Supreme Court Update

In November and December, the United States Supreme Court heard oral argument in two cases that could have significant impacts on safety for Native women and children. The NIWRC filed amicus briefs in both.

Carpenter v. Murphy

In late September, the NIWRC, along with the Confederated Tribes of the Umatilla Indian Reservation, the Eastern Band of Cherokee Indians, the Nottawaseppi Huron Band of the Potawatomi, the Pascua Yaqui Tribe, the Pokagon Band of Potawatomi Indians, and sixty additional organizations that share NIWRC’s commitment to ending domestic violence, rape, sexual assault, and other forms of violence in the United States, filed an amicus brief in Carpenter v. Murphy.

In Murphy, the State of Oklahoma asked the Supreme Court to declare that the Muscogee (Creek) Nation’s (“MCN”) reservation has been disestablished and no longer exists, such that the MCN’s reservation lands no longer constitutes “Indian country” under 18 U.S.C. § 1151(a). The MCN’s reservation, however, was created in an 1866 treaty signed with the United States, and Congress has never taken any actions to disestablish it.

In re-authorizing the Violence Against Women Act in 2013 (“VAWA 2013”), Congress tethered its restoration of tribal criminal jurisdiction to lands that constitute “Indian country.” VAWA, Pub. L. No. 113-4, title IX, § 904, 127 Stat. 120 (March 7, 2013) (codified at 25 U.S.C. § 1304(a)(3)). Thus, because the lands within a Tribal Nation’s borders—its “reservation”—constitute “Indian country” under § 1151, a judicial decision disestablishing a Tribal Nation’s reservation would effectively preclude that Nation from fully implementing VAWA’s restored tribal jurisdiction. For instance, if this Court were to declare the MCN’s reservation “disestablished,” the Nation’s ability to prosecute a non-Indian engaged in an act of domestic violence or dating violence within its territorial jurisdiction would be severely truncated.

The Supreme Court precedent on point, Solem v. Bartlett, 465 U.S. 463 (1984), commands that Congress—and only Congress—can disestablish a reservation. Oklahoma, however, has encouraged this Court to disregard the test outlined in Solem and judicially declare the MCN’s reservation obsolete based on arguments and considerations previously rejected in Solem. Circumventing Solem in this manner would undermine Congress’s exclusive authority over the status of reservations, and would ultimately impede Congress’s ability to pass legislation in reliance on “Indian country” as defined in § 1151(a).

For instance, if the Court were to accept Oklahoma’s invitation to depart from its long-settled diminishment framework, then, such a decision could preclude the MCN (and potentially other Tribal Nations) from fully utilizing the jurisdiction Congress has restored. Thus the NIWRC Amici, in their amicus brief, offered a unique perspective on the relationship between Congress’s plenary power over Indian affairs, the inherent sovereign authority of tribal governments to prosecute crimes committed against their own citizens, and safety for Native women and children.

Oral arguments were held on November 27, 2018. On December 4, 2018, the Court ordered the parties to file additional briefing addressing the following two questions: (1) Whether any statute grants the state of Oklahoma jurisdiction over the prosecution of crimes committed by Indians in the area within the 1866 territorial boundaries of the Creek Nation, irrespective of the area’s reservation status. (2) Whether there are circumstances in which land qualifies as an Indian reservation but nonetheless does not meet the definition of Indian country as set forth in 18 U. S. C. §1151(a). This additional briefing is now complete, and we are awaiting the Supreme Court’s decision.

Gamble v. United States

In early November, the NIWRC and NCAI filed an amicus brief in Gamble v. United States. Gamble, who had been convicted by both the State of Alabama and the United States of violating similar firearm laws, challenged his federal conviction in the Supreme Court, asserting that his subsequent federal conviction—because it followed a state conviction—violated his rights under the U.S. Constitution’s Double Jeopardy Clause.

The Supreme Court’s precedent on point, however, commands that the “separate sovereign” doctrine applies to duplicate state and federal prosecutions—or duplicate tribal and state/federal prosecutions—such that these duplicative violations for the same crime do not violate the Double Jeopardy Clause. Many were surprised the Supreme Court agreed to hear this case since the “separate sovereign” doctrine has controlled for more than 150 years and the Court has repeatedly declined invitations to overturn it.

But, for the first time in 150 years, the Court now seems poised to reconsider it. To be sure, the loss of the “separate sovereign” doctrine could have significant implications for Native women and children, if the Court were to overturn the doctrine entirely.

The NIWRC and NCAI’s amicus brief asserted that overturning the Court’s long-standing precedent regarding the separate sovereign doctrine, which has allowed both tribal and the federal governments to prosecute for violations of their respective criminal laws, would have significant ramifications in Indian country. The ability of both sovereigns to prosecute takes on heightened importance in light of the sentencing limitations placed on Tribal Courts by the federal Indian Civil Rights Act and the well-documented challenges the federal government has investigating and prosecuting inherently local crimes, which it is often times poorly suited to do on its own, without assistance or local collaboration.

Within the complex web of jurisdictional determinations that the separate sovereigns must undertake, U.S. Attorneys and Tribal Prosecutors have grown accustomed to the existing jurisdictional scheme, which allows for concurrent jurisdiction and the possibility of prosecution by two sovereigns in many cases. Changing this rule would destabilize an already precarious jurisdictional scheme at the expense of victims, particularly those who experience serious domestic or sexual violence.

That is, the eradication of the “separate sovereigns” doctrine would require a Tribal Nation to choose whether to prosecute a case before the U.S. Attorney has had sufficient time to perform the necessary investigation to determine whether he or she will prosecute under federal law and sentencing authority. The Tribal Nation may be forced to go ahead and prosecute, and without the “separate sovereigns” exception, such a prosecution would then preclude the more meaningful and deterrent sentencing authorized under federal jurisdiction.

And thus, until or unless tribal criminal jurisdiction—and sentencing authority—is fully and completely restored, federal prosecutions will remain an essential tool in preserving the safety of Native women and children in their own homes.

Oral argument was held on December 5, 2018. During oral argument, Justice Breyer referred directly to the NIWRC and NCAI’s amicus brief, stating “think of the brief here with the Indian tribes. We’re saying that we need this kind of thing for abuse of women.” A decision has not yet been rendered.


An essential mission of NIWRC is to restore safety to Native women by upholding the sovereignty of Indian tribes and Alaska Native villages. We hope that by monitoring VAWA-related cases, we inform the movement and the government of the importance of maintaining the gains made under VAWA.

—Cherrah Giles, Board Chair, NIWRC