Lawyer Calls SCOTUS Decision Backing Tribal Police Authority A 'Victory'
SARAH MCCAMMON, HOST:
The Supreme Court just wrapped up its most recent term, and among the many cases decided, we wanted to focus on one that involves the rights of Native American tribes. In the United States v. Cooley, the court ruled that tribal police officers have the right to temporarily detain and search non-Native Americans. The decision reaffirms the rights of tribes in pursuing criminal charges against non-natives. And the ruling could have huge implications for tracking and prosecuting violent crimes on reservations - in particular, crimes against indigenous women, who face high rates of domestic violence and sexual abuse. Here to talk about the decision and what it could mean for how these crimes are prosecuted on tribal lands is Mary Kathryn Nagle. She's a partner at Pipestem & Nagle, a law firm that specializes in tribal sovereignty of native nations and people, and she's written extensively on these issues. Welcome.
MARY KATHRYN NAGLE: Thank you so much for having me.
MCCAMMON: Like we said, the court ruled that tribal officers have the right to detain and search non-natives. As briefly as you can, what is your reaction to that decision?
NAGLE: It was a huge victory for Indian country, not just because the status quo was maintained and the individual, you know, Mr. Cooley himself as well as the amici (ph) who supported his position, who were asking the court to eliminate that particular tribal authority - they lost, right? And we won. And we preserved the inherent right of our tribal law enforcement to detain anyone on our reservation when there's reasonable suspicion that a crime is being committed. And the fact that it was unanimous says a lot, I think, about this court's faith and the inherent right of tribal nations as sovereign governments.
MCCAMMON: You've talked about maintaining the status quo. What does this ruling change, if anything, and how significant is it?
NAGLE: Technically, it does not change anything. It just - it does maintain the status quo. Tribes had criminal jurisdiction over anyone who came onto their lands before the United States came into existence, as long as we've existed. But everything changed in 1978 when the Supreme Court took that jurisdiction away. But the Supreme Court did not take away the inherent right of a tribe to detain an individual when your tribal law enforcement sees that person doing something that's suspicious, right? You know, people talk about murdered and missing indigenous women and girls and our two-spirit relatives. And the reason that our people are more likely to be murdered and assaulted than any other population in the United States is directly tied to the fact that in 1978, the Supreme Court took the inherent right of tribal nations to prosecute those crimes when they're committed by non-Indians away.
And we actually know from statistics that the Department of Justice has provided in the last two decades that the majority of violent crimes committed against native people are committed by non-Indians. So it's not to say that our native relatives don't commit these crimes. We do have native people committing these crimes. But the majority of those crimes are being committed by non-Indians. That's why all eyes from Indian Country were on this case, because so much was at stake. If we have to rely exclusively on state or federal authorities to detain people who - when there's suspicion of committing a crime, crime will be worse on tribal lands and on reservations than it is today. And so we're just very thankful that that wasn't taken away.
MCCAMMON: I want to talk more about that. In cases where there's a non-Native American suspect involved in domestic violence or sexual assault in particular - since, as we've said, Native American women experience these crimes - they're victims of these crimes at extremely high rates compared to non-indigenous women. When that happens, how does the law currently function?
NAGLE: That's a great question, because as I mentioned before, in 1978, the Supreme Court took away tribal criminal jurisdiction over non-Indians. That had a devastating impact on the rates of non-Indian-perpetrated domestic violence crimes, sexual assault crimes and homicide against native women and native girls. In 2013, Congress reauthorized the Violence Against Women Act and in that VAWA 2013 bill, restored tribal criminal jurisdiction over non-Indian-perpetrated crimes of domestic violence, dating violence and criminal violation of protection orders issued by tribal courts. That was a fantastic victory for Indian Country, and many of our tribes have implemented that restore tribal criminal jurisdiction. But I will tell you, it is not enough. It doesn't cover stranger sexual assault. It doesn't cover homicide. It doesn't cover child abuse. Right now we're fighting to get another VAWA reauthorized in Congress. And H.R. 1620 was a bipartisan VAWA that went through the House. And if that were to be passed through the Senate, that piece of tribal criminal jurisdiction would be restored.
MCCAMMON: Mary Kathryn, we're speaking at a time when, as you know, there is increased scrutiny of policing nationwide. In some cities, there are calls to abolish police. We don't have the time and space to debate the merits of that argument here, but I do wonder how you think about a decision like this in light of these larger calls to reimagine policing.
NAGLE: The same systemic racism that has created a climate in the United States where police-inflicted violence against communities of color has been tolerated for far too long has also created a tolerance for our state and law enforcement to turn away and just not care whether native women and girls are murdered. That's why our native women and girls are more likely to be murdered than anyone else in the United States. A lot of those murders are happening off tribal lands, where jurisdiction is exclusively with the state or federal law enforcement, and they don't care.
These are not cases where we're just not sure who murdered them or we're just not sure if it was a homicide. We're talking about clear homicides where everyone in the local community - we're talking usually in rural communities, off-reservation lands - knows who murdered this native woman or girl, but the local state law enforcement is quite often prejudiced or racist against these native women and girls and does not care to prosecute. So we face systemic racism, too, and it's in the form of basically allowing non-Indian men to murder our native women and girls with impunity and without any consequences. Because everyone understands in these communities, especially in border towns near reservations, that you can murder a native woman and get away with it. The police will not be prosecuting that crime.
And so we have a lot of work to do to reform. And the FBI plays a key role in this. I can't tell you how many families I represent personally where I've written attorney letters to the FBI begging them to investigate the murders of native women and girls, and they won't even take the time to write back or get on the phone and spend 30 minutes with the family to understand what kind of evidence they have. So we have a real prejudice embedded in state and federal law enforcement right now against our native women and girls, and we have to work to change that as we work hand in hand with our allies across the United States to change the way in which law enforcement inflicts violence and kills people of color in the United States, because that has to stop, too.
MCCAMMON: I've been talking with Mary Kathryn Nagle, partner at Pipestem & Nagle, a law firm specializing in tribal sovereignty. Ms. Nagle, thanks so much for speaking with us.
NAGLE: Thanks so much for having me.
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