When Officer James Saylor of the Crow Tribe Police Department came across Joshua Cooley parked along a rural stretch of highway on the tribe’s reservation in Montana in 2016, he first noticed the man appeared not to be a Native American, according to court records. Then he spotted two semi-automatic rifles in Cooley’s front seat, alongside a glass pipe and a bag of methamphetamine.
He ordered Cooley, whose eyes were bloodshot and watery, out of his truck and detained him until officers with the Bureau of Indian Affairs arrived. Saylor confiscated the contraband, and Cooley was arrested. He was later indicted by a federal grand jury on weapons and drug charges.
But Cooley soon challenged his arrest on the same grounds criminals have been using for decades: The Crow Tribe had no authority to detain someone who is not a tribal citizen, he argued.
For nearly half a century, tribal nations have lacked the authority to prosecute people who are not members of a tribe — even though, according to the Department of Justice, those non-Native Americans are responsible for most of the violent crimes in Indian Country.
It’s a festering legal problem that experts say affects all Native Americans but has been particularly catastrophic for victims of domestic and sexual violence, contributing to the epidemic of missing and murdered Indigenous women in the United States. Now, on the heels of a Supreme Court decision in Cooley’s case that affirmed tribes’ law enforcement authority, and with the reauthorization of the Violence Against Women Act currently before Congress, there is growing momentum to fix the legal loophole that non-Native American criminals have exploited for decades.
This month, the Supreme Court found that Saylor and other tribal law enforcement officers have the authority to detain someone on tribal land if the officer “finds an apparent violation of state or federal law.” But prosecuting criminals, even those who commit violent crimes against Indigenous people, is still rarely an option for tribal nations.
A proposed update to the Violence Against Women Act would change that, by giving tribal nations the legal authority to prosecute crimes including domestic violence and sexual assault, without requiring them to turn cases over to federal prosecutors. Tribal officers and prosecutors are pointing to the Supreme Court decision in Cooley’s case as proof that Congress has the authority to allow tribes to detain and prosecute suspects.
Mary Kathryn Nagle, a citizen of the Cherokee Nation and an attorney for the National Indigenous Women’s Resource Center, urged Congress to act quickly. Otherwise, she said, “non-Indian perpetrators will continue to abuse Native American children with impunity. They will continue to assault our tribal law enforcement who show up at the scene of a domestic violence crime to help a Native American woman who has called 911, without any consequences.”
Native American women are two to three times more likely than women of any other race to experience violence, stalking or sexual assault, according to the Justice Department. More than 4 out of 5 Indigenous women reported they had been the victim of violence, and 96 percent of them described their attacker as non-Native American, according to a 2016 National Institute of Justice report.
But ever since a 1978 Supreme Court decision known as “Oliphant v. Suquamish Indian Tribe,” tribes have had limited authority to detain and prosecute non-tribal citizens. That means if a non-Native American commits an act of violence against a Native person on tribal lands, it’s up to federal prosecutors to decide whether to pursue the case.
In 2010, the Government Accountability Office found that federal attorneys decline more than half of such violent cases. The most recent data from the Department of Justice, which includes both violent and nonviolent crimes, found that federal prosecutors declined about 35 percent of cases in 2019.
Advocates and tribal leaders say the Oliphant decision has significantly contributed to the staggering number of missing and murdered Indigenous women. A 2016 National Crime Information Center report documented more than 5,000 cases stretching back decades.
Tribal nations and their people see a direct link between the devaluing of Indigenous women’s lives through restrictions on criminal prosecutions in recent decades and the murder of Indigenous people through centuries of colonization. The StrongHearts Native Helpline, which provides support to those experiencing domestic violence, said in a statement that this amounts to a continued “genocide” against Indigenous women.
But the federal government has been reluctant to grant tribes new criminal jurisdiction over non-Native Americans. In multiple cases since the late 1970s, the Supreme Court has ruled repeatedly that tribal courts lack this jurisdiction, in cases ranging from criminal investigations to liability lawsuits.
In 2014, the Pascua Yaqui Tribe in Arizona was one of three to participate in a new Justice Department program granting the tribe the authority to try cases of domestic violence against suspects who were not tribal citizens. The pilot program was part of the Violence Against Women Act reauthorization at the time, but it did not go as far as the current version of the bill, which would grant that jurisdictional authority to all tribes when it comes to crimes of domestic and sexual violence.
Alfred Urbina, the tribe’s attorney general, who was among those who lobbied Congress to authorize this pilot program, said the hardest obstacle to overcome was the misperception that tribal courts are unsophisticated and could not provide a fair trial to people outside the tribe. He recalled showing the U.S. House leadership a picture of the Pascua Yaqui tribal courtroom to prove it had a jury box and a judge’s bench, just like the ones they were used to seeing.
That same year, the tribe prosecuted a non-Native American man accused of domestic violence against a tribal citizen, the first jury trial of its kind nationally since the Oliphant decision. The trial ended in an acquittal, after Urbina’s office was unable to demonstrate a romantic relationship between the accused man and the alleged victim.
While that wasn’t the outcome Urbina had hoped for, he sees the acquittal as a clear indication that a non-Native American can get a fair trial in tribal courts. Since then, tribal prosecutors in his office have handled at least 80 cases against non-Native Americans that might have gone unheard previously, he said, including some that resulted in convictions.
The Justice Department program allowing these domestic violence prosecutions has since expanded to more than two dozen tribes — but that leaves more than 500 federally recognized tribes that do not yet have this authority.
Urbina believes Congress should expand tribes’ jurisdiction under the Violence Against Women Act. For him, the question is simple: Wouldn’t you want your community to have the power to protect you from crime, regardless of where the criminal is from? Most politicians believe that local issues should be handled by local jurisdictions, he said, not a system many miles away.
“The borders of reservations, and the borders of Indian Country cities, towns and counties, those things don’t keep crime from going in and out of these places,” he said.
In Oklahoma, the Choctaw Nation, the third largest tribe in the country with more than 200,000 members, also participates in the Justice Department pilot program. The tribe has prosecuted 20 domestic violence cases through its expanded jurisdiction. The Choctaw Nation Attorney General’s Office, which received a $3 million grant from the Justice Department in 2020 for community programs combating domestic violence, said it also provides counseling and other services for victims.
The Choctaw Nation won even more control of its justice system following a 2019 Supreme Court decision that said that according to centuries-long treaties, eastern Oklahoma was Indian Country. This cleared the way for the tribe to work alongside federal prosecutors to try all crimes involving Indigenous people, not just domestic violence.
The change was welcome, but also a challenge: The tribal nation has gone on a hiring spree, bringing on more officers to cover its 11-county district, as well as more judges and prosecutors to keep up with the additional criminal cases.
“We had about 40 cases last year at this time; we have 653 today,” Choctaw Nation Chief Gary Batton said. “We’ve allocated $9 million to that. For me, sovereignty is worth $9 million.”
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He expects that caseload to drop once the initial influx of cases following the Supreme Court decision moves through tribal courts but said that for now, the price tag isn’t too high for a justice system that reflects the community.
And he believes that victims will have a better chance of justice in tribal courts. Oklahoma ranks third in the nation when it comes to men killing women in isolated incidents, according to a 2018 report by the Violence Policy Center. Dawn Stover, a citizen of the Cherokee Nation and the executive director of the Alliance of Tribal Coalitions to End Violence, said a perennial characteristic of these cases is how many times the state’s justice system failed the victims.
“In most of these cases where there’s homicide, you see protective order after protective order after protective order, and you’re thinking, ‘We’ve really failed that victim in the future by not taking care of the cases that came before us,’” she said.
The Violence Against Women Act reauthorization has passed the House, but Republicans in the Senate have held it up over concerns about new provisions unrelated to tribal justice, including the confiscation of firearms in domestic violence situations. Stover and other Native American advocates hope it will pass regardless.
But even that isn’t a total fix to the Oliphant loophole, Stover said. Tribes would still lack the ability to prosecute murder independently — just another reason she believes it’s so important for tribes to have the authority to stop cases of violence against women before they turn deadly.
