A CONFEDERATE COURT
US Supreme Court ruling expands states’ authority to prosecute crimes on tribal land

Keith Schubert, Daily Montanan
June 30, 2022

The United States Supreme Court building. (Shutterstock.com)

The United States Supreme Court ruled on Wednesday that states can prosecute non-Native people who commit crimes against a Native person on tribal lands, a dramatic move for tribal sovereignty that undoes decades of practice.

Victor Manuel Castro-Huerta, who is non-Native, was sentenced to 35 years in prison stemming from a 2015 child neglect conviction in Oklahoma against his Native American stepdaughter within the state’s Cherokee Reservation. Castro-Huerta challenged the conviction, citing the Supreme Court’s 2020 decision in McGirt v. Oklahoma, which held states cannot prosecute crimes committed on Native American lands without federal approval.

In this case, Oklahoma argued that because Castro-Huerta is non-Native, McGirt does not bar his prosecution by the state, and the Supreme Court agreed.

Justice Brett Kavanaugh, who authored the court’s majority opinion, raised questions about the eastern part of Oklahoma, including Tulsa, being labeled as “Indian Country.”

“About two million people live there, and the vast majority are not Indians,” he wrote.”The classification of eastern Oklahoma as Indian country has raised urgent questions about which government or governments have jurisdiction to prosecute crimes committed there.”

Kavanaugh listed multiple decisions going back to 1845 to support the argument that Indian reservations are “part of the surrounding state” and are subject to the state’s jurisdiction “except as forbidden by federal law.”
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“In short, the court’s precedents establish that Indian country is part of a state’s territory and that, unless preempted, states have jurisdiction over crimes committed in Indian Country,” Kavanaugh wrote for the majority.

Justices John Roberts, Clarence Thomas, Samuel Alito Jr., and Amy Coney Barrett joined Kavanaugh in the majority. At the same time, Neil Gorsuch joined the three liberal justices — Elena Kagan, Stephen Breyer and Sonia Sotomayor — in dissent.

In his dissent, Gorsuch praised the 1832 decision Worcester v. Georgia, which ruled state law had no power in Indian country without congressional authorization.

“The decision established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise,” Gorsuch wrote.

He argued that Wednesday’s ruling was reneging on a promise made to the Cherokee after their exile to what became Oklahoma.

“The federal government promised the tribe that it would remain forever free from interference by state authorities. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands,” he wrote. “Where this Court once stood firm, today it wilts … Where our predecessors refused to participate in one state’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s. Respectfully, I dissent.”

Gorsuch pushed back on the majority’s argument that a state possesses “inherent” sovereign power to prosecute crimes on tribal reservations until and unless Congress “preempts” that authority.

“The Court emphasizes that states normally wield broad police powers within their borders absent some preemptive federal law,” he wrote. “But the effort to wedge tribes into that paradigm is a category error. Tribes are not private organizations within state boundaries. Their reservations are not glorified private campgrounds. Tribes are sovereigns.”

Keaton Sunchild, political director at Western Native Voice, a nonpartisan organization that advocates for Native rights in Montana, said the ruling sets a dangerous criterion going forward.

“Obviously we fear that this starts a dangerous precedent of stripping tribal sovereignty and blurring the lines between the treaties made between the federal government and the tribes across the country,” he said. “This is something that we have long just assumed is settled on between state governments, federal governments and tribal governments … I guess the five justices thought differently and now we have to worry about what happens next with tribal rights, who knows what else could be under attack and potentially stripped next.”

He added that the decision is expected to have a harmful impact going forward. “We will likely see more states meddling in tribal affairs and the taking away of autonomy that tribes have had available to them for decades.”

The Native American Fund said in a statement that the ruling “strikes” against the sovereignty of tribal nations and the consequences of the decision for tribal nations, the federal government, and states will take time to unravel.

“The Supreme Court’s decision today is an attack on tribal sovereignty and the hard-fought progress of our ancestors to exercise our inherent sovereignty over our own territories,” said National Congress of American Indians President Fawn Sharp in the release. “It was only a few months ago that Congress loudly supported tribal sovereignty and tribal criminal jurisdiction with the passage of the Violence Against Women’s Act, reaffirming the right of Tribal Nations to protect their own people and communities, but make no mistake, today, the Supreme Court has dealt a massive blow to tribal sovereignty and Congress must, again, respond.”


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