Excerpted From: Lori McPherson and Sarah Blazucki, “Statistics Are Human Beings with the Tears Wiped Away”: Utilizing Data to Develop Strategies to Reduce the Number of Native Americans Who Go Missing, 47 Seattle University Law Review 119 (Fall, 2023) (278 Footnotes) (Full Document)


McPhersonBlazuckiOn New Year's Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they had last seen her “wandering into a field” and that she was intoxicated at the time. Once they heard she was missing, Selena's family quickly went to the rest stop and began their own search.

Selena and her family had known tragedy. Selena's twin sister died by suicide when she was just eleven years old; another sister had been struck and killed by a car; and a brother had been shot and killed by police officers in Billings. The law enforcement response to her disappearance was unusually swift, accounted for at least in part by the recent attention to the crisis of missing or murdered indigenous persons across Indian country. Tribal, federal, state, and local law enforcement--along with volunteers--scoured the area for any sign of Selena. Unfortunately, about three weeks after her disappearance, Selena's body was found about a mile from where she had last been seen; the official cause of death was exposure to extreme natural cold.

Missing person cases involving AmericanIndians or Alaska Natives (AI/AN) pose unique investigative challenges. Foremost among these is the “maze” of investigative jurisdiction in Indian country.

The term “Indian country” first appeared in federal law in 1790 as part of the Indian Trade and Intercourse Act. While the term has since been used in numerous legislative provisions, for our purposes, we refer to Indian country as defined in 18 U.S.C. § 1151:

[T]he term “Indian country” as used in [Chapter 18 of the U.S. Code], means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Whether a particular law enforcement agency has the authority to investigate a missing person case involving an AI/AN individual is entirely dependent upon (1) whether the disappearance occurred on lands that are Indian country; (2) whether the missing person is an Indian; (3) the nature of the person's disappearance; and (4) the age of the person who has gone missing. The first two criteria are unique to investigations conducted on tribal lands.

If an AI/AN person goes missing on lands that are Indian country, the tribe has the authority to investigate the disappearance. An investigation on tribal lands is ordinarily conducted by one of two entities. In some situations, the Bureau of Indian Affairs, Office of Justice Services (BIA-OJS) serves as the primary law enforcement agency for the tribe. In other instances, the tribe's own law enforcement agency may conduct the investigation. However, exceptional cases exist in which another law enforcement agency may have primary investigative authority. For example, in cases involving children under the age of twelve, the FBI may take the lead in an investigation. Additionally, on request, the BIA, FBI, or U.S. Marshals Service (USMS) might be requested to assist in the investigation.

Investigations are further complicated when jurisdictional issues arise. Depending on whether the tribal lands are located in a Public Law 280 (PL-280) state, it is possible that state or local law enforcement may have primary or concurrent jurisdiction over the investigation. Additionally, in Oklahoma v. Castro-Huerta, the United States Supreme Court granted state and local law enforcement expanded concurrent law enforcement jurisdiction in portions of Indian country. One unintended result of this decision has been continued litigation and further confusion regarding jurisdictional issues.

If an AI/AN person goes missing on lands that are not Indian country, neither the tribe nor the BIA has any primary authority to investigate the case; state or local law enforcement will generally have lead investigative jurisdiction. This was the situation in Selena Not Afraid's case, where state and local law enforcement had primary investigative authority because the disappearance happened on state (i.e., non-tribal) lands. However, these jurisdictional complexities can sometimes result in cases falling through the cracks, incomplete investigations, or a failure to utilize available critical resources.

Law enforcement has properly focused its efforts on narrowing the gaps through which the investigation into the disappearance of a missing AI/AN person might fall, and on improving their overall response to reports of missing persons. For example, building off the success of the AMBER Alert program, some states are now developing similar alert programs for when an AI/AN person goes missing, regardless of their age. These alerts have proved very successful in a short period of time. Additionally, some states require law enforcement to receive training about responding to cases of missing AI/AN persons or participate in developing plans to respond to missing AI/AN persons.

In addition to the efforts described above, which are designed to recover missing persons more quickly, it is important to remember that it is possible to reduce the number of AI/AN persons who go missing altogether and to reduce the amount of time that AI/AN persons are missing. To do so requires quality law enforcement responses, as well as acknowledging and effectively responding to the circumstances that result in people going missing. The field of public health has done an excellent job of identifying those drivers; any holistic solution to the issue of missing AI/AN must also address the issues identified by that discipline.

Research has identified several factors that increase the risk of someone going missing. We know that substance abuse, depression, other mental health issues, suicidal ideation, and self-harming behaviors are all risk factors to may contribute to a person going missing. Data shows that if a person is Two-Spirit or LGBTQI+, they are more likely to go missing.

Children go missing from foster care and state care at significantly higher rates than children not in those systems. Data has also shown that disengagement from school and having an older romantic partner are strong predictors of runaway behavior. Moreover, a history of abuse, neglect, or exposure to violence can increase the rates at which individuals go missing. Specific to AI/AN individuals, the Indian Health Service (IHS) only provides limited abortion services, which could drive vulnerable persons to travel to seek that care in larger urban areas without the knowledge of friends, family, or guardians. All these issues can be addressed--and must be addressed--to comprehensively reduce the number of AI/AN who go missing each year.

In the forthcoming sections, this Article will continue to address the complexities of investigating missing person cases involving AmericanIndians and Alaskan Natives. Section I begins with a discussion of the available data about missing persons and the various legal requirements for submitting that data. Section II outlines what is known about missing AI/AN individuals and the practical challenges to collecting accurate and complete data. Section III discusses legal considerations about missing person investigations involving AI/AN persons and the legal landscape as it affects collection of data about those cases. Finally, Section IV connects the data and legal considerations discussed in Sections I through III with possible public health solutions and other strategies that can reduce the number of missing AI/AN individuals.

[. . .]

It is possible to reduce the number of AI/AN persons who go missing altogether and to reduce the amount of time that they are gone.

Universal data collection on missing persons is elusive, and data collection on missing AI/AN persons is perhaps even more so. The dearth of data on missing AI/AN individuals is compounded by the complexities of law enforcement jurisdiction in and around Indian country. Further complexities exist around constitutional protections and limitations, both generally and related to AI/AN individuals. Considering all these factors, it is critical to improve the response of the community and law enforcement when an AI/AN person goes missing so that they may be returned to safety.

Perhaps as important as returning to safety those who have gone missing is working to reduce the number of AI/AN people who go missing. But it is nonsensical to work to reduce the number of AI/AN persons who go missing without directly addressing what propels people to go missing. The circumstances and drivers for how and why AI/AN individuals go missing are myriad and complex. Thus, the efforts to address the drivers must be both broad and nuanced. They must encompass efforts to reduce violence and substance abuse and improve mental and physical health.

In 2022, there were 10,123 entries of AI/AN individuals in the NCIC/MPF. Thankfully, the majority have returned home. But what if we could reduce the number of people who go missing altogether and reduce the amount of time they were gone?

J.D., cum laude, University of Richmond School of Law. Currently serving as a Senior Policy Advisor at the Sex Offender Investigations Branch within the Investigative Operations Division of the United States Marshals Service.

J.D., summa cum laude, University of the District of Columbia David A. Clarke School of Law and former communications coordinator for the U.S. Department of Justice's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. She previously was the agency editor for the Peace Corps and the editor of the Philadelphia Gay News.