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Failed obligations and broken trust
Between fiscal years 2016 and 2020, 16 people were reported to have died in the custody of the Bureau of Indian Affairs (BIA). Out of these 16 deaths, 10 occurred less than 72 hours after being placed in custody — an alarming statistic by any measure that should prompt serious investigation. But it seems that the BIA is not meaningfully addressing — or even properly documenting — these deaths, despite being required to by federal law.
The federal government has a legal obligation to protect Indigenous lives. Deaths in BIA custody — and a failure to fully and accurately account for those deaths — is yet another example of its negligence when it comes to that mandated protection.
In this edition:
- Responsibility and obligations
- Disorganized chaos and finger-pointing
- The impact of compounding failures
- The need to do better
If you’re a frequent reader of The Bridge, you’re familiar with the Deathin Custody Reporting Act (DCRA), a federal law we’ve covered in previouseditions. Essentially, DCRA requires federal and state agencies to collect data on deaths in custody and report it to the Department of Justice, with the goal of accounting for those deaths and hopefully preventing more in the future. In cross-referencing DCRA data and an unpublished, third-party report commissioned by the BIA, POGO found inexplicable inconsistencies in the data showing deaths in BIA custody. It’s currently unclear whether deaths in BIA custody are being accurately counted and reported, let alone meaningfully investigated.
POGO Researcher Maren Machles recently reported this story. I connected with her this week to understand what these data discrepancies could mean.
But first, some context.
The BIA is one of several agencies that uphold the federal trust responsibility, a legal doctrine that requires the government to protect tribal nations and ensure their access to services like housing, education, and public safety. “Treaties are living, breathing documents, and given our nation’s long history of genocide, displacement, and forced assimilation of Indigenous communities, the failure to uphold these promises persists even today,” Maren said. “Both the Supreme Court and Congress acknowledged that this isn’t just a promise, it’s a legal obligation.”
The BIA’s Office of Justice Services is tasked with the public safety responsibility, in part through the operation and funding of over 90 detention centers across tribal lands. The FBI also shares some public safety responsibilities. When it comes to deaths in BIA custody, they assist in investigating those deaths for criminal conduct, though it isn’t totally clear when they should be called on to play that role — more on this issue later.
It’scrucial to note that tribes have their own expansive systems that serve as the primary mechanisms of public safety and justice, but the federal government has limited the power of tribal legal systems. “In most instances, tribes do not have the legal authority to prosecute non-Native individuals who commit crimes on their lands, even when they have the officers, the jails, and the courts,” Maren told me.
Part of the problem with how data is reported and how deaths are investigated in BIA facilities is the lack of clarity around jurisdiction between tribal law enforcement, the FBI, the BIA, and, in some cases, state law enforcement. “The extent to which different agencies are involved can differ depending on the state and the tribe,” Maren explained. Take the BIA’s detention centers, for example. There are some operated by BIA, and some that they fund, which are privately operated by tribes. “Because it’s so complicated, there’s no uniform way these agencies all interact with each other.”
There’s also the issue of gross underfunding. Last year, the Oglala Sioux Tribe sued the BIA and some high-level officials for failing to provide them with proper staffing. There are only 41 officers and investigators who work on their reservation, which is roughly the size of Connecticut. Conditions in the BIA’s detention facilities are severely lacking due to the lack of funds. Facilities also lack the resources to provide corrections officers with proper training on how to protect the health and safety of detainees when issues arise. An NPR investigation examined deaths in BIA custody, including the deaths of Carlos Yazzie, who died of acute alcohol poisoning while he was unmonitored for hours in his cell, and Joe Snell, who died of a heart attack while exercising. Both deaths may have been prevented. According to experts, acute alcohol poisoning is easily treatable had Yazzie been taken to the hospital, and administering CPR or using a defibrillator could potentially have helped Snell while awaiting the ambulance.
The complicated jurisdiction and lack of funding creates bureaucratic mazes that can lead to serious issues going unaddressed. The third-party review of the 16 deaths in BIA custody found that there’s inconsistent reporting of deaths in custody and no agreement between the BIA and the FBI on who has responsibility for investigating deaths. “There’s a lot of finger-pointing, like, ‘Oh, you were supposed to take this case,’” Maren said. “The BIA even has conflicting passages in its own handbook about whether they or the FBI should be investigating certain cases.”
This lack of clarity and ownership has consequences. We need to understand the issues that cause deaths in custody in order to address them. When deaths aren’t being properly tracked or investigated, there’s no understanding of the cause or recommendations to make sure they don’t happen again. Preventable deaths continue to happen — with no one being held accountable.
“When it comes to the way the federal government interacts with Indigenous communities, accountability is like a black hole,” Maren said. “This instance is not an anomaly.”
The failure to properly track or investigate deaths in BIA custody puts a spotlight on the intertwining, compounding ways the government’s failure to uphold their federal trust responsibility hurts Indigenous communities. This is not an issueuniqueto tribal nations, but jails are often used as a temporary solution for other services communities lack — like shelter, food, and mental health care or medical care. In Maren’s investigation, she talked to Chief Judge Stacie FourStar, a member of the Fort Peck Assiniboine and Sioux Tribes, who said that sometimes people come to the court asking to be arrested so they can have food and shelter.
The federal government must do a better job of upholding its federal trust responsibility to Indigenous communities. It’s the government’s duty to protect Indigenous people, including those in its custody. It’s critical that the BIA and FBI immediately improve the ways they track and investigate deaths in BIA custody.