Tribe members react to Supreme Court decision that strikes at the issue of tribal sovereignty

CHICAGO -- Within a week’s time the Supreme Court has overturned Roe v. Wade and ruled that law enforcement officers can’t be sued when they violate the rights of criminal suspects by failing to provide the familiar Miranda warning before questioning them. And on Wednesday came the ruling that Oklahoma has the authority to prosecute non-Native Americans who commit crimes against a Native person on tribal lands, giving jurisdiction to the state and local law enforcement where prior it was solely federal and tribal.

This week’s 5-4 decision stems from the case of Oklahoma v. Castro-Huerta, where Oklahoma state prosecutors charged Victor Castro-Huerta for the malnourishment and neglect of his 5-year-old disabled stepdaughter in 2015. She was a citizen of the Eastern Band of Cherokee Indians, and the abuse took place on the Cherokee Reservation, but Castro-Huerta is not a Native American. He was sentenced to 35 years in prison, however he challenged the decision under 2020′s Supreme Court McGirt v. Oklahoma ruling where he can only be federally prosecuted. McGirt upheld that under the Major Crimes Act, Oklahoma cannot prosecute crimes by Native citizens on tribal lands without federal approval.

The latest development will have an impact on tribal sovereignty and not just in Oklahoma, according to members of local Native tribes.

“Justice Kavanaugh’s majority opinion brazenly defies not only long-held U.S. Supreme Court precedent in regards to criminal jurisdiction in Indian Country, but also the subject-matter expertise of his own colleague, Justice Gorsuch,” said Doug Kiel, a citizen of the Oneida Nation and professor of Indian legal history at Northwestern University. “In a handful of states that are subject to Public Law 280 (1953), this kind of state criminal jurisdiction does apply, by act of U.S. Congress. Oklahoma is not a Public Law 280 state; nonetheless, Kavanaugh’s majority opinion pretends it is. The earlier McGirt v. Oklahoma (2020) decision — in which Gorsuch emphatically wrote, “We hold the government to its word” — respected tribal sovereignty and mapped out a new legal future. This decision in Oklahoma v. Castro-Huerta, on the other hand, has little regard for the legal significance of Indian reservation boundaries.”

Beth Redbird, an Oglala Lakota and Oklahoma Choctaw, and co-director of Northwestern University’s Tribal Constitution Project, which is cataloging constitutions of North American Indigenous tribes and analyzing the development of tribal sovereignty in U.S. history, said there’s a significant social cost to decisions like this. She said whereas the McGirt decision was amazing, in that the Supreme Court recognized tribal sovereignty, the Castro-Huerta decision on jurisdiction — the thing promised in treaties to Indians — is yet another attempt by the federal government to take back the final acknowledgment of that promise in “all sorts of pretzel twisting ways.”

“This treatment of reservations as not really government entities where we don’t provide them the legitimacy of other governments creates other tensions,” Redbird said. “What we do with the legal system in the United States, is we say that a group of people is sovereign, and then we give them no power. We tell them they’re responsible for the problems and we give them no tools for solutions. And that has consequences up to and including people who can take advantage of that. This is a prime example of the ways in which tribal sovereignty is weaponized. Sovereignty is a double-edged sword. It can help make our lives better, but when we get it, people are afraid of sovereign Indians.”

Justice Neil Gorsuch wrote the Oklahoma v. Castro-Huerta dissent: “Moving forward, the Court cheerily promises, more prosecuting authorities can only “help.” Three sets of prosecutors — federal, tribal and state — are sure to prove better than two. But again, it’s not hard to imagine reasons why the Cherokee might see things differently. If more sets of prosecutors are always better, why not allow Texas to enforce its laws in California? Few sovereigns or their citizens would see that as an improvement. Yet it seems the Court cannot grasp why the Tribe may not. The real party in interest here isn’t Mr. Castro-Huerta but the Cherokee, a Tribe of 400,000 members with its own government. Yet the Cherokee have no voice as parties in these proceedings.”

Justice Brett Kavanaugh wrote for the majority, citing states have jurisdiction over Indian lands unless it is displaced by Congress or unlawfully infringes on tribal sovereignty. He added the court’s decision would not infringe on tribal self-government.

“A state prosecution of a crime committed by a non-Indian against an Indian would not deprive the tribe of any of its prosecutorial authority. That is because, with exceptions not invoked here, Indian tribes lack criminal jurisdiction to prosecute crimes committed by non-Indians such as Castro-Huerta, even when non-Indians commit crimes against Indians in Indian Country.”

Matthew Fletcher, foundation professor of law at Michigan State University College of Law and visiting professor for the UC-Hastings Indigenous Law Program is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians. He said a reversal of the decision could be made one of two ways — by doing what Justice Gorsuch said at the end of his dissent, which was to urge Congress to restore what the majority had taken away. The other way is more of a local, reservation by reservation, state by state way where tribes could persuade states not to exercise the jurisdiction even if they want to, in a more negotiated kind of situation. He says both are viable.

“This is not a decision that is rooted in law,” Fletcher said. “This is a decision where the Court said, the majority says: ‘over the last century and a half we’ve changed our minds on Indian law, we’ve been more deferential to states than we originally were. And so we’re just going to take that one additional step and give the state this power.’ Congress is the one that makes law in Indian Country, not the Supreme Court and today the Supreme Court decided that it makes law, too.”

“Historians of federal Indian law and policy have long referred to “pendulum swings,” and the shift from McGirt to Castro-Huerta is certainly a big swing,” Kiel said. “In one moment, the federal government embraces nation-to-nation relationships, and in the next, it disrespects the notion of Indigenous governance. In this case, we learn if the respect of Indigenous sovereignty comes at the price of non-Native convenience, it cannot stand.”

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