Going against decades of precedent in law on Native American sovereignty, the U.S. Supreme Court last week ruled in an Oklahoma case that states can prosecute non-Native people for crimes against Native people that occur on tribal land.
Alaska, like some 20 other states, already has federal approval from Congress granting such authority, so the decision itself won’t have much impact in Alaska, says Lloyd Miller, an Anchorage-based lawyer and Indian law specialist with Sonosky Chambers.
But Miller says the decision still marks a major change that turns long-held principles of Indian law upside down.
Editor’s note: Two of Lloyd Miller’s law partners wrote an amicus brief cited in the dissenting opinion in Wednesday’s decision.
The following transcript has been lightly edited for clarity.
Lloyd Miller: So I think it’s a real watershed decision in this area of Indian law. And I think there could be grave implications for Indian law in the years to come — if this remains the court’s new way of looking at federal Indian law and principles of tribal sovereignty, which are intimately woven with exemption from state sovereignty. Of course, the entire case arises in Indian Country, specifically on Indian reservations. To that extent, the case is somewhat less germane to the situation in Alaska, where Indian Country is limited.
Casey Grove: I want to talk a little bit more about that here in a second. But what does this case actually do? I mean, for tribes in the United States and for states and these decisions about prosecuting crimes? What does it actually do?
Lloyd Miller: The case holds that the state of Oklahoma has the authority to prosecute crimes committed by non-Indian people against Indian people on an Indian reservation. Up until this decision, it was generally understood, and the law was, that states did not have that authority, that only the federal government had the power to prosecute those crimes, unless Congress passed a statute that granted states that kind of power. And Congress has provided statutes that impact over 20 states. One of those statutes is known as Public Law 280 and was applied to the territory of Alaska before Alaska became a state. But that has always operated based on the backdrop that if Congress didn’t confer that authority on the state, the state didn’t have the authority. Now, the Supreme Court is saying, you know, well states had that authority all along, which is really a stunning shift in Indian law principles.
Casey Grove: Does this decision from Wednesday have much impact on Alaska? Are there implications here that that people should know about?
Lloyd Miller: I think it’s important for people to always be educated to these issues. But I think the direct application in Alaska is pretty limited, actually nonexistent, for two reasons. First of all, there’s precious little Indian country in Alaska, and the case only involves the legal rules that apply in Indian country. But secondly, more to the point, Alaska is one of those over 20 states as to which Congress passed a statute, Public Law 280, conferring full criminal jurisdiction on the state of Alaska to prosecute all crimes that come up in any Indian country that might exist. So the case is particularly significant. In terms of its actual facts, and the results and the rule, the state already has complete jurisdiction.
Casey Grove: So this case decided Wednesday, it deals with a state’s ability to prosecute a non-Native person for a crime committed in Indian country. But there have been some developments here more recently with tribal powers to prosecute crimes, is that right? Am I understanding that correctly?
Lloyd Miller: That’s right. In this field, there’s a whole body of law that addresses crimes committed by non-Indians and prosecuted by states. There’s a whole other body of law that addresses prosecutions by tribes. Also now, there’s a new body of law. The ink has just dried on the Violence Against Women Act Amendments of 2022, which addresses tribal authority to prosecute non-Indian offenders in Alaska Native villages. As your listeners know, Alaska Native villages are not Indian reservations, and they’re not Indian country. But as a practical matter, crime occurs in the villages. And sometimes those crimes occur by non-Indians and non-Natives, of course, as well as by Native offenders. The Violence Against Women Act establishes a framework for dealing with that. First, it affirms that Alaska tribes do possess authority to criminally prosecute all Alaska Native offenders that are in an Alaska Native village. And then it sets up, secondly, a process by which Alaska tribes can prosecute non-Native people who commit certain crimes — domestic violence, child violence, certain crimes against law enforcement — in Alaska Native villages, even without Indian country. So these developments that occurred this year and amendments of the Violence Against Women Act operate entirely outside this Supreme Court decision that dealt with the rules involving Indian country, which is reservations, allotments, independent Indian communities. This new development operates entirely outside of that. It’s a new rubric, if you will, that addresses, uniquely, Alaska Native villages. And, in fact, this new enactment says no one should get any idea that Alaska Native villages are being deemed Indian Country equivalent to reservations down south. They are not. The legislation says so.
Casey Grove: I guess with the understanding that that framework of law is different than what we were talking about with the Supreme Court decision Wednesday, and just kind of understanding that there are differences there, and also that it’s tough to predict the future or read people’s minds, is there any reason for people in Alaska to wonder if the court’s decision Wednesday is going to impact anything in Alaska to do with tribal law going forward?
Lloyd Miller: I really don’t think so. Undergirding the court’s decision is a clear concern with state sovereignty, states rights, that emerged in the reversal of Roe decision, in the Dobbs litigation, emerges here. It’s all about state sovereignty. But in Alaska, state sovereignty in this area of criminal law enforcement is secure, both because of Public Law 280, and because of the statements Congress placed in the recent 2022 amendments to the Violence Against Women Act. So I don’t see how the court’s solicitude for state sovereignty in this new decision will have any impact in Alaska, where state sovereignty is already secure under existing law.