WASHINGTON, June 29 (Reuters) – The U.S. Supreme Court on Wednesday dramatically increased state power over Native American tribes and undermined its own 2020 decision, which expanded tribal power in Oklahoma, giving Republican officials victory.
In decision 5-4, authored by Conservative Judge Brett Cavanaugh, the court ruled in favor of Oklahoma in an attempt to try Victor Castro-Huerta, a non-Indian convicted of neglecting children in a crime committed against an Indian child – his 5 -year-old stepdaughter – in the Cherokee Nation Reserve.
Until now, states have generally had no jurisdiction over such crimes, which are prosecuted by the federal government.
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The change, of course, just two years after the July 2020 ruling in a case called McGirt v. Oklahoma, was made possible by the appointment of Conservative Judge Amy Connie Barrett in October 2020 by former Republican President Donald Trump to replace the late Liberal. Judge Ruth Bader Ginsberg, who was in the majority in that decision.
Conservative Judge Neil Gorsuch, as he did in 2020, joined the Liberal bloc of the court on Wednesday in favor of Native American interests, but his expanded conservative majority meant he was in the minority this time.
“To be clear, the court today ruled that the Indian state in the state is part of a state, not a separate state,” Cavanaugh wrote in a decision that Native American law scholars believe is a major departure from long-standing precedent.
Cavanaugh added that “according to the Constitution and the precedents of this court, by default, states can exercise criminal jurisdiction on their territory.”
In McGirt’s ruling, the court recognized about half of Oklahoma – much of the eastern part of the state – as Native American reserve land outside the jurisdiction of state authorities. This decision, criticized by Governor Kevin Stitt and other Republicans, meant that many crimes on the land in question, including Indians, would have to be prosecuted in tribal or federal courts.
Castro-Huerta’s lawyer, Zachary Schauf, said the decision was “disastrous” for his client and others affected, but was glad the court did not overturn McGarth’s decision.
“We look forward to continuing the struggle for tribal sovereignty in Oklahoma and across the country,” Schauf added.
Wednesday’s decision affects Oklahoma and could be extended to other states. About 20 states with tribal reservations could seek new powers to exercise criminal jurisdiction over crimes committed by non-Native Americans against Native Americans on Native American land.
This includes western states with large Native American populations, including Arizona and New Mexico.
Arizona State University law professor Stacey Leeds, an Indian legal expert, said the decision overturned “the entire field of federal Indian law,” based on the assumption that Congress decides the degree of state power over tribes.
“It seems to be inviting the state to enter – not through the action of the federal government or the consent of the tribe. Somehow, the states have now magically acquired inherent state jurisdiction,” Leeds added.
“TORTURE RESULT”
In his disagreement, Gorsuch called Wednesday’s decision a “grim outcome for different tribes in different states”, but said its impact could still be limited by individual treaties and laws passed by Congress.
“We can only hope that the political branches and future courts will fulfill their duty to keep the promises of this nation, although today we have failed to fulfill our own,” Gorsuch added.
Thirty-five states are home to federally recognized tribes, according to the National Congress of American Indians. Prior to the Supreme Court ruling, 16 had already been empowered by Congress to assert jurisdiction over at least some tribal lands for crimes involving Indians.
Oklahoma Attorney General John O’Connor, a Republican, said that as a result of McGirt’s decision, many crimes were not prosecuted by federal authorities.
“Now prosecutors can relax and go back to what we’ve been doing for 113 years,” O’Connor added.
The state is already prosecuting crimes committed in the affected land in which no Indians are involved. Tribal courts deal with crimes committed by and against Indians.
Chuck Hoskin, chief of the Cherokee Nation, said judges had ignored court precedent and the “basic principles” of the law.
Tribes welcomed McGirt’s decision in recognition of their sovereignty. In January, the Supreme Court rejected Oklahoma’s request to overturn it. Read more
Castro-Huerta was convicted by a state court of neglecting his stepdaughter, who has cerebral palsy and is legally blind, and was sentenced to 35 years in prison. Last year, the Oklahoma Court of Appeals overturned the verdict because of the 2020 precedent. By that time, Castro-Huerta had already been charged with the same major crime by federal authorities, transferred to federal custody and found guilty of child negligence. He has not yet been convicted.
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Report by Lawrence Hurley; Edited by Will Dunham
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