This blog comes from a response I wrote in my LL.M. program in Indigenous Peoples Law from the University of Oklahoma. I will graduate this program May 2022 and have significantly more knowledge about the history and development of federal Indian law. This will provide a bit of a background for how McGirt became such a revolutionary case in 2022.
Fully re-recognizing tribal sovereignty to prosecute crimes within their territorial jurisdiction should be restored for a number of reasons, even if it is concurrent jurisdiction with the federal or state governments. As stated in Talton v. Mayes, the tribes are extra-Constitutional because their inherent power existed long before the Europeans “discovered”America. From pre-colonial times until 1978 with the Supreme Court’s decision in Oliphant v. Suquamish Tribe, Indians exercised jurisdiction over Indians and non-Indians for crimes within their jurisdiction. The federal government first added their own concurrent jurisdiction with the Trade and Intercourse Act under Art. I § 8 Indian Commerce Clause for crimes that non-Indians committed against Indians. The federal government first exercised power over Indians in Indian country when they extended their jurisdiction over “interracial” crimes occurring in Indian country if the Indian had not been punished by the tribe or the tribe had treaty protections.
The States started taking over concurrent jurisdiction over crimes involving only non-Indians in Indian country in the McBratney line of cases. The Court seemed to think that the tribes were not interested in the prosecution of non-Indians committing crimes in their jurisdiction, which is not logical. It more directly affects the tribe than the States, but nonetheless, it was concurrent jurisdiction at the time. The U.S. government took further action to prosecute all major crimes committed by Indians in Indian country whether Indian-on-Indian or Indian v. Non-Indian. (Major Crimes Act 1885). The tribes even at that time still maintained concurrent jurisdiction to punish those crimes as well.
The Indian Civil Rights Act (1968) largely handicapped the tribal courts and made them misdemeanor courts by leaving punishment as up to one year and a $5,000 fine and making the tribes subject to certain Bill of Rights provision. The Court moved in the right direction in 2010 with the Tribal Law and Order Act which upped the cap on punishment to three years and a $15,000 fine per offense, but no more than nine years. The 2013 Violence Against Women Reauthorization Act (VAWA) gave the tribes a little more sovereignty back for prosecuting non-Indians for domestic violence in Indian county if certain conditions applied.
The tribes existed long before the United States and who are we to undermine their authority. We have made agreements and acted as their guardian, but does that mean they no longer have the rights to run their own governments, no, it seems this is fair. In addition, not allowing the tribes to prosecute these crimes in their jurisdiction leaves void where crime can go unpunished because the federal government cannot pick up everything and particularly was the reason for the Duro fix, but also for the VAWA change because the states could not pick up the charges when an Indian victim was assaulted by a non-Indian in Indian country. Domestic violence unfortunately is often not treated as a priority crime, particularly for the U.S. government to pick up and prosecute.
On the other hand, however, as Congress pointed out, all Indians are United States citizens and allowing tribes to prosecute them without any Bill of Rights protections is frightening. Since they were not bound by the same rules as the States and federal courts, U.S. citizens may have been treated unfairly and being sentenced without lawyers and due process. The Indian Civil Rights Act sought to protect U.S. citizens, who are also Indian from unfair treatment and made some of the Bill of Rights applicable to the tribes and limited their power.
The Tribal Law and Order Act increased their sentencing punishment to try to help fill a void where crimes were going unpunished, but what about the victims in these cases if the tribe just sentences them to banishment from their jurisdiction, does that not just allow the offender to commit these crimes elsewhere. Another problem for example in state court with a felony case you are entitled to a preliminary hearing, but you are not entitled to that in tribal court and often move right to a criminal trial by a judge or a jury. The jury sizes may be different and for a defendant facing prison time, they may want maximum individual rights protections.
Further, the Discovery Doctrine and basic rules of history state that the winner or discoverer gets to make the rules, so questioning why they should retain their sovereignty would be a valid argument against the tribes not exercising any authority over non-Indians and only what the US government allows them to do. At the end of the day, I think the tribes should have concurrent jurisdiction over Indians and non-Indians along with the State and US government because valid reasons exist for the states and federal government to be involved. Concurrent jurisdiction allows them to retain their sovereignty, but allows for harsher punishment when necessary.