Abstract

Excerpted From: Shivani Singh, The Need for Special Tribal Criminal Jurisdiction over Drug Crimes, 35 Cornell Journal of Law & Public Policy 113 (Fall 2025) (190 Footnotes) (Full Document)

“YOU HAVE NO JURISDICTION OVER ME. THE COUNTY MIGHT, THE FEDS MIGHT, BUT YOU DON’T,’D’ proclaimed a non-Indian drug dealer during a May 2024 exclusion hearing convened by the Tribal Council of north-central Montana’s Fort Belknap Indian Community. Fort Belknap Chief of Police Joshua Roberge testified that Tribal law enforcement had uncovered that the non-Indian offender possessed a large amount of methamphetamine, had beaten a Tribe member, and maintained a history of committing drug crimes, yet expressed little fear of any consequences the Tribe might impose on him. This offender’s attitude exemplifies the invincibility many non-Indians feel in Indian country following the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe , while limited law enforcement resources leave already-remote Tribal communities feeling vulnerable amid the drug crisis ravaging their reservations. For example, Tribes reported almost 1,600 fatal and 900 non-fatal overdoses in fiscal year 2023 alone.

This crisis showcases both the continued erosion of trust between Tribes and the United States government, and the disastrous aftermath of the Supreme Court’s decision in Oliphant , which significantly limited Tribes’ ability to prosecute non-Indian individuals accused of committing criminal offenses on Indian reservations. The Oliphant decision capped nearly two centuries of Congressional and federal judicial activity responsible for shrinking Tribal criminal jurisdiction. Various changes to statutory and common law since the 19 th century have granted the federal government exclusive jurisdiction in certain cases and excepted offenders from prosecution depending on their own or their victims’ Indian status. These changes have created a sort of “jurisdictional maze” in Indian country which confuses law enforcement and shields perpetrators from accountability. Poor intergovernmental coordination owing to a lack of cross-deputization *115 agreements, as well as the difficulties Tribes experience in retaining an adequate number of Tribal law enforcement officers, amplifies the issue.

These shortcomings illuminate the need for Congress to enact legislation granting tribes “special tribal drug criminal jurisdiction” so they have the authority to prosecute non-Indian offenders and tackle the drug crisis head-on. Congress offered somewhat of a remedy to Oliphant with the Violence Against Women Reauthorization Act of 2013 (VAWA 2013), which gave Tribes the authority to exercise “special domestic violence criminal jurisdiction,” and the VAWA Reauthorization Act of 2022, which expanded Tribal jurisdiction to encompass more offenses under “special Tribal criminal jurisdiction.” This Note will address the issues created in Indian country by various jurisdictional issues with a particular focus on the ongoing drug crisis. It will also explore tribal law enforcement retention issues and problems with intergovernmental agreements. The following section will first analyze the statutes and judicial decisions that led to today’s jurisdictional void and its implications. It will then examine the economic side of drug trade and why traffickers target Indian country specifically. This Note will discuss Congress’s past actions, namely the Violence Against Women Reauthorization Act of 2013 and the improvements made in its 2022 counterpart, to address similar jurisdictional issues. Lastly, this Note will explore why creating “special Tribal drug criminal jurisdiction” would solve this pervasive issue. It will include an evaluation of the Protection for Reservation Occupants against Trafficking and Evasive Communications Today (PROTECT) Act and its supporting legislation which had been proposed by the 118 th Congress.

Limitations to Tribal criminal jurisdiction, especially over drug crimes, have ultimately contributed to “limited law enforcement; delayed prosecutions; too few prosecutions, and other prosecution inefficiencies” that have allowed non-Indian perpetrators to exploit a failing system and endanger vulnerable Tribal communities.

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In sum, legislation granting special criminal jurisdiction to tribes over drug offenses as an Oliphant -fix would be a solid first step towards attacking the pervasive drug crisis in Indian country, something that is heavily perpetuated by non-Indians perpetrators who exploit jurisdictional loopholes. History shows that leaving native criminal jurisdiction to state and federal governments is ineffective as tribes are often low priorities. With the drug crisis raging in Indian country, tribes cannot afford to wait.

As examined above, non-Indian drug offenders are well aware of the jurisdictional complexities created by overlapping laws and decisions on criminal jurisdiction such as the Major Crimes Act, P.L. 280, and the Oliphant decision. The current framework poses delays at every level, worsening the crisis and allowing offenders to remain unchecked. Investigations can be delayed by many things, including jurisdictional problems or even declinations to prosecute by U.S. Attorneys. This, along with the great economic success that comes from drug trafficking in Indian country, create a perfect storm of factors for such offenders to target indigenous communities.

Enforcing a VAWA-type special tribal criminal jurisdiction, the PROTECT Act would allow Congress to enact improvements from the 2013 and 2022 reauthorizations over drug crimes. Tribes who accepted jurisdiction have had success in prosecuting offenders while still conducting fair trials. Furthermore, allowing tribal law enforcement to prosecute repeated lawbreakers in tribal courts eased pressure off of federal law agencies that do not see this as a priority. This new jurisdictional reach would complement the current jurisdiction over domestic violence, child violence, and sexual assault crimes that often involve drug abuse and go untouched on reservations because of the lack of authority they have. If Congress can trust tribal law enforcement and judges to oversee the extremely serious crimes outlined in VAWA 2022, there is no reason they should not be entrusted with the same jurisdiction for drug offenses.

As the Muscogee (Creek) Nation Ambassador Jonodev Chaudhuri explained that VAWA’s jurisdiction enables tribal law enforcement, the Attorney General, and the general population to better protect its children and “[n]o sovereign has a more significant interest in protecting Muscogee children than our Muscogee Nation.” Glen Melville, OJS deputy director, advocated for special jurisdiction, saying that tribes will take care of such jurisdiction because they can finally do something for themselves and see the final product which is both empowering and emotional, especially after tribes had that power stripped from them via Public Law 280 and Oliphant .

A reform like this could function as a gateway into recognizing tribal criminal jurisdiction over most crimes by non-Indians in Indian country and reverse the damage done to tribal sovereignty by Oliphant . As Meredith Drent, Tulalip Tribal Court (Osage Nation) says, “When I go to Colorado, I may not know their laws, but I know that I’m going to have to follow them, and they can prosecute me if I don’t. And it’s the same thing here: when you enter someone else’s jurisdiction, you fall under their laws.”

 J D Candidate, Cornell Law School 2026, B S , Cornell University School of Industrial and Labor Relations 2023 Senior Acquisitions Editor,