October 01, 2014

Ending Violence So American Indian Alaska Native Children Can Thrive

by Senator Byron L. Dorgan, Joanne Shenandoah

The children of the first Americans should not be left behind. Yet, that is what American Indian and Alaska Native (AI/ AN) children have been facing for decades. Inadequate schools, housing, health care, and more have created conditions that cannot continue. These children have been disadvantaged by the false promises that were made to American Indians and Alaska Natives that adequate education, housing, and health care would be provided. Moreover, AI/AN children are often exposed to violence that stems from poverty, homelessness, substance abuse, suicide, domestic violence, sexual assault, and child abuse.

No longer can our country turn a blind eye to the treatment of AI/ AN children. The immediate and long-term effects of this exposure to violence include increased rates of altered neurological development, poor physical and mental health, poor school performance, substance abuse, and overrepresentation in the juvenile justice system. This chronic exposure to violence often leads to toxic stress reactions and severe trauma; which is compounded by historical trauma. Sadly, AI/AN children experience post-traumatic stress disorder at the same rate as veterans returning from Iraq and Afghanistan and triple the rate of the general population. Continual exposure to violence devastates a child’s development and has a lasting impact on basic cognitive, emotional, and neurological functions.

We cannot stand by and watch children—who are the future of AI/AN communities—destroyed by constant exposure to violence and the resulting trauma. Day in and day out, despite the efforts of tribal governments and community members, many of them hindered by insufficient funding, AI/AN children suffer exposure to violence at rates higher than any other race in the United States. With the convergence of exceptionally high crime rates, jurisdictional limitations, vastly under-resourced programs, and poverty, service providers and policymakers have to assume that all AI/AN children have been exposed to violence.

The Attorney General’s Task Force on American Indian and Alaska Native Children Exposed to Violence was established in 2013 to examine the impact of violence on AI/AN children as victims and witnesses, and the effectiveness of the systemic responses. The Task Force’s Advisory Committee was charged by U.S. Attorney General Eric H. Holder Jr. to make recommendations for change designed to heal and protect AI/AN children and foster environments where they can thrive and develop to their full potential.

The Advisory Committee held public hearings in Alaska, Arizona, Florida, and North Dakota, gathering testimony from more than 150 witnesses. The stories are heart breaking, the statistics are shocking, but the witnesses posed workable solutions to the problems. The Advisory Committee listened to hours of testimony about the trauma and suffering endured by American Indian and Alaska Native people—past and present. We heard story after story of abuse, loss, and tragedy. We heard about the legacy of historical trauma caused by loss of home, land, culture, and language and the abuse of generations of Native children in American boarding schools. We heard that, through a tragic history of broken promises and chronic underfunding, our country has failed to meet its trust obligations to Native Americans and their children.

Yet at every hearing we also heard about the desire for healing and the importance of restoring traditional ceremonies and ancestral wisdom as ways of returning safety, dignity, respect, and well-being to our indigenous people and their children. We discovered a remarkable core of resilience and love of children among Native people. People also voiced a sense of urgency about removing barriers that prevent Native people from solving their own problems and providing support for Native-directed solutions.

The Advisory Committee’s charge ended on November 18, 2014, with the release of our final report (see www.justice.gov/defendingchildhood). This final report incorporated and built upon on two highly relevant reports that preceded it. First, the Attorney General’s National Task Force on Children Exposed to Violence held hearings throughout the country and released a final 2012 report that included 56 wide-ranging recommendations. One foundational recommendation to establish a separate task force or commission to examine the unique needs of AI/AN children exposed to violence resulted in the formation of our task force.

A second highly relevant report was released by the Indian Law and Order Commission (ILOC). The ILOC was a bipartisan commission created through the 2010 Tribal Law and Order Act (TLOA). The TLOA directed the Commission to conduct a comprehensive study of the criminal justice system relating to Indian country and to develop recommendations on necessary modifications and improvements to the justice systems on the federal, state, and tribal levels. The final report, released in 2013, A Roadmap for Making Native America Safer, was unanimously approved by all nine bipartisan commissioners. The goals of the ILOC report are directly connected to the Advisory Committee’s mission to address the needs of AI/AN children exposed to violence.

The Advisory Committee report concludes that the recommendations in the 2012 Final Report of the Attorney General’s National Task Force on Children Exposed to Violence and the 2013 ILOC report, A Roadmap for Making Native America Safer, complement the findings and recommendations in the Advisory Committee report and encourage policymakers to consult all three reports as they implement policies that will improve the lives of AI/AN children. It is important to note that the American Bar Association (ABA) has adopted resolutions endorsing the recommendations of both the 2012 report of the Attorney General’s National Task Force on Children Exposed to Violence (in August 2013) and the 2013 ILOC report (in February 2015).

We must transform the broken systems that re-traumatize children into systems where AI/AN tribes are empowered with authority and resources to prevent exposure to violence and to respond to and promote healing of their children who have been exposed. Current barriers that prevent tribes from leading in protecting and healing their children must be eliminated before real change can begin. We recommended that leaders at the highest levels of the executive and legislative branches of the federal government should coordinate and implement the recommendations in the Advisory Committee report consistent with three core principles—Empowering Tribes, Removing Barriers, and Providing Resources—identified by the Advisory Committee.

There is a vital connection between tribal sovereignty and protecting AI/ AN children. The Advisory Committee report concludes that state and federal governments must recognize and respect the primacy of tribal governments in responding to AI/AN children. Jurisdictional restrictions on tribes must be eliminated to allow tribes to exercise their inherent sovereign authority to prevent and respond to AI/AN children’s exposure to violence. Resource limitations must be adequately addressed. The barriers that currently limit tribes’ response to exposure to violence must be removed. Tribes should be supported in this effort with the assistance, collaboration, and resources needed to build their capacity to fully implement and sustain tribal-controlled, trauma-informed prevention and treatment models and systems. These barriers must be removed in order to empower individual tribal communities to prevent their children from being exposed to violence along with sufficient tools to respond to and promote healing in their children who have been exposed.

Throughout the testimony, we also heard stories of critical tribal funding that has been cut across sectors—housing, law enforcement, child welfare, juvenile justice, health care, and education—and how the lack of funding negatively impacts the children in these communities. And while there are state and federal programs intended to address the needs of Native American children and youth, the findings of this report illustrate that grant-making systems are cumbersome and resources for tribes are extremely limited. Too often tribes are forced to compete with one another for limited resources and the grant application process is subject to unrealistic timeframes, overwhelming paperwork, and requirements that place unrealistic burdens on small or remote tribal communities.

The solution is not all that complex— the federal government must fulfill its promises. We must respect tribal sovereignty and support and revamp programs that are intended to serve Native American children. We have to fix a broken system. We must work as partners with tribes to expand funding and make a commitment to reform so that children and communities exposed to violence can heal and thrive. We must increase mandatory funding to bring tribal criminal and civil justice systems and tribal child protection systems into parity with the rest of the United States.

A number of the recommendations in the Advisory Committee report require substantial investment and new appropriations for programs that provide critical services and care to AI/AN children. Progress will not be made until Congress passes legislation requiring mandatory spending for tribal children and youth. Furthermore, treaties and existing law and trust responsibilities demand that Congress and the executive branch direct sufficient funds to AI/ AN nations to bring funding into parity with the rest of the United States so that tribal nations can effectively address violence in their communities, prevent children from being exposed to violence, and respond to those children who need to heal.

The rate of violent crimes on Native American lands is estimated to be more than 2.5 times that of the national rate. Violence accounts for 75 percent of the deaths of AI/AN youth ages 12 to 20. Tragically, death by suicide is three times as likely for Native American youth, and as much as 10 or more times the national average in some tribal communities.

Historical trauma through generations has had a profoundly negative impact on the well-being of America’s indigenous people. Centuries of failed promises and having their lands, homes, cultures, and languages torn away continue to resonate today. Forcing Native children to attend American boarding schools created another layer of trauma. Broken trust obligations destroyed families and communities.

Decisions by Congress and the Supreme Court have repeatedly eroded tribal sovereignty, including the Court’s decision in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), which held that federally recognized tribes do not possess the sovereign power to assert criminal jurisdiction over non-Indians. With the federal government declining to prosecute 76 percent of the crimes referred by tribal authorities, tribal leaders have struggled to find ways to keep Native citizens safe, especially when the perpetrators are non-Indian.

In May 2013, Congress passed the Violence Against Women Reauthorization Act (VAWA). Among its provisions, Congress amended the Indian Civil Rights Act (ICRA) to authorize “special domestic violence criminal jurisdiction” to tribal courts over non-Indian offenders who (1) commit domestic violence, (2) commit dating violence, or (3) violate a protection order. The ABA supported this strengthening of tribal jurisdiction in an August 2012 resolution that “urges Congress to enact legislation that strengthens tribal jurisdiction to hold all perpetrators of gender-based violence on tribal lands that are committed by non-Indian perpetrators.”

It is troubling that tribes have no criminal jurisdiction over non-Indians who commit heinous crimes of sexual and physical abuse of AI/AN children in Indian country. Congress has restored criminal jurisdiction over non-Indians who commit domestic violence, commit dating violence, and violate protection orders. Congress should now similarly restore the inherent authority of AI/AN tribes to assert full criminal jurisdiction over all persons who commit crimes against AI/AN children in Indian country including both child sexual abuse and child physical abuse.

There are no statistics concerning the percentage of non-Indian perpetrators who commit crimes against AI/ AN children on tribal land, but it is clear from what we do know that it is a very substantial problem. Federal studies have shown that 70 percent of violent crimes generally committed against AI/ANs involve an offender of a different race. This statistic includes crimes against children twelve years of age and older. We also know that in domestic violence cases, 75 percent of the intimate victimizations and 25 percent of the family victimizations involve an offender of a different race. Furthermore, national studies show that men who batter their companion also abuse their children in 49 percent to 70 percent of the cases.

Native Americans should guide their own future and with traumainformed, culturally appropriate programs and services funded by the U.S. government, tribes can continue their important efforts and the federal government can begin to do what it promised. To that end, the Advisory Committee report recommends additional tribal research funding. We need to improve how tribal child welfare and juvenile justice systems screen and treat traumatized children, with the ultimate goal to recover and enhance the well-being of every child. Furthermore, the legislative and executive branches of the federal government should ensure Indian Child Welfare Act (ICWA) compliance and encourage tribal-state ICWA collaborations.

Children entering the juvenile justice system are exposed to violence at staggeringly high rates. Many AI/ AN people believe that the Western criminal/juvenile justice system is inappropriate for children, particularly AI/AN children, as it is contrary to AI/AN values in raising children. The Advisory Committee report concludes that the standard way juvenile justice has been administered by state jurisdictions is a failure and it re-traumatizes AI/AN children. The Advisory Committee report supports substantial reform of the way the juvenile justice system impacts AI/AN youth. A reformed juvenile justice system should be tribally operated or strongly influenced by tribes within the local region. Congress should provide adequate funding for tribal juvenile justice systems, including adequate support services. Federal funding for state juvenile justice programs should require states to engage in and support meaningful and consensual consultation with tribes on the design, content, and operation of juvenile justice programs to ensure that programming is imbued with cultural integrity to meet the needs of tribal youth in state systems. Federal, state, and tribal justice systems should provide publicly funded legal representation to AI/AN children in the juvenile justice system to protect their rights and minimize the harm that the justice system may cause them. Federal, state, and tribal justice systems and service providers should make culturally appropriate trauma-informed screening, assessment, and care the standard in juvenile justice systems.

State and federal justice systems generally do not inform tribes of AI/ AN children in the juvenile justice (delinquency) system. Tribes do not know where their children are or how they are treated. Congress should amend the ICWA to require notice to a tribe when a state court initiates delinquency proceedings and additional tribal rights of intervention and transfer when the delinquent act occurs on the reservation.

Problems with children exposed to violence in AI/AN communities are severe across the United States—but they are systemically worse in Alaska. Issues related to Alaska Native children exposed to violence are different for a variety of reasons, including regional vastness and geographical isolation, extreme weather, exorbitant transportation costs, lack of economic opportunity and access to resources, a lack of respect for Alaska tribal sovereignty, and a lack of understanding and respect for Alaska Native history and culture, all of which have contributed to high levels of recurring violence. Alaska tribes are best positioned to effectively address these problems so long as the current barriers are removed and Alaska tribes are empowered to protect Alaska Native children. The Advisory Committee heard repeatedly that Alaska tribes are ready and willing to step up to address violence in their communities and serve the children exposed to that violence. It is time for Alaska and the federal government to join in partnership to remove the current barriers that inhibit their ability to do so and to empower Alaska tribes to protect Alaska Native children.

The Advisory Committee report endorses the ILOC recommendations designed to increase sovereignty of Alaska tribes, which are key to decreasing Native children’s exposure to violence. Alaska tribes must have the ability to act. The ILOC recommendations amending the definition of Indian country, allowing transfer of lands from regional corporations to tribal governments, and approving legislation to overturn Alaska v. Native Village of Venetie are all designed to remove barriers. Providing recurring base funding to Alaska tribes to develop and sustain both civil and criminal tribal justice systems is vital. Improving and developing law enforcement response and related resources are also critical. Both state and federal action are needed to address the issue of violence in the commu - nity. Additionally, state and federal agencies must address and jointly respond to the extreme disproportionality of Alaska Native children in foster care (Alaska Native children constitute 17.3 percent of the state children, but an astounding 62.3 percent of children in out-of-home placements).

Supporting tribes, removing barriers, and providing resources will help us turn the tide toward healing and sustaining AI/AN children. We submitted our report to Attorney General Holder with a deep sense of responsibility, humility, commitment, and hope for change. We are extremely grateful to all the witnesses and others who generously shared their stories, wisdom, time, and recommendations with us. We thank our fellow Advisory Committee members— an extraordinary group of people who have a deep commitment to AI/AN children. We ask the Attorney General and the nation to carefully consider the recommendations in this report and together act decisively to end the violence afflicting AI/AN children.


For more information, please go to www.justice.gov/defendingchildhood. Please refer to the Advisory Committee’s 2014 final report for citations to the sources and statistics referenced in this article.

 

Former Senator Byron L. Dorgan (D-North Dakota) and Joanne Shenandoah, Ph.D., served as co-chairs of the Advisory Committee for the Attorney General’s Task Force on American Indian and Alaska Native Children Exposed to Violence, which was established in 2013. Sen. Dorgan is the founder of the Center for Native American Youth (www.cnay.org). Dr. Shenandoah, a member of the Wolf Clan of the Oneida Indian Nation of New York, is a Grammy Award–winning composer and singer