Major ruling leaves questions for tribal-land prosecutions in North Dakota

By Jack Dura

Tribal nations sharing geography with North Dakota are watching for how the state will handle certain prosecutions after a major U.S. Supreme Court ruling impacting jurisdiction.

The court ruled 5-4 in June that Oklahoma can prosecute non-Native Americans for crimes committed on tribal land when the victim is Native American, according to The Associated Press. The ruling gives states concurrent jurisdiction with the federal government for prosecuting those types of crimes.

“The state’s interest in protecting crime victims includes both Indian and non-Indian victims,” Justice Brett Kavanaugh wrote in the majority opinion.

The case stemmed from a Tulsa man’s conviction for child neglect related to his Cherokee Indian stepdaughter, after which the court decided a separate case ruling much of eastern Oklahoma as never “disestablished” by Congress as Indian reservation land.

The North Dakota Supreme Court’s Tribal and State Court Affairs Committee will likely meet by videoconference this fall and “get to visit about what we think the implications are” of the ruling, said Justice Jerod Tufte, who chairs the panel that includes state district court and tribal court judges and administrators. Federal officials will be invited, he said.

“To some extent, I think (the ruling’s impact) remains to be seen,” Tufte said.

Tribal nations

Standing Rock Tribal Court Chief Judge Mike Swallow said, “It’s a little bit too soon to actually predict or even say how (the ruling is) going to affect us.”

He said he can foresee scenarios such as domestic violence cases or a non-Indian assaulting a Native American at the Prairie Knights Casino, but added, “We don’t have a large number of those type of cases.” The tribal court hasn’t prosecuted a non-Indian for domestic violence for a couple of years, he said.

The impact of the ruling is greater for Oklahoma and for reservations with a large number of non-Indians, Swallow said.

Sioux County encompasses the northern portion of the Standing Rock Indian Reservation; 83% of the county’s population is American Indian, according to a 2021 population estimate by the U.S. Census Bureau.

The tribal court judge added he would like to learn what the intentions of North Dakota state officials might be following the ruling.
“I would like to see the state and the tribe collaborate to some extent to work that out, to discuss what is the state’s intentions?” Swallow said.

The Mandan, Hidatsa and Arikara Nation issued a statement July 1 expressing disappointment “in the majority opinion to the extent it does not accurately reflect the court’s long-standing precedent when it comes to issues of state authority in Indian Country.”

The tribe’s statement noted that the ruling affects “jurisdiction to prosecute non-Indians who commit crimes against Indians within Indian Country,” but “goes no further than that and does not affect existing tribal jurisdiction in Indian Country.”

“We expect states to exercise this jurisdiction in an evenhanded and nondiscriminatory manner,” the Three Affiliated Tribes said. “We will be closely watching how state courts sentence non-Indians who commit covered crimes in Indian country to be sure that they are prosecuted and sentenced the same as crimes committed outside of Indian Country.”

North Dakota Highway Patrol Sgt. Jenna Clawson-Huibregtse said the Patrol’s “mission and partnership remain the same” for law enforcement agreements the state has signed with MHA Nation and the Spirit Lake Tribe.

“We will provide mutual aid to tribal nations and law enforcement and let current jurisdiction and case law dictate which courts system applies for anyone involved in incidents,” she said.

McLean County

McLean County State’s Attorney Ladd Erickson said he intends to collaborate with the MHA Nation in response to the ruling. About a third of his county shares geography with the Fort Berthold Indian Reservation.

The county has special law enforcement agreements with the Three Affiliated Tribes, a working relationship that is “very positive for both sides,” Erickson said.

When the ruling came out, he called North Dakota Indian Affairs Commission Executive Director Nathan Davis and asked him about forming a uniform approach across counties to the ruling.

Erickson also called the Three Affiliated Tribes’ general counsel and emphasized McLean County won’t make any changes to law enforcement until the tribe weighs in.

“We respect their rights and their concerns about this case, so we’re going to not do anything that they don’t consent and we don’t come to an agreement with,” Erickson said.

He suggests tribal leaders and the governor work on the issue “and create uniformity … amongst all of the state and the counties.”

“It doesn’t make sense to have a checkerboard of how we implement this,” Erickson said. “It’s something that we need to respect, need to be uniform around, to have a good relationship with the tribes.”

Tribal nations also could make arrangements with counties for prosecuting cases of non-Indian offenders that federal officials for whatever reason decline to take on, he said — with tribes maintaining sovereignty “but it’s one where they also have some backup that can address a problem.”

Spirit Lake

The state of North Dakota already has authority on the Spirit Lake Reservation due to a 1946 federal law that gives the state criminal jurisdiction over misdemeanor crimes there. The law was meant to address safety concerns and a lack of law enforcement and tribal justice resources at the time.

For the most part, the authority “goes unused by our neighboring counties,” according to Spirit Lake Tribal Court Chief Judge Joe Vetsch.

“They respect our sovereignty and our feelings or wishes regarding that antiquated law,” he said. “It is, however, used in misdemeanor cases with a non-Indian offender and Indian victim.”

Offenses usually include simple assault, disorderly conduct, theft, criminal mischief, trespass and other misdemeanor crimes involving a potential victim, he said.

Spirit Lake has sought to have the law repealed. North Dakota’s congressional delegation as recently as 2019 has introduced legislation to do so.

North Dakota Highway Patrol does not use the federal law, according to Clawson-Huibregtse.

She noted a recent cross-deputization agreement involving the tribe and local and state law enforcement agencies allowing those agencies to enforce federal law on Spirit Lake.

State prosecutions?

Prosecution decisions are up to county state’s attorneys, according to Justice Tufte, a former state district court judge and state’s attorney.

“A case doesn’t come into court until a prosecutor decides to file a charge,” he said.

Only a handful of mostly rural counties throughout the state share geography with tribal nations, such as the five counties in the area of the Fort Berthold Indian Reservation. Tribal members also are residents of North Dakota.

Some cases could play out similarly to ones involving drugs, with both federal and state jurisdiction, Tufte said.

“At some point, somebody decides who’s going to go first, and it doesn’t mean that the other sovereign — the state or the federal government — can’t also prosecute, which is sometimes counterintuitive to folks that aren’t lawyers,” he said. “The double jeopardy clause doesn’t bar a second prosecution by a separate sovereign.”

Sioux County State’s Attorney Chris Redmann said the Supreme Court ruling “marks a win for crime victims on Native American reservations.”

“Essentially, now when a crime occurs on a reservation in North Dakota, not only will the United States government be able to hold non-Native American defendants accountable when the victim is Native American, so can the state of North Dakota,” he said.

State caseloads “perhaps” might increase, and it’s “a possibility” more prosecutor resources might come to bear, Tufte said. But that would depend on “prosecutorial priorities between the federal government and the state and the tribe, so if anything this brings the state authority as an additional, potential prosecuting agency,” he said.

He noted North Dakota’s “relatively good and productive relationship that the state has had with the tribes” sharing its geography.

“I think some of our sister states don’t have as good of relationships with the tribes, and so I’m optimistic that both between the prosecution officials and the judges and the court officials, we’ll be able to have some useful conversations and it won’t necessarily be an adversarial or a major conflict that we have to resolve,” Tufte said.

Tribal judges from each of the five tribal nations serve on the committee he chairs.

The ruling’s result might bring to bear more resources to prosecute crimes on reservations, but also “ensure fewer cases slip through the very real jurisdictional cracks that exist between the state and federal government regarding law enforcement and prosecution on Native American reservations,” the Sioux County state’s attorney said.

“While this expanded jurisdiction will likely increase caseloads in the state system, I would like to believe increased caseloads also means increased accountability and justice — and at the end of the day, that’s why we all do our jobs,” Redmann said.

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