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FLAGSTAFF, Ariz. — A U.S. Supreme Court ruling expanding the state’s power to prosecute certain crimes on Indian land upends decades of law built around the hard-fought principle that tribes have the right to govern themselves on their own land, legal experts say.
Wednesday’s ruling is a significant departure from federal Indian law and departs from a push to increase tribes’ ability to prosecute all crimes on reservations — regardless of who is involved. It also casts tribes as part of states rather than the sovereign nations they are, angering many in Indian Country.
“The majority (opinion) is not firmly rooted in the law that I have devoted my life to studying and history as I know it to be true,” said Elizabeth Hidalgo Reese, an assistant professor of law at Stanford University who is enrolled at the Nambé Pueblo in New Mexico. “And that’s really worrying,”
Federal authorities maintain largely exclusive jurisdiction to investigate serious violent crimes on reservations in much of the US when the suspect or victim is Native American. The Supreme Court’s 5-4 ruling in a case out of Oklahoma means states will share that power when the suspect is not Native American and the victim is.
Criminal justice on tribal lands can already be a tangled web, and the ruling is likely to raise thorny new questions about jurisdiction, possible triple jeopardy and how to deal with complex crimes in remote areas where resources are scarce. States had the power to prosecute crimes involving only non-natives on reservations even before this week’s Supreme Court ruling.
“It’s going to have an impact in Indian country, so only the future will tell if it’s good or not,” said Robert Miller, an Arizona State University law professor and a citizen of the eastern Shawnee tribe. “Is it better to have more prosecutions, more governments enforcing crimes, or less?”
Justice Neil Gorsuch wrote a scathing dissent joined by all three liberal members of the court, saying that “we can only hope that the political branches and future courts will fulfill their duty to uphold the promises of this nation, even as today they do not we managed to do it ourselves’.
Principal Chief Chuck Hoskin Jr. of the Cherokee Nation said the court “failed in its duty to honor the promises of this nation, violated congressional statutes and accepted an “unlawful disregard for Cherokee sovereignty.”
It’s unclear how the decision will ultimately affect the tribes, but there is precedent. In 1953, Congress introduced a law known as PL-280, in part to exempt the federal government from funding public safety on some reservations. The law led to state power over crime in several states, including Alaska and California, where about three-fifths of the 574 federally recognized tribes are based.
As in Oklahoma v. Castro-Huerta, the tribes disagreed. Neither Congress then nor the Supreme Court now funded the expansion of state authority over tribal land.
“This is far from the first time,” said Lauren van Schilfgaarde, a member of the Cochiti Pueblo in New Mexico who directs the Tribal Legal Development Clinic at UCLA. “Federal Indian law is replete with cases where tribes have been denied the opportunity to speak for themselves.”
Federal authorities have long been criticized for refusing to prosecute cases in Indian country — roughly one-third, according to the U.S. Department of Justice. Authorities in PL-280 states have also been criticized for their lack of response to crime in Indian Country, where law enforcement officers often have to travel long distances to investigate reported crimes.
The tribes have argued in court filings and elsewhere that the federal government — which has a political relationship with the tribes through treaties and acts of Congress — is the appropriate sovereign entity to handle criminal matters. Congress maintains control over Native American and Alaska Native affairs, which are overseen by the Department of the Interior.
States have no such obligation to tribes.
“One of the interesting things to me is how the priority question shakes out,” said Kevin Washburn, who is Chickasaw and dean of the University of Iowa School of Law. “So are the feds going to have the upper hand or are the state prosecutors going to have the upper hand in the cases? And how do they decide who gets to move first, or who gets to move at all?” asked Washburn, a former assistant secretary of the interior for Indian affairs.
While the Supreme Court decision is an expansion of power for the states, it does not come with a similar increase for the tribes. A 1978 Supreme Court ruling stripped tribes of any criminal jurisdiction over non-natives on their reservations. The reauthorization of the Violence Against Women Act in 2013 restored some of that power in limited cases of domestic violence and expanded it further earlier this year.
Less than 1 percent of federally recognized tribes in the U.S. have implemented this right, one of the most recent being the Salt River Pima-Maricopa Indian Community outside Phoenix. This raises the possibility that tribes, the state and the feds could pursue a suspect for the same crime. Another U.S. Supreme Court ruling issued last month says tribal members prosecuted in certain tribal courts can also be prosecuted based on the same incident in federal court.
Most tribes can sentence convicted felons to as little as one year in prison, regardless of the crime. A 2010 federal law increased tribal sentencing powers to three years for a single crime, but few tribes have met federal requirements to use that power. This includes having public defenders, creating or updating criminal codes, and having trained judges.
Oklahoma has its own unique history with tribal cases, including a 2020 US Supreme Court decision known as McGirt v. Oklahoma, according to which much of the eastern part of the state remains an Indian reservation. That decision, written by Gorsuch, left the state unable to prosecute Native Americans accused of crimes on tribal lands that include most of Tulsa, the state’s second-largest city with a population of about 413,000.
The Supreme Court declined to review McGirt. Oklahoma filed a wave of petitions related to the case, which led to the latest ruling on state power over crime on reservations that extends widely across the U.S. Justice Brett Kavanaugh, writing for the majority, said the state’s interest in protecting to all crime victims.
Tulsa Mayor GT Bynum, a Republican, applauded the decision and pledged to work with the state and tribal nations “who are our partners in building a safe city.”
Whitehurst reported from Salt Lake City. Fonseca covers indigenous issues on AP’s race and ethnicity team. Follow Whitehurst on Twitter at and Fonseca at
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