Three years ago, Native Americans in Oklahoma rejoiced when the Supreme Court ruled that the eastern half of Oklahoma was on tribal lands and the state could not bring criminal charges for crimes on Indian lands without the consent of the Indian tribes. But on Wednesday, the court narrowed that ruling, prompting an angry dissent from Judge Neil Gorsuch, the author of the 2019 ruling and a vocal advocate for Indian rights.
On the surface, it might look like a cut and dried case. In the aftermath of the court’s decision in 2019, the state was no longer empowered to prosecute those accused of committing crimes in Indian Territory. Only tribal courts, or the federal government, could do this, and tribal courts were generally not allowed to prosecute non-Indians. According to the federal government, the effect of this ruling was a 400% increase in federal prosecutions from 2020 to 2021, with many people not being held accountable or receiving lighter sentences under plea deals.
In light of this, the Governor and Attorney General of Oklahoma asked the Supreme Court to overturn its earlier decision. The High Court declined, but issued a more limited ruling on Wednesday, saying the state can prosecute crimes committed against Native American victims by non-Indians in Indian Country. Conclusion: the power to prosecute will most likely rest with the state, and away from the federal government.
Judge Brett Kavanaugh wrote the ruling for the court’s five conservatives, minus Gorsuch.
The ruling came in the case of Manuel Castro-Huerta, a non-Indian first prosecuted by the state and sentenced to 35 years in prison for the criminal abuse of his five-year-old Cherokee stepdaughter, who weighed just 19 pounds and was covered in feces. and lice when she was taken to the hospital. His conviction was overturned after the Supreme Court ruling in 2019, and he was later sentenced to seven years as part of a plea deal with federal prosecutors.
But on Wednesday, the Supreme Court ruled that the state had concurrent power to prosecute him.
Gov. Kevin Stitt called the decision a “landmark victory” that would allow the state to prosecute non-Indians and protect Native American victims.
But Chuck Hoskin, Jr., the main chief of the Cherokee Nation, said that unlike previous governors, Stitt was unwilling to work cooperatively with the tribes.
“Governor Stitt is an outlier in my experience with Oklahoma governors,” he said. “Over the past 20 years we have had a very good relationship with the governors. It was only under Governor Stitt that we met someone who basically does not see a role for tribes in the world modern.”
Justice Kavanaugh’s majority decision was based largely on practicalities. Indian Country is part of the state and not separate from the state, he said, and therefore, unless Congress decides otherwise, a state has jurisdiction over all of its territory, including Indian territory.
Justice Gorsuch, who is usually part of the court’s more conservative bloc, voted with the court’s three liberals instead. In a scathing dissent, he recounted the famous ruling, written by Chief Justice John Marshall in 1832, which prohibited the state of Georgia from evicting some 100,000 Cherokee Indians from their land. The decision was in vain, however, as Georgia and President Andrew Jackson flouted it, leading to the Indian Trail of Tears en route to newly designated Indian reservations west of the Mississippi River.
As Gorsuch told the story, this 1832 ruling, though defied at the time, eventually came to be recognized as one of the Supreme Court’s “finest hours” and for 200 years stood for the proposal that Native American tribes retain sovereignty unless and until Congress. order otherwise. “Where that court was firm then,” Gorsuch said, “today it is fading.”