Defending Sovereignty and Reforms Essential to the Safety of Native Women– VAWA Sovereignty Initiative

By Mary Kathryn Nagle (Cherokee Nation), Pipestem & Nagle Law, Counsel to NIWRC, and Julie Combs, (Cherokee Nation), Intern, Pipestem & Nagle Law


In 2015, as part of a concerted effort to defend the constitutionality and functionality of all Violence Against Women Act (VAWA) tribal provisions, NIWRC launched the VAWA Sovereignty Initiative. In partnership with Pipestem and Nagle Law, the initiative is aimed at defending the restoration of jurisdiction in VAWA through the monitoring of federal court cases which might affect tribal sovereignty over violence against Native women and children. Since the start of the Initiative, NIWRC has filed eight amicus (“friend of the court”) briefs in the U.S. Supreme Court and federal appeals courts in support of tribal sovereignty and tribal jurisdiction over domestic violence, sexual assault, homicide, trafficking, and other violent crimes against Native women and children on tribal lands.

NIWRC’s briefs have been discussed during oral arguments, cited in opinions, and ultimately, have educated judges in federal courts on the critical connections between sovereignty and safety for Native women. In a country where most law students (and therefore the majority of federal court judges) receive no education on tribal sovereignty, federal Indian law, or the role that treaties with Tribal Nations played in creating the United States, the work the NIWRC has done pursuant to the VAWA Sovereignty Initiative has been critical and essential.

Dollar General Corp., et. al. v. Mississippi Band of Choctaw Indians (2016)

As its first undertaking of the VAWA Sovereignty Initiative, NIWRC filed an amicus brief in Dollar General Corporation, et. al., v. Mississippi Band of Choctaw Indians in the U.S. Supreme Court in 2015. The Supreme Court was asked to consider the Fifth Circuit’s decision that the Mississippi Band of Choctaw Indians could exercise its inherent civil jurisdiction over tort claims filed in tribal court against Dollar General (a non-Indian corporation) whose employee supervisor allegedly sexually assaulted a young Choctaw citizen working in a Dollar General leased from the tribe on tribal trust lands. NIWRC’s brief, co-signed by 104 tribal organizations, called on the Court to uphold the authority of Tribal Nations, including the Mississippi Band of Choctaw Indians, to exercise civil jurisdiction over non- Indians who sexually assault and abuse Native women and children on tribal lands. In December 2015, on the day of oral arguments in the case, hundreds of Native citizens and allies stood outside the Supreme Court for the Quilt Walk for Justice in support of the Mississippi Band of Choctaw Indians and tribal sovereignty.

Six months later, the Supreme Court released a deadlocked 4-4 opinion in the case on June 23, 2016, meaning no majority of the Court could agree. Therefore, the Fifth Circuit decision upholding tribal jurisdiction over the non-Indian corporation stood. This was an incredible victory for Indian Country. A private corporation had asked the Supreme Court to apply Oliphant to civil jurisdiction and declare tribal jurisdiction—both civil and criminal—unconstitutional. Although it was by a narrow margin, Dollar General lost. And the NIWRC’s brief provided the Justices with an important perspective on the consequences their decision would have on the lives and welfare of Native women and children.

Voisine v. United States (2016)

On January 25, 2016, the NIWRC filed an amicus brief in support of the U.S. Department of Justice asking the Supreme Court to affirm the First Circuit Court of Appeals’ decision in Voisine v. United States that the federal firearms prohibition found in 18 U.S.C. § 922(g) (9) prohibits an individual convicted of a misdemeanor crime of domestic violence from possessing a firearm, irrespective of whether the underlying crime was committed with the mental state of knowing, intentional, or reckless intent. NIWRC’s brief urged the Court to uphold the application of the statute to individuals who are convicted of domestic violence against Native women and noted that many Tribal Nations define domestic violence as a crime which may be committed with “reckless intent,” just as many state laws do. Five Tribal Nations who have implemented the special domestic violence criminal jurisdiction restoration provisions of VAWA 2013 joined the brief in support of the inherent tribal authority to prosecute non-Indians who commit domestic violence against tribal citizens on tribal lands.

In June 2016, the Court affirmed that the federal firearms prohibition extends to underlying domestic violence misdemeanors with reckless intent, and as a result, Tribal Nations with criminal codes that include reckless intent within their crimes of domestic violence do not have to rewrite their codes to ensure that 18 U.S.C. § 922(g)(9) will still apply to their tribal court convictions. “This decision is important for Indian country,” said Woodrow Star, Board of Trustees member and Chair of the CTUIR Law and Order Committee, a signatory of the NIWRC amicus brief. “It better ensures that DV perpetrators in Indian country who have been convicted of tribal crimes are covered by federal firearms restrictions.”

“The Tulalip Tribes stands with Indian Country to celebrate this decision,” said Tulalip Tribes Chairman Mel Sheldon Jr., a signatory to the NIWRC amicus brief. “As one of three initial pilot tribes to implement Special Domestic Violence Criminal Jurisdiction (SDVCJ), a provision of VAWA 2013, we are well aware of the challenges of holding all who would perpetrate against our population accountable for their crimes. Today’s decision continues the quest for parity and justice for which so many in our communities have been fighting.”

United States v. Bryant (2016)

NIWRC filed its third amicus brief as part of the VAWA Sovereignty Initiative in the Supreme Court on February 1, 2016, in support of the United States’ position in U.S. v. Bryant. In Bryant, the Court granted cert to review a Ninth Circuit decision which held tribal court domestic violence criminal convictions could be used in federal court prosecutions for the purposes of VAWA’s “Habitual Offender Provision” (18 U.S.C. § 117) only if the tribal court guarantees the defendant a right to counsel. The lower court concluded it was unconstitutional to use uncounseled tribal court convictions to establish an element of the offense in a subsequent federal prosecution brought by the U.S. Attorney’s Office.

The issues in Bryant went to the heart of sovereignty and safety for Native women. Section 117(a) was added in the 2005-06 reauthorization of VAWA. “The protections in the Habitual Offender Provision are critical to ensuring the safety of Native women,” explains Carmen O’Leary (Cheyenne River Sioux), NIWRC Board Member and Executive Director of the Native Women’s Society of the Great Plains. “Our women are battered and abused by their intimate partners at rates higher than any other population in the United States.” Prior to the passage of § 117(a), many Native women survivors existed in a legal loophole, where, as a result of federal law, no sovereign government had the authority to sentence a perpetrator to a term of more than one year for his repeated acts of violence against a Native woman. The NIWRC’s amicus brief argued that the absence of indigent counsel in Bryant’s preceding tribal court convictions in no way constitutionally precludes the federal government from subsequently exercising criminal jurisdiction over him for his latest, and hopefully his last, violent assaults perpetrated against Native women. The NIWRC, therefore, urged the Supreme Court to uphold the constitutionality of the application of the Habitual Offender Provision to Bryant and, accordingly, overturn the decision of the Ninth Circuit.

On June 13, 2016, the Supreme Court issued a unanimous decision reversing the Ninth Circuit decision and holding that use of misdemeanor tribal court convictions in which the defendant did not have a right to counsel did not violate the U.S. Constitution. The Court’s opinion specifically noted Bryant’s (the defendant’s) record of over 100 tribal court domestic violence convictions and the difficulties Native women suffer due to limitations in the current legal system. In fact, Justice Ginsburg’s majority opinion incorporated, in some places, language and citations from the NIWRC’s amicus brief.

Gamble v. United States (2018)

In November 2018, the NIWRC was joined by the National Congress of American Indians (NCAI) in the filing of an amicus brief to the Supreme Court in Gamble v. United States. Gamble had been convicted by both the State of Alabama and the United States for violating similar firearm laws. He challenged his federal conviction in the Supreme Court, arguing his federal conviction (which followed a state conviction) violated the Double Jeopardy Clause of the U.S. Constitution. The case offered a chance for the Court to review its “separate sovereign” doctrine which applies to duplicate state and federal prosecutions, as well as duplicate tribal and state/ federal prosecutions, which, up until Gamble, had always meant that duplicative violations for the same crime do not violate the Double Jeopardy clause. The NIWRC and NCAI authored a brief in support of the United States’ position that the “separate sovereign” doctrine should not be overturned in its entirety, specifically because the ability of Tribal Nations to prosecute as a separate sovereign is vital due to sentencing limitations placed on tribal courts and existing deficiencies in the federal system for Indian Country crimes. Without the doctrine, Tribes would be forced to decide whether to pursue tribal court prosecution before a U.S. Attorney has had sufficient time to perform the necessary investigation to determine whether they will prosecute in federal court.

In a June 2019 opinion, the Supreme Court affirmed the lower court’s ruling that there was not sufficient cause for overturning the dual sovereignty doctrine. During oral argument, Justice Breyer specifically mentioned the NIWRC’s amicus brief, telling Gamble’s attorney to “think of the brief here with the Indian tribes. We’re saying that we need this kind of thing for abuse of women.” The NIWRC brief was also mentioned by the United States during its argument and garnered questions from Justice Ginsburg. It is clear that the NIWRC’s amicus brief played a significant role in the maintenance of the dual sovereignty doctrine in Gamble.

Sharp v. Murphy (2019) and McGirt v. Oklahoma (2020)

In 2017, the Tenth Circuit Court of Appeals determined in Murphy v. Royal that the State of Oklahoma did not have authority to prosecute a Creek Nation citizen, Patrick Murphy, because Congress had never expressly disestablished the Creek Nation Reservation in Oklahoma, and Mr. Murphy’s crimes had been committed within the borders of that Reservation. The State appealed, and in 2019 the NIWRC filed an amicus brief in Sharp v. Murphy in favor of the Creek Nation’s position that the reservation boundaries remained intact, and the Court could not judicially disestablish the reservation. The Court declined to issue a decision in Murphy during its 2019 term, and instead granted review to another case, McGirt v. Oklahoma, with the same legal question. In McGirt and Murphy, the State of Oklahoma argued that the Supreme Court should overlook decades of its precedent to judicially declare the Creek Nation Reservation disestablished despite the lack of any law from Congress doing so. The NIWRC argued that if the Court were to declare the Creek Nation’s Reservation “disestablished,” the Creek Nation’s ability to prosecute a non-Indian committing domestic violence within its territorial jurisdiction would be severely truncated under VAWA 2013 because VAWA is tethered to the definition of “Indian country” under 18 U.S.C. § 1151.

On July 9, 2020, the NIWRC joined the Muscogee (Creek) Nation in celebrating the Court’s 5-4 McGirt decision confirming that the reservation boundaries of the Creek Nation were never disestablished by Congress. Once again, the NIWRC’s amicus brief was mentioned during oral argument, and there is no doubt that NIWRC’s VAWA Sovereignty Initiative once again contributed to a major victory for Indian Country.

Standing Rock Sioux Tribe, et. al., v. U.S. Army Corps of Engineers (2017, 2020)

The NIWRC filed an amicus brief in the U.S. District Court for the District of D.C. in February of 2017 in support of the Standing Rock Sioux Tribe’s motion for summary judgment challenging the Army Corps of Engineers’decision to proceed with permitting the Dakota Access Pipeline without preparing a full environmental impact statement. The NIWRC’s brief, joined by 118 additional organizations and Tribal Nations, emphasized the risks that the Corps did not adequately consider given the levels of violence against Native women and children in the Bakken Region due to the proven human effects of the influx of migrant workers and the setup of man camps near tribal lands. In March of 2020, Judge Boasberg, the District of D.C. judge assigned to the case, ordered the case be remanded back to the Corps to prepare a full environmental impact statement to address the health, safety, and treaty concerns of the Dakota Access Pipeline. The opinion specifically noted that the “pipeline’s effects on the quality of the human environment are likely to be highly controversial.”

The Corps and Dakota Access, LLC, appealed to the D.C. Circuit Court of Appeals and in September of 2020, the NIWRC filed an amicus brief in support of the Tribal Nations in the D.C. Circuit, again emphasizing that the MMIW crisis in the Bakken region demands the Corps conduct a full environmental impact statement on the pipeline. On January 26, 2021, the D.C. Circuit Court of Appeals (Judges Tatel, Millett, and Sentelle) issued a per curiam order stating that Judge Boasberg’s order vacating the Dakota Access Pipeline’s easement and directing the Army Corps of Engineers to prepare an Environmental Impact Statement is affirmed, except that the portion of the court’s order directing that the pipeline be shut down and emptied of oil be reversed, for the reasons in the accompanying opinion. The case is once again back before the District Court.

United States v. Cooley (2021)

On January 15, 2021, the NIWRC filed an amicus brief, joined by 11 Tribal Nations that have implemented VAWA 2013’s restored tribal criminal jurisdiction and 44 non-profit organizations, in United States v. Cooley. The case, which is currently pending before the Court, concerns whether the U.S. District Court for the District of Montana erred in suppressing evidence on the theory that a Crow Tribal Police Officer lacked authority to temporarily detain and search James Cooley, a non- Indian, on a public right-of-way within the Crow Reservation based on a potential violation of state or federal law. The Ninth Circuit Court of Appeals, in a controversial decision which threatens to undermine principles of tribal sovereignty, concluded that tribal law enforcement can only detain a non-Indian suspected of committing a crime within the borders of a Reservation if it is “apparent” or “obvious” that the non-Indian is committing a crime. The NIWRC’s brief argued that eliminating the authority of tribal law enforcement to conduct a reasonable suspicion “Terry” stop on a non- Indian traveling through reservation borders will greatly impede the ability of tribal law enforcement to fully enforce VAWA 2013 provisions, and will only further erode protections for Native women and children.

The Supreme Court heard oral arguments in the case on March 23, 2021 and an opinion is expected by the end of June 2021.

The work of the NIWRC’s VAWA Sovereignty Initiative continues. Thank you to all who have supported this critical Initiative. As we fight for the further restoration of tribal jurisdiction and sovereignty in the 2021 reauthorization of VAWA, we know there is more work to do. There will be more challenges to the inherent right of our Tribal Nations to protect their women and children, but now, thanks to the NIWRC’s VAWA Sovereignty Initiative, we are prepared to face them.


"As we fight for the further restoration of tribal jurisdiction and sovereignty in the 2021 reauthorization of VAWA, we know there is more work to do."

–Mary Kathryn Nagle, Cherokee Nation, Pipestem & Nagle Law, Counsel to NIWRC