Highlights from the Not Invisible Act Commission Report

The Not Invisible Act of 2019 was signed into law on October 10, 2020. The law created the Not Invisible Act Commission, a cross-jurisdictional advisory committee composed of law enforcement, tribal leaders, federal partners, service providers, family members of missing and murdered individuals, and survivors.

The purpose of the Not Invisible Act Commission (NIAC) was to develop recommendations through the work of six subcommittees focused on improving intergovernmental coordination and establishing best practices for state, tribal, and federal law enforcement to bolster resources for survivors and victim’s families. It also sought to combat the epidemic of missing persons, as well as the murder and trafficking of American Indian and Alaska Native peoples as specified under the law. Published on November 1, 2023, the Not Invisible Act Commission Report accomplishes these goals, offering a comprehensive and robust report on the state of justice in Indian Country and the requirements to improve it.

NCAI supports the recommendations of the Not Invisible Act Commission and encourages all of its members to read the Not One More: NIAC Final Report, which can be found on the Department of Justice website.

In an effort to highlight the work of the commission and uplift key and relevant issues for tribal leaders, NCAI is offering a spotlight on elements of the NIAC Report. The first spotlight is on the work of Subcommittee 3. To raise awareness for the important work of the report, NCAI will release additional spotlights monthly on the NCAI website and across social media platforms.

Spotlight On: Recruitment & Retention of Tribal & BIA Law Enforcement

In consultations and NCAI resolutions, tribal leaders have repeatedly raised concerns about the difficulty to recruit, train, and retain tribal law enforcement. Subcommittee 3 of the NIAC was charged with addressing “staff shortages and open positions within relevant [Tribal/BIA] law enforcement agencies, including issues related to the hiring and retention of law enforcement officers.”

One of the most formidable challenges in keeping tribal communities safe is building adequate law enforcement systems. Without these systems, Tribal Nations cannot fully exercise the Special Tribal Criminal Jurisdiction (STCJ) provisions of the Violence Against Women Act (VAWA). The following summary is a highlight of key issues from Subcommittee 3 of the NIAC Report that align with consultation provided by tribal leaders.

Barriers to the development of effective law enforcement agencies include but are not limited to staff shortages, high caseloads, underpaid officers, underfunding, hostile relationships with communities, delayed response times, inadequate law enforcement officer (LEO) to population ratio, and lack of training. Additional barriers include the lack of parity in pay and benefits, the physical, mental and emotional stress on officers, and the need for a community-based approach to policing that would include recruitment, orientation, training, and incentives.

Tribal law enforcement agencies struggle to retain officers in part because of the disparity of benefits between the tribal LEOs and their BIA counterparts. As federal employees, BIA LEOs receive federal retirement benefits, while tribal LEOs–who perform the same duties–do not. Predictably, many LEOs transition to the BIA where they can be eligible for more benefits.

Another challenge to the development of healthy and effective law enforcement agencies is the well-being of officers. As first responders to trauma, LEOs are subject to mental, physical, and spiritual strain and are susceptible to burnout, post-traumatic stress disorder, and other psychological conditions. Underserved law enforcement agencies (LEA) are unable to offer their employees the professional support and assistance needed to heal from the demands of their jobs.

Comprehensive training is needed to prepare LEOs for the demands of the job, as well as to familiarize them with the needs of the communities in which they work. Deep knowledge of the community helps facilitate a trusting relationship between law enforcement and community members and keeps both LEOs and tribal members safe. Tribal LEAs must strengthen the connection to the communities in which they work. Rebuilding trust between communities and law enforcement will improve community safety. Community-based policing is one evidence-based strategy for rebuilding trust between communities and LEAs.

Additionally, hiring LEOs who identify as women has proven to help strengthen community relationships. Female officers are viewed as more trustworthy and compassionate, and are also less likely to use excessive force. Although there is no tribally-specific data, women make up 12 percent of sworn officers and 3 percent of police leadership in the U.S. Increasing the number of women in BIA and tribal LEAs would improve community relationships and ameliorate the industry shortage of applicants. To increase the number of qualified applicants, LEAs should also offer educational benefits as a recruitment tool.

The final barrier to healthy and effective tribal LEAs cited by Subcommittee 3 is access to funding. Many grants for law enforcement are inaccessible to Native agencies. When funding is accessible, the timeline is limited. Tribal Nations need allotted funds to invest in their own programs and priorities. These funds need to be free of the limitations often associated with grants, such as timely reporting processes and application processes and inflexible funding that cannot be used to meet the needs of agencies.

Below is an abbreviation of the findings and recommendations from the Subcommittee 3. For a full report on the findings, please visit the Not Invisible Act Commission Report:

Finding A: Two of the most critical inequities between tribal law enforcement (LE) and their federal counterparts are: 1) Pay scales; and 2) The lack of an adequate benefits package and retirement plan.

Recommendations:

• Congress must amend federal retirement law to make Tribal police officers eligible for the same retirement benefits that a federal employee performing the same job would be eligible for.
• The Office of Personnel Management (OPM) must update Part 831 regulations for LEOs and firefighters retirement to ensure employees moving from BIA and Tribal LE positions are credited as continuously employed and that the move is not considered a break in service.
• Pay scales for Tribal LE and courts should be reviewed to ensure competitive pay with DOJ and BIA LE, which has already achieved parity through OJS.
• Reliable funding must be provided for pay increases and retirement plans. Grants with time-limited funding (three years, five years, etc.) are unacceptable, leaving the burden on the tribe to support.

Finding B: The impacts of untreated trauma, unresolved grief, and physical, mental, and spiritual deterioration are devastating not only to the individual officer but to their family and community. Addressing the physical, mental, and spiritual needs of BIA and Tribal LE will lead to better retention of officers, as well as more stable, productive departments.

Recommendations:

• Tribal LE departments, with support from federal, state, and local health agencies and organizations, should develop and adopt holistic health programs that include physical, mental, and spiritual health services and offer individual, group, and peer support sessions for officers in need. Programs and training to establish those programs need to be developed with input from officers and tribal spiritual leaders.
• Policymakers should support legislation (as identified in HR 1292 BADGES Act for Native Communities Act, March 2023) calling for BIA and Tribal Law Enforcement Officer Counseling Resources Interdepartmental Coordination.
• The federal government should create family-focused care for Tribal LE. Elements of family-focused care should include childcare, maternal and paternal care, private rooms for nursing, access to mental health and trauma services, support specialists, and other family support programs. All of this family-focused care should be done with cultural context and created with consultation from Tribal leaders, Tribal communities, and Tribal LE.

Finding C: Newly hired LEOs are more likely to resign, or transfer to another agency, leaving a vacancy in the BIA or Tribal LE department due to a lack of skills, knowledge, and understanding needed to perform daily duties, relate to the community, and handle crises. The testimony from field hearings emphasized the harm caused to communities by the rapid turnover of LE officers in tribal communities.

Recommendations:

• Federal LEAs and training academies should revise and reinvent training programs for recruits as well as established LEOs.
• Studies should be conducted for the feasibility of a federal certification program for BIA and Tribal LE designed to promote healthy, balanced, positive, and self-aware officers.
• The government should promote and facilitate universal and cross-jurisdictional training across LEAs. Universal training of tribal and state LEOs brings similarly-trained officers together with a common foundation of skills and operational understanding.

Finding D: Distrust and tension between LE and communities are significant barriers to the recruitment and retention of officers. Applications for LE positions are significantly lower than a decade ago and continue to drop. A core change in community-police relations has the potential to change this negative narrative over time. Community-based policing has proved successful in large and small cities around the country and can be adapted to Indian Country.

Recommendations:

• The federal government should develop a national outreach strategy in coordination with BIA and Tribal LE, Tribal Nations and communities, and federal agencies to recruit and retain BIA/Tribal LE.
• They should also d outreach programs to tribal communities where LE can tell their stories.
• They must support and fund the replication of the BIA Tribal Youth Police Program and other successful models throughout Indian Country as a way of educating and recruiting potential LE candidates.

Finding E: Women in law enforcement often bring a balanced approach to their work, whether dealing with victims at crime scenes, engaging with the community, or handling workplace conflicts. BIA and Tribal LE agencies and departments have difficulty attracting female LE candidates. The recommendations below address several of the changes that need to be made to attract and retain women and other diverse groups to a career in LE.

Recommendations:

• Policymakers should support and fund the recommendations in the National Institute of Justice 30x30 Initiative to Advance Women in Policing. The 30×30 Initiative is a coalition of police leaders, researchers, and professional organizations who have joined together to advance the representation and experiences of women in policing agencies across the United States. The goal is to increase the representation of women in police recruit classes to 30 percent by 2030, and to ensure police policies and culture intentionally support the success of qualified women officers throughout their careers.
• Specific support needed for female officers must be provided, such as day-care, private rooms for nursing and breast milk pumping, maternity leave, and paternity leave as well, and shift scheduling to accommodate the needs of LEOs with families.

Finding F: Recruitment of BIA and Tribal LE has suffered in recent years, with many if not most Tribes seriously understaffed. This is bad for the morale and mental and physical health of officers, and contributes to the perception in communities that LEs are either not available, do not care, or both. The reputation and the productivity of these LE agencies suffer from a lack of quality recruits, as older officers retire or move to other positions with less stress and more benefits.

Recommendations:

• The federal government must create federal undergraduate LE scholarship programs that provide tuition benefits, enabling individuals committing to a BIA or Tribal LE career to obtain a college degree.
• The federal government should establish an education assistance program for BIA and Tribal LEOs that could include a scholarship or loan forgiveness option to enable officers to pursue undergraduate, advanced degrees, or continuing education programs to help their career and perform their LE obligations more effectively.
• The federal government must establish a loan forgiveness program specifically for BIA and Tribal LE to offer loan forgiveness options for individuals who have already completed undergraduate degrees and carry student loan debt when they enter LE. The model for this proposal can be found in the Department of Education’s Public Service Loan Forgiveness (PSLF) program.

Finding G: There are administrative, statutory, and operational barriers that prohibit or discourage Tribal LE departments from applying for badly needed grants.

Recommendations:

• The Subcommittee recommends a process to address barriers to Tribal LE programs, including:
  • A thorough review of all LE grant programs to identify barriers that prevent or discourage Tribal LE programs from applying, such as the ability to retain officers after a three-year grant period is over; and
  • Methods to remedy these barriers through revision and reform of grants programs to increase access and success for Tribal LE departments and agencies.

See the full list of findings from Subcommittee 3 here.