Missing and Murdered Indigenous Women: Ashley Loring Heavyrunner and Jurisdictional Inadequacies

Missing and Murdered Indigenous Women: Ashley Loring Heavyrunner and Jurisdictional Inadequacies

Missing and Murdered Indigenous Women (“MMIW”) is now recognized as a public health and human rights crisis.^[1] The case of Ashely Loring Heavyrunner underscores the critical issue contributing to the crisis: jurisdictional barriers. There is no single database that tracks the number of Native women who go missing or are murdered every year, but the FBI National Crime Information Center figures for 2019 show over 5,590 Indigenous women were reported missing.^[2] Disturbingly, the CDC has also reported that murder is the third-leading cause of death among Native women.^[3] The numbers are staggering across judicial departments. In Montana, a state that has more cows than people, over 28 Indigenous women have disappeared or been found murdered in 2019 alone.^[4] Native citizens, who comprise only 6.7% of the population in Montana, make up a distressing 26% of the state’s missing persons cases.^[5] In some counties, the murder rate of Native women is ten times higher than the national average of any other race in America.^[6] In 2016, out of the 5,712 reported cases of MMIW, the Department of Justice (“DOJ”) logged only 116 cases.^[7] Advocates say the staggering rates of violence suffered by Indigenous people are still not fully reflected in these official accounts.^[8]

Illustrating the legal complexity surrounding MMIW is the case of Ashley Loring Heavyrunner. Ashley’s case highlights one of the fundamental, legal flaws in this crisis: jurisdictional blockades. Ashley vanished from Blackfeet Nation (an Indigenous reservation in Montana near the border with Canada) in June 2017.^[9] Ashley’s sister, Kimberly, was the first to realize something was wrong when she was unable to contact Ashley after returning to their home state.^[10] Initially the family thought Ashley might have been visiting a friend or had lost her phone, but after their father became ill and Ashley was still unreachable, the family knew something was wrong.^[11] Kimberly reported Ashley’s disappearance to tribal law enforcement and the Bureau of Indian Affairs (“BIA”) immediately. Local police then conducted a three-day search. After the search concluded, tribal law enforcement stopped efforts to find Ashely.^[12] Despite having jurisdictional control, the BIA took well over two months before seriously investigating the case.^[13]

Two weeks after Ashley’s disappearance, the first information lead was received stating Ashley had been seen running from a male’s vehicle on U.S. Highway 89, alongside the Rocky Mountain Front on the Blackfeet reservation.^[14] Volunteers organized a search of the area where Kimberly discovered a pair of red-stained boots and a sweater that was identified by a witness as Ashley’s.^[15] Family immediately turned the evidence over to the BIA for DNA testing, yet after two years, the family has received no DNA results and have been told that the evidence was misplaced.^[16] According to the family, after the BIA took control of the case most leads and information given to BIA were not followed up on or documented.^[17]

Barriers in MMIW Cases

Several factors may explain the disparate treatment in addressing MMIW cases. Victims are misclassified as Hispanic or Asian, are overlooked because they live in urban areas instead of on reservations, or cases are lost in bureaucratic gaps concerning which state, federal, or tribal law enforcement agency bears responsibility for investigating.^[18] These bureaucratic gaps—as well as a general disregard by law enforcement in taking cases seriously when they are first reported—are leading contributors for the current MMIW movement.^[19]

The key factor in Ashley’s disappearance was the jurisdictional blockades and lack of legal oversight for processing Indigenous missing person reports. When an Indigenous person is reported missing from a reservation, the family must navigate three different jurisdictions: federal, state and tribal.^[20] Jurisdictional issues are further complicated by both acts of Congress and the Supreme Court, as seen in decisions like United States v. Lara.^[21] Because of Lara, most tribes are only able to prosecute their own members with a crime, meaning they cannot arrest non-tribal members who commit crimes on tribal land.^[22] Congress has given statutory jurisdiction over crimes on tribal lands to local authorities but only in sixteen states and this jurisdiction does not apply to all federally recognized tribes.^[23] Due to this lack of jurisdiction, tribes then have to ask state or federal law enforcement for help, a process that is often time consuming.^[24] Adding to the legal and jurisdictional barriers, tribes are barred from charging anyone with major crimes like murder.^[25] Such cases are only allowed to be handled by federal agencies like the BIA or FBI.^[26]

In practice, when families first attempt to report someone as missing, they contact tribal law enforcement who then transfer them to state officers who then transfer the case to federal law enforcement.^[27] Such processes are lengthy and convoluted, causing cases to be dropped, go unreported, or go uninvestigated.^[28] Often, the cases that go beyond tribal land or involve non-tribal members cause jurisdiction to shift to the BIA or FBI, removing investigative power from the tribe completely.^[29] However, this is not always true. Some tribal communities operate under PL-280, which confers criminal jurisdiction to the state, while others have transitioned from PL-280 to tribal jurisdiction.^[30] Therefore, it is often unclear when jurisdiction is lost or gained and who is meant to take over investigations.^[31] During this jurisdictional gap, valuable information, clues and witnesses are often lost—like the potential DNA evidence in Ashely’s case.^[32] Jurisdictional gaps lead to slow response times which in turn allow for evidence to decompose and disappear. It further leads to cold-cases, ultimately creating dead-end cases that make local law enforcement hesitant to undertake new cases.^[33] In 2017, U.S. federal attorneys declined to prosecute 37% of MMIW cases because of a lack of evidence in 70% of the cases they dropped.^[34]

Complicating the process further, until recently, tribes did not have access to the National Crime Information Center (“NCIC”) or the Amber Alert system.^[35] There is also a general lack of communication between law enforcement and the tribal communities.^[36] After a report is made, there is little to no follow up communication from law enforcement to the family members.^[37] Jurisdictional barriers are further exacerbated by law enforcement treatment of Indigenous women and families. When an Indigenous woman goes missing law enforcement often assumes she simply ran away or will reappear after a few days.^[38] Cases involving Indigenous women are, therefore, not prioritized. A research study by the Washington State Patrol found that “law enforcement agencies will not take reports because of [Native peoples’] reputation of drug/alcohol issues, criminal history, or mental health.”^[39] Furthermore, research participants stated law enforcement lack compassion for families reporting missing people.^[40] Such treatment on top of deep historical trauma has created continuous distrust between tribal members and the U.S. government.^[41]

Current Legislation Involving MMIW

Since Ashley’s disappearance, Congress has taken two major steps in addressing the MMIW crisis. The first step, “Savannah’s Act,” required the DOJ to provide training to law enforcement agencies on how to mark a victim as Native in a federal database, create guidelines on how to respond to cases, report statistics, and provide technical assistance to tribes and local law enforcement agencies.^[42] However, this bill failed to provide any remedy or strategy for law enforcement dealing with multiple jurisdictional issues—the core issue in Ashley’s case and many others.

In 2020, a federal task force was finally created under an Executive Order 13898 to address foundational jurisdiction and legal issues, decades after the first cases went uninvestigated.^[43] The EO directs tribal and governmental authorities to improve data coordination, collaboration between law enforcement entities, create several cold case offices and grant funding for public safety on reservations.^[44] Importantly, this task force failed to include tribes or survivors on its board and did not give tribes more authority to prosecute sex traffickers or people who prey on women.^[45] The task force was also created to focus on reservations, overlooking the 71% of Indigenous people who live in urban areas.^[46]

Although not discussed as issues, within the first year the task force has determined several exuberating factors contributing to jurisdictional issues. The first factor, that each agency protocols and guidelines for cataloging missing people is completely different.^[47] Other barriers included lack of resources, misunderstandings between federal authority and tribal authority, and lack of coordination between agencies.^[48] To remedy jurisdictional issues, the task force has created model protocols and procedures for enforcement agencies; however, as of this blog’s writing, the protocols remain vague and instruct basic communication between agencies without specific directives.^[49]

Areas for legal progress

To help facilitate change, the task force, in addition to providing foundational guidelines, should provide specific educational and direct measures for each agency involved in MMIW cases. A first step could involve streamlining national databases and a nationwide alert system for missing persons so that tribal communities can submit initial reports before transferring jurisdiction. This may help combat implicit biases and cultural misunderstandings from non-tribal agencies, while simultaneously decreasing redundant steps that lead to long delays in investigations and the loss of evidence. A nationwide system could also help connect the trends established by government agencies and combat under-reporting.

Another way to address the MMIW crisis would be to acknowledge and combat the different ways in which Native women are abducted. Case precedent has shown that sometimes women are taken by a non-tribal citizen, sometimes it is a member of the tribal community, and other times, it is a passerby temporarily stopping through the reservation.^[50] In this last instance, the passerby passes through three different law enforcement jurisdictions before any agency learns someone is missing. Reservations are typically rural communities with local law enforcement, often stretched thin, but by knowing the areas in which a woman may be more likely to be targeted, strategic policing could occur.^[51] Such vulnerable areas could include gas stations, bus stops or truck stops. Although not perfect, it could provide some more information about the underlying vulnerabilities leading to the crisis. Further, the task force should include education for coroners to help stop the misidentification of Native women, which negatively impacts data.^[52]

Most importantly, the task force should include trauma-informed policing policies within its guidelines. Trauma-informed police not only help combat implicit biases members of law enforcement have towards Indigenous people, but also help with communication between agencies, urgency in handling cases and prevent retraumatizing reporting family members.

1. Maya Salam, Native American Women are Facing a Crisis, N.Y. Times (Apr. 12, 2019). ↑
2. Nicole Daniels, Lesson of the Day: ‘Rural Montana Had Already Lost Too Many Native Women. Then Selena Disappeared.’ N.Y. Times (Jan. 22, 2020), https://www.nytimes.com/2020/01/22/learning/lesson-of-the-day-rural-montana-had-already-lost-too-many-native-women-then-selena-disappeared.html. ↑
3. Missing and Murdered Indigenous Women & Girls, Urban Indian Health Institute (2016). ↑
4. The Landscape in Montana: Missing Indigenous Persons, Montana Department of Justice (2019). See also: Juliana Sukut, Montana’s Missing Indigenous Persons database nearing completion (Apr, 23, 2020). Missing persons reports have remained steady amid COVID-19 with 37 indigenous people reported missing according to the DOJ. ↑
5. Id. ↑
6. Murdered and Missing Native American Women Challenge Police and Courts, Center for Public Integrity (Aug. 27, 2018), https://publicintegrity.org/politics/murdered-and-missing-native-american-women-challenge-police-and-courts/. ↑
7. Supra, note 2. ↑
8. Supra, note 5. ↑
9. Kate Hodal, A young woman vanishes. The police can’t help. Her desperate family won’t give up, The Guardian (Fed 25, 2019), https://www.theguardian.com/us-news/2019/feb/25/a-young-woman-vanishes-the-police-cant-help-her-desperate-family-wont-give-up. ↑
10. Id. ↑
11. Id. ↑
12. Id. ↑
13. The Disappearance of Ashley Loring HeavyRunner, Hue and Cry (2017), https://thehueandcry.com/ashley-loring-heavyrunner. ↑
14. Kimberly Loring Heavy Runner, Testimony to the Senate Committee on Indian Affairs, Oversight Hearing on “Missing and Murdered: Confronting the Silent Crisis in Indian Country.” (Dec. 12, 2018) ↑
15. Id. ↑
16. Supra, note 12. ↑
17. Heavy Runner, supra note 13. ↑
18. Jack Healy, In Indian Country, a Crisis of Missing Women. And a New One When They’re Found. N.Y. Times (Dec. 25, 2019), https://www.nytimes.com/2019/12/25/us/native-women-girls-missing.html. ↑
19. Id. ↑
20. Molly McCluskey, Crow Nation is a place where one could vanish – and many have, Aljazeera (Oct. 23, 2019), https://www.aljazeera.com/features/2019/10/23/crow-nation-is-a-place-where-one-could-vanish-and-many-have. ↑
21. United States v. Lara, 541 U.S. 193 (2004). ↑
22. Id. ↑
23. Rhea Shinde, ‘No More Stolen Sisters’: Jurisdictional Barriers to Justice for Missing and Murdered Indigenous Women, Georgetown Law J., (2020). ↑
24. Id. ↑
25. The Major Crimes Act, 18 U.S.C. § 1153 (1885). ↑
26. Id. ↑
27. Hodal, supra note 9. ↑
28. Id. ↑
29. Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978). See also: The General Crimes Act, 18 U.S.C. § 1152 (1817) and The Major Crimes Act, 18 U.S.C. § 1153 (1885). ↑
30. Activities and Accomplishments of the First Year of Operation Lady Justice, Report to the President, (Nov 26, 2020). See Also: The Tribal Court Clearinghouse, Public Law 280, Tribal Law and Policy Institute. “Public Law 83- 280 (commonly referred to as Public Law 280 or PL 280) was a transfer of legal authority (jurisdiction) from the federal government to state governments which significantly changed the division of legal authority among tribal, federal, and state governments. Congress gave six states (five states initially – California, Minnesota, Nebraska, Oregon, and Wisconsin; and then Alaska upon statehood) extensive criminal and civil jurisdiction over tribal lands within the affected states (the so-called “mandatory states”). Public Law 280 also permitted the other states to acquire jurisdiction at their option.” ↑
31. Id. ↑
32. Evan Simon, et al. No answers 2 years after 20-year-old student vanishes — a single case in an epidemic in American Native communities, ABC News (Oct. 8, 2019), https://abcnews.go.com/US/answers-years-20-year-student-vanishes-case-epidemic/story?id=65344265. ↑
33. Unmasking the Hidden Crisis of Murdered and Missing Indigenous Women: Exploring Solutions to End the Cycle of Violence, SubComit. for Indigenous Peoples of the United States, Committee on Natural Resources, United States House, 116 Cong. 1. ↑
34. Mary Hudetz, Federal report: Indian Country criminal prosecutions plateau, AP News (Nov. 21, 2018), https://apnews.com/article/sd-state-wire-nd-state-wire-us-news-ap-top-news-az-state-wire-f027ebe42d1d4bedb56994de78fc25e0. See also: NICOA, Inadequate Data on Missing, Murdered Indigenous Women and Girls (Jan., 21, 2019), https://www.nicoa.org/inadequate-data-on-missing-murdered-indigenous-women-and-girls/. ↑
35. Missing or Murdered Indigenous Persons: Law Enforcement and Prevention, Department of Justice, J. of Fed. Law and Prac. (Jan., 2021), https://www.justice.gov/usao/page/file/1362691/download. ↑
36. Supra note 29. ↑
37. Nora Mabie, ‘Living a nightmare’: Families grieve loved ones on Hanna Harris’ birthday, Great Falls Tribune (May 7, 2020), https://www.greatfallstribune.com/story/news/2020/05/07/montana-families-missing-indigenous-people-grieve-hanna-harris-birthday/3084223001/. ↑
38. Simon, supra note 31. ↑
39. Captain Monica Alexander, Missing & Murdered Native American Report, Washington State Patrol (2018), http://www.wsp.wa.gov/wp-content/uploads/2019/06/WSP_2951-SHB-Report.pdf. ↑
40. Id. ↑
41. Id. ↑
42. Savannah’s Act of 2020, 116th Cong. § 227 (2020). ↑
43. Exec. Order No. 13898, 84 Fed. Reg. 231 (Dec. 2, 2019). ↑
44. Id. ↑
45. Healy, supra, note 18. ↑
46. Activities and Accomplishments of the First Year of Operation Lady Justice, Report to the President, 57 (Nov. 26, 2020). ↑
47. Id. ↑
48. Id. at 58-60 ↑
49. Id. at 29 ↑
50. Nick Martin, The Connection between Pipelines and Sexual Violence, TNR (Oct. 15, 2019), https://newrepublic.com/article/155367/connection-pipelines-sexual-violence. ↑
51. Lauren Weisner, etc al., Issues in Policing Rural Areas: A review of the Literature, (Mar. 18, 2020), https://icjia.illinois.gov/researchhub/articles/issues-in-policing-rural-areas-a-review-of-the-literature. ↑
52. Ari Amehae, “Somebody’s Daughter” MMIW Documentary Premiere Highlights Native American 2020 Presidential Forum, Native News Online (Jan. 16, 2020), https://nativenewsonline.net/currents/somebody-s-daughter-mmiw-documentary-premiere-highlights-native-american-2020-presidential-forum. ↑