Missing Indigenous Deaths in Custody

Late one night in 2019, corrections officers at the Rosebud Sioux Tribe Adult Corrections Facility heard someone pounding on the door to the employee entrance. When staff came to investigate, the person at the door tried to force their way in, saying they “would feel safer inside the jail.” After successfully gaining entry, the individual was restrained on the floor, charged with trespassing and the possession of one or more illegal substance, and ultimately booked into the facility. After causing themself and others harm, the individual was put into a restraint chair with a spit hood. At one point they were allowed out of the restraint chair to “get circulation moving in [the individual’s] extremities before being placed once again in the restraint chair.” It was decided that the individual needed to be transported to the hospital for further medical evaluation in a restraint chair. As corrections officers were escorting this person to an area of the jail where people are picked up for transport, the individual tried to escape and was forced into the chair with a series of “knee blitzes, elbow strikes, and body blows.” While waiting for the proper mode of transport to the hospital, the individual needed to be removed from the chair and given CPR. They were transported to the hospital and pronounced dead, 12.5 hours after being booked.

This is one of 16 deaths in custody detailed in a report the Bureau of Indian Affairs (BIA) commissioned in 2021. The details of what took place and who this individual was are vague because the report was heavily redacted. The agency hired an outside contractor to review the investigations of 16 deaths that took place in a handful of the more than 90 detention centers the BIA operates and/or funds on tribal lands. The BIA has yet to publish the report. However, POGO’s analysis of a redacted version of the report, obtained under the Freedom of Information Act (FOIA), raises troubling questions about the BIA’s compliance with federal requirements around reporting deaths in custody, whether those deaths are being adequately counted and investigated by the agency, and whether proposed reforms would address why these deaths occur in the first place.

The BIA’s law enforcement and corrections agency, the Office of Justice Services, has received a lot of criticism over the years, from allegations of civil rights violations, to a failure to live up to its trust responsibility to protect tribal nations, to the horrendous conditions in its detention facilities.

In February 2022, the BIA released a statement announcing more than two dozen policy reforms as part of a renewed commitment to “protect the rights, dignity and safety of those who are in custody.” The statement says the reforms are the result of a three-month “third-party report” of 16 deaths in custody from the 2016 fiscal year through fiscal year 2020. The review was conducted by The Cruzan Group LLC.

POGO has obtained a redacted version of The Cruzan Group’s report, which gives some insight into how serious incidents like deaths in BIA custody are investigated and tracked.

The Cruzan Group’s review found that the BIA’s internal administrative investigations were often missing documentation, and there were “multiple instances of no administrative investigation report prepared.” Additionally, the review found there was “no centralized investigative review and approval process within BIA” and “no record of supervisory case review or guidance.”

In addition to the BIA, the Department of Justice (DOJ), and more specifically the FBI, is another federal agency tasked with public safety responsibilities in Indian Country — in this context, a term of art used by the Supreme Court and in U.S. law to describe Indigenous land and people. But there’s longstanding ambiguity around jurisdiction and coordination between the FBI, BIA, and tribal law enforcement.

While the FBI was involved in investigating some deaths in BIA custody, The Cruzan Group’s review found that in some cases, there was no record of an FBI investigation, and in others there was no record that the FBI was even notified of the death. The review found that there is no agreement between the BIA and the FBI for how to handle the investigative responsibilities of these deaths, and the BIA Office of Justice Services handbook was contradictory regarding when exactly the FBI needs to be involved in these investigations. The authors of the review noted four separate instances where investigative responsibility for deaths in custody was outlined: three in which the FBI was said to have “primary investigative responsibility for the investigation of [in-custody deaths]” and one that said the BIA’s Internal Affairs Division is responsible for investigating.

The lack of notification to partnering agencies and inadequate investigations into these deaths became even more unsettling in light of our other findings. POGO found that 10 of the 16 deaths reviewed by The Cruzan Group were cases in which individuals were in custody for less than 72 hours. Such an alarming statistic calls for efficient investigations and answers. When the agencies responsible for finding those answers don’t know who is ultimately in charge of investigating those deaths, it raises questions regarding how thoroughly deaths in BIA custody are investigated, and how accurately deaths are recorded in the first place.

The Cruzan Group named “inconsistent reporting of in-custody deaths in Indian Country” as one of the central findings of its review. One way agencies like the BIA are meant to track these deaths is through the Death in Custody Reporting Act (DCRA). DCRA requires federal agencies to report these deaths to the DOJ on an annual basis and is meant to help the federal government study and prevent deaths that occur in law enforcement custody.

Looking closely at The Cruzan Group’s review of deaths in BIA custody, however, POGO found a discrepancy between the deaths reported there and the deaths the BIA had previously reported to the DOJ under DCRA.

The agency that processes DCRA data for the DOJ — the Bureau of Justice Statistics — put out a December 2020 report that said the BIA reported only a single death in custody for each of fiscal years 2016 and 2017, for a total of two deaths in those years. However, The Cruzan Group’s review, commissioned by the BIA in 2021, reviewed a total of seven deaths across those two years. And because that review examined only a sampling of closed cases from each year, that might not even be the total number of deaths that occurred in BIA custody during that period. Comparing the internally commissioned BIA review to the official total the BIA previously reported to DOJ, it appears there could have been at least five more deaths in BIA custody during those two years than the BIA previously reported.

In response to POGO’s queries regarding the mismatched numbers of deaths in BIA custody, the agency has provided several statements, but no clear answers. When presented with this apparent discrepancy and asked to confirm the total number of deaths in custody during FY16 to FY20, a spokesperson from the BIA responded, “The official number of in-custody deaths are reported in the Death In Custody Reporting Act reports, which are also listed by fiscal year. Between FY2016 - FY2020, there were 16 in custody deaths.” Yet, when asked the same question a second time about the discrepancy during that period, the spokesperson said, “The [Cruzan Group’s] review included only deaths that were not still under investigation.” The spokesperson went on to say, “Additionally, DCRA reporting of some in-custody deaths occurred after the fiscal year in which the death occurred.”

It’s unclear from these statements how deaths in custody could have been reported so inaccurately. The Cruzan Group’s report reviewed seven deaths that occurred in FY19 and FY20, while the BIA reported to DOJ that 12 deaths occurred during those years. If these five additional deaths reported to DOJ in FY19 and FY20 are deaths that actually occurred in FY16 and FY17, that would account for the discrepancy. However, it’s impossible to know for sure with the limited information the agency has made available about these cases. Regardless, it also suggests that the agency might be out of compliance with DCRA and that the DOJ isn’t double checking the numbers it receives.

In any case, the agency’s responses, the numbers reported to the Justice Department, and the numbers in the BIA’s review do not add up. Whether there were deaths in custody that weren’t documented when they should have been or deaths went uncounted altogether, there is no room for error. Without clear reporting standards for when a death in custody is counted in both the BIA’s and DOJ’s statistics, there’s no way of knowing exactly how many deaths have occurred on the BIA’s watch.

The BIA did not respond to POGO's request for comment.

According to Bree Spencer, the Senior Justice Reform Program director at the Leadership Conference on Civil and Human Rights, data collection is the first step toward understanding how these deaths occur. Spencer has worked extensively on death in custody reform and DCRA with The Constitution Project at POGO.

“When you don’t have this data, and when you don’t have people who are meaningfully investigating when things go wrong, you are pretty much guaranteeing that more people are going to die,” Spencer said. “Many of whom are probably going to die of preventable deaths.”

While the Justice Department has conducted some data checks of state and local law enforcement deaths in custody reporting, it is unclear whether the same scrutiny is applied to the BIA or any other federal agencies’ DCRA reporting standards.

The DOJ did not respond to POGO's request for comment.

The discrepancy surrounding the five missing deaths in BIA custody over just two years, for both FY16 to FY17 and FY19 to FY20, exemplifies the state of these data collection efforts, not only in BIA facilities but nationwide. Last September, the Government Accountability Office (GAO) released a report on DCRA data collection from state detention facilities. It found there were nearly 1,000 deaths missing from the data for FY21.

“We’re treating people like they’re not humans,” Spencer said. “We’re not even treating them like they are a number that needs to be counted. We’re treating them like their lives didn’t matter at all.”

The long history in this country of colonization, genocide, and the federal government stripping away the humanity of Indigenous people is echoed in the conversation around this data collection, Spencer said.

“And when family members can’t get information about what happened to their loved ones, it is a kind of disappearing someone,” she said. “They’re not in the books, they’re not on the record.”

It’s worth noting the concerning circumstances surrounding the contract for the BIA’s review through The Cruzan Group. In the summer of 2021, the BIA hired The Cruzan Group LLC to review previous investigations into the deaths of 16 individuals who were in the custody of the BIA Office of Justice Services. POGO has previously called for Department of the Interior Inspector General Mark Greenblatt to investigate the details of the contract, as the consulting firm’s president and managing partner, Darren Cruzan, was previously the director of BIA Office of Justice Services and later director of the Interior’s Office of Law Enforcement and Security, which oversees BIA Office of Justice Services.

At that time, POGO was able to identify seven deaths cited in the solicitation that occurred during Cruzan’s time in those leadership positions from 2016 to 2019. However, since examining the redacted version of The Cruzan Group’s review, we can now conclude that nine of the 16 in-custody deaths reviewed by The Cruzan Group — over half — happened on Cruzan’s watch.

The Cruzan Group did not respond to POGO's request for comment.

Despite this clear conflict of interest, the final report is critical of the years in which Cruzan was in those oversight roles and points to serious procedural deficiencies when it comes to the agency’s response to incidents and the investigations that followed.

The Cruzan Group’s review notes the need for training at these facilities and staffing issues not just when it comes to investigating these deaths, but when it comes to preventing them in the future. However, the focus of the review was narrow. BIA did not ask The Cruzan Group to review what could have led to these deaths in custody, nor did the agency ask The Cruzan Group for recommendations in that regard.

“That was a missed opportunity,” Gabe Galanda, an Indigenous rights attorney and member of the Round Valley Indian Tribes of California, said. “It seems a bit myopic to investigate the lack of investigation without also investigating the underlying death. We are only talking about 16, so this is not a herculean effort. More broadly, it would help provide somebody some answers that is probably looking for them, mainly the families of these 16 people. … Unless you investigate, on some level, what happened to the individual, we will never know from that point forward what potentially went wrong, so that it can be corrected the next time.”

In December 2022, almost a year after the BIA released reforms based on The Cruzan Group’s report, Attorney General Merrick Garland announced that the FBI and the BIA signed a memorandum of understanding “to establish guidelines to provide for the effective and efficient administration of criminal investigations in Indian Country.” The previous memorandum of understanding was signed in the 1990s, nearly 30 years ago.

When the BIA shared its plans for reforms in February 2022, the agency announced that it would make over two dozen changes. Assistant Secretary for Indian Affairs Bryan Newland stated in the press release, “We will not shy away from acknowledging the past and taking ownership of the path to improve conditions in our facilities. … The reforms we are announcing today represent a new chapter for the Bureau of Indian Affairs as we move toward organizational culture change.”

The reforms included revising and updating policies to address the delays in investigating deaths and the lack of collaboration with other federal partners. Additionally, the BIA will require more training for its internal affairs investigators to investigate these deaths properly and adequately. It’s unclear whether the BIA’s reforms will be enough to address the multitude of problems at their facilities, or help alleviate the underlying issues that contribute to the strain on the BIA’s resources.

Rooted in treaties and reaffirmed time and again through Supreme Court decisions, the federal trust responsibility is a legal obligation and doctrine that says the federal government is required to protect the treaty rights, land, and resources of tribal nations.

The BIA Office of Justice Services is one of several federal agencies tasked with upholding the federal government’s trust responsibility of public safety to tribal nations, along with other services that ensure tribal nations’ wellbeing, such as housing and education. The fact that public safety, housing, and education continue to be issues in some tribal communities is cause for concern and has been deemed by the U.S. Commission on Civil Rights a “failure” on the part of the federal government.

“The system that is the United States, and I mean all facets of that system — all three branches of the federal government, all three branches of state government, all local and county instrumentalities, and indeed tribal governments — that system of American government does not generally concern itself with the wellbeing of Indigenous humanity,” Galanda said. “When it comes right down to it, right down to whether an Indigenous person lives or breathes or not, it’s of no real concern.”

According to Bureau of Justice Statistics reports, over the last decade, Indigenous residents (classified in the report as American Indian and Alaska Native U.S. residents, and excluding Native Hawaiians and Pacific Islanders, who were classified as Asian residents) have consistently been the second most incarcerated demographic, right behind Black residents. In 2021, Indigenous residents, again excluding Native Hawaiians and Pacific Islanders, had an imprisonment rate of 763 per 100,000 — more than twice the total imprisonment rate for all U.S. residents, and more than four times the imprisonment rate of white residents. And for Indigenous people on tribal lands, sometimes the first stop before ending up in a federal prison is at one of the more than 90 BIA detention facilities.

This high incarceration rate could be the result of unmet needs in some tribal communities.

“In general what you see throughout the country in local, county and state prison, I think it extends to tribal and federal, meaning BIA [jails], are people being put in custody because there is no place for them to go to treat an addiction issue or a mental illness issue, or some combination thereof,” Galanda said. “You then have people being ‘treated’ or housed in jail or prison, when what they probably need is a mental health bed or a hospital bed. So, I think BIA jails are a part of a national phenomenon, where our mentally ill and our addicted citizens and relatives are being incarcerated, rather than being provided the mental and medical care and facilities that they need.”

The Fort Peck tribes, located in northeast Montana, operate one of the jails funded and/or operated by the BIA Office of Justice Services. Chief Judge Stacie FourStar, a member of the Fort Peck Assiniboine and Sioux Tribes, explained that the jail often acts as a temporary Band-Aid for larger problems the tribes face in the community, particularly in the winter, when temperatures can dip below –20 degrees Fahrenheit.

“There are a lot of housing and shelter issues,” she said. “Food is another thing, being hungry. And we’ve actually had people come to the court and say, ‘Can you call a cop to arrest me because I have nowhere to stay, and I have nothing to eat?’” FourStar has served in her role as Chief Judge at the Fort Peck Tribal Court since 2015.

The reliance on detention facilities to meet these needs increases the strain on BIA’s already limited resources. For decades, public safety on tribal lands has been chronically underfunded, along with other basic needs. In its most recent report to Congress on “Spending, Staffing, and Estimated Funding Costs for Public Safety and Justice Programs in Indian Country,” the BIA reported that while estimated costs for running its current corrections and detentions facilities total $247.7 million, the BIA Office of Justice Services only requested and received less than half of that. That lack of financial resources translates to severely lacking conditions and treatment in these facilities. In some facilities, the infrastructure is crumbling.

One of the major challenges Fort Peck jail faces is a lack of training for staff. FourStar said the jail offers “in-house” training and sends people to state trainings to try to remedy the lack of federal training.

She said, “You have to be certified and go to [the federal law enforcement training facility in New Mexico]. And that’s the other thing, it’s across the United States for us to get people to New Mexico and stay there.”

She said the combination of a “grace period” to acquire the training and a lack of funding for traveling to the training can lead to corrections officers who might not be prepared for a life and death situation. Sometimes, she explained, new corrections officers could work for up to six months before attending training. “And a lot can happen in six months,” FourStar said.

The lack of training, along with the lack of federal funding and resources, prevents Indigenous communities like the Fort Peck Assiniboine and Sioux Tribes from addressing the needs not being met in these communities.

FourStar explained, “The purpose of the jail wasn’t to just be a locked down facility. It was to offer healing and rehabilitation, and we haven’t even gotten to that point yet.”

As communities wait on the BIA’s promised reforms and hope for more resources, the individuals being held in custody and their families suffer, as recent incidents at Fort Peck show. In March 2021, the federal government paid $50,000 to tribal member Tyler Headdress after he was allegedly denied medical care by federal agents working at Fort Peck jail. In April 2022, Cory Schindler died in a hospital on the Fort Peck Reservation after being transported there from the jail, FourStar said.

The BIA’s review exposed a lack of FBI coordination in investigations, inconsistent reporting of deaths in custody, and a failure to address underlying causes of those deaths. Further, the discrepancy between the deaths reported by the BIA to the DOJ and those reported in The Cruzan Group’s review raises numerous concerns. Without consistent reporting standards, there is no way to know if deaths that occur in BIA custody are being miscounted, or potentially going uncounted.

The high incarceration rates among Indigenous populations underscore the urgent need for more resources, especially mental health and addiction care. In the meantime, as BIA detention facilities serve as a stopgap for these larger issues, insufficient funding and infrastructure compound the challenges faced by tribal communities. It is not an option for the federal government — namely the BIA and Congress — to opt in or out of prioritizing the lives of Indigenous people. It is a legal obligation to protect those in its custody and tackle the systemic issues contributing to deaths in custody.

If you or a family member were held in BIA custody and want to share your experience with POGO, please contact Maren Machles at [email protected]. If you’d like to speak anonymously about BIA funded and/or operated facilities, please contact POGO via Signal at 1-202-658-5828.