Washington Lawyer - March/April 2021 - 31

FEATURE
Tribal sovereignty was established in most instances by treaty with the
United States. Attendant to that sovereignty is the right to establish
courts and prosecute crimes, which Native American tribes have done
since long before the establishment of the United States. Crawford says
that multiple studies of Native American courts have found them to be
fair, even when the accused is non-Native. Nevertheless, Congress has
been historically skeptical of the fairness of Native American legal
systems and, as a result of this skepticism, has progressively stripped
Native American tribes of their power.
The 1883 Supreme Court case Ex Parte Crow Dog both affirmed Native
American sovereignty and marked the beginning of an era in which that
same sovereignty has been progressively curtailed. Crow Dog, a Lakota
Sioux member, shot and killed Spotted Tail, a Lakota chief. Following
Sioux tradition, tribal authorities ordered Crow Dog to pay restitution to
Spotted Tail's family. U.S. authorities, offended by what they felt was an
insufficient penalty, tried Crow Dog for murder in federal court, where
he was found guilty and sentenced to hang. Crow Dog filed a habeas
corpus petition, and although the Court found that there was no jurisdiction to support the conviction and released him, outcry over the case
ultimately led to the passage of the Major Crimes Act in 1885, which
placed some serious crimes under federal jurisdiction, even when committed on tribal lands and between tribal members.
The erosion of Native American sovereignty expanded dramatically with
the 1978 U.S. Supreme Court case Oliphant v. Suquamish Indian Tribe,
Tribe, in
which the Court held that Indian tribal courts have no criminal jurisdiction over non-Indians accused of crimes committed on tribal lands. The
result has been a jurisdictional nightmare in which, prior to investigating
a crime, authorities must determine whether tribal, federal, or concurrent
jurisdiction applies. This requires an inquiry into the tribal membership
status of parties, the particular land status where the crime took place,
and the kinds of charges that might be leveled
before jurisdiction can be determined. The
resulting confusion and delay still contribute to
the high rate of unprosecuted and unsolved
crimes in the Native American community.

put pressure on the Justice Department regarding unprosecuted crimes,
resulting in the restoration of jurisdiction to Native American tribes over
some crimes of domestic violence. VAWA's provisions remain in effect,
despite the lapse of the law in 2019, and Congress continues to debate
the terms of a proposed reauthorization. The Democrats' proposal would
expand upon the offenses that tribal authorities could prosecute to
include crimes against children, sex trafficking, stalking, and violation
of protection orders. They're " baby steps forward, " says Crawford. The
Republican bill provides a somewhat more modest expansion of the
2013 provisions but does not give tribal authorities jurisdiction to prosecute cases on Indian reservations. At the moment, it is unclear how the
bill will proceed.
Meanwhile, there have been advances in reestablishing Native American
sovereignty in the Supreme Court. Nagle coauthored an amicus brief in
McGirt v. Oklahoma,
Oklahoma, where the state was seeking to judicially disestablish
the Muscogee (Creek) Nation's Reservation, which had been established
by treaty in 1866. The brief asserted that the state's request directly
implicated efforts to reduce domestic violence and sexual assault against
Native American women. VAWA's protection of Native American women
only extends to those in " Indian Country. " According to the brief, loss
of the reservation would result in the loss of protection for the Native
American women who reside there.
In July 2020, the Court upheld the long-standing principle that only
Congress can disestablish Indian lands recognized by treaty. Nagle and
the brief's coauthor, University of Kansas professor Sarah Deer, celebrated the legal victory while also expressing frustration at the continued need to fight for the sovereignty of their Nations as well as
their bodies.
Nagle says that the continued existence of Oliphant is one of the most
critical issues facing Native Americans. Another crucial matter is the

The 2013 VAWA renewal provisions took an
even more important step forward. Efforts
by advocacy groups surrounding the issue
of missing and murdered Indigenous women

Getty Images/Sarah Morris

A LEGISLATIVE & JUDICIAL SHIFT
The situation has been changing slowly but
surely. Crawford says that the Tribal Law and
Order Act of 2010 represented a big shift
toward recognizing tribal sovereignty. It
amended the Indian Civil Rights Act of 1968,
which limited tribal court sentences to a
maximum one year of jail time, a $5,000 fine,
or both. Under the 2010 act, punishment can
be imposed for up to three years of jail time or
$15,000 for each offense, and tribal courts can
stack sentences, giving them the ability to
level significant penalties against offenders
and better control the safety of their residents
and citizens.

MARCH/APRIL 2021

WASHINGTON LAWYER

Washington Lawyer - March/April 2021

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