Excerpted From: Adam Crepelle, Making Red Lives Matter: Public Choice Theory and Indian Country Crime, 27 Lewis & Clark Law Review 769 (2023) (484 Footnotes) (Full Document)


AdamCrepelle.jpegWhen Gabby Petito went missing, social media and the national news entered a frenzy. The Federal Bureau of Investigation (FBI) immediately joined the search for Gabby. The FBI coordinated with federal, state, and local law enforcement to find Gabby. A week later, the search team discovered Gabby's deceased body. A federal court issued a warrant for the arrest of Brian Laundrie--her boyfriend, road trip companion, and likely the last person to see her alive--three days later. Law enforcement's quest to find Laundrie led them to swampy Florida. Searchers had to brave alligators, snakes, and other unsavory critters. Due to their persistence, Laundrie's remains were found less than two months after the FBI started its investigation. He died of a self-inflicted wound but possessed a notebook that included a confession to murdering Gabby. At the conclusion of the case, the FBI stated, “The FBI's primary focus throughout the investigation was to bring justice to Gabby and her family. The public's role in helping us in this endeavor was invaluable as the investigation was covered in the media around the world.”

Gabby's disappearance revealed a stark contrast in the way law enforcement, media, and the general public respond to missing whites versus people of color. In Wyoming, where Gabby's body was found, 10 indigenous people were missing while the search for Gabby was in progress. Over 700 indigenous people had been reported missing in Wyoming during the past decade. The Wyoming Survey & Analysis Center found missing indigenous women were much less likely to receive media attention than missing whites. Similarly, a report from the Urban Indian Health Institute determined there were 5,712 cases of missing and murdered indigenous women and girls (MMIWG) reported in 2016. Despite the FBI's primary role in Indian country law enforcement, the United States Department of Justice logged only 116 of the aforementioned cases.

MMIWG is not the only crime problem afflicting Indians the general public ignores. Thirty-four percent of Indian women are raped during their lifetime, the highest of any race. In some parts of Indian country, women are murdered at rates exceeding ten times the national average. children endure abuse at higher rates than children of any other race, and “[d]ue to the high rates of violence they experience, Indian youth suffer from post-traumatic stress disorder at the same rate as American veterans who endured combat in Iraq and Afghanistan.” are victims of violence at twice the rate of any other racial group. Though police violence against African-Americans has spawned an international movement, are killed by police at rates even higher than African-Americans. And while crime in the United States is overwhelmingly intra-racial, over ninety percent of violent victimizations perpetrated against Indians are committed by non-Indians. These grim statistics are all the more macabre because the federal rules governing Indian country crimes are premised on colonial ideals designed to undermine tribal sovereignty.

Federal law has long been used to oppress Indians, but a new level was reached in 1978. That year, the Supreme Court prohibited tribes from prosecuting non-Indians in Oliphant v. Suquamish Indian Tribe. Non-Indian criminals know this and seek out reservations to perpetrate crimes against Indians. While either state or federal law enforcement has authority over every non-Indian crime committed on a reservation, they generally have no duty to protect people. Federal prosecutors have historically declined to prosecute the vast majority of Indian country crimes that reach their desk, and some state law enforcement agencies have openly declared they will not police the Indian country within their borders. Quite simply, Indian country's law enforcement regime was designed to fail, and nobody seems to care. Public choice theory helps explain why.

Public choice theory applies economic principles to politics and the public sector; hence, public choice theory assumes politicians are simply concerned with their own self-interest. For politicians, self-interest is getting elected. Indians are not much help on this front. Indians are approximately one percent of the population and have the highest poverty rate in the United States. Thus, prioritizing Indian issues is unlikely to improve politicians' electoral chances. State and federal law enforcement have incentives too. Prioritizing Indian country crime is unlikely to help a state or federal law enforcement officer advance professionally because tribal communities are not their community. Compounding the political disincentive, policing Indian country is far more difficult than patrolling other areas due to Indian country's vexing jurisdictional regime. Tribes' only hope for a safer future is to change the system, and given the decades-long failure to fix Indian country's broken criminal justice system, this Article suggests tribes openly defy Oliphant.

Civil disobedience is the conscientious and peaceful contravention of an existing law. People engage in civil disobedience because they would rather bear legal penalties than comply with a mandate that spurns their sense of justice. This idea is ancient. Over 2,000 years ago, Antigone, the namesake of Sophocles' classic play, freely chose to suffer the consequences of defying the King's command in order to bury her brother. One of the inaugural American acts was the Boston Tea Party, a flagrant and nonviolent violation of existing law. Henry David Thoreau believed, “[I]f [the law] is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law.” Accordingly, he practiced civil disobedience to oppose slavery and the Mexican War. Most famously, Martin Luther King, Jr. engaged in civil disobedience in pursuit of African-American equality before the law. Sitting in a Birmingham jail, King wrote, “[O]ne has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that 'an unjust law is no law at all.”’ Tribes should heed the advice of Thoreau and King and defy the law to make red lives matter.

Civil disobedience is nothing new for Indians; in fact, the United States' first major civil rights case arose from Indian civil disobedience. Chief Standing Bear of the Ponca Tribe is well-known in Indian country but often overlooked by the American mainstream. However, Chief Standing Bear deserves a place among the United States great civil rights leaders. After the United States violated a treaty with the Ponca and sought their removal, Chief Standing Bear boldly told federal officials:

I want you to go off my land. If you were treating a white man the way you are treating me, he would kill you, and everybody would say he did right. I will not do that. I will harm no white man, but this is my land, and I intend to stay here and make a good living for my wife and children. You can go.

His protest failed to prevent the forced removal of his tribe. Removal killed a quarter of the Ponca, including all but one of Chief Standing Bear's children. Chief Standing Bear's dying son asked to be buried in the ancestral Ponca lands. Though the United States prohibited Indians from leaving reservations, Chief Standing Bear chose to defy federal law in order to honor his vow to his son. Chief Standing Bear's dignified resistance to colonial oppression forever transformed federal Indian policy.

Following his civil disobedience, Chief Standing Bear used facts, morality, and emotion to win his court case--establishing Indians are human beings. Tribes can do the same to battle Oliphant. Publicly disobeying Oliphant will challenge the core of federal Indian policy. The Oliphant challenge will likely reach the United States Supreme Court. Throughout the proceeding, tribes should argue Oliphant was wrongly decided based upon precedent. More importantly, tribes should assert Oliphant is based upon racist lies. Lies devised to justify the dispossession and subjugation of America's indigenous inhabitants. Lies now overwhelmingly refuted by historical, archeological, and scientific evidence. Lies with no place in a nation that prides itself on the impartial administration of justice.

Rebelling against Oliphant will force the United States to confront an embarrassing reality. Nearly 150 years after Chief Standing Bear was declared a person, the same legal rationale used to dehumanize Indians continues to be wielded to delegitimize tribal governments. Indeed, tribes have been legally classified as “domestic dependent nations” since 1831, meaning “they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.” This bigoted, paternalistic language was integral to the Supreme Court's conclusion that tribes have been implicitly divested of criminal authority over non-Indians. goes beyond institutionalized racism; rather, Oliphant and the jurisprudence it relies upon are racism masquerading as law.

Not only do Oliphant and other racist precedents subvert tribal sovereignty, they contaminate the nature of justice in the United States. George Washington and other members of the founding generation believed the world would judge the United States based upon its treatment of Indians. Their prediction has come true as international bodies, including the United Nations, have described contemporary federal Indian law as wholly incompatible with modern notions of justice. The principles of stare decisis render federal Indian law toxic to the entire United States' legal system. As the great Indian law scholar Felix Cohen wrote, “Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.”

The remainder of this Article proceeds as follows: Part II provides an overview of public choice theory, Part III chronicles the development of federal Indian policy, Part IV applies public choice theory to Indian country crime, and Part V discusses civil obedience as a means to make red lives matter.

[. . .]

The Supreme Court showed public sentiment outweighs the law in matters of Indian rights during its 2022 term. In Oklahoma v. Castro-Huerta, Oklahoma sought to prosecute reservation crimes involving a non-Indian perpetrator and an Indian victim. Oklahoma's position flagrantly violated the Constitution as well as over 200 years of federal policy. Most damning, Oklahoma averred it lacked jurisdiction over this class of crimes in 2020. Absent legal authority, Oklahoma spent millions of dollars on a media campaign portraying the reservations within its borders as “criminal dystopias.” The state's outlandish argument prompted Justice Gorsuch to ask, “[A]re we to wilt today because of a social media campaign?” Five Justices answered “yes,” leading Justice Gorsuch to write Castro-Huerta “surely marks an embarrassing new entry into the anticanon of Indian law.”

shows tribes should consider publicly defying Oliphant. By violating Oliphant, tribes will announce the status quo is unacceptable. Tribes will not endure a system that permits one-in-three Indian women to be raped. Tribes will not tolerate a regime that permits Indian women and girls to be murdered and go missing at crisis levels. Tribes will not stand by as state and federal law enforcement let non-Indian criminals escape justice. Oliphant is the embodiment of an unjust law and should be no law at all. Tribes must defy Oliphant to make red lives matter.

Assistant Professor, Loyola University Chicago School of Law; Associate Justice, Court of Appeals for the Pascua Yaqui Tribe.