects a policy shift towards greater tribal autonomy and justice administration.

The order also mandates improvements in data collection and information-sharing across federal departments, including the use of national crime information systems like the National Crime Information Center. The inclusion of urban Indian populations in these data initiatives marks a noteworthy policy shift, recognizing that violence against Indigenous people also extends beyond tribal lands.

Who Benefits

Native American Communities

The primary beneficiaries of Executive Order 14053 are the Native American communities, who have borne the brunt of inadequacies in the legal and justice systems. By addressing jurisdictional complexities and enhancing the capacities of tribal law enforcement, the order envisions a safer environment where the criminal justice system better represents and protects Indigenous communities, particularly women and LGBTQ+ individuals.

Tribal law enforcement agencies will benefit significantly from increased support and access to federal resources. The order's emphasis on training and technical assistance enhances their ability to address crimes effectively within their jurisdictions. Moreover, by implementing provisions that allow tribes to prosecute certain non-Indigenous perpetrators of domestic violence, the order enhances the ability of these agencies to provide justice.

Families and victims of missing or murdered Indigenous people stand to gain through enhanced communication and victim support services embedded within the stipulated federal strategy. The creation of dedicated outreach liaisons within the Department of Justice ensures that victims' families are kept informed and supported throughout investigations, providing much-needed closure and advocacy.

Urban Indian Organizations

Urban Indian organizations and the Native Americans living in urban areas will also benefit from this order. Historically, these communities have been underserved or overlooked by initiatives that focus primarily on tribal lands. By emphasizing the inclusion of urban Native populations in data collection and prevention efforts, the order attempts to rectify these oversights.

Healthcare and mental health practitioners working with Native American survivors will find reinforced support via federal efforts to improve service delivery in linguistically and culturally appropriate manners. This recognition of cultural nuances in service provision underscores an enhanced focus on culturally sensitive victim support.

Who Suffers

Lack of Direct Impact on Non-Native Communities

While the executive order does not explicitly detract from existing rights or resources of non-Native communities, the reallocation of federal resources towards Native American issues may lead to perceived imbalances, particularly in regions where competition for law enforcement support is already contentious. This could create tensions or a perception of favoritism.

Certain segments of the wider law enforcement community may experience increased workloads without concomitant resource expansion, particularly if tasked with reinforcing collaborative efforts or adjusting procedures to align with the goals of the executive order. The added duties without immediate budgetary increases could strain existing resources and energy.

A broader implication could involve stakeholders resistant to federal encroachment into jurisdictions they traditionally control, such as state and local law enforcement agencies. Adjusting to new federal mandates or strategies could cultivate administrative and operational strain, particularly where current practices fall short of federal expectations.

Non-Native perpetrators of crimes within Native jurisdictions might face a higher level of criminal accountability than previously, potentially facing prosecution in tribal courts. This could necessitate an adjustment in legal defense strategies and a deeper understanding of tribal legal systems.

Finally, industries or development initiatives that depend on native land access or influence might face new levels of scrutiny or barriers arising from newly empowered tribal entities. These sectors may need to reassess their operations and engagements in light of strengthened tribal jurisdictions and authority.

Historical Context

Continuation of Prior Initiatives

Executive Order 14053 builds upon a legacy of legislative acts and executive actions aimed at addressing disparities faced by Native American communities. It follows the trajectory of the Violence Against Women Act and subsequent reauthorizations, which have progressively expanded the scope and authority of tribal law enforcement to address domestic violence comprehensively.

Despite prior executive and legislative measures, the issues of violence against Native Americans persisted, requiring stronger federal intervention as recognized in this order. Historical inaction or underfunding has led to a cumulative increase in violence and systemic inadequacies, which this executive order seeks to rectify comprehensively.

This order also echoes themes found in the earlier Obama Administration's approach to tribal affairs, which prioritized intergovernmental cooperation and Native American rights. These actions contrast with periods where Indigenous issues received less federal attention, illustrating a broader shift towards accountability and active engagement with tribal issues.

The order's issuance during Biden's presidency reflects the administration's broader policy focus on equity, civil rights, and inclusion for all marginalized groups. It aligns with a series of executive actions across different domains, all aimed at addressing historical injustices and promoting racial equity.

Globally, this order mirrors international trends where governments recognize Indigenous rights and aim to address systemic inequalities. Notably, it resonates with movements advocating for the rights of native and Indigenous populations worldwide, seeking justice and historical redress.

Potential Controversies or Challenges

Jurisdictional and Legislative Pushback

The expanded jurisdiction and empowerment of tribal courts to prosecute certain non-Indigenous offenders could face legal challenges. Non-Indigenous defendants or related advocacy groups might argue constitutional breaches, asserting that tribal courts do not provide the same protections as state or federal courts.

Federal agencies tasked with implementing this order may encounter operational and budgetary constraints. The order's mention of "subject to the availability of appropriations" indicates potential challenges in securing sufficient funding from Congress, which could affect the execution of the strategies outlined.

State governments, particularly where tribal lands overlap significantly with state jurisdictions, might resist increased tribal authority, viewing it as undermining state sovereignty. Previous Supreme Court rulings, such as McGirt v. Oklahoma, indicate the complexities involved in jurisdictional determinations.

Resistance may also arise from administrative complexities within federal departments required to coordinate efforts and share information effectively. Implementing unified protocols across diverse agencies entails substantial logistical coordination and reordering of priorities, which may prove challenging.

Public opinion, particularly in areas with long-standing tribal-state conflicts, may affect the broader acceptance and effectiveness of this order. If perceived as unbalanced or inadequately addressing competing claims, the order could incite public discourse or opposition, stalling progress.