After the Supreme Court’s Oklahoma Decision, the Rights of Accused on Tribal Land Are Up in the Air. Congress Should Make Things Clearer, Not Less So.

Zack Smith

On the last day of the Supreme Court’s pandemic-extended term, the court declared that nearly half the state of Oklahoma remained reservation land. This thrust matters concerning jurisdiction on reservations and tribal lands on the center stage. The implications of the Supreme Court’s decision are staggering, especially in the criminal justice context. Some 2,000 convictions may now be at risk, and federal authorities have to take over prosecutions previously pursued by the state. Congress is currently considering legislation regarding the jurisdiction of tribal courts that may exacerbate matters—specifically, by not ensuring the rights of defendants accused of crimes on tribal lands. By way of background, Indian Country jurisdiction is a morass of workarounds patched together to make sure that someone, anyone, can prosecute a crime if it occurs on tribal land. A mixture of tribal, state, or federal authorities may have exclusive or concurrent jurisdiction to prosecute a crime committed on tribal land depending on who committed the crime, who the victim of the crime is, and what the crime is. Jurisdiction is often based on whether anyone involved is a member of a tribe. It’s often difficult to determine who has jurisdiction over a crime, and even when multiple entities may have jurisdiction, it’s often challenging to determine who should, in fact, take it. Confused? Me too. But here’s a chart from the Department of Justice that aims to sort out the mess. Frankly, the entire system needs a wholesale reevaluation. But it’s probably not the one Congress is currently considering—which is anything but wholesale and would instead add another layer of confusion onto this jurisdictional jumble...MORE