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Two Is Not Always Better than One: Concurrent Criminal Jurisdiction in Indian Country and the Withering of Tribal Sovereignty Following McGirt and Castro-Huerta

By Marina Berardino. Full Text.

There is a violence epidemic plaguing the Native American population across the country. Native women are disproportionality victimized by both sexual and non-sexual violence—over eighty-five percent of Native women are expected to be victims of intimate partner violence, stalking, or sexual violence at some point in their life. Most often, the perpetrators are non-Native, which creates jurisdictional issues. In most states, the only sovereign with the authority to prosecute non-Indian-on-Indian crimes is the federal government. Yet, federal law enforcement often does not investigate these crimes, and federal prosecutors ultimately decline to prosecute many sexual assault and domestic violence crimes in Indian Country. The 2013 and 2022 reauthorizations of the Violence Against Women Act (VAWA) allow Tribal governments to exercise “special Tribal criminal jurisdiction” if they satisfy a laundry list of requirements. But, in practice, many Tribes are unable to satisfy the requirements, leaving the federal government as the sole prosecutorial authority.

However, in 2020, the Supreme Court set the stage for criminal jurisdiction in Indian Country to take a major shift. After deciding in McGirt v. Oklahoma that parts of northeastern Oklahoma are actually the Muscogee (Creek) Reservation and thus part of Indian Country, defendants convicted by state courts seized the opportunity to challenge the validity of their convictions. Victor Manuel Castro-Huerta, a non-Indian convicted by an Oklahoma state court for neglecting his five-year-old Indian stepdaughter, challenged his conviction on the ground that the crime was committed in Indian Country. Thus, the federal government would possess the sole prosecutorial power. However, the Supreme Court remarkably held in Oklahoma v. Castro-Huerta that the federal government and states now have concurrent jurisdiction to prosecute crimes committed by non-Indians in Indian Country.

The Castro-Huerta decision, viewed in conjunction with the 2022 reauthorization of VAWA and additional measures granting states criminal jurisdiction, further complicates criminal jurisdiction in Indian Country over non-Indian abusers. Now, there are three prosecutorial authorities: the state, federal, and Tribal governments. But past experiences indicate that expanding the number of agencies with prosecutorial power in Indian Country is not always better. Generally, the consensus from tribal leaders is that Castro-Huerta is an unwarranted attack on tribal sovereignty that will inhibit the effective prosecution of crime in Indian Country.

This Note explores potential solutions to address the ongoing injustice following McGirt and Castro-Huerta. Congress needs to restore Tribal governments’ authority to promote public safety and provide justice for victims in Indian Country. A simple amendment to the Indian Civil Rights Act can reaffirm that Tribes have criminal jurisdiction to punish non-Indian offenders by recognizing that Tribes can exercise jurisdiction over all persons located on or within Indian Country. Another amendment can remove all Tribal sentencing limitations and empower Tribes to adequately protect victims. These amendments will be most effective when Congress also increases appropriations to better fund Tribal criminal justice systems and their fight against the domestic and sexual violence crisis.

While the aforementioned solutions would be politically challenging to achieve, there is also an opportunity to improve relationships under the current post-Castro-Huerta scheme. Tribes should be the primary gatherers of evidence to address the cultural barriers between Native victims and non-Tribal law enforcement personnel. Additionally, Tribes should collaborate openly with federal and state law enforcement agencies. This Note emphasizes that any path forward needs to center Tribal voices and focus on restoring Tribal sovereignty to effectively address the violence epidemic faced by Native women in Indian Country.