Guest Opinion By: Professor Victoria Sutton
May 06, 2024
Our awareness of Missing and Murdered Indigenous Women (MMIW) may be relatively new within the last decade, but it started long ago with Pocahontas, or Matoaka. Contrary to the Disney movie built on historical legends of early America, Pocahontas was forced to marry a colonist from the Jamestown Colony in order to try to make peace between her people, the Powhatan Confederation and the colonists. She was forced to live away from her family and not allowed to see them in a kidnapping situation, taken to Great Britain to showcase the founding of the enterprising Colony. Once she gave birth, she was murdered and died within hours of boarding a ship to return to Virginia. That is the real story and the one that has been passed down within the present day Pamunkey Nation of Virginia.²
Homicide is the fourth-leading cause of death among Native American women between the ages of 1 and 19 years and the sixth-leading cause of death for ages 20 to 44, as of 2017 according to the Centers for Disease Control and Prevention.
The red hand symbol in the photo was popularized in 2019 by Rosalie Fish, a Cowlitz Tribal Citizen and a University of Washington runner after running at the Washington State Track and Field Championships. The hand print is over a woman’s mouth, symbolizing the red blood of murder, and the use of a hand to cover a woman’s mouth to shove her into a car, never to be found.³ I would also add, it symbolizes the silencing of this tragic phenomena of thousands of deaths of Native Women, with an abysmally low conviction rate. The news does not cover these murders and the federal government (FBI) does not bother to investigate them.
The date of May 5 is the birthdate of a young Northern Cheyenne woman who was abducted from her reservation and murdered in 2013. She was found five days later and due to the slow response of law enforcement, her family had to conduct the search themselves. Thus, the rising call to bring awareness to this shameful neglect of missing and murdered indigenous women.⁴
How did the U.S. erode tribal safety?
The U.S. Supreme Court determined that Native American Tribes were “domestic, dependent nations” and that the federal government’s laws would apply except where tribal law applied much like state law. However, tribal sovereignty eroded rapidly when conflicts over criminal jurisdiction arose. Should a non-Indian be prosecuted for a criminal act or murder by a Tribal Court? Certainly not, the settlers would say. The U.S. Supreme Court in the Brantney case of 1881⁵ opined that tribes do not have jurisdiction over non-Indians (A non-Indian murdered a non-Indian on the Ute Reservation and tried the case, and the defendant appealed the judgment arguing the Ute Nation did not have jurisdiction.) Thus, no non-Indian committing a crime against another non-Indian in Indian Country would be subject to the jurisdiction of that Native Nation, but rather federal law or state law.
In 1883, in Ex Parte Crow Dog, the U.S. Supreme Court upheld the right of Native Nations to adjudicate crimes among their Tribal Citizens, and that the state did not have criminal jurisdiction over those crimes. In that case, Crow Dog murdered another Brule Sioux citizen, Yellow Spotted Tail, who was very popular with the local settlers. Crow Dog was not executed for the murder, but instead was allowed to live because the families were brought together and the crime was resolved in a traditional court in a traditional manner by gifting blankets and horses to the family with the loss. This outraged the locals and the anger spread to Washington, D.C., where the outrage continued and resulted in a law that would further erode tribal sovereignty.
As a result of these criminal jurisdictional conflicts – and fear of Tribal Courts – Congress passed the Major Crimes Act of 1885. This striped Tribal Nations of all criminal jurisdiction over seven major crimes (murder, maiming, kidnapping, rape, manslaughter, incest and assault to commit murder)⁶ for any one, including Native Americans. Tribal Courts were left with misdemeanors and no felonies.
This law effectively tied the hands of tribal governments to prosecute the worst of crimes within their own jurisdictions, and word spread that you could commit murders and even attack, kidnap, abuse and murder women. The federal government had better things to do, than investigate the murder of Native American women, and so increased the attraction for the human predators to prowl around and within the jurisdiction of Tribal Nations.
The recent movie, Killers of the Flower Moon,⁷ based on a book of the same name, dramatizes the pressure that eventually forced the FBI to investigate the dozens of suspicious deaths and obvious murders of many woman and also men with tribal jurisdiction. This first involvement by the FBI was in the 1920s, having let far too many decades left to predators while tying the hands of the Tribal Courts.
In 1953, Congress made matters worse by turning over criminal jurisdiction to state courts. Congress created the P.L. 280 Tribal reorganizations and tribes were asked to vote on whether they wanted to reorganize as a tribe (after the federal termination era had terminated them) —-or face permanent termination. Democracy at work. This P.L. 260 structure delegated power to six states for judicial authority over criminal and some civil matters, other tribes could elect to also use that structure and some did. States had near total control over the Tribal Nation’s judicial and criminal system. Tribal sovereignty and self-governance was further eroded.
In 1968, Congress passed the Indian Civil Rights Act, providing that Tribal Nations would have criminal jurisdiction over non-Indians committing crimes on reservation lands and Indians of another tribe committing crimes on reservation lands, but still limited only to those crimes not covered by the Major Crimes Act, so only misdemeanors.
In 2010, Congress increased penalties for tribal courts, but still this fell far short of justice.
In summary, Tribal Nations are unable to govern themselves and protect their own people from criminals that may opportunistically seek out areas with confusing criminal jurisdictions or where the federal governments and state governments grossly neglect their policing agreements.
In 2012, President Obama’s U.S. Department of Justice (U.S. DOJ) announced the 7th annual tribal consultation on violence against Native Women.⁸ The announcement was made during Native American Heritage Month in November, and mainly cited the statistics that show this is a problem unlike any other ethnic, racial or political group in America. The U.S. DOJ created a Violence Against Women Federal/Tribal Prosecution Task Force, and a modest initiative of sharing information across jurisdictions about domestic abusers. Their experimental program sounded promising:
the selection of four tribes for a Violence Against Women Tribal Special U.S. Attorney (SAUSA) Initiative. The OVW Tribal SAUSA program, based on successful programs initiated by U.S. Attorneys across the country, will train eligible tribal prosecutors in federal law, procedure and investigative techniques to increase the likelihood that every viable violence against women criminal offense is prosecuted in tribal court, federal court or both. The program enables tribal prosecutors to bring violence against women cases in federal court and to serve as co-counsel with federal prosecutors on felony investigations and prosecutions of offenses arising out of their respective tribal communities.
The Trump Administration, in 2019, through the U.S. Department of Justice announced an MMIW Initiative in Alaska, providing for MMIP personnel to better coordinate reports of missing Indigenous women.⁹
In 2017, Savanna LaFontaine-Greywind, pregnant, and a 22-year-old and member of the Spirit Lake Nation of North Dakota, was murdered. The Savanna’s Act became law in 2020, that provided for more coordination between Tribal Nations and Law Enforcement agencies in local, state and federal government.¹⁰
Then in 2020, the U.S. Supreme Court heard a case called McGirt v. Oklahoma ¹¹ and American learned that geographic jurisdiction was massively bigger than Oklahoma had thought. Because the U.S. Supreme Court found that the reservation land had never been terminated by the federal government (and that requires an affirmative act), tribal criminal jurisdiction was now about 40 % of the state of Oklahoma. (This large percentage was based on applying the same principle to other tribes under the same treaties in Oklahoma.) So, although no land changed hands, criminal jurisdiction changed. So, within this jurisdictional area, major crimes committed by Indians must be prosecuted in federal court, while lower-level offenses committed by Indians will be prosecuted in tribal court.
Then, Indian Country was then whipsawed by the next U.S. Supreme Court opinion in 2022, in Oklahoma v. Castro-Huerta, where the Court analyzed whether the state of Oklahoma has jurisdiction over crimes committed by non-Native people against Native people within the criminal jurisdiction of Native Nations. The Court opined that when non-Indians commit crimes in a Tribe’s geographical jurisdiction, they are not subject to Tribal jurisdiction, but to state jurisdiction, rather than federal jurisdiction which had been the case since at least 1885.
At this point, it seems obvious we have a U.S. Supreme Court that continues to make matters worse. Yet, they consider the facts of cases that are before them and when their decisions reach farther into policy than they should, you get broad unintended consequences.
Here are a few other summary points about criminal jurisdiction making it complex:
- Jurisdiction in criminal matters will be based on the political status of the parties, the political status of the tribal nation, location of the crime, and applicable crime.
- Choice of law will also depend on political status of the parties, but also whether there is federal law, and if not, state law applicable
- Sentencing by tribal governments is limited by Indian Civil Rights Act.
- Crimes involving domestic violence often end up with light sentences because there is no federal interest in prosecuting these crimes.
The Violence Against Women Act of 1994, was amended in 2013 and in 2022, the Violence Against Women Reauthorization Act of 2022 (VAWA 2022) to the Violence Against Women Act of 1994, for the first time included a subtitle covering Native American women. The Office of Tribal Justice of U.S. DOJ explains that under this statutory authority, effective October 1, 2022, that Tribes are able to exercise their sovereign power to investigate, prosecute, convict, and sentence both Indian and non-Indians who commit covered crimes in Indian country against Indian victims. In cases of obstruction of justice and assault of Tribal justice personnel, the victim need not be Indian. Tribes may exercise this jurisdiction regardless whether the non-Indian defendant has ties to the participating Tribe.¹²
For the first time in centuries, tribal sovereignty was recognized by the federal government and allowed to be exercised in the need to protect tribal citizens.
President Trump proclaimed the first MMIW Awareness Day in February 2020.¹³ President Biden declared May 5 as MMIW Awareness Day in 2022¹⁴ and 2023.¹⁵
President Biden, in his proclamation of 2023, stated that [With regard to the VACA]. This time, we expanded recognition of Tribal courts’ jurisdiction over non-Native perpetrators suspected of committing crimes of stalking, sexual assault, child abuse, and sex trafficking on Tribal lands.
To sum up an extremely complicated area of Federal Indian law, the federal government has neglected its statutory duty to protect Native communities, while making some administrative efforts through the U.S. Department of Justice to allow Tribal Governments to step in and assume criminal investigation and adjudication. However, the U.S. Supreme Court, oblivious to history and these administrative efforts may have ended these initiatives with their two recent opinions, except to the extent the Congressional action of the Violence Against Women Reauthorization Act of 2022 might be interpreted.
So when you hear that there is a problem of missing and murdered Indigenous women, you can see why the perverse history beginning with Pocahontas through centuries of failed federal governance has gotten us to this shameful point. It is probably time to do away with P.L.280 state jurisdiction and either recognize the need for partnerships with the federal government without U.S. Supreme Court’s uninformed and sweeping opinions or give criminal jurisdiction back to Tribal Nations, where it was more than 200 years ago.
Professor Victoria Sutton (Lumbee) is a law professor on the facutly of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.
1 https://www.spokesman.com/stories/2021/jul/28/when-one-person-goes-missing-we-all-feel-it-native/
2 Dr. Linwood “Little Bear” Custalow and Angel L. Daniel “Siler Star”, The True Story of Pocahontas: The Other Side of History (2007).
3 https://www.spokesman.com/stories/2021/jul/28/when-one-person-goes-missing-we-all-feel-it-native/
4 https://www.niwrc.org/mmiw-awareness
5 https://supreme.justia.com/cases/federal/us/104/621/
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