The Implications of CARPENTER v. MURPHY for Native Women

By Mary Kathryn Nagle

The State of Oklahoma’s attempt to have the Creek Nation Reservation declared “disestablished” could have serious, harmful consequences for Native women and the Tribal Nations who seek to protect them.

Recently, the Tenth Circuit Court of Appeals examined all of the legislative acts passed by Congress surrounding the creation of Oklahoma as a state—including Allotment Acts—and concluded that Congress never disestablished the Creek Nation’s reservation. Under the Supreme Court’s past guiding precedent, the absence of any congressional disestablishment was enough to put such a question to rest; that is, if Congress has not acted to eliminate a Tribe’s reservation, that reservation remained intact. See Solem v. Bartlett, 465 U.S. 463, 740 (1984) (“[O]nly Congress can divest a reservation of its land and diminish its boundaries.”).

Oklahoma, however, is asking the United States Supreme Court to judicially declare the Creek Nation to be without a reservation. While such a judicial declaration may seem to have very little to do with safety for Native women, a closer look at the legal landscape reveals serious implications for Native women—both in Oklahoma and in Tribal Nations across the United States.

Today, Native women face the highest rates of domestic violence, murder, and sexual assault in the United States. The majority of these crimes are committed by non-Indians, but since this Court’s decision in Oliphant v. Suquamish in 1978, Tribal Nations have been prohibited from exercising their inherent jurisdiction to prosecute crimes committed by non-Indians on tribal lands. Recently in 2013, however, Congress took action to restore a portion of the inherent jurisdiction that Oliphant removed.

In 2013, with the knowledge that the extraordinarily high rates of violence against Native women threaten the continued sovereignty and existence of Tribal Nations, Congress re-authorized VAWA to include an amendment that restores tribal jurisdiction over domestic violence crimes committed by non-Indians (referred to as “special domestic violence criminal jurisdiction” or “SDVCJ”). P.L. 113-4, 127 Stat. 54, (March 7, 2013), (codified at 25 U.S.C. § 1304).

Congress rendered this restored jurisdiction contingent upon two words: “Indian country.” That is, in re-authorizing VAWA, Congress restored tribal jurisdiction over “[a]n act of domestic violence or dating violence that occurs in the Indian country of the participating tribe . . .” 25 U.S.C. § 1304(c)(1) (emphasis added). VAWA 2013 states that its use of the term ‘“Indian country’ has the meaning given . . . in section 1151 of title 18, United States Code.” 25 U.S.C. § 1304(a)(3).

And since the passage of 18 U.S.C. § 1151 in 1948, “Indian country” has consistently referred to lands that include and/or comprise a Tribal Nation’s “reservation.” And since crafting the legal term “Indian country” in 1948, Congress has never taken action to disestablish Creek Nation’s Reservation.

The State of Oklahoma, however, now asks this Court to conclude that the “territorial boundaries of the Creek Nation no longer constitute an ‘Indian reservation’ today under 18 U.S.C. § 1151(a).” If this Court were to agree with Oklahoma, and declare the Creek Nation to be without an “Indian reservation” in 18 U.S.C. § 1151(a), then the Creek Nation would be unable to arrest and prosecute a non-Indian engaged in an act of domestic violence or dating violence unless the Nation could establish beyond a reasonable doubt that the crime occurred on land that is held in trust or restricted status. See 18 U.S.C. § 1151(c). This sort of jurisdictional maze and prerequisite factual inquiry all too often preclude tribal police from taking the decisive, swift action that is necessary to prevent a domestic violence crime from escalating to homicide.

“The crisis response of our tribal police responding to an emergency domestic violence call involving a non-Indian abuser will be further complicated,” said Cherrah Giles, Chairwoman, NIWRC Board of Directors and former Tribal Council Member, Muscogee Creek Nation. “Our tribal police will be required to determine the status of the land the crime occurs on and the tribe may not be able to arrest or prosecute the non-Indian abuser.”

Because Congress rendered the exercise of VAWA SDVCJ contingent on “Indian country,” any judicial disestablishment of an Indian reservation would significantly endanger the ability of Tribal Nations to exercise VAWA SDVCJ and protect their women from domestic violence crimes committed by non-Indians. Many Tribal Nations have reservations that Congress has never formally disestablished; indeed, many reservations have survived Allotment and Statehood Acts, and if those reservations were suddenly at risk of being removed from the category of lands that constitute “Indian country” under § 1151(a) without congressional action, many Tribal Nations would be precluded from exercising VAWA § 904’s restored criminal jurisdiction over crimes committed by non-Indian offenders. Such a conclusion would undermine Congress’s intent in restoring the inherent right of Tribal Nations to ensure the safety of their women and children citizens living within their borders.

Nothing in the plain text of VAWA 2013, or its legislative history, supports the notion that Congress intended—or even understood—its own legislation to limit the exercise of restored tribal criminal jurisdiction pursuant to an interpretation of § 1151 that did not, and does not yet exist. If adopted, Oklahoma’s interpretation of § 1151 would upset seventy years of federal Indian law and congressional legislation. Ultimately, if adopted, Oklahoma’s interpretation of § 1151 would prevent Tribal Nations from exercising VAWA § 904’s restored criminal jurisdiction over thousands of crimes committed by non-Indian offenders within the borders of reservations Congress never disestablished.

“The NIWRC, along with scores of other tribal and non-Native organizations working to end domestic violence and sexual assault will file an amicus brief before the Supreme Court, offering our unique perspective on the relationship between Congress’s authority 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,” said Lucy Simpson, Executive Director, NIWRC. “Because Petitioner’s attempt to have the Creek Nation’s Reservation judicially declared ‘disestablished’ threatens the safety, welfare, and lives of Native women, the NIWRC amici will urge the Supreme Court to uphold the Tenth Circuit’s conclusion that until or unless Congress does in fact disestablish the Creek Nation’s Reservation, the Nation’s lands will continue to constitute a ‘reservation’ under 18 U.S.C. § 1151(a).”

September 11, 2018, Washington, DC—lead organizers of the #MMIWG Vigil Mary Kathryn Nagle (right) and Caroline LaPorte, NIWRC Senior Native Affairs Advisor, (left) celebrate the success of the event to honor missing and murdered Native women and girls.