Native women wear red at the National Congress of American Indians 76th annual convention in Albuquerque, New Mexico, on October 22, 2019, to call attention to the need to pass the Violence Against Women Act. Image: Kevin Abourezk/Indianz.Com
The reauthorization of the Violence Against Women Act is an important step, but activist Mary Kathryn Nagle argues that only full restoration of Indigenous sovereignty will stop the epidemic.
Mary Kathryn Nagle, a member of the Cherokee Nation, is one of the country’s most prominent lawyers, often appearing in court to advocate for the rights of Indigenous people. She is also a well-known playwright, and her stage work explores many of the same themes that have animated her legal career, including the epidemic of violence against Indigenous women.
More than 4 in 5 Native women have reported being the victims of violence. For 97 percent of Native women who’ve experienced violence, a non-Native was the perpetrator (over 50 percent of Native women are married to non-Native men). In some counties, Native women face murder rates more than 10 times the national average. Until recently, tribal nations were limited in what they could do to address this epidemic. While Indigenous legal authority predates the United States, and in most cases was provisioned by U.S. treaties with tribal nations, courts and other legal authorities chipped away at it until Native legal authority over non-Natives was revoked by the 1978 Supreme Court case Oliphant v. Suquamish Indian Tribe. This has meant that tribes lack the authority to prosecute non-Natives who commit violent crimes on tribal lands. And U.S. legal authorities often decline to prosecute: in 2019, federal prosecutors declined about 35 percent of cases referred to them, and perpetrators are not always held accountable by state governments.
In recent years, though, two rather remarkable things happened to reverse this trend: in the landmark Supreme Court case McGirt v. Oklahoma (2020), the Court ruled that because Congress had never formally modified the U.S. treaty with the Muscogee (Creek) Nation (MCN), much of eastern Oklahoma was in fact the MCN’s reservation. It was, therefore, still “Indian Country,” to use the outmoded argot of the law. This ruling amplified the power of the 2013 federal Violence Against Women Act, which granted tribal authority over non-Native people who commit sexual and domestic violence crimes on tribal lands. These two legal sea changes, taken together, represent a potentially monumental shift in the legal recourse afforded to Native women who are the victims of violence. They have not been embraced by all, though: in Oklahoma, farmers, oil and gas developers, and business owners have fought the McGirt ruling. In a follow-up case to McGirt (Oklahoma v. Castro Huerta), the State of Oklahoma has asked that the Court grant the state criminal jurisdiction over crimes committed against Native victims on tribal lands at the expense of tribal sovereignty. Whichever way the Court rules will set a precedent for similar cases nationwide.
The Violence Against Women Act was reauthorized in March 2022, with language that further expanded tribal criminal jurisdiction over non-Natives. In this interview, Nagle explores the implications of these monumental changes, and explains why tribal jurisdiction makes Native women safer.
Emma Lower: Justice Gorsuch opened the McGirt v. Oklahoma ruling by writing “on the far end of the Trail of Tears was a promise.” This was a landmark ruling; you’ve likened it to Brown v. Board (1954) in terms of the scale of the change the Court is enacting. What makes McGirt a landmark case? Why does it matter for Indigenous sovereignty throughout the United States?
Mary Kathryn Nagle: McGirt was an exceptional instance of the Court ruling in favor of tribal sovereignty, rather than against it. Those of us who practice Indian law understand the law, the Constitution, and other legal doctrines, but we’re used to the reality of having the outcome of cases circumvent all of those to rule in favor of the white expectation that tribal authority be diminished. What makes McGirt so epic is that the Court just applied the law. It shocked most Oklahomans; up until now if the state or a white property owner asked for diminishment of tribal sovereignty or tribal property ownership, then that was usually the way the Court went.
My grandfathers worked on the landmark 1832 case Worcester v. Georgia in which the Court held that states did not have legal authority over Native land. But ever since then, we have become used to losing in the Supreme Court. We’re used to the Court bending over backward to reach the outcome where the tribal nation loses and whoever’s on the other side of the v. wins. There’s just so much erasure of Native people today in our tribal nations. A lot of people growing up within the borders of the Creek Nation reservation in Oklahoma were shocked following McGirt to learn that they lived on Native land. They had no idea. But it always has been.
We’re seeing a shift toward upholding tribal sovereignty, and I think it’s a good shift. It’s a shift that will actually benefit everyone. I think for many of us, seeing the Supreme Court simply apply the law and not make up fancy exceptions to get around the law was really impactful and moving.
EL: What are the effects of McGirt, and how are authorities responding to McGirt so far?
MKN: The Supreme Court has interpreted the Constitution to mean that once a treaty is ratified and creates a reservation for a tribal nation, that reservation can only be disestablished by Congress. In this case, Congress has never disestablished the Creek Nation reservation, but Oklahoma asked the Court to make an exception. The Court, however, decided that the law does not allow that; only Congress has the constitutional authority to disestablish a reservation created by treaty. In many ways it is a boring separation of powers case—the Court decided it just doesn’t have the authority necessary to disestablish the reservation. It’s just the law applied.
Yet the propaganda that Oklahoma has put out argues that McGirt has created a public safety nightmare and that now no one in Oklahoma will be safe because Tribal Nations won’t have the capacity to prosecute all of the cases. This is false, but Oklahoma wants everyone to believe it. The official response has a lot to do with the fact that the oil and gas companies are the most concerned by McGirt because now their extensive operations in Oklahoma are subject to tribal authority and they have decided (arguably without any rational basis) that tribal sovereignty is somehow antithetical to economic development. They’re giving money to the governor and to the other officials in Oklahoma who are championing this narrative of public danger, and I think they’re right that the public safety concern is their best PR angle for drumming up a groundswell of public sentiment against McGirt. It’s not a great talking point to publicize that oil and gas companies want to be able to do whatever they want on tribal lands without the consent of the tribal nations. So they’re really trying to convince people that they are no longer safe. The problem they face, though, is that they have no empirical data or evidence to back it up.
EL: In your 2018 play Sovereignty, the Cherokee lawyer, Sarah Ridge Polson, says of her non-Native husband and abuser, “If you can erase the sovereignty over my body, you can erase the sovereignty of my nation.” How do tribal sovereignty and jurisdiction protect Indigenous women from the epidemic of violence against Indigenous women?
MKN: The Violence Against Women Act (VAWA) as reauthorized in 2013 restored tribal criminal jurisdiction only in “Indian Country”—a specific legal term Congress has used to define Native land. And this makes sense: the Cherokee Nation can’t exercise criminal jurisdiction in the State of Washington, just like the State of Washington can’t exercise criminal jurisdiction in the State of New York. But because “Indian Country” legally refers to land deemed a “reservation,” that means that if the Court had decided in McGirt to disestablish the Creek Nation reservation, the Creek Nation would not have been able to exercise this authority granted by VAWA to prosecute non-Indians who abuse their Native partners throughout the entire Creek Nation Reservation. This, by the way, isn’t limited to women—it protects men who are abused by their partners, too. If the Court had made the exception to the law that Oklahoma requested, there would be no reservation, making it very difficult for tribal nations to prosecute—ultimately, that would mean that more of these violent crimes against Native women would not be prosecuted under the tribal criminal jurisdiction restored by VAWA.
Beyond that, tribal nations have a cultural understanding that women are sacred. We understand that you can’t have a nation without women—women give birth to the next generation of citizens. That’s why the U.S. military targeted Native women. They knew that if they wiped out Native women, there would be no more Native nations. It’s a military tactic that has been used all around the world. It’s horrific whenever militaries rape and kill women, to destroy another nation, but it is used, and it was used here on this soil, and Native nations understand what’s at stake when their women suffer the kind of violence that our Native women are suffering today. Any time we’re talking about whether we’re going to maintain, protect, or preserve tribal sovereignty or jurisdiction to protect Native women from violence, we are talking about protecting the continued existence of a tribal nation. Sovereignty and safety for Native women are intertwined.
EL: One of the reasons you have argued that state criminal jurisdiction is harmful to Indigenous women is because perpetrators are under-prosecuted by states. What makes Indigenous women safer when perpetrators are prosecuted under tribal justice systems? Is it just that charges are more likely to be pursued, or is there something about the process itself that is better?
MKN: No sovereign has a greater interest in protecting Native women than their own tribal nations. This makes sense in the context of other sovereigns as well. You would not expect France to be more interested in protecting U.S. citizens than the United States. While it is true that, after the Act of 1924, Native people are citizens of their tribal nations, the United States, and the state in which they live, states have historically discriminated against Native people—and continue to. More often than not, states choose to not prosecute those who commit violent crimes against Native victims simply because they do not value Native lives.
EL: This leads me to ask about restorative justice. The version of VAWA that was just reauthorized in March 2022 would require the Bureau of Prisons to accept some of the perpetrators convicted in tribal court. This reliance on prisons has led VAWA to be critiqued as a carceral solution to violence by abolition-minded criminal justice activists, who note the direct links between gendered violence and state violence. How do restorative justice and an abolitionist framework fit with tribal jurisdiction and sovereignty?
MKN: Well, I think we invented them! We were told initially that we were uncivilized and savage because part of our form of justice was restorative justice. We were told, you’d better do it our way, or you’re not going to have any authority whatsoever. So we did. We created courts. We’ve done the Western model the way we were forced to. But many tribal nations are now going back to their traditional practices of restorative justice. It’s not all tribes, and it’s a sovereign right of a tribal nation to decide what is best for them, just like it is a sovereign right of a state or the United States or any sovereign to decide what is justice, and how to effectuate justice.
But for tribes that are going back to restorative justice practice, the goal is to squarely address the epidemic of violence in the community. For instance, if you’ve got Native men in a tribal community who are committing domestic violence and sexual assault, chances are they were abused as children, or their parents were sexually abused in boarding schools, or their mom was, or their great-grandmother was raped on the Trail of Tears, and the trauma is just passed down from generation to generation. You’re never going to heal from that trauma by just putting people in jail. It gets them off the streets, and it will temporarily make a community safer, and that’s of value, and it certainly is commonly in practice now. But what some tribal nations are doing is taking traditional culture and creating cultural healing programs, so a tribal court judge sentencing the defendant to jail might send them to jail for a month, and then send them to a cultural healing program for two years. That program might include speaking your language; it might be community service; it might be working with a medicine man; it might be spending time with a specific elder who is teaching these cultural ways. What is critical in all of this is that the victim’s needs be centered. And that might necessitate a sentence to be served in jail. But we need to think beyond that, and we need to prepare this person to reenter the community after that service is completed, otherwise the cycle of violence will only continue.
These restorative practices force us to ask: Do we want to just discard members of our community? Or do we want to work on healing and trying to end the epidemic of violence? A lot of tribes are creating what they call wellness courts, or restorative justice courts, and those are relying on traditions and cultural values and methods of adjudicating disputes that go back thousands of years. These things seek to restore the person, because someone who commits those kinds of crimes—that’s a broken person. Historically, when someone committed a violent crime against someone, the tribe looked at it from the perspective: How do we make the victim whole? As opposed to: How do we punish this person for their crime against the sovereign?
In a Western model, the crime is committed against the sovereign. You still see that in the way we name our court cases: Oklahoma v. McGirt; Oklahoma v. Castro Huerta; United States v. name the defendant. But traditionally, in most tribal nations, crimes were not understood as having been committed against the sovereign. We got that notion from Western common law. In England, if you commit a crime, it’s a crime against the Crown. In tribal nations, traditionally, if you did something wrong, it was against a member of your clan or a separate clan. This is very general—it’s different for every tribe—but with some tribes, the clan mothers would get together, and they’d ask: What’s justice here? What does the victim need to be made whole? Maybe the person who committed this act of violence now owes this family food from every hunt for the next twenty years, or the rest of his life. They would decide what is going to restore the victims.
It is a different model, and it’s a model that a lot of tribes are moving back toward. It’s a model that we historically practiced before contact, and then we were told that we were racially inferior and savage and heathen, because we were doing that. So it’s ironic now to see some on the left using that lens to criticize VAWA for restoring tribal criminal jurisdiction.
EL: In your 2013 play Sliver of a Full Moon, which you wrote following the reauthorization of VAWA, you write that Indigenous women are targeted, “not because of the color of their skin,” but because they are “citizens of sovereign nations.” We are also living through this age of heightened border security and the increasing criminalization of noncitizens. Why is citizenship an important framework in this context?
MKN: That line, I think, was something Lisa Brunner, executive director of Sacred Spirits First Nations Coalition, said in an interview I did with her. And I, of course, would agree with that. Obviously, there are Native women who are targeted because of the color of their skin, but in general, Native women are targeted in a political genocidal sense, because the goal of targeting Native women has been to wipe out our tribal nations, regardless of those women’s skin color. We know perpetrators still come onto tribal lands simply to target Native women.
EL: What would full federal respect of Indigenous sovereignty look like today?
MKN: The first step is either the Supreme Court reversing Oliphant—the 1978 case that took away tribal criminal jurisdiction over non-Natives—or Congress legislatively fixing Oliphant as the Court has repeatedly concluded Congress has the authority to do.
Step two is funding. In our historic life ways, we had economies of huge scale—but they weren’t economies arranged around either communism or capitalism. A lot of our economies were based on an understanding of our faith, our relationship vis-à-vis everyone else in the community, and vis-à-vis the Creator. So part of what tribal nations need today is funding. We’re tribal nations surviving in capitalism. Our traditional life ways have been eradicated, so full respect for sovereignty would have to entail the federal government honoring the hundreds of treaties it signed with tribal nations that say we will fund your government forevermore. Well, then, fund our governments. Whether it’s tribal nations wanting to do a restorative justice practice model, courts with jails, or whatever, the federal government should be funding that. They fund a part of it, but not all of it. That lack of funding has become a huge issue.
EL: VAWA was reauthorized in March 2022 with some provisions that expand the range of crimes that tribes have the jurisdiction to prosecute. What might the impact of that be?
MKN: VAWA 2013 was a giant step forward, but there were holes. It wasn’t a full restoration of the jurisdiction that was taken away in Oliphant. It basically only allowed tribes to pursue charges in cases of domestic violence, dating violence, and violations of protective orders. VAWA 2022 is also not a full restoration, but it’s another huge step forward. Congress recognized in it that a lot of our Native women and girls are victims of sexual assault and rape by strangers, and that tribes need the authority to address that too. This could be anything from violence committed against children by strangers to rape committed against adults outside of the context of a consensual dating relationship. The expanded VAWA also restores tribal criminal jurisdiction in cases that involve assault against tribal justice personnel, cases involving stalking and trafficking, and obstruction of justice related to cases pertaining to any of the above. It’s a lot. It’s great. These are key categories of tribal criminal jurisdiction that I think the tribes that implemented VAWA in 2013 realized were missing. We have been working very hard in the last four years to get these categories of criminal jurisdiction restored.
EL: The Supreme Court this session has agreed to Oklahoma’s request that it clarify the scope of the McGirt ruling. What is at stake?
MKN: It is important to note that Oklahoma asked the Court to reverse its ruling in McGirt and the Court decided not to rehear the case or reconsider McGirt at all. So McGirt remains the law, and the Court is not rehearing it. That was question number one in Oklahoma’s petition. Question number two was: If you’re not going to reverse McGirt, how about giving Oklahoma criminal jurisdiction over non-Indian crimes committed against Indian victims on tribal lands? This is jurisdiction the state doesn’t have, because as the Court has repeatedly said, the Constitution grants Congress alone the authority to allocate criminal jurisdiction within “Indian Country,” or on tribal lands. There are some states that do have jurisdiction over those categories of crimes on tribal lands, and that’s because Congress explicitly gave it to them through legislation. In other words, Oklahoma is asking the Court to do something that only Congress can do, and, once again, the Court is going to consider it. Some on the Court are interested in hearing this argument.
I think what’s at stake is safety for Native women, as always—that’s certainly what I point out in the amicus brief that I filed on behalf of my client, the National Indigenous Women’s Resource Center. But there are also huge issues at play about whether the Court will honor the constitutionally mandated separation of powers that names Congress as the only agency with the power to modify how individual states relate to tribal nations. The outcome may have huge implications for the safety of Native women and children, which does not appear to be high on Oklahoma’s list of concerns.
Emma Lower was an Editorial Assistant at Boston Review. She holds a master’s degree from University of California–Berkeley and a bachelor’s degree from Yale.
Mary Kathryn Nagle is an enrolled citizen of the Cherokee Nation and the former Executive Director of the Yale Indigenous Performing Arts Program.
Boston Review, April 13, 2022, https://bostonreview.net/