"An oil boom at the Fort Berthold reservation has attracted thousands of newcomers—and a wave of hard-to-prosecute crime."
The night before Sanchez found her, an oil worker at a bar in New Town had bought her drinks and taken her to his camper. She remembered only that several men and a woman were having sex. “Just do it,” someone had said as a man climbed on top of her. Were any of the men Indian, Cummings asked? No, the girl said this time.
Why did it matter? If the girl’s rapist was, in fact, an enrolled member of a Native American tribe, then Cummings had every right to continue the investigation. But now the girl struggled through her shock and inebriation to recall the story: The men, she believed, had been white and Latino. If true, then the right to investigate and prosecute the case belonged not to Cummings, nor to the U.S. attorney, but to the state. “I did what I could,” Cummings later told me, but in the end, she called a county deputy to take the girl off the reservation.
In 1978, the Supreme Court case Oliphant v. Suquamish stripped tribes of the right to arrest and prosecute non-Indians who commit crimes on Indian land. If both victim and perpetrator are non-Indian, a county or state officer must make the arrest. If the perpetrator is non-Indian and the victim an enrolled member, only a federally certified agent has that right. If the opposite is true, a tribal officer can make the arrest, but the case still goes to federal court.