The Preventable Tragedy of the Loss of Indigenous Lives: Missing or Murdered Indigenous Peoples

By Khlood Awan

Native American communities have long been marginalized by U.S. legislation. The Indian Removal Act of 1830, signed into law by Andrew Jackson, forcibly displaced thousands of Native Americans from their homes and sacred lands, leading to immense suffering and loss of life. [1] This removal led to the erasure of Native American cultural identity among many tribes, as much of their identity is connected to the land Indigenous communities reside on through deeply rooted spiritual and ancestral ties. The Dawes Act of 1887 compounded this suffering by allowing the Federal Government to divide tribal lands and sell portions of it to non-Native Americans. Although the Act was eventually repealed, the fragmentation of Native lands remains an enduring issue. The devastating impacts of the Indian Removal Act and the Dawes Act continue to have negative effects on the Indigenous communities. Since the 18th century, Native American tribes have waged ongoing legal battles to reclaim unrestricted access to their ancestral territories. While some tribes have secured access to reservations, they continue to face significant challenges and systemic inequities.

Indigenous tribes face significant challenges in reservations due to limited legal protections and systemic marginalization. Families living on reservations face disproportionate levels of poverty at a rate of 36%, almost four times the national family poverty rate of 9.2%. [2] These conditions have heightened stress levels within the community, while restricted access to healthcare has further exacerbated the challenges Native Americans face in coping with these factors. Native Americans struggle with alcoholism at a rate of  7.1% compared to the national average of 5.4%. [1] Due to the generational traumas faced by tribal communities, and ongoing stressors, Native American individuals have resorted to alcohol to cope with the pain and trauma, further straining the ability of their communities to thrive. Notably, Native American women endure significant consequences under these conditions. Native American women are twice as likely to experience rape or sexual assault compared to all other races. Many of these cases have gone unnoticed and unresolved as it is difficult for Indigenous women to report rape and leave their reservations due to cultural stigmas and economic burdens. Most of cases of rape and sexual assault against tribal women are committed by non-tribal men. Considering the limited jurisdiction of tribal courts, the significance of this reality becomes clear. Tribal courts do not have the jurisdiction to prosecute non-tribal people for sexual assault and rape, even if such violence occurs on tribal land. [1] This is a direct consequence of Oliphant v. Suquamish (1978), in which the Supreme Court ruled that tribal courts do not have the authority to prosecute non-tribal people for committing crimes on their tribal lands. [3] Navigating this limitation has been challenging for tribal members, as they lack the ability to seek justice for the majority of violence occurring on their lands and against their people, further contributing to the destruction of tribal communities living on reservations.

The suffering of Indigenous women has long been overlooked by America’s legislative structures, prompting the rise of the Missing and Murdered Indigenous Women (MMIW) movement, to raise awareness and advocate for Native American women who have gone missing and have been murdered at unprecedented rates. Murder is the third leading cause of death for Indigenous women, occurring at a rate ten times higher than among all other ethnicities. Additionally, 40% of sex trafficking victims are Native American women from Arizona and Arkansas. [4] Approximately 4,200 missing and murdered Native American women cases are yet to be resolved, a direct result of the neglect of Native American women by American legislation. [6] These statistics highlight the crisis Indigenous communities have been subject to, as they have to internalize the ongoing stark reality of death among the women in their communities. 

Although there have been legislative efforts to address MMIW cases, their success has been limited. The Savannas Act was signed into law in 2020 to “improve the deferral response to missing or murdered indigenous persons” by “increasing coordination among Federal, State, Tribal, and local law enforcement”. [7] Although the Savanna’s Act marked a significant step towards addressing and raising awareness on MMIW, its success has been restricted due to various factors, including the economic capacity of tribes. The Savannas Act does not allocate any additional funds to Tribes to implement the new protocols being developed to respond to Missing and Murdered Indigenous People (MMIP). Thus tribes have to rely on the limited existing funds they receive under the Tribal Governments Grant Program to implement new protocols to respond to MMIW cases, which tribes have previously expressed are not sufficient. Furthermore, the legislation fails to recognize the lasting impact of the Supreme Court’s decision in Oliphant v. Suquamish, which has been a large limitation in the ability of Tribes to investigate and prosecute non-tribal perpetrators of violence, which make up the majority of those who commit atrocities against tribal members. [5] Similarly, Executive Order 14053, which was signed into law by President Biden on November 15, 2021 to improve “public safety and criminal justice for Native Americans and address the issues of missing or murdered indigenous people,” has been narrow in its scope of success. This is largely due to barriers in accurate data collection, limiting the ability of the Federal Government and tribal courts to effectively address MMIP cases. [8] The executive law only requires that federal, state, and local law enforcement report missing children under 21, forgoing missing persons cases of adults, as well as reports from tribal courts. [9] Moreover, many cases also go unreported due to mistrust of law enforcement, which in itself raises various concerns regarding mistreatment of Indigenous people by law enforcement. These factors have impeded tribal communities' ability to address MMIP cases and ensure the safety of their members, as U.S. legislation has historically offered minimal support for tribal efforts to achieve justice.

The suffering faced by Native American communities raises various human rights concerns under the Universal Declaration of Human Rights, including but not limited to, Articles 1, 3, 5, 7, 8, 17, 22, 25, 28. [11] The federal government’s inability to address the ongoing effects of the genocide against Native Americans, as they have been stripped of their land since the founding of America, has lead to a systematic destruction of their communities. Within reservations, Indigenous people face poverty, lack of food and infrastructure to promote adequate living conditions. These conditions, along with generational traumas, have led to concerning levels of alcoholism among Native Americans. Women have suffered immensely as they have been subject to sexual violence, kidnapping, and murder, all of which America’s legal system has failed to address. The federal government must first overturn the Supreme Court ruling in Oliphant v. Suquamish, to give tribal courts jurisdiction over the prosecution of crimes committed by non-tribal members, allowing courts to effectively address grievances faced by tribal members. Moreover, more funds must be allocated to tribal communities to adequately prosecute offenders and to implement systems to address MMIP cases. Senator John Hoeven has proposed the SURVIVE Act, which requires the Crime Victims Fund to “allocate five percent of their funds directly to American Indian tribes and effectively expand critical victims services”. [10] By increasing the funds available to Indigenous tribes, community leaders will have the means to allocate more resources towards justice for tribal members. 

The legacy of trauma that Indigenous communities have been subject to requires that the federal government is proactive in providing resources to tribal communities, including economic resources, increased jurisdiction to tribal courts, and resources to accurately collect and report data on MMIP cases. 

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

Works Cited: 
[1] Kaplan, Genevieve. "A Legacy of Negligence: The Historical Mistreatment of Indigenous 
Peoples in the United States." *Berkeley Public Policy Journal*, April 20, 2022. 
https://bppj.studentorg.berkeley.edu/2022/04/20/a-legacy-of-negligence-the-historical-mistreatment-of-indigenous-peoples-in-the-united-states/.
[2] U.S. Department of Health and Human Services, Administration for Children and Families. 
"American Indians and Alaska Natives: By the Numbers." Administration for Native Americans. Accessed December 6, 2024. https://www.acf.hhs.gov/ana/fact-sheet/american-indians-and-alaska-natives-numbers#:~:text=The%20poverty%20rate%20for%20American,poverty%20rate%20of%209.2%20percent.
[3] National Alliance to End Sexual Violence. "Tribal Sovereignty." Accessed December 6, 
2024. https://endsexualviolence.org/where_we_stand/tribal-sovereignty/.
[4] National Criminal Justice Training Center. "2024 Missing and Murdered Native Women and 
Girls Day." Accessed December 6, 2024. https://ncjtc.fvtc.edu/resources/RS02402203/2024-missing-and-murdered-native-women-and-girls-d.
[5] National Indigenous Women's Resource Center. "Savanna’s Act Calls for Law Enforcement 
Focus on Missing and Murdered Indigenous Women." Restoration Magazine, June 2019. https://www.niwrc.org/restoration-magazine/june-2019/savannas-act-calls-law-enforcement-focus-missing-and-murdered.
[6] U.S. Department of the Interior, Bureau of Indian Affairs. "Missing and Murdered Indigenous 
People Crisis." Accessed December 6, 2024. 
https://www.bia.gov/service/mmu/missing-and-murdered-indigenous-people-crisis.
[7] U.S. Department of Justice. "Savanna's Act." Accessed December 6, 2024. 
https://www.justice.gov/tribal/mmip/SavannasAct.
[8] U.S. Department of Justice. "About MMIP." Accessed December 6, 2024. 
https://www.justice.gov/tribal/mmip/about.
[9] U.S. Government Accountability Office. "Missing and Murdered Indigenous Persons: 
Federal Law Enforcement's Role and Coordination." GAO-22-104045. September 22,
2022. https://www.gao.gov/products/gao-22-104045.
[10]  Duke Undergraduate Law Magazine. "Savanna’s Act: A Victory for Indigenous
Communities." Duke Undergraduate Law Magazine, October 24, 2020. https://dukeundergraduatelawmagazine.org/2020/10/24/savannas-act-a-victory-for-indigenous-communities/.
[11] United Nations. "Universal Declaration of Human Rights." Accessed December 6, 2024. 
https://www.un.org/en/about-us/universal-declaration-of-human-rights.