National Indigenous Women’s Resource Center Stands With Muscogee (Creek) Nation in Affirming the Continued Existence of Tribe’s Reservation



(Lame Deer, MT)—Today, the United States Supreme Court (SCOTUS) heard oral arguments in McGirt v. Oklahoma (18-9526), a case in which Oklahoma has asked SCOTUS to judicially disestablish the Muscogee (Creek) Nation (MCN) reservation. On February 11, 2020, NIWRC along with several Tribal and non-Native organizations working to end domestic violence and sexual assault filed an amicus brief before the Supreme Court, offering a critical 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.

Much is at stake in this case for Native victims of domestic violence and sexual assault. If the Supreme Court were to judicially disestablish the MCN’s reservation, the majority of the lands within their historical boundaries would no longer constitute “Indian country” under 18 U.S.C § 1151(a). Such a disestablishment of an existing reservation would eliminate the very same tribal criminal jurisdiction that Congress recently, and purposefully, restored through the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) which included protections for Native women from domestic violence and dating violence as well as violations of protection orders in Indian country regardless of the race of the perpetrator.

"It is disappointing that Oklahoma is spreading misinformation to incite fear about the consequences that a Creek Nation victory will bring,” said Cherrah Giles, Board Chair for the NIWRC and citizen of the Muscogee (Creek) Nation. “Affirming the Tribe’s reservation will not result in the release of thousands of criminals as suggested, but instead will help to protect and safeguard Oklahoma’s most vulnerable population – Native women and children."

Congress tethered its restoration of tribal criminal jurisdiction to lands that constitute “Indian country” as defined by 18 U.S.C. § 1151. VAWA, Pub. L. No. 113-4, title IX, § 904(a)(3), 127 Stat. 121 (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 the tribe from fully implementing VAWA 2013’s restored tribal criminal jurisdiction. For instance, if SCOTUS were to declare the MCN’s reservation “disestablished,” the tribe’s ability to prosecute a non-Indian perpetrator of domestic violence, dating violence, or violation of a protection order within its territorial jurisdiction would be severely truncated.

"During this morning’s argument, it was clear that several of the Justices understand the importance of maintaining the Court’s current governing precedent that Congress, and Congress alone, can disestablish a reservation created by treaty,” said Mary Kathryn Nagle, Partner at Pipestem Law and Counsel to the NIWRC. “However, it was very disturbing to see Oklahoma misrepresent the numbers on how many criminals will be ‘released’ if the Supreme Court maintains the status quo and concludes the MCN’s reservation still exists."

For years, Oklahoma has been asked to quantify the number of criminals that will, as Oklahoma’s attorney Lisa Blatt told the Supreme Court in 2019, be released if the MCN wins this case in the Court. The speculative fears put forth by Oklahoma are unfounded as remarked by at least one Justice during today’s argument and as reported in a recent Atlantic article are not backed up by real numbers or documented research.

In its amicus brief, NIWRC was joined by 27 additional organizations and five Tribal Nations that invested significant resources, time, and effort to ensure prosecutions of domestic violence crimes serve to increase the safety of tribal communities, while simultaneously working to ensure that the rights of the domestic violence defendants in tribal criminal proceedings are respected and enforced. The depth of the NIWRC Amici’s experience in working to end domestic violence and sexual assault renders them uniquely positioned to offer their views on the need for an interpretation of “reservation” and “Indian country” under 18 U.S.C. § 1151(a) that ensures Tribal Nations may continue to exercise VAWA’s restored criminal jurisdiction to protect all Native women within their borders as envisioned by Congress.