Judicial Division member Jerry Gardner, executive director of the Tribal Law and Policy Institute, recently accepted the Frank Carrington Crime Victim Attorney Award. In his acceptance speech, Gardner praised support from the ABA for increasing awareness about and action on tribal legal concerns and lamented the gap created by Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), that “stripped Indian nations of the ability to exercise their inherent criminal jurisdiction over non-Indians who come onto tribal lands and commit crimes.” “Oliphant left American Indian and Alaska Native women and children at a higher risk of abuse, sexual assault, and murder, higher than any other group with statistics demonstrating that non- Indians commit a majority of these violent crimes,” Gardner said.
He also blamed the Oliphant decision for playing a major role in the current epidemic of missing and murdered Indigenous women and girls, but acknowledged that revisions of the Violence Against Women Act included provisions which created a framework for tribal prosecutions of non-Indians for the first time since the 1978 Oliphant decision. Gardner added that while there is more to be done he is very pleased to recognize that the ABA has fully supported these efforts every step of the way and praised ABA leadership, especially current president Mary Smith, who have stood with us in our ongoing struggles to address the needs of Indian country crime victims and survivors.
One of the things on ABA President Smith’s to do list is calling on congressional leaders to improve funding for tribal justice systems, saying “inadequate funding of tribal criminal justice has contributed to staggering rates of violent crime and victimization on many Indian reservations.” President Smith said that the funding crisis has been known for “over two decades” yet Congress allocated less than half of what tribal justice systems need, exacerbated by McGirt v. Oklahoma, 591 U.S. (2020), which dramatically increased the caseload of tribal nations in Oklahoma. “The ABA has long affirmed that tribal justice systems are the primary and most appropriate institutions for maintaining order in tribal communities,” Smith wrote. “We have repeatedly urged the United States government to support quality and accessible justice by ensuring adequate, stable, long-term funding for tribal justice systems,” She added. Despite urgent pleas by tribes, tribal courts, and concerned organizations representing myriad disciplines for the U.S. government to appropriate the funds that are needed to provide the more than 350 tribal justice systems with the resources they need to do this important work, there is a critical funding shortfall that needs to be recognized and rectified.
