THE LEGAL LOOPHOLE AFFECTING NATIVE NATIONS
Author: Summer Williams, Associate Editor
There are approximately 326 federal Indian reservations located in the United States. [i] The violence on these reservations is estimated to be up to ten times higher than national averages. [ii] Specifically, the violence against women and children is astounding. A study completed by the National Institute of Justice found eighty-four percent of native women have experienced some type of violence within their lifetime, with fifty-six percent having suffered sexual violence. [iii] Nevertheless, the prosecution statistics for these crimes do not even begin to measure up.
Indian tribes and reservations have a unique place in the United States. [iv] While the reservations are situated on land within certain states, the tribes themselves are usually considered sovereign nations. [v] The tribes have their own court systems, known as tribal courts or tribal councils. [vi] However, state laws, treaties, actions by Congress, and Supreme Court decisions throughout the years have determined who has authority to prosecute crimes on Indian reservations. [vii]
Confusion in jurisdiction, lack of funds, and overall disinterest in the pursuit of the crimes and seeking justice for native victims produced an epidemic of violence on reservations. [viii] In Oklahoma v. Castro-Huerta, the United States Supreme Court concluded that the federal government and the state in which a crime is committed have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians on Indian land. [ix] The state and federal departments tasked with prosecuting these crimes are funded by tax dollars, which Indians do not pay. [x]
A landmark case in this discussion is Oliphant v. Suquamish Indian Tribe, because the U.S. Supreme Court held that non-Indians, even if residents of a reservation, could not be prosecuted by tribal courts for criminal conduct. [xi] Essentially, tribal councils only maintain jurisdiction over Indians whom commit a crime on reservation land. [xii] This allows for non-Indians to commit crimes on reservations with little fear of repercussions. [xiii]
Non-Indians have exploited this legal loophole because they are aware of the unlikelihood of prosecution by the federal government. In 2011, only one year after the Tribal Law and Order Act was signed into law, the Transactional Records Access Clearinghouse at Syracuse University recovered data that revealed federal prosecutors declined to file charges in fifty-two percent of cases involving serious crimes on Native American reservations. [xiv]
The recent case of U.S. v. Cooley could be considered a small victory for Indian tribes. [xv] Here, the Court ruled that tribal police are permitted to detain temporarily and search non-Indians on reservations when addressing conduct that threatens or directly affects the welfare of the tribe. [xvi] This case was only a small drop in the bucket of the issue.
Discussion of expanding the tribal court’s authority under the Violence Against Women Act would further combat crimes against native victims. [xvii] As previously mentioned, native women experience an ample amount of the violence within these reservations. For example, the violence may be coming from a non-Indian significant other living on the reservation who, under Oliphant, is not subject to the tribal authorities. This epidemic of violence and the cycle of denying aid to Indian nations will continue until a change is made to the system.
[i] What is a federal Indian reservation?, U.S. Department of Interior Indian Affairs (Aug. 19, 2017, 2:53 PM), https://www.bia.gov/faqs/what-federal-indian-reservation#:~:text=There%20are%20approximately%20326%20Indian,%2C%20communities%2C%20etc.)
[ii] Missing and Murdered Indigenous People Crisis, U.S. Department of Interior Indian Affairs, https://www.bia.gov/service/mmu/missing-and-murdered-indigenous-people-crisis#:~:text=Statistics%20show%20us%20that%20approximately,the%20Federal%20Government's%20Uniform%20Crime
[iii] Id.
[iv] Frequently Asked Questions, U.S. Department of Interior Indian Affairs, https://www.bia.gov/frequently-asked-questions
[v] Id.
[vi] Id.
[vii] Samuel D. Cardick, THE FAILURE OF THE TRIBAL LAW AND ORDER ACT OF 2010 TO END THE RAPE OF AMERICAN INDIAN WOMEN, 31 St. Louis U. Pub. L. Rev. 539, 547 (2012).
[viii] Id.
[ix] Oklahoma v. Castro-Huerta, 142 U.S. 2486, 2505 (2022).
[x] Cardick, supra, note.
[xi] Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 (1978).
[xii] Cardick, supra, note 7.
[xiii] Id.
[xiv] Timothy Williams, Higher Crime, Fewer Changes on Indian Land, The New York Times (Feb. 20, 2012), https://www.nytimes.com/2012/02/21/us/on-indian-reservations-higher-crime-and-fewer-prosecutions.html.
[xv] United States v. Cooley, 141 U.S. 1638, 1641 (2021).
[xvi] Id.
[xvii] Graham Lee Brewer, Native American women face an epidemic of violence. A legal loophole prevents prosecutions., NBC News (June 30, 2021), 4:30 AM, https://www.nbcnews.com/news/us-news/native-american-women-face-epidemic-violence-legal-loophole-prevents-prosecutions-n1272670