May 3, 2023 – Since 2020, a Wisconsin Department of Justice task force has been working to address a criminal justice and public health crisis – the alarming number of missing or murdered Indigenous women and girls (MMIWG) among the state’s American Indian population.

A report issued in 2018 by the Urban Indian Health Institute illustrates the extent of the crisis.

The report identified 506 unique cases of missing and murdered American Indian and Alaska Native women and girls across 71 cities in the U.S., including Milwaukee and Green Bay. One quarter of the cases (128) were missing persons cases and 56% (280) were murder cases; the remaining 19% (98) were classified as unknown.

The report also concluded that the murder rate in the U.S. is 10 times higher for Indigenous women and girls, and pointed out that there is no national database that tracks MMIWG.

Aim of Task Force

Danica Zawieja, the director of policy for Indigenous Pact PBC, Inc., a corporation that works with tribes to improve health outcomes for American Indians. She says that missing or murdered Indigenous women and girls (MMIWG) cases often throw up big hurdles for investigators.

The Wisconsin Department of Justice (DOJ) task force is made up of several subcommittees.

The task force, which is led by members of Wisconsin’s American Indian community, is looking at factors that contribute to MMIWG and examining the response from social service organizations.

The task force hopes to improve data collection and reporting and understand what effect overlapping state, federal, and tribal jurisdictions have on the crisis.

Jurisdictional Mosaic

According to Attorney Danica Zawieja, the welter of overlapping jurisdictions, authorities, and laws at play in Indian country is a major factor in the MMIWG crisis.

Zawieja is the director of policy for Indigenous Pact PBC, Inc., a corporation that works with tribes to improve health outcomes for American Indians. She said that MMIWG cases often throw up big hurdles for investigators.

“When you have these cross-jurisdictional crimes, say a missing Indigenous person who may have crossed three or four jurisdictions in the span of a night, you have to ask ‘Where did it start? Did it start on the reservation?’” said Zawieja.

“You can lose a lot of time trying to determine who’s the primary investigator and where some of these things occurred.”

‘Massive Cases’

Zawieja spent three years prosecuting domestic violence and sexual assault crimes for the Menominee Indian Tribe of Wisconsin.

The Menominee are one of Wisconsin’s 12 tribes. Under federal law, each tribe is a sovereign nation.

According to Zawieja, the Menominee are the only Wisconsin tribe for which, until the U.S. Supreme Court handed down Oklahoma v. Castro-Huerta, 597 U.S. ___ in June 2022, the state had no criminal jurisdiction inside the boundaries of the reservation.

In the wake of Castro-Huerta, the tribe has authority over misdemeanors and the federal government has jurisdiction over felonies, and the state has concurrent jurisdiction over crimes committed by non-Indians against Indian victims.

Ten of the other Wisconsin tribes are subject to Public Law 280, a federal law enacted by Congress in 1953. Public Law 280 granted some states, including Wisconsin, concurrent criminal jurisdiction over Indians on reservation land.

For a murder case, Zawieja said, Menominee authorities must work with federal officials and rely on those officials’ discretion to charge the case.

“Even if you have good relations with the U.S. attorneys out of Green Bay, which the Menominee do, you still have to convince the main group of U.S. attorneys in Milwaukee why it’s important to take this smaller case,” Zawieja said.

“You have to make a real concerted and continuous effort,” Zawieja said. “They’re major crimes but they’re these massive cases.”

Reliance on State Authorities

Zawieja said that many of the other tribes’ deputies are cross deputized, meaning they exercise both tribal authority and the same authority that county sheriffs’ deputies exercise.

Zawieja said that some of Wisconsin’s Public Law 280 tribes are considering retrocession, which would reinstate to them the federal authority delegated under Public Law 280 to the state.

But many opt not to exercise their concurrent criminal jurisdiction and have yet to enact much in the way of criminal prohibitions, Zawieja said.

And the Public Law 280 tribes that have adopted criminal laws often haven’t invested as much in police, prosecutors, or jail space because they lack access to funds from the federal Bureau of Indian Affairs that are available to non-Public Law 280 tribes, and because of federal laws that limit the criminal sentences that all tribes can hand down.

Zawieja said that under the Indian Civil Rights Act, a tribal court may not hand down a sentence longer than 12 months or impose a fine greater than $5,000.

In 2010, Congress passed a law that amended the Indian Civil Rights Act to allow tribes to hand down sentences up to 3 years long and to impose fines up to $15,000. However, Congress provided little funding to implement those new provisions.

“If the state has concurrent jurisdiction, why should a tribe spend money on a jail if it’s limited to what it can sentence?” Zawieja said.

That leaves the state’s 10 Public Law 280 tribes dependent on state authorities to handle MMIWG cases.

‘A Hot Potato Game’

Sometimes those authorities are cash-strapped rural police departments in distant states.

“Then, you’re talking to a one- or two-deputy town in another state and you’re trying to convince them ‘Hey, we need you to go check on this house because we have information that our victim is there,’ and you’re lucky if they go knock on the door,” Zawieja said.

“It can all seem like a hot potato game,” Zawieja said. “These cases aren’t easy – they require a lot of man hours and require you to be off-jurisdiction a lot of the time. If you don’t have the manpower to divert to these cases, it is very difficult to maintain that continuous focus.”

But barriers are present even when the authorities that a tribe needs to cooperate with are in Wisconsin.

Zawieja said that in many cases, the lack of a long-standing and trusting relationship between state and tribal authorities can hamper an investigation.

“Trying to get cooperation and share information if a relationship hasn’t been established is sometimes difficult,” Zawieja said.

That lack of relationship can doom prospects for solving a MMIWG case, because given multiple crime scenes in multiple jurisdictions and the fact that victims and witnesses are members of marginalized populations, the margin for error is often razor-thin.

“You have to have cooperation and understanding at every level, and when you don’t have that at the beginning you lose all of the momentum and connection,” Zawieja said.

‘You Have to Have the Best Facts’

An even bigger barrier is bias.

Too often, Zawieja said, state authorities misunderstand the role historical trauma plays among the state’s American Indian population.

As result, state authorities either hold negative stereotypes about MMIWG – for instance, that all MMIWG suffer from substance abuse and have a history of sex work, domestic violence, and homelessness – or stigmatize victims for personal histories that include one of those elements.

“They take these notions of what Native women victims are supposed to be, and the cases don’t get the same priority if the victim was blonde-haired and blue-eyed,” Zawieja said. “That’s what people feel like is happening a lot of times.”

Those feelings, in turn, often make cooperation between tribal and state authorities less likely, Zawieja said.

“You have to have the best facts and a victim who people are motivated to help, and you need to have everything line up and you need to have a lot of people to understand all the parts of it,” Zawieja said.

Native-led Task Force

Zawieja said she’s encouraged that the DOJ has made a concerted effort to ensure the task force is led by Native members.

She also gave the department kudos for its focus on data and for working to ensure that the stories of MMIWG figure prominently in the work of the task force.

“Having stories and voices is important,” Zawieja said.

She said the task force has placed the concerns of victims and family members at the center of its work.

The aim of the task force, Zawieja said, is to make recommendations that are rooted in the experience of Wisconsin’s American Indians.

The MMIWG crisis, she said, demands nothing less.

“These are heartbreaking stories,” Zawieja said.