Mary Katherine Nagle
Today, Native women face the highest rates of domestic violence, sexual assault and murder in the United States—rates that are fueled, in large part, by the fact that in 1978, the Supreme Court eliminated tribal jurisdiction and sovereignty over non-Indian-perpetrated crimes on tribal lands.
As the Department of Justice has reported, the majority of violent crimes committed against Natives are committed by non-Natives. However, because of the Supreme Court’s decision in Oliphant, tribal nations are denied the jurisdiction necessary to prosecute the majority of violent crimes committed against their citizens.
As Native women, we do not stand up and advocate against the diminishment of tribal sovereignty because it’s a hobby. We stand up for sovereignty because our lives depend on it.
On Tuesday, July 28, in an interview with Scott Mitchell on News 9, News on 6, AG Hunter noted that, because we are in an election year, Congress may not act fast to pass legislation codifying his “Agreement-in-Principle,” a document he released on July 16 purportedly on behalf of Cherokee Nation, Muscogee (Creek) Nation, Choctaw Nation, Seminole Nation, and the Chickasaw Nation, asking Congress to, in large part, reverse the Supreme Court’s historic decision in McGirt.
The AIP, as it’s now referred to, drew instant criticism when it was released. The very next day, the Seminole Nation and the Muscogee (Creek) Nation announced they had not approved or agreed to the specific principles outlined in the Agreement-in-Principle.
Yesterday, when asked why Congress might delay taking action on his Agreement-in-Principle, Attorney General Hunter explained that the setback has been, in part, due to the fact that:
“There’s some uh, what I would call sovereignty hobbyists, who have issued and offered opinions about all of this…”
Who exactly is Attorney General Hunter calling a “sovereignty hobbyist?” Admittedly, he did not make that entirely clear. Perhaps he is referring to the National Congress of American Indians who, on July 23, 2020, issued this statement in response to the Agreement-in-Principle:
“We will strongly oppose any and all legislation that diminishes the sovereignty, jurisdiction, or treaty rights of tribal nations that are affirmed in the United States Constitution, statutes, and judicial opinions, including in the Supreme Court’s historic McGirt decision.”
I hope he is not referring to elected tribal leaders, as calling the leaders of Tribal Nations “sovereignty hobbyists” would be quite offensive. However, I’ve thought about this quite a bit, and I’m just not sure how to interpret his words in a fashion where they would not be offensive.
And, if he were to be honest, I think he’d admit that his statement was aimed at Native women advocates working to end violence against Native women since he mentioned “sovereignty hobbyists” and the “Violence Against Women Act” back to back, practically within the same breath. Just seconds after he referred to those who oppose the AIP as “sovereignty hobbyists,” Attorney General Hunter stated:
“There’s even criticism that somehow we’ve eroded or deluded the Violence Against Women Act. Nothing could be further from the truth.”
Here’s the truth.
Native women working to preserve the protections enshrined in the Violence Against Native Women Act have raised serious concerns with the Agreement-in-Principle. For instance, the National Indigenous Women’s Resource Center on July 20, published a statement including quotes from Native women advocates nationwide. One of these quotes came from Dawn Stover, the Executive Director of the Alliance of Tribal Coalitions To End Violence.
As Dawn explained, the AIP seeks to codify the Supreme Court’s decision in Montana v. United States and limit the civil jurisdiction of the Five Tribes to circumstances where non-Indians express “consent” to tribal jurisdiction, a standard that would be dangerous for Native women because:
"Non-Native domestic violence perpetrators routinely rely on Montana to argue that tribal courts do not have civil jurisdiction to issue protective orders against non-Indian men who beat Native women. If we are going to ask Congress to do anything with the court’s decision in Montana, we should ask them to overturn it. Not codify it."
Dawn isn’t the only advocate who has had this experience. As Native women domestic violence advocates, we have all watched non-Indian abusers escape the enforcement of tribal court protective orders in state courts—even though the Violence Against Women Act (VAWA) section 905 makes clear that state courts must afford full faith and credit to protective orders issued by tribal courts.
Asking Congress to codify the harmful Montana standard will do nothing to clarify the confusion many judges on state courts currently have.
To be sure, asking Congress to codify this standard will only provide non-Indian abusers more ammunition for their erroneous argument that tribal court protective orders cannot be enforced absent the abuser’s consent.
As to the Violence Against Women Act, it speaks for itself. No one can argue that it means anything other than what it states. But the Agreement-in-Principle asks Congress to pass new legislation stating that the Five Tribes may exercise criminal jurisdiction over “domestic abusers covered by the Violence Against Women Reauthorization Act of 2013.”
This is unnecessary and problematic.
Asking Congress to pass new legislation, now, stating that tribes can exercise jurisdiction that has already been restored in VAWA will, at best, introduce confusion, and at worst, will be used by our opponents to single out tribes in Oklahoma for separate treatment if and when VAWA is once again re-authorized and additional categories of tribal jurisdiction are restored.
Truly, there is no need for any legislation to address the criminal jurisdiction of tribal nations—unless that legislation serves to fix the Supreme Court’s decision in Oliphant or restore additional categories of criminal jurisdiction that Oliphant erased. Because the Agreement-in-Principle does not seek to restore any additional categories of tribal criminal jurisdiction, the Agreement-in-Principle, in effect, asks Congress to codify Oliphant.
According to the Attorney General, the criticism that the Agreement-in-Principle could undermine VAWA’s protections for Native women is “theoretical, not dealing with realities...”
As a Native woman working to protect Native women, I know the reality to be this:
Congress has never codified the Supreme Court’s harmful decisions in Montana and Oliphant. Asking Congress to do so now, even if the Agreement-in-Principle states it is limited to five Tribes in Oklahoma, would implicate the sovereignty of tribal nations across the United States.
Telling Congress to codify limitations on tribal sovereignty is very dangerous and will only invite unintended consequences.
For Native women, who currently suffer the highest rates of domestic violence, sexual assault, and murder in the United States, unintended consequences are not mere annoyances. They are life and death.
This violence isn’t theoretical. It is a reality.
I am a citizen of the Cherokee Nation, and I am an attorney who represents Native women and children survivors of domestic violence and sexual assault in federal, tribal, and state courts. I also represent families whose daughters have been murdered or have gone missing. I have witnessed firsthand how limitations imposed on tribal sovereignty in Montana and Oliphant leave Native victims without justice.
According to Attorney General Hunter, however, these are the concerns of “sovereignty hobbyists.”
As a Cherokee woman, protecting sovereignty is my duty and responsibility, not just to myself and my fellow tribal citizens—but to our children, our grandchildren, and the generations who will come after us.
If those who came before us viewed sovereignty as a “hobby,” we would not have survived Andrew Jackson. We would not have survived Allotment, boarding schools, or any of the other attacks on sovereignty that threatened to eliminate us altogether.
Protecting sovereignty is not a hobby. For Native women and Native Nations, it is a matter of survival.
Mary Kathryn Nagle is a playwright and a partner at Pipestem Law, a firm specializing in tribal sovereignty of Native nations and peoples. She was born in Oklahoma City, OK, and is an enrolled citizen of the Cherokee Nation of Oklahoma. She served as the first executive director of the Yale Indigenous Performing Arts Program. She is on Twitter at https://twitter.com/MKNAGLE.