Lawyer Calls SCOTUS Decision Backing Tribal Police Authority A ‘Victory’ : NPR

SARAH MCCAMMON, HOST:

The Supreme Court has just completed its final term, and among the many cases decided, we wanted to focus on one that concerns the rights of the Indian tribes. In the United States, against Cooley, the court ruled that tribal police officers have the right to temporarily arrest and search non-Americans. The decision reaffirms the rights of the tribes to prosecute criminal charges against non-natives. And the ruling could have a huge impact on the prosecution and prosecution of violent crimes on reservations – especially crimes against indigenous women who face high rates of domestic violence and sexual abuse. Here Mary Kathryn Nagle talks about the decision and what it could mean for the prosecution of these crimes in tribal areas. She is a partner at Pipestem & Nagle, a law firm specializing in tribal sovereignty of indigenous nations and peoples, and she has written extensively on these topics. Welcome.

MARY KATHRYN NAGLE: Thank you for having me.

MCCAMMON: As we said earlier, the court ruled that tribal officials have the right to arrest and search non-natives. As briefly as possible, what is your reaction to this decision?

NAGLE: It was a huge victory for the Indian country, and not just because the status quo was maintained and the person, you know, Mr. Cooley himself, as well as the amici (ph) who supported his position, the court asked them to to eliminate that particular tribal authority – they lost, right? And we won. And we have preserved the inherent right of our indigenous law enforcement agencies to detain anyone on our reservation when there is reasonable suspicion that a crime is being committed. And the fact that it was unanimous, in my opinion, says a lot about the beliefs of this court and the inherent right of tribal peoples as sovereign governments.

MCCAMMON: You mentioned maintaining the status quo. What, if anything, does this judgment change and how significant is it?

NAGLE: Technically it doesn’t change anything. It’s just – it maintains the status quo. Tribes had criminal jurisdiction over anyone who entered their land before the United States existed, as long as we existed. But everything changed in 1978 when the Supreme Court stripped that jurisdiction. But the Supreme Court didn’t deprive a tribe of the inherent right to arrest a person when your law enforcement agencies see that person doing something suspicious, did it? You know, people talk about murdered and missing indigenous women and girls and our two-minded relatives. And the reason our people are more likely to be murdered and attacked than any other population in the United States is directly related to the fact that the 1978 Supreme Court recognized the inherent right of tribal nations to prosecute these crimes if they did are committed away by non-Indians.

And we actually know from statistics that the Justice Department has stated for the past two decades that the majority of the violent crimes perpetrated against indigenous people are committed by non-Indians. So that doesn’t mean our native relatives don’t commit these crimes. We have indigenous people who are committing these crimes. But most of these crimes are committed by non-Indians. That was why all Indian Country eyes were on this case, because so much was at stake. When we have to rely solely on state or federal authorities to arrest people who, if suspected of having committed a crime, will be worse off tribal and reservation crimes than they are today. And so we are just very grateful that it was not taken away.

MCCAMMON: I want to talk more about it. In cases where a non-Native American suspect is involved in domestic violence or sexual assault – because, as we said, Native American women experience these crimes – they are extremely likely to be victims of these crimes compared to non-Americans. indigenous women. If that happens, how does the law work now?

NAGLE: That’s a great question because, as I mentioned earlier, in 1978 the Supreme Court lifted tribal jurisdiction over non-Indians. This has had a devastating impact on the rate of non-Indian domestic violence, sexual assault and homicide crimes against local women and girls. In 2013, Congress approved the Violence Against Women Act and in that 2013 VAWA Act restored tribal jurisdiction over non-Indian domestic violence crimes, dating violence, and criminal violation of tribal court protection orders. It was a fantastic win for Indian Country, and many of our tribes have restored tribal criminal justice. But I’m telling you it’s not enough. It does not cover sexual assault by strangers. Homicides are not covered. Child abuse is not covered. At the moment we are fighting to have another VAWA re-approved in Congress. And HR 1620 was a bipartisan VAWA that went through the house. And if that were passed through the Senate, that piece of tribal criminal justice would be restored.

MCCAMMON: Mary Kathryn, we are speaking at a time when, as you know, police across the country are under scrutiny. In some cities there are calls to abolish the police. We do not have the time or space to discuss the merits of this argument here, but I wonder how you would feel about such a decision, given these larger calls to rethink policing.

NAGLE: The same systemic racism that created a climate in the United States where police violence against color communities was tolerated for far too long also created a tolerance for our state and law enforcement agencies to turn away and just not care whether local women and girls are murdered. Therefore, our native women and girls are more likely to be murdered than anyone else in the United States. Many of these murders occur outside of tribal areas, and they don’t care, where the jurisdiction lies solely with state or federal law enforcement agencies.

These aren’t cases where we’re just not sure who murdered her or if it was murder. We’re talking straightforward homicides where everyone in the local community – we usually speak in rural communities, outside of reservations – knows who murdered that local woman or girl, but local state law enforcement agencies are often biased or racist against these local people Women and girls and does not care to prosecute them. So we are also faced with systemic racism in the form that non-Indian men basically allow our native women and girls to be murdered with impunity and without consequence. Because in these communities, especially in border towns near reservations, everyone understands that you can murder a local woman and get away with it. The police will not pursue this crime.

So we have a lot of reform work to do. And the FBI plays a key role in that. I can’t tell you how many families I personally represent where I’ve written lawyer letters to the FBI asking them to investigate the murders of local women and girls, and they won’t even take the time to write back or answer the phone and spend 30 minutes with the family to understand what evidence they have. So we currently have a real prejudice against our native women and girls in law enforcement at both the federal and federal levels, and we must work to change that as we work hand in hand with our allies in the United States to determine the nature and extent of that Changing the way in which the law is applied Enforcement causes violence and kills people of color in the United States, because that too must stop.

MCCAMMON: I spoke to Mary Kathryn Nagle, a partner at Pipestem & Nagle, a law firm that specializes in tribal sovereignty. Ms. Nagle, thank you very much for talking to us.

NAGLE: Thank you for having me.

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