UPDATE (Dec. 5, 11:30 a.m.): The Army Corps of Engineers announced Sunday that it had denied the permit Energy Transfer Partners needed to build a segment of the Dakota Access Pipeline that would have run beneath North Dakota’s Lake Oahe. Native American protesters, who call themselves Water Protectors, have argued that this segment would threaten water supplies for the Standing Rock reservation, as well as cultural heritage sites on land that was ceded to the Sioux under an 1851 treaty with the U.S. government.
On Nov. 28, a legal collective representing Native Americans opposing the construction of the Dakota Access Pipeline filed a lawsuit against two North Dakota counties and their sheriffs, and the city of Mandan, North Dakota, and its police chief. Eight days before, the suit alleges, law enforcement officers from those places had used excessive force against a group of peaceful protesters, injuring more than 200.
The allegations in the case are striking — the lawsuit describes officers using water cannons on protesters despite freezing temperatures, shooting people in the head with non-lethal plastic rounds, and shooting a woman in the genitals with a flash-bang grenade. But this single event is part of a bigger history — one in which Native Americans interact frequently with outside law enforcement and where those interactions are often deadly.
Native American tribes are sovereign nations, but 70 percent of them are under the legal authority of police and sheriff’s departments from nearby non-tribal communities.1 And as a report in In These Times noted in October, Native Americans are killed by police at disproportionately high rates — depending on the year, either Native Americans or African-Americans have the highest rate of deaths by law enforcement. For instance, according to data from the Centers for Disease Control and Prevention, Native Americans were killed by police at a rate of 0.21 per 100,000 from 1999 to 2014, and African-Americans (who outnumber Native Americans roughly 10 to 1) were killed at a rate of 0.25 per 100,000.2
Even so, police killings of Native Americans are probably undercounted, said D. Brian Burghart, a journalist who runs the Fatal Encounters database, one of several independent projects aimed at producing a more complete tally of the number of Americans killed by police each year. Killings by police, as a whole, are undercounted by the CDC and other federal agencies. For instance, in 2014, the CDC logged 515 such deaths, while Fatal Encounters found more than 1,300.
And when police kill Native Americans, even the more accurate independent databases often miss or miscategorize those deaths, said Burghart and Samuel Sinyangwe, co-founder of the Mapping Police Violence database.
It’s a nesting doll of incomplete data that leaves Native Americans as both one of the groups most likely to be killed by police and the group most likely to have its deaths at the hands of police go unrecorded.
Money, and the lack thereof, plays a major role. Databases like Burghart’s and Sinyangwe’s depend on media reports and on the creation and accessibility of public records. Police shootings that take place in Native American communities, especially rural reservations, are likely to be missed by both.
Most tribes don’t have an on-reservation media presence, said Matthew Fletcher, law professor and director of the Indigenous Law & Policy Center at Michigan State University. Fletcher is a member of the Grand Traverse Band of Ottawa and Chippewa Indians. A couple of non-tribal small-town newspapers cover his reservation, he told me, but those papers don’t have the resources to publish online, making anything they do report difficult for people like Burghart and Sinyangwe to find.
Monetary resources also hamper the creation and dissemination of public records, Fletcher said. Tribal governments have less money than their non-tribal counterparts. Research suggests that tribal resource bases amount to 55 percent to 75 percent of those in non-Native communities. This makes it difficult for tribes to produce data that cities and counties can easily publish — and tribes aren’t legally required to make that data publicly available the way non-tribal governments are. When your budget is tiny, faraway strangers’ requests for public records on shooting deaths might not be your top priority.
Since tribes have been operating with small budgets for decades, this kind of data might not be available in electronic form at all. Fletcher has worked extensively with tribal court systems and says that most of them are still transitioning from paper to electronic dockets. “Once you have that, it’s easy to generate figures, but if you’re still dealing with paper copies, there’s no way to collect data,” he said.
Fletcher also believes that lack of money and a long history of anti-Native racism have contributed to the high rates of Native American deaths at the hands of law enforcement. The law that put many tribes under the jurisdiction of nearby non-tribal authorities left cities and counties with additional responsibilities but didn’t provide additional dollars with which to fulfill them. There is a widespread perception among Native Americans, he said, that outside law enforcement shows up in isolated tribal communities mostly to harass — seldom to help. The budget issues and strained relationships combine to create resentment and mistrust on both sides.
One final complication that makes it difficult to accurately count Native American deaths is the question of race and who gets to define it. How do you know the race of someone who was shot by police? Burghart and Sinyangwe told me that they look for mentions in public documents, in the media or in statements by family members. Sometimes, Burghart said he bases it on pictures of the victim. But that already subjective system runs into even more difficulties when data collectors try to apply it to Native Americans. “We are highly exogenous, we intermarry with all kinds of people,” said Anne Luna-Gordinier, professor of sociology at California State University, Sacramento, and a member of the Choctaw and Chickamauga Cherokee tribes. “And so we may look white or black or Hispanic, and because of the extreme racism that’s existed in the U.S., a lot of us took on different identities and allowed ourselves to be seen as what others saw us as.”
That fluidity has an impact on official racial data, too, Luna-Gordinier said. Police records, for instance, are frequently based on an officer’s visual assessment of race. Meanwhile, reports from the Bureau of Justice Statistics lump Native Americans together with Asians, Native Hawaiians, Pacific Islanders, and people who identify with two or more races in the category of “other.” Native American-specific data is collected, Luna-Gordinier told me, “But what is reported isn’t necessarily accurate. And in terms of what is easily publicly available, they tend to marginalize Native Americans completely because the N [number of reports] is too small.” These problems affect not just police shootings, but reports of many kinds of violence against Native Americans.
In 2015, Luna-Gordinier and her mother — University of Arizona American Indian studies professor Eileen Luna-Firebaugh — were asked by the Bureau of Justice Statistics to analyze its data-collection practices in Native American communities. Their report isn’t public, but Luna-Gordinier says the BJS is trying to make its data more complete. For instance, the agency is currently working on its first survey of tribal law enforcement.
However, problems persist. One of Luna-Gordinier’s recommendations was that the BJS survey instruments ask about tribal affiliation, not just the simplified race and ethnicity question. That kind of data could help researchers better understand who is affected by police violence and under what circumstances. “They were just like, ‘I don’t see why this is such an issue,’” she said.
But those are the sort of data points that could be a key part of addressing a range of criminal justice disparities in Indian Country. “There’s a huge gap of knowledge,” Luna-Gordinier said. “There’s no way to justify to Congress the need to appropriate funding for tribal justice if we can’t accurately even say what’s happening.”