The U.S. Supreme Court’s July 9 decision negating state law enforcement authority on an Oklahoma Indian reservation should not affect law enforcement on the Wind River Indian Reservation, including police activity in Riverton, experts say.
The Supreme Court removed Oklahoma’s law enforcement authority over Native Americans in the Creek (Muscogee) Reservation where state prosecutors had operated for more than a century. Congress never officially diminished the boundaries of the Creek Reservation, the Supreme Court held 5-4, and therefore only the federal government can charge Native Americans with crimes allegedly committed there.
Although the Wind River Indian Reservation also recently fought a boundary case, arguing that Riverton is inside the reservation’s boundaries, courts decided against the tribes there. Unlike in Oklahoma, Congress explicitly removed Riverton and other lands from the reservation in a 1905 act, a federal appeals court ruled several years ago.
The Wyoming tribes took their case as far as they could. “Our adverse ruling came from the 10th Circuit Court,” Karen Snyder, co-chair of the Eastern Shoshone Business Council wrote in an email.
“The Supreme Court did not make a ruling on the Wind River boundaries in 2018,” she wrote. “The tribes submitted our appeal but we were not selected to be heard by [the] Supreme Court.”
That reaffirmed the existing system under which federal authorities are responsible for law enforcement involving Native Americans on tribal land. State prosecutors charge Native Americans outside the reservation in Riverton employing state laws and city ordinances.
“This is the key,” Fremont County and Prosecuting Attorney Patrick LeBrun told WyoFile. “The language used in the 1905 act created cessation,” or a reduction in reservation lands approved by Congress.
In Oklahoma, “there was no language of cessation,” or shrinking of the reservation by Congress, LeBrun said.
Hence Oklahoma’s 3-million-acre Creek Reservation remains an intact reservation even though only 10%-15% of the residents there are Native American and much of the land is owned by non-tribal members. The decision means that Native American criminal suspects there can largely only be prosecuted by federal authorities under what’s known as the Major Crimes Act.
A clear intent
The Eastern Shoshone and Northern Arapaho tribes tested a boundary issue in an environmental case in 2008, when the reservation sought authority over some air quality programs. “The question was, ‘where’s the boundary?’” said Donald Wharton, a retired attorney who advocated for the tribes through the Native American Rights Fund.
He is representing neither tribes or the fund today, he said, and spoke for himself only.
“The issue about a boundary [is that] only Congress can change a boundary,” he said of Indian reservations. In the Wind River case, “there is a specific statute” that reduced the reservation’s size — the 1905 congressional act, he said.
In that legislation, “Congress evinced a clear intent to diminish the [Wind River Indian] Reservation,” judges at the 10th Circuit of appeals wrote in the 2018 decision.
“The court said ‘yea, this language is clear,’” Wharton said.
That’s not the case in Oklahoma, even if it looked and felt like the reservation there had been diminished. In the Creek Reservation, the federal government decades ago allowed what was once communal tribal property to be allotted to tribal members, and even sold to others. Over decades much of the reservation came under private and non-tribal ownership, including what is now Tulsa, population 400,000.
“A lot of non-natives bought up those parcels, but that had no impact on the reservation,” LeBrun said. “There was no language of cessation,” or the removal of the property from the reservation or an alteration by Congress of reservation boundaries.
The government created the Creek Reservation in 1833 and holds criminal authority there over Native Americans, the Supreme Court ruled in its recent opinion penned by Neil Gorsuch. “Because Congress has not said otherwise,” and explicitly altered the Creek boundaries, Gorsuch wrote, “we hold the government to its word.”
In Wyoming, approximately 75% of the Wind River Indian Reservation’s 2.25 million acres remain tribal trust land, according to a 2018 Agricultural Resource Management Plan. The rest of the acreage is owned by tribal members and others.
Law enforcement impacts
While Riverton police and Fremont County Sheriff deputies enforce state laws and local ordinances outside the Wind River Indian Reservation, the Major Crimes Act largely governs prosecution of tribal members on the reservation itself. The MCA clarifies jurisdiction according to major or minor crimes and whether the suspected perpetrator and victim were tribal members, according to the Tribal Law Policy Institute
Major crimes are essentially felonies — murder, kidnapping, maiming, arson, burglary and other misdeeds. For major crimes, Indian suspects are prosecuted under the Major Crimes Act by federal — and in some instances tribal — authorities.
Non-tribal members who are suspected of a major crime against a tribal member are prosecuted by federal authorities under the General Crimes Act. Non-tribal members who are suspected of a major crime against a non-tribal member are prosecuted under state laws.
A similar classification is set out for minor crimes.
In the recently decided Oklahoma case, Jimcy McGirt successfully argued that he was a member of the Seminole tribe who was charged with a crime in the Muscogee (Creek) Reservation and wrongly prosecuted under state law. A jury had convicted him in 1997 of sexual assault of a minor and a judge sentenced him to 500 years in prison.
McGirt, 71, will likely be retried in federal court but would not be released from prison, according to Indian Country Today.
Dissenting Supreme Court justices worried the ruling would result in a wide-scale release of miscreants, among other havoc. After McGirt, the Court vacated several other convictions from the reservation and other reservations in Oklahoma.
But prevailing justices said there’s no worry of havoc because of a long history of cooperation among tribal, federal, state and local authorities who are capable of working things out.
“There’s lots of cooperative agreements on how to manage criminal, civil, environmental issues,” Wharton said. “It isn’t like they’re going to snap open the doors of the prison. There is no huge dramatic impact.”
An exception may be in some death penalty cases, he said. But justice in Riverton and on the Wind River Indian Reservation will carry on as before.
“This has been adjudicated, it’s done,” Wharton said of the Wind River Indian Reservation case. Added LeBrun, “The Supreme Court denied [review of Riverton] — that has the effect of making it final.”
Still, said Wharton, “you never say die on these things.” Any new challenge would have to be that — new, he said. A challenger would have to “find another procedural way,” to raise the issue, a new angle on an old question, Wharton said.
‘Disordered’ criminal justice
The U.S. Supreme Court in 2011 also declined to hear a Wind River Indian Reservation boundary case when it turned down an appeal by Andrew John Yellowbear Jr., convicted of murder by the State of Wyoming. He claimed the state had no jurisdiction over him because the crime occurred on the reservation in Riverton — where the federal, not state, government should have pursued charges.
In refusing to hear Yellowbear’s case, the Supreme Court let stand lower-court decisions that Riverton was under state criminal jurisdiction.
The boundary question, however, raises numerous issues beyond criminal justice. The issue in the most recent Riverton case was environmental and who had authority over pesticides, fuel tanks and air pollution. Tribes believed the decision affected taxation and water rights as well, according to one analysis.
Three members of the 10th Circuit Court of Appeals ruled 2-1 against the tribes in 2017. The dissenter in the ruling, Judge Carlos Lucero, said the majority opinion “creates a new low-water mark” in the legal arena addressing reservation boundaries.
Lucero “was right and that is why we believe that the majority opinion will be overturned,” Lee Spoonhunter, co-chairman of the Northern Arapaho Business Council, said in a statement at the time.
The 10th Circuit Court, however, did not take up the ruling en-banc, meaning it was not addressed by the entire panel of 10th Circuit appeal judges. Tribes took the issue to the U.S. Supreme Court, which also declined involvement.
After the recent Oklahoma ruling, tribes celebrated.
“The Supreme Court today kept the United States’ sacred promise to the Muscogee (Creek) Nation of a protected reservation,” the Muscogee Nation said in a written statement published in Indianz News. “The nations and the state are committed to implementing a framework of shared jurisdiction … that support[s] public safety, our economy, and private property rights.
Under the Major Crimes Act, however, justice may be elusive in many cases, according to an opinion piece by David Heska Wanbli Weiden, a professor of Native American studies and Political Science at Metropolitan State University of Denver. “[R]elying on this law, enacted in 1885, could create its own problems, especially for Native American women,” he wrote in The New York Times. “And especially in rape cases.”
Federal authorities can decline to pursue cases, “and they frequently do,” he wrote. “Because of the jurisdictional complexity of prosecuting these cases, criminal justice enforcement on many reservations is too often disorganized and disordered.”
Federal authorities can decline prosecution for a variety of reasons, including a lack of leads, unreliable or uncooperative witnesses, the inability of a witness to identify a perpetrator and cases that “cannot be addressed with current resources,” according to the U.S. Department of Justice’s report “Indian Country Investigations and Prosecutions” for 2018. A footnote said that resource deficit was primarily due to the prioritization of violent crimes.
In Wyoming in 2018 the federal system closed, or concluded, 19 cases and resolved 15 others without declining prosecution, according to the reservations report. Authorities declined to prosecute four cases — two involving allegations of sexual assault, one claim of assault and one drug matter.