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The Oklahoma decision reveals why Native Americans have a hard time seeking justice

Congress won’t let tribes fully punish non-Native American criminals — but federal prosecutors often won’t pursue crimes against Native Americans.

Miranda Muehl, of Mustang, Okla., marches during a protest for justice for missing and murdered indigenous women in Concho, Okla. on June 14, 2019. (Sue Ogrocki/AP)

On July 9, the Supreme Court ruled in McGirt v. Oklahoma that 19th century treaties that the United States signed with the Muscogee (Creek) Nation (MCN) remain binding, and the MCN Reservation that Congress promised in 1866 exists today. Critics of the decision, such as Oklahoma Gov. Kevin Stitt (R), claim McGirt will disrupt Oklahoma’s criminal justice system and free dangerous criminals.

In fact, McGirt will have little to no impact on non-Native Americans who live within the once-again recognized reservation. But while McGirt won’t harm non-Native Americans, Native Americans who endure violent crime may find the paths to justice limited. Here’s why.

McGirt v. Oklahoma

At the center of McGirt v. Oklahoma is Jimcy McGirt, a citizen of the Seminole Nation of Oklahoma. The state of Oklahoma prosecuted and convicted McGirt for several sex offenses. McGirt’s lawyers argued the state had no jurisdiction because the crimes were committed on the MCN reservation, as established by an 1866 treaty. As a result, Oklahoma had no criminal jurisdiction over McGirt. State governments — with some exceptions — lack criminal authority over Indians within a reservation. Oklahoma asserted sovereignty over this land early in the 20th century, as pieces of it were sold; in McGirt the court noted selling land does not alter sovereignty.

Thursday’s decision means criminals such as McGirt — Native Americans committing crimes on the MCN reservation — will fall under both federal and tribal jurisdiction instead of that of Oklahoma. The federal government will have jurisdiction over non-Native Americans who commit crimes against Native Americans on the reservation, while Oklahoma will continue to have exclusive jurisdiction over crimes committed by non-Native Americans against non-Native Americans.

Why does the federal government share jurisdiction with the tribal nations?

In 1883, in a case called Ex parte Kan-gi-Shun-ca (Crow Dog), the Supreme Court ruled the federal government did not have the authority to try a Native American man accused of murdering another Native American man on tribal lands; the tribal nation had that exclusive power. Congress responded by passing the Major Crimes Act in 1885 — still in force today — which gives the federal government shared jurisdiction over a set of “major crimes” such as murder on tribal land. In 1968, Congress passed a statute limiting tribal authority called the Indian Civil Rights Act (ICRA); the law limited the sentences that tribes could impose to a maximum of one-year incarceration. That discouraged many tribes from prosecuting major violent crimes.

Courts have also limited tribal jurisdiction. In 1978, in Oliphant v. Suquamish Indian Tribe, the Supreme Court prohibited tribes from prosecuting non-Native Americans for crimes committed on tribal land. This left a serious gap. Tribes can neither prosecute non-Native American criminals themselves nor force the federal government to do so.

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What are the consequences of federal jurisdiction?

The Department of Justice generally has a poor track record of prosecuting violent crimes against Native Americans. Despite high violent crime rates on tribal lands, prosecutors decline to prosecute these at high rates — even when law enforcement has investigated and identified a perpetrator. While what’s called a “declination rate” is hard to measure, a 2014 study calculated an overall federal declination rate of 7 percent; in Indian country, the 2018 declination rate was 39 percent, a number that has held steady for years.

We can see the result in the data on violence against Native American women. According to the Department of Justice’s 2016 Rosay report, over half of Native American women have endured sexual violence. Native American women are twice as likely to be raped or sexually assaulted than women from other demographic groups. Among Native American female victims, 96 percent were assaulted by a non-Native American perpetrator. Compared with members of other demographic groups, Native Americans endure extraordinarily high levels of violent crime and are more likely to report their attackers as belonging to a different demographic group than their own.

The high numbers of violence against Native Americans by non-Native Americans is striking, considering tribes have no authority to punish such crime. Tribes can’t prosecute those perpetrators, except in domestic violence cases, and can’t imprison Native American perpetrators for long. Meanwhile, federal prosecutors often decline to prosecute. That leaves offenders free to commit those or other crimes again, making communities less safe. Certain crimes such as sexual assault are frequently committed by repeat offenders.

What can be done?

If policymakers want to end what’s effectively criminal impunity on tribal lands, they could restore tribal authority and revoke sentencing limits over all crimes committed in Indian country, whether the perpetrator is Native American. Tribal nations, as local governments, are in the ideal position to protect their own communities.

Theoretically, the Justice Department could prioritize prosecuting violence against Native American women and children. However, this is unlikely to solve the problem: Federal priorities can and do change, and the federal judicial system is ill-equipped to handle interpersonal violent crime. That’s because the federal judicial system primarily deals with other crimes such as white collar crime, and interstate and international drug-trafficking rings.

Nor would it help to return to state jurisdiction; state governments, like the federal government, have poor track records on prosecuting crimes in Indian country.

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In the past decade, Congress partially restored criminal jurisdiction for tribes. The 2010 Tribal Law and Order Act amended the ICRA to give tribes the power to sentence Native American defendants to not just one but up to three years per offense. When Congress reauthorized the Violence Against Women Act in 2013, it restored tribal court authority over non-Native American defendants for crimes related to domestic violence. Some resisted the VAWA changes. For instance, Sen. Charles E. Grassley (R-Iowa) said, “So the idea behind [VAWA] is we’ll try them in tribal court. But … it’s going to be made up of Indians, right? So the non-Indian doesn’t get a fair trial.” In other words, opponents argued tribal jurisdiction over non-Native Americans is unfair, while federal and state jurisdiction over Native Americans is fair.

Both the 2010 act and the 2013 VAWA changes suggest that if policymakers are motivated, more reform is possible, especially during a nationwide debate about correcting past injustices.

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Dominga Cruz (@DomingaFCruz) is a graduate student in political science at the University of Oklahoma and an enrolled citizen of the Cheyenne and Arapaho Tribes.

Sarah Deer (@sarahdeer) is a professor at the University of Kansas, citizen of the Muscogee (Creek) Nation of Oklahoma, and recipient of a 2014 MacArthur Fellowship and 2020 Carnegie Fellowship.

Kathleen Tipler (@ktipler47) is an assistant professor in political science at the University of Oklahoma.