WASHINGTON – The Supreme Court on Wednesday narrowed the scope of its remarkable 2020 ruling, declaring that much of eastern Oklahoma falls under an Indian reservation, allowing state authorities to prosecute non-Indians who commit crimes against Indians on the ground. .
The decision upheld the basic hold of the 2020 decision, McGirt v. Oklahoma, which was decided by 5 to 4 votes and said that Indians who commit crimes in the reserve cannot be prosecuted by state or local law enforcement and instead this must be brought to justice in tribal or federal courts.
Wednesday’s vote was also 5 to 4, with Judge Amy Connie Barrett, who was not in court when the McGirth case was decided, giving the casting vote.
The decision came on the penultimate day of the tumultuous term of the Supreme Court. The court said it would issue its final rulings in controversial cases on Thursday, including the powers of the Environmental Protection Agency to tackle climate change.
Judge Stephen G. Brier, who announced in January that he plans to step down at the end of his term, sent a letter to President Biden on Wednesday, saying his retirement would take effect at noon on Thursday. Judge Ketanji Brown Jackson, who was confirmed by the Senate in April, is likely to be sworn in this afternoon.
In the Oklahoma case, Judge Neil M. Gorsuch, who wrote the majority opinion at McGirt, issued a sharp and passionate disagreement, accusing the majority of “astonishing mistakes” that led to “an awkward re-entry into the anti-canon of Indian law.”
John O’Connor, Oklahoma’s attorney general, welcomed the decision. “This decision significantly limits McGirt’s impact,” he said in a statement. “This justifies my office’s long-standing efforts to protect all Oklahoma residents – both Indians and non-Indians – from the lawlessness caused by McGirt’s decision.
Chuck Hoskin Jr., the head of the Cherokee nation, said the decision was a betrayal. “With today’s ruling,” he said in a statement, “the U.S. Supreme Court has ruled against legal precedent and the basic principles of congressional power and Indian law.”
He said it could have been worse because “the court refused to overturn McGirt’s decision.”
The new case concerns Victor Manuel Castro-Huerta, who was convicted of grossly neglecting his 5-year-old stepdaughter, a member of the Eastern Group of Cherokee Indians, who has cerebral palsy and is legally blind. In 2015, she was found dehydrated, emaciated and covered in lice and feces, weighing just 19 pounds.
Mr Castro-Huerta, a non-Indian, was prosecuted by state authorities, convicted in a state court and sentenced to 35 years in prison.
Following McGirt’s ruling, the Oklahoma Court of Appeals overturned his sentence on the grounds that the crime was committed in the Indian state. The Court of Appeal referred to earlier rulings that crimes committed in reservations by or against Indians could not be prosecuted by public authorities.
Federal prosecutors then charged Mr. Castro-Huerta, and he pleaded guilty to neglecting children in federal court and entered into a plea agreement requiring a seven-year sentence. His sentence is scheduled for August.
“In other words,” Judge Brett M. Cavanaugh wrote of the majority, “leaving aside the possibility of parole, Castro-Huerta actually received a 28-year reduction in his sentence as a result of McGurth.”
He added that the case is typical. “After their state sentences were overturned, some non-Indian criminals received lighter sentences in plea deals negotiated with the federal government,” Judge Cavanaugh wrote. “Others just got free.”
Disagreeing, Judge Gorsuch said the court should not be involved in a “media and litigation campaign” that he said sought to portray Oklahoma reservations as “illegal anti-utopias.”
Federal prosecutors are adjusting to their new responsibilities, he wrote, adding that “those convicted of federal crimes usually receive longer sentences than those convicted of such state crimes.”
Tribal prosecution was not an option in Mr Castro-Huerta’s case, as tribal courts usually do not have the power to try non-Indians for crimes against Indians.
Four members of the majority on Wednesday disagreed at McGirt: Judge Cavanaugh, Chief Justice John G. Roberts Jr. and Judges Clarence Thomas and Samuel A. Alito Jr.
All four dissidents on Wednesday were the majority in McGarth: Judges Gorsuch, Breyer, Sonia Sotomayor and Elena Kagan.
Judge Ruth Bader Ginsberg, the fifth member of McGirth’s majority, died a few months after the ruling, and her deputy, Judge Barrett, almost certainly controlled the outcome of the new case.
Judge Cavanaugh’s analysis begins with the premise that the states have jurisdiction over Indian lands unless they are displaced by Congress or illegally violate tribal sovereignty.
Judge Gorsuch responded by calling the premise a “category error.”
“Tribes are not private organizations within state borders,” he wrote. “Their reservations are not celebrated private campsites. The tribes are sovereign. ”
Judge Cavanaugh, based on his premise, concluded that the relevant federal status left state sovereignty in force, rejecting the apparent allegations to the contrary in earlier decisions as non-binding deviations in cases where the stakes were low.
“The question of whether states have simultaneous jurisdiction over crimes committed by non-Indians against Indians in the Indian state,” he wrote, “has not been so important in the past.”
He added: “But after McGarth, about 43 percent of Oklahoma – including Tulsa – is now considered an Indian country. Therefore, the question of whether the state of Oklahoma retains a concomitant jurisdiction to prosecute non-Indian crimes against Indians in the Indian state suddenly became of great importance.
Judge Cavanaugh added that the court’s decision would not violate tribal self-government.
“In particular,” he writes, “state prosecution of a crime committed by a non-Indian against an Indian will not deprive the tribe of any of its prosecutorial authorities.” This is because, with exceptions not mentioned here, Native American tribes have no criminal jurisdiction to prosecute crimes committed by non-Indians such as Castro-Huerta, even when non-Indians commit crimes against Indians in the Indian country.
In fact, he writes: “Castro-Huerta’s argument will require this court to treat Indian victims as second-class citizens.
Judge Gorsuch replied that “the old paternalistic nuances are difficult to ignore.”
He called on Congress to restore what it said the majority had taken away by offering legal language.
Asked by the Supreme Court to adjudicate the case, Oklahoma v. Castro-Huerta, -4 21-429, Mr. O’Connor, Oklahoma’s attorney general, said that judges “have never categorically held that states do not have competitive power to prosecute.” non-Indians for crimes under state law committed against Indians in the Indian country.
Mr Castro-Huerta’s lawyers replied that the Supreme Court, lower courts and Congress had said that crimes committed in reservations by or against Indians could not be prosecuted by state authorities.
In his petition for reconsideration, Mr O’Connor also asked the Supreme Court to answer a second question: whether McGirt’s decision should be set aside. However, in its review order, the Supreme Court said it would only consider the narrower question of whether states could prosecute non-Indians for crimes against Indians on the reserves.
Judge Gorsuch ended his disagreement with a motion.
“We can only hope that the political branches and future courts,” he wrote, “will fulfill their duty to keep the promises of this nation, even though we have failed to fulfill our own today.”
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