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Supreme Court VAWA Sovereignty Initiative Update

McGirt. v. Oklahoma (18-9526)
On May 11, 2020, the U.S. Supreme Court heard oral argument in McGirt v. Oklahoma (18-9526), a case in which Oklahoma has asked the Supreme Court to judicially disestablish the Muscogee (Creek) Nation’s Reservation.

“The NIWRC, along with scores of other tribal and non-Native organizations working to end domestic violence and sexual assault filed an amicus brief before the Supreme Court in McGirt, 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 for NIWRC.

NIWRC was joined by the American Civil Liberties Union (ACLU) as well as five Tribal Nations that have invested significant resources, time, and effort to ensure that their prosecutions of domestic violence crimes serve to increase the safety of their tribal communities, while simultaneously working to ensure that the rights of the domestic violence defendants in tribal criminal proceedings are respected and enforced.

In McGirt, the State of Oklahoma is asking the Supreme Court to judicially disestablish the Creek Nation’s Reservation, despite the fact that Congress has never done so, and the last hundred or so years of Supreme Court precedent makes very clear that until or unless Congress disestablishes a reservation created by treaty, that reservation continues to exist.

If the Supreme Court were to judicially disestablish the Creek Nation’s Reservation, the majority of the lands within the Nation’s 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 jurisdiction that Congress recently, and purposefully, restored.

In reauthorizing the Violence Against Women Act in 2013 (“VAWA”), 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 that Nation from fully implementing VAWA’s restored tribal jurisdiction. For instance, if this Court were to declare the Creek Nation’s Reservation “disestablished,” the Creek 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.

During oral argument, Justices Gorsuch and Sotomayor asked several questions indicating they are very hesitant to depart from the Supreme Court’s clear precedent and judicially disestablish a reservation Congress has never disestablished. Other Justices, however, including Justices Thomas, Kavanaugh, Alito, and Chief Justice Roberts asked several questions about the allotment of the Creek Nation Reservation, the fact that some citizens of the Creek Nation fought on the side of the Confederacy during the Civil War, and many other issues that, until now, have not been relevant to the Supreme Court’s disestablishment jurisprudence.

The 2019 Term is set to expire at the end of June, and thus, it is anticipated that the Court will issue its decision in McGirt before then. However, as the events of last year demonstrate, there is no guarantee that the Supreme Court will issue a decision by then.

 

Standing Rock Sioux Tribe v. United States Army Corps of Engineers (D.D.C., No. 16-cv-1534-JEB)
On March 25, Judge James E. Boasberg of the United States District Court, District of Colombia in Standing Rock Sioux Tribe v. United States Army Corps of Engineers (D.D.C.), remanded the case back to the Corps to prepare a full environmental impact statement (EIS) to address the health, safety, and treaty concerns of the Dakota Access Pipeline. The federal court found the Corps violated the National Environmental Policy Act when it approved federal permits for the pipeline in 2016, a decision affirming concerns raised by Tribal Nations and Native organizations for the Corps’ decision to allow Dakota Access LLC to build a pipeline less than a mile from the Standing Rock Sioux Reservation in North Dakota.

In February 2017, NIWRC filed an amicus brief in the litigation in support of the Standing Rock Sioux Tribe’s motion for summary judgment challenging the Corps’ decision to proceed with permitting the pipeline without preparing a full environmental impact statement. NIWRC’s amicus brief was joined by 118 additional organizations and Tribal Nations that share NIWRC’s commitment to ending violence against Native women.

Prior to filing its amicus brief, NIWRC formally submitted comments to the Corps in January 2017, eight days after the Corps initiated the EIS comment period and thirteen days before the Corps terminated the EIS process on February 8, 2017. In its submitted comments, NIWRC provided the Army Corps with its views on:
the unconsidered risks that would result from the Army Corps granting the easement without adequately considering the public interest implications of the proposed pipeline. Specifically, the Army Corps must consider the increased levels of violence Native women and children in the Bakken region will face if the pipeline is permitted to cross the Missouri River at Lake Oahe and commence operations.

NIWRC plans to take an active role in engaging with the Army Corps of Engineers during the EIS preparation process, including formally submitting updated comments on the public health, safety, and welfare concerns the Dakota Access Pipeline project presents for Native women in the region.

 

United States v. Cline,  No. 19-cr-23
On April 14, the United States District Court, District of Washington at Seattle, denied the Defendant’s motion to dismiss. Lee James Cline had been indicted on one count of domestic assault by a habitual offender in violation 18 U.S.C. § 117(a). In this case, the indictment against Defendant alleges that he has “been convicted of at least two assaults against a spouse or intimate partner” and that Defendant “did assault Jane Doe, a person with whom he shares a child in common and who is or was similarly situated to a spouse.” Although the Defendant challenged the sufficiency of the underlying convictions, asserting that they did not trigger the Habitual Offender prohibition under § 117(a), the District Court thoroughly analyzed the Nooksack Domestic Violence Code and included that Defendant’s prior convictions for violations of the Code in Nooksack Tribal Court qualified as predicate offenses under § 117(a).

The District Court denied the Defendant’s motion to dismiss the charges against him, and now he is awaiting trial.

 

Author: 
Mary Kathryn Nagle, (Cherokee Nation), Counsel to NIWRC