VAWA Sovereignty Initiative Update

By Ashleigh Fixico, Law Student Extern, Mvskoke (Creek) Nation and Mary Kathryn Nagle, Counsel, NIWRC, Cherokee Nation

Through its VAWA Sovereignty Initiative (“VSI”), the NIWRC continuously monitors federal court litigation for cases and issues that could impact tribal sovereignty and the ability of Tribal Nations to protect their women and children. If and when a case has the potential to undermine the ability of Tribal Nations to protect their women and children, the NIWRC files an amicus brief to educate the Court. Since its creation in 2015, the VSI has made a significant impact in protecting and preserving tribal sovereignty in the federal courts.

Recently, the NIWRC filed an amicus brief in Oklahoma v. Castro-Huerta, and the Supreme Court issued its decision on June 29. The NIWRC also filed an amicus brief in L.B. v. United States before the Montana Supreme Court, and the Montana Supreme Court issued its decision on August 16, 2022. On August 19, the NIWRC filed an amicus brief in the Supreme Court in Brackeen v. Haaland, and the case has been scheduled for oral argument on November 9, 2022.

An update on each of these cases is provided below.

Oklahoma v. Castro-Huerta (June 2022)

On June 29, 2022, the United States Supreme Court decided Oklahoma v. Castro-Huerta, which held the federal government and states have concurrent jurisdiction over non-Indian crimes against Indians in Indian country. In this case, a non-Indian living in Tulsa was convicted of child neglect against his Indian stepdaughter in Oklahoma State Court.1Castro-Huerta challenged Oklahoma’s jurisdiction arguing federal jurisdiction over non-Indian crimes against Indians is exclusive under the General Crimes Act.2 His conviction was vacated by the Oklahoma Criminal Court of Appeals, and he was then subsequently indicted for the same conduct by a federal grand jury.3 Oklahoma petitioned for a writ of certiorari asking the Court to decide whether a state has authority to prosecute non-Indian crimes in Indian country and to overturn McGirt v. Oklahoma.4 The Supreme Court declined Oklahoma’s invitation to consider overturning McGirt and only granted cert to answer the question of whether Congress intended for the General Crimes Act to prohibit the exercise of state criminal jurisdiction over crimes committed by non-Indians against Indian victims on tribal lands.

The NIWRC submitted an amicus brief, joined by thirty-seven non-profit organizations and Tribal Nations, arguing the Court should not interfere with Congress’s exclusive power over Indian affairs, and furthermore, that States should not be granted jurisdiction over tribal lands absent tribal consent.

The NIWRC argued Congress’s exclusive authority over Indian affairs is necessary to protect Tribal Nations from States who have historically threatened tribal self-determination and self-governance. Specifically, the trust relationship between Tribal Nations and the federal government is an instrument of federal policy that can be used to prevent unlawful state interference in tribal affairs. For example, NIWRC acknowledged Congress has historically granted state criminal jurisdiction in Indian country, but these efforts have consistently failed to increase safety for Native women and children, and in fact, have only undermined public safety in Indian country.  A lack of incentive for States to provide adequate resources to protect Native victims, less funding for Tribal Nations located within States exercising criminal jurisdiction in Indian country, and insufficient funding for state law enforcement charged with protecting tribal communities have led to high rates of victimization for Native women and children on tribal lands where States have the jurisdiction that Oklahoma requested before the Supreme Court. However, the NIWRC also highlighted Congress’s active engagement in addressing violence against Native people by restoring tribal jurisdiction.

Mary Kathryn Nagle, Cherokee Nation, Counsel to NIWRC.
Photo courtesy of Mary Kathryn Nagle.

Congress is intimately aware that Native women and children are exceptionally vulnerable. However, instead of giving States jurisdiction that Oklahoma

requested, Congress recognized that restoration of tribal jurisdiction would best serve Native victims because the sovereign closest to the victim has the most responsibility and accountability to the victim. The NIWRC highlighted how the 2013 and 2022 VAWA Reauthorizations have enhanced tribal responses to domestic violence by restoring the inherent right of Tribal Nations to arrest, prosecute, and convict non-Indian offenders. In fact, the NIWRC argued that McGirt did not create a public safety crisis. Instead, tribal communities have been subjected to a public safety crisis for decades because of the imposition of foreign criminal justice into tribal justice systems that often renders tribal law enforcement meaningless. To address Oklahoma’s fear of tribal criminal jurisdiction, the NIWRC recognized the 2013 Tribal Law and Order Act’s Indian Law and Order Commission findings that tribal courts and law enforcement are better and more effective in providing justice in Indian country when they are supported, not undermined. Thus, the sovereigns with the most interest in protecting their citizens’ safety and welfare should not be further stripped of their jurisdiction when Congress has been actively engaged in addressing the public safety crisis in Indian country.

Unfortunately, the Court held that States have concurrent criminal jurisdiction over non-Indian crimes committed against Indians in Indian country. This decision is harmful to Native victims because States lack a trusting relationship with Tribal Nations; therefore, there is no inherent responsibility to protect Native people or to promote tribal governments. Furthermore, the decision could limit and impair their federal rights as state adjudications may prohibit federal prosecution, and individual U.S. Attorney’s Offices are already stating they will defer prosecution of crimes against Indian victims to state and local district attorneys. Of course, the real problem with this is that State and local county law enforcement agencies are not required to report the fact that crimes have been committed against Indian victims with the U.S. Attorney’s Office or with the Tribal Nation, even if the State ultimately declines to prosecute the crime. Consequently, the Court’s decision in Castro-Huerta is going to increase the number of instances where crimes committed against Native victims go unprosecuted.

The real threat of the Court’s decision in Castro-Huerta is the Court’s complete disregard for Congressional intent and Congress’s exclusive authority over Indian affairs. Given the fact that the Court is now considering Brackeen v. Haaland, it is very troublesome that the Castro-Huerta Court departed from centuries of precedent and respect for Congress’ authority over Indian affairs.

The NIWRC was invited to testify before the House Indigenous People’s Subcommittee on the Court’s decision in Castro-Huerta and has taken the position that Congress should take action to correct the harmful consequences of the Court’s opinion.

L.B. v. United States (2022)

On August 16, 2022, in L.B. v. United States, the Montana Supreme Court concluded that law enforcement officers are acting within the scope of their employment when they sexually assault an individual being investigated. In this case, a Northern Cheyenne tribal member was raped by a Bureau of Indian Affairs (“BIA”) officer who responded to her call for assistance. She filed a claim under the Federal Tort Claims Act (“FTCA”) against the BIA, but the United States Attorney’s Office has argued that the BIA cannot be held liable for its officer’s rape of L.B. because the officer was acting “outside the scope” of his employment when he raped L.B. The NIWRC submitted an amicus brief asking the Montana Supreme Court to hold on-duty sexual assault falls within the scope of a law enforcement officer’s employment to prevent disparate impacts on Native women in Montana.

The NIWRC argued that immunizing the federal government from tort suits involving BIA law enforcement is incompatible with the federal government’s trust responsibility to protect and provide safety in Indian country. In fact, not being able to hold the federal government liable for its employee’s actions would discourage Native women from seeking law enforcement assistance and would exacerbate the chronic underreporting of violent crimes on tribal lands. Ensuring Native women can trust federal law enforcement officers that they will protect their safety means holding the federal government liable for the actions of its employees.

Unfortunately, despite the fact that L.B. won the legal issue before the Montana Supreme Court, the case is still proceeding before the Ninth Circuit Court of Appeals, where the U.S. Attorney’s Office for Montana continues to ƒ the L.B.’s claims under the FTCA. It is incredibly disappointing that the United States continues to refuse to accept responsibility for the egregious conduct of its law enforcement officer. The United States’ refusal to accept responsibility for this officer’s heinous act only further contributes to the distrust that exists between tribal communities and law enforcement, and this distrust only exacerbates the crisis of Missing and Murdered Indigenous Women, Girls, and Two-Spirit Relatives.

Brackeen v. Haaland (Scheduled for Nov 9, 2022)

Nothing is more critical to ensuring the safety and welfare of Indian children than preserving the sovereignty of their Tribal Nations. Like VAWA, the Indian Child Welfare Act (“ICWA”) was passed with the understanding that no sovereign is better equipped to protect the safety and welfare of Indian children than their own Nations. These procedural and jurisdictional processes are essential to ensuring that an Indian child’s “feelings of belonging and connectedness to their culture and family [, which] are critical to their development of identity and resilience,” are adequately considered when evaluating an out-of-home placement. Accordingly, the loss of ICWA would significantly jeopardize the ability of Tribal Nations to exercise jurisdiction and ensure their children are placed in safe homes.

However, the Plaintiffs in Brackeen are arguing that ICWA is unconstitutional because it violates States’ rights under the Tenth Amendment, and further, because “Indian” constitutes an unconstitutional race-based classification that violates the Equal Protection Clause of the Fourteenth Amendment as incorporated through the Fifth. These arguments are not only incredibly erroneous, but they are also incredibly dangerous.

The NIWRC, Sandy White Hawk, Stephanie Benally, and eighty-eight victim advocacy, legal services, religious, and children’s rights organizations filed an amicus brief arguing for the constitutionality of ICWA.

The NIWRC’s amicus brief points out that ICWA is not alone in its use of “Indian” as a political classification. But for the last forty years, everyone has understood these terms to be political classifications: “Indian” refers to a citizen of a Tribal Nation, and non-Indian refers to someone who is not a citizen of a Tribal Nation—regardless of that individual’s race.

Tribal Nations have signed hundreds of treaties with the United States. And as the Supreme Court and Congress have repeatedly recognized, these treaties created trust duties and responsibilities that the United States owes to Tribal Nations. One of these duties is the duty of protection, specifically the protection of Indian women and Indian children. The simple reality, however, is that Congress cannot effectuate its trust duties and responsibilities to tribal citizens if terms that refer to citizens of Tribal Nations are suddenly declared to be racial classifications subject to strict scrutiny.

Ashleigh Fixico, Mvskoke (Creek) Nation.
Photo courtesy of Ashleigh Fixico.

Furthermore, because the Court in Oliphant declared that only Congress can restore tribal criminal jurisdiction over non-Indian defendants, if “Indian” is suddenly transformed into a racial classification, then Congress will be without the authority to fix a crisis of violence that this Court has declared only Congress can fix. Ultimately, if “Indian” is suddenly declared to be a racial classification and not a political classification, then the ability of Congress to “fulfill its treaty obligations and its responsibilities to the Indian tribes” will be gravely endangered—if not eliminated. Like ICWA and VAWA, the Indian Child Protection Act, Savanna’s Act, and the Not Invisible Act all utilize “Indian” as a political classification. And like ICWA and VAWA, these laws save lives. Prohibiting Congress from effectuating its trust duties and responsibilities to Indian women and children will not only undermine public safety in Indian country, but it will also disrupt the Constitution’s separation of powers that have kept the separate branches of the republic in check.

The NIWRC’s amicus brief also highlighted the fact that Indian children are especially susceptible to abuse and trafficking when placed in state-run adoptive and foster homes. Without ICWA, it is clear that more Indian children will be placed in state-run foster homes, and it is also clear that this will result in an increase in violent crimes being committed against Native youth.

The Court has scheduled oral arguments for November 9, 2022, and the Court has re-opened the Court so that members of the public may now again attend oral arguments. Individuals interested in attending the argument should plan to arrive very early, as a long line is likely to form early in the morning, and only a certain number of individuals will be allowed in to hear the case in person.

The NIWRC will continue to monitor this case and will report after the argument and when a decision is finally reached. In the meantime, let’s keep all our children in our prayers as the ability of our Nations to protect them is under direct attack.

1 Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2491 (2022).
2 Id. at 2492.
3 Id.
4 Id. at 2492-2493.