“Native News Online” reports that today begins the final White House Tribal Nations Conference (WHTNC) of the #Obama administration. The reported agenda includes topics such as public safety, crime, jurisdiction and law enforcement on indigenous lands within the claimed territorial boundaries of the US. Under discussion will be the General and Major Crimes Acts, violence against indigenous women, and an attempted 2010 legal “fix” of the insanity of criminal jurisdiction in indigenous territory called the Tribal Law and Order Act.

Ex Parte Crow Dog and the racism of US criminal jurisdiction

For decades indigenous peoples witnessed an epidemic of violence against indigenous women including; rape, kidnapping, and murder.

Finally, in 2010 the US enacted the Tribal Law and Order Act in an attempt to correct the insanity of criminal jurisdiction in indigenous territories. But what created the racist system of criminal jurisdiction in the first place? In 1881 the traditional Lakota leader Crow Dog murdered another Lakota man, Spotted Tail. Spotted Tail had been chosen as a “chief” over the reservation by General George Crook. He was not selected in the traditional way by his own people. Crow Dog viewed him as accommodating whites against his own people. Disagreements between the two escalated until Crow Dog killed Spotted Tail. The details of the murder are historically disputed. Crow Dog was tried under traditional Lakota law which did not include capital punishment. He was required to make restitution payments to Spotted Tail's family.

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But the reservation Indian Agent had Crow Dog arrested to be tried under US criminal law. Crow Dog was tried and sentenced to hanging. Crow Dog petitioned for a writ of habeas corpus to the US Supreme Court which accepted the case. In Ex Parte Crow Dog he was cleared of all charges. Congress immediately responded by passing the Major Crimes Act of 1885 asserting US criminal jurisdiction over certain “major” crimes even if committed in indigenous territory. Both the case and federal statutes created a racist legal system by which Indian tribal governments only have limited criminal jurisdiction over other Indians for crimes committed on their reservations, but have no criminal jurisdiction over non-Indians. This is the only area of American law in which jurisdiction depends upon race of the criminal defendant. Not surprisingly therefore, the majority of violence committed against indigenous women has been by non-Indians. Despite improvements, many are dissatisfied with the Tribal Law and Order Act.

Recognize full criminal jurisdiction of indigenous governments

If this situation were not bad enough, some reservations are in what are termed Public Law 280 states in which the state government and law enforcement has assumed criminal jurisdiction on Indian reservations. Considering the #Police Brutality against indigenous people committed by state police, prompting the creation of the Native Lives Matter movement (inspired by #Black Lives Matter), state criminal jurisdiction is often seen as undesirable. Also, many indigenous peoples do not accept this further diminishment of territorial sovereignty. The Tribal Law and Order Act allows “federally recognized tribes” to request concurrent federal and tribal criminal jurisdiction. Many indigenous nations find this unsatisfying due the the violent history of federal law enforcement used to suppress indigenous political dissent in the 1970s, as well as the present day use of federal law enforcement to silence political dissent on environmental crisis of the Dakota Access pipeline. Some see this as choosing one master over another, a state or a federal one. Indigenous leaders must assert that indigenous governments should have full criminal jurisdiction of their territories at the final WHTNC. Including the right to prosecute anyone who has committed any crime on their territory, whether Indian or not.