In a stunning reversal of what the dissent called “a mountain of statutes and precedents,” the U.S. Supreme Court ruled June 29 that states have concurrent jurisdiction with the federal government to prosecute crimes perpetrated by non-Indians against Indians in Indian Country.
The court ruled 5-4 in favor of the state of Oklahoma, which sought to gut the McGirt v. Oklahoma decision issued two years ago. That decision established – at least until the composition of the court changed – that the Muscogee (Creek) Nation reservation still existed and that the federal and tribal governments alone have jurisdiction over all crimes involving Native Americans within those historic boundaries. State courts subsequently extended that ruling to the reservations of the Five Civilized Tribes because they, like Creek, had never been formally disestablished.
The case decided June 29, Oklahoma v. Victor Castro-Huerta, centered on a non-Indian man in Tulsa who was convicted in state court of felony child neglect of his stepdaughter, a 5-year-old Cherokee with cerebral palsy who weighed but 19 pounds and was found in 2015 covered in lice and her own excrement. That conviction and 35-year sentence were overturned because of McGirt; Castro-Huerta then pleaded guilty in federal court and received a seven-year sentence.
The Osage Nation has been trying to ride the coattails of McGirt to have its reservation recognized as similarly never having been disestablished. The Osage have had to back-door their attempts by filing friend-of-the-court or amicus briefs in criminal cases because of a federal court decision 12 years ago that the Osage reservation had been disestablished when Oklahoma became a state. Under federal law, that decision has stood because the Supreme Court refused to hear it, and it cannot be directly attacked.
Congress never disestablished the Osage reservation, just as the McGirt decision said it had never dissolved the Creek reservation that encompasses much of Tulsa.
State is ecstatic; Cherokee view it as betrayal
Oklahoma Attorney General John O’Connor, a lame duck who lost to Gentner Drummond in the election the day before the ruling came down, trumpeted the decision, saying that the Supreme Court had declined to treat Indian victims “as second class citizens” – a claim that came as an affront to many.
“This decision significantly limits the impact of McGirt,”he said. “It vindicates my office’s years-long effort to protect all Oklahomans—Indians and non-Indians alike—from the lawlessness produced by the McGirtdecision. While we still have a long road ahead of us to fix all of the harms our State has experienced as a consequence of McGirt, this is an important first step in restoring law and order in our great State.”
Cherokee Nation Chief Chuck Hoskin Jr. lambasted the Supreme Court for wilting in the face of a slanted media campaign by Gov. Kevin Stitt and his minions like O’Connor.
“With today’s decision, the U.S. Supreme Court ruled against legal precedent and the basic principles of congressional authority and Indian law,” Hoskin said in a statement. “… [T]he Court failed in its duty to honor this nation’s promises, defied Congress’s statutes, and accepted the ‘lawless disregard of the Cherokee’s sovereignty.’
“Despite the Oklahoma governor’s lies and attacks, the Court has refused to overturn the McGirt decision. As we enter a chapter of concurrent jurisdiction, tribes will continue to seek partnership and collaboration with state authorities while expanding our own justice systems. We hope that with these legal questions behind us, Governor Stitt will finally lay his anti-tribal agenda to rest and come to the table to move forward with us – for the sake of Oklahomans and public safety.”
‘Indian Country long a part of state’
Writing for the majority, Justice Brett Kavanaugh said that the high court “has long held that Indian Country is part of a state, not separate from it. Under the Constitution, States have the jurisdiction to prosecute crimes within their territory except when preempted by federal law or by principles of tribal self-government. The default is that States have jurisdiction in Indian Country unless that jurisdiction is preempted. And that jurisdiction has not been preempted here.”
All agree, Kavanaugh wrote, that the federal government can prosecute non-Indians for crimes against Indians: “The question is whether the Federal Government’s jurisdiction is exclusive, or whether the State has concurrent jurisdiction with the Federal Government.”
And it does, ruled the majority.
Indian reservations nationwide, the opinion says, are not “federal enclaves” like military bases or national parks. Historically, it says, the federal General Crimes Act that Castro-Huerta contended gave the federal government exclusive jurisdiction over crimes by non-Indians against Indians in Indian country was crafted in 1817 and 1834, when Indian territories were separate from the states.
“Therefore, at that time, State law did not apply in Indian country – in the same way that New York law would not ordinarily have applied in New Jersey,” the ruling says. “But territorial separation – not jurisdictional preemption by the General Crimes Act – was the reason that state authority did not extend to Indian country at that time….
“[T]he understanding of Indian country as separate from the State was abandoned later in the 1800s. After that change, Indian Country in each State became part of that state’s territory.”
Kavanaugh reiterated state claims of “lawlessness” and chaos in Eastern Oklahoma, citing the state’s estimate that 18,000 a year that had been handled pre-McGirt by the state would have to be transferred to federal and tribal jurisdiction and that the caseload has led to bottlenecks and criminals going free.
A blistering dissent from the right
Justice Neil Gorsuch, who wrote the McGirt decision, penned a blistering dissent in which he accused the majority – Kavanaugh, John Roberts, Clarence Thomas, Samuel Alito and Amy Coney Barrett – of flat-out ignoring “mountains” of established law and making new law “as if by oracle, without any sense of … history and unattached to any colorable legal authority. Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.”
The majority, he wrote, is sowing needless confusion nationwide by saying states have broad police powers in Indian country.
“Tribes are not private organizations within state boundaries,” wrote Gorsuch, a conservative who was joined by the three justices viewed as more liberal on the Court. “Their reservations are not glorified private campgrounds. Tribes are sovereigns.
“Tribal sovereignty means that the criminal laws of the States ‘can have no force’ on tribal members unless and until Congress clearly ordains otherwise … After all, the power to punish crimes by or against one’s own citizens within one’s own territory is and has always been among the most essential attributes of sovereignty.”
A ‘galaxy’ of jurisprudence, ignored
Gorsuch also skewered the majority for being inconsistent, noting that the court ruled just a few weeks earlier that federal prosecutors did not violate the double jeopardy clause by charging a Navajo man with a crime stemming from an incident for which he had already been tried and convicted under tribal law – because the tribal law stemmed from a “separate sovereign.” (Gorsuch dissented in that case, too, arguing that it was at odds with the Constitution, writing: “Same defendant, same crime, same prosecuting authority. Yet according to the Court, the Double Jeopardy Clause has nothing to say about this case. How can that be?”)
Gorsuch also accused the majority of carefully curating a few snippets of law out of a “galaxy of this Court’s Indian law jurisprudence, thus trying to point their fingers at former Supreme Court decisions for the grievous misjustice it delivers in Castro.
“In the end, the Court cannot fault our predecessors for today’s decision,” he wrote. “The blame belongs only with this Court here and now. Standing before us is a mountain of statutes and precedents making plain that Oklahoma possesses no authority to prosecute crimes against tribal members on tribal reservations until it amends its laws and wins tribal consent. This Court may choose to ignore Congress’s statutes and the Nation’s treaties, but it has no power to negate them.
“The Court may choose to disregard our precedents, but it does not purport to overrule a single one. As a result, today’s decision surely marks an embarrassing new entry into the anticanon of Indian law.”
Gorsuch also pulled no punches in characterizing how Oklahoma has pushed the McGirt issue so far, despite offering little hard evidence to back up its claims of lawlessness in the decision’s wake.
The state, he said, could simply have asked Congress for legislation to allow it to have criminal jurisdiction on tribal land – something Kansas and other states have done. Instead, Oklahoma launched a media and litigation campaign to portray reservations in the state as “lawless dystopias.”
The point of the state’s persistence is clear, Gorsuch said.
“Really though, this case has less to do with where Mr. Castro-Huerta serves his time and much more to do with Oklahoma’s effort to gain a legal foothold for its wish to exercise jurisdiction over crimes involving tribal members on tribal lands. To succeed, Oklahoma must disavow adverse rulings from its own courts; disregard its 1991 recognition that it lacks legal authority to try cases of this sort; and ignore fundamental principles of tribal sovereignty, a treaty, the Oklahoma Enabling Act, its own state constitution, and Public Law 280 [which granted some states – not Oklahoma – criminal and civil jurisdiction over Indian reservations]. Oklahoma must pursue a proposition so novel and so unlikely that in over two centuries not a single State has successfully attempted it in this Court.
“Incredibly, too, the defense of tribal interests against the State’s gambit falls to a non-Indian criminal defendant. 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; they and other Tribes are relegated to the filing of amicus briefs.”
Kavanaugh fired back at Gorsuch, saying he was just wrong.
“The dissent incorrectly seeks to characterize various aspects of the Court’s decision as dicta,” Kavanaugh wrote, using the Latin term for judicial comments that are not legally binding.
“To be clear, the Court today holds that Indian country within a State’s territory is part of a State, not separate from a State. Therefore, a State has jurisdiction to prosecute crimes committed in Indian country unless state jurisdiction is preempted. “
Kavanaugh also accused Gorsuch of engaging in “extraordinary rhetoric in articulating its deeply held policy views about what Indian law should be. The dissent goes so far as to draft a proposed statute for Congress. But this Court’s proper role under Article III of the Constitution is to declare what the law is, not what we think the law should be.”
Gorsuch characterized the court’s majority as kowtowing to Gov. Stitt’s administration, unraveling established law, and blatantly disregarding Cherokee sovereignty along with that of tribes across the country.
He noted that in the 1830s, the Supreme Court came under fire for a decision in which it ruled that the state of Georgia had no right to arrest a white man named Samuel Worcester for preaching to the Cherokee on tribal lands without a license. The Supreme Court ruled that Georgia had no right to govern the territory of a separate sovereign
“The Court’s decision was deeply unpopular, and both Georgia and President [Andrew] Jackson flouted it,” Gorsuch noted. “But in time, Worcester came to be recognized as one of this Court’s finer hours. 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. Worcester proved that, even in the “[c]ourts of the conqueror,” the rule of law meant something.
“Where this Court once stood firm, today it wilts.”