The US Supreme Court Is About To Consider the Most Potentially Devastating Case For Native Nations

Source: Rebecca Nagle

Source: Rebecca Nagle

“We as Native Americans and Alaska Natives are smallest population of citizens in this country, yet we are murdered 10 times higher than the national average, raped 2.5 times higher, and stalked 2 times more than any other population of women in this country. 60% of us will be victims of domestic violence,” says national advocate Lisa Brunner (White Earth Ojibwe). “One question I would like to ask is why are we expendable?”

Sexual assault and domestic violence against Native women and children are at a crisis level. 70% of perpetrators of violence against Native women are non-Native. The physical attack on Native women’s bodies is a political attack on the entire community and the existence of Native Nations.

As Brunner states, “We are under siege as Native women. The continued acts of domestic violence, sexual assault, stalking, murder and the missing are the continuation of genocide. We are the women who give birth to our Nations. When we are under attack, so are our Nations and our future generations.”

Why is the level of violence against Native women so high? How is this happening?

Federal Law Prohibits Tribal Courts from Prosecuting Non-Natives Who Commit Crimes on Tribal Lands

Under the current law the United States Supreme Court has created, non-Indians can come onto tribal land and rape, assault and murder tribal members and the tribe is prohibited from prosecuting the offenders.

Very violent people are taking advantage of this unjust legal framework by committing these crimes at alarmingly high rates. And they are getting away with it.

“For Native women living on reservations, there is a high rate of victimization by non-Natives, who come onto reservations and commit crimes thinking that there is no accountability for them, because, really, in a lot of ways, there isn’t,” says Shawn Partridge (Muscogee), director of the Family Violence Prevention Program at Muscogee (Creek) Nation.

The legal framework that has caused the crisis of sexual violence for Native communities is purposefully complex.  The unjust limitations placed on prosecutorial power for Native Nations stem from a long history of Supreme Court decisions from Johnson v. McIntosh in 1823 to Oliphant in 1978.

And while you need a law degree to understand the myriad of overlapping laws and court decisions, you can most certainly obtain a law degree in this country and know next to nothing about it.

So for all of us without a law degree (or for those with a law degree who never learned anything about Indian law), here are some basics.

How The US Government Has Been Undermining Tribal Authority for More Than 200 Years

Native Nations are sovereign Nations whose authority to govern their own people, their own lands and to protect their own citizens from harm pre-dates the existence of the United States of America.

Native advocates are not asking the US government to give Native Nations this authority, rather the US government is obligated to recognize the inherent sovereignty and authority of tribal governments as a direct result of the hundreds of treaties the US government has signed with Indian Nations agreeing to do so.

One of the most damaging decisions for Native Americans came in the 1978 Supreme Court decision Oliphant v. Suquamish Indian Tribe in which the Supreme Court ruled that Native Nations could no longer exercise their inherent criminal jurisdiction over non-Indians.  As a result, rates of violence against Native American skyrocketed and Native survivors rarely see justice.

The legal black hole created by the Supreme Court is felt acutely in Alaska.  “Alaska Native women and children who are victims of domestic violence and sexual assault are typically ignored and rarely see justice because of jurisdictional barriers and the state’s inaction to respond to such violent crimes,” states Michelle Demmert (Tlingit), currently serving as an attorney for the Tulalip Tribes.

A survivor-led, grassroots movement fought for the restoration of tribal jurisdiction in the last reauthorization of VAWA, and won tribal authority over the crimes of domestic violence, dating violence and stalking.

However, the victory in VAWA 2013 does NOT affect sexual assault, rape, murder and other violent crimes.

Dollar General has Asked the Supreme Court to Strip Indian Nations’ of Their Inherent Civil Jurisdiction over non-Indians – THIS Monday

While the Supreme Court issued a decision prohibiting Tribes’ ability to exercise their criminal jurisdiction in 1978, the Court has never concluded that Tribes may no longer exercise civil jurisdiction over non-Indians, which is an important tool for Tribes who seek to protect their citizens.

Civil jurisdiction allows victims of violent crimes to sue for compensation for the damages they suffer.

However, the attack on tribal jurisdiction continues and civil jurisdiction is now at risk.

And it’s not a coincidence that the case involves a sexual assault.

On Monday, December 7, 2015, the Supreme Court will hear what could be the most devastating case for the rights of Native Peoples and their sovereign Tribal Governments in half a century.

Despite the fact that its store supervisor sexually assaulted a 13-year-old in their store located on Mississippi Band of Choctaw Indian’s Tribal Trust land, Dollar General is fighting the survivor’s family and the survivor’s Tribe to avoid paying any damages or compensation.

If ruled in Dollar General’s favor, this case would severely limit all American Indian Nations’ ability to protect their citizen from assaults like the one this child survived.

Following the sexual assault, the survivor’s parents brought an action against Dollar General in tribal court, seeking monetary compensation for pain and suffering and to cover the youth’s medical and therapy expenses.

Dollar General is arguing that the Mississippi Band of Choctaw Tribal Court cannot exercise jurisdiction over Dollar General because Dollar General is non-Indian.

If Dollar General wins, no Native Nation would be able to hear a civil case involving a non-Indian.  Dollar General’s attacks on tribal jurisdiction carries serious implications for Indian Country.  

“Our tribes have always exercised civil jurisdiction over non-Natives on our lands,” says Brunner.

Violence against Native women and children is already at a crisis level.  This decision could make it even worse.

As one Native survivor wrote in her contribution to the Monument Quilt (that will be on display as part of a demonstration during the oral arguments), “Your attack on tribal jurisdiction is an attack on MY BODY.”

Anti-Indigenous Racism Is Being Used To Justify This Attack

The argument as to why Native Nations should not be able to exercise jurisdiction over Non-Natives is eerily similar to the arguments that were made to justify indian removal and other genocidal practices.

While the circumstances have changed, the rhetoric of anti-indigenous racism has not.

What lies at the heart of this attack on tribal jurisdiction is the racist belief that Native Americans and their Tribal Governments are inferior.

“Dollar General’s arguments against the legitimacy of Tribal Courts and tribal jurisdiction are not new,” says Mary Kathryn Nagle (Cherokee Nation), attorney at Pipestem Law.  “185 years ago the State of Georgia argued Cherokee Nation could not exercise jurisdiction over non-Indians on Cherokee lands because the Nation’s laws were not written and the Nation’s courts were uncivilized and inferior – despite the fact that the Cherokee Nation had a written Constitution and established its Supreme Court ten years before Georgia established its own Georgia Supreme Court.  Like the arguments Georgia used to support the forced removal of Cherokee Nation in the 1830s, Dollar General’s arguments are not accurate, nor are they based on a justifiable doctrine or law.  Dollar General’s arguments only find support in antiquated, archaic colonial notions that Indian Nations are inferior.”

And today, in 2015, the antiquated notion than Indian Nations are inferior is powerful enough to make it all the way to the Supreme Court.  That this case is even being heard is an alarming demonstration of how deeply racist this country is against Native Americans.

“I am tired of my people, our children and future generations being collateral damage of war waged against our Sovereign Tribal Nations,” says Brunner. “When people ask, ‘When was the last Indian War in the United States?’, my answer is, ‘It never ended’.”

What You Can Do To Help Protect Native Women and Children!

(1) Join the Thunderclap!  With Thunderclap our supporters will push a whole bunch of posts all at the same time to generate attention on the case during the oral arguments on Monday.  We need 100 people join this effort to tell the Supreme Court it must uphold tribal jurisdiction to protect Native Women and Native youth.  It is really simple – just click HERE.

(2) Meet Us at the Supreme Court!  FORCE and NIWRC are organizing a demonstration on Dec 7th from 9am to 12 noon during the oral arguments in Dollar General v. Mississippi Band of Choctaw Indians. Along with the advocates are coming 700 stories from survivors of rape and abuse written, painted and stitched onto red fabric, part of the growing Monument Quilt. Sign up here and RSVP on Facebook here.

(3) Stand with Native Women and Native Youth on Social Media!  If you cannot be there in person, you can still show your support through virtual action by posting tweets and Facebook posts during the demonstration on Monday, 12/7 from 9:00am-12:00pm EST.

Here are some sample tweets!

  • Native women experience sexual assault 2.5 more times than any other ethnic group. #ShameonDollarGeneral
  • More than 85% of the perpetrators of violence against Native women are non-Native. #ShameonDollarGeneral
  • Sexual assault in Indian Country is already at a crisis level.  #ShameonDollarGeneral decision could make it worse.
  • I’m standing w/Native Women& #NativeYouth who have survived sexual violence. #SCOTUS should honor tribal sovereignty. #ShameonDollarGeneral
  • If #SCOTUS rules in Dollar General’s favor, could strip tribes of their authority to protect citizens on tribal lands. #ShameonDollarGeneral
  • [email protected] is fighting Mississippi Band of Choctaw Indians’ right to protect its own citizens on tribal lands.  #ShameonDollarGeneral

Rebecca Nagle is the Co-Director and Co-Founder of FORCE: Upsetting Rape Culture and The Monument Quilt. The Monument Quilt is an on-going collection of stories from survivors of rape and abuse.  Painted, written and stitched onto red fabric, our stories blanket city and town centers to create public space for survivors to heal.  The quilt is building a new culture where survivors are publicly supported rather than publicly shamed.  Through survivors telling their own stories, the quilt reshapes the public’s understanding of how US policy and culture create the current crisis of rape.

This article was written in collaboration with Native elders in the movement and on the front lines of this fight for Native justice.