This 1800s Law Helps Shape Criminal Justice in Indian Country: And that’s a problem—especially for Native American women, especially in rape cases

New York Times

July 19, 2020

By David Heska Wanbli Weiden

There was something of a scramble, after the Supreme Court ruled in McGirt v. Oklahoma that much of Eastern Oklahoma was now officially Indian Country.

Under the doctrine of tribal sovereignty, the state of Oklahoma could no longer prosecute serious felony cases involving Native Americans on reservation land. But there was little clarity about other critical jurisdictional questions.

Shortly after the McGirt decision was handed down, the Oklahoma attorney general and five Native nations in Oklahoma agreed that the state would continue to prosecute crimes committed by non-Native Americans on reservation lands. Tribal authorities would possess joint jurisdiction over Native offenders for most crimes.

For the most serious offenses, the federal authorities would prevail, prosecuting Native citizens for serious felonies under the federal Major Crimes Act. But relying on this law, enacted in 1885, could create its own problems, especially for Native American women. And especially in rape cases.

The Major Crimes Act gives the federal government exclusive criminal jurisdiction — investigation, trial and corrections — for major felony crimes that occur on Native American reservations. Congress passed the law after the murder of a well-known Native leader from my own nation, the Rosebud Sioux Tribe. In that case, Chief Spotted Tail was assassinated by one of his own people, Crow Dog, for reasons that are not clear.

Shortly after the murder, tribal elders met and decided upon the restitution — money, goods and horses — that Crow Dog’s family would pay to Spotted Tail’s people. Traditional Lakota law relied heavily upon the principle of restorative justice, and the arrangement satisfied both families. But the Native principle of justice and reparations offended many American lawmakers, who held radically different views on punishment and retribution, and viewed the penalty as being too lenient. So Crow Dog was arrested by state police, charged with murder in federal court and sentenced to death by hanging.

But Crow Dog’s lawyer petitioned the United States Supreme Court, which ruled that the federal government had no right to intervene in an Indian nation’s criminal affairs absent an act of Congress.

Crow Dog was freed. But Congress passed the Major Crimes Act, thus ensuring American Indians would never again have the authority to decide the outcome of any serious felony case.

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