WASHINGTON, June 29 (Reuters) – The U.S. Supreme Court on Wednesday dramatically expanded states’ power over Native American tribes and undermined its own 2020 ruling that expanded tribal authority in Oklahoma, handing a victory to the Republican officials in that state.
In a 5-4 decision written by conservative judge Brett Kavanaugh, the court ruled in favor of Oklahoma in its attempt to prosecute Victor Castro-Huerta, a non-Native American convicted of child neglect in a crime committed against a Native American child – his 5-year-old daughter-in-law – on the Cherokee Nation reservation.
Until now, states generally did not have jurisdiction over these crimes, which were 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 October 2020 appointment of conservative Judge Amy Coney Barrett by former Republican President Donald Trump to replace the late liberal Justice Ruth Bader Ginsburg, who had a majority in that decision.
Conservative Justice Neil Gorsuch, as he did in 2020, joined the court’s liberal bloc on Wednesday in support of Native American interests, but his expanded conservative majority meant he was in the minority this time around.
“To be clear, the court today finds that an Indian country within the territory of a state is part of a state and not separate from a state,” Kavanaugh wrote in a decision that, scholars of Native American law, constituted a major departure from long-standing precedent.
Kavanaugh added that “under the Constitution and the precedents of this court, the default is that states may exercise criminal jurisdiction within their territory.”
In the McGirt decision, the court recognized about half of Oklahoma — much of the eastern part of the state — as Native American reservation land beyond the jurisdiction of state authorities. The move, criticized by Gov. Kevin Stitt and other Republicans, meant that many crimes on the lands in question involving Native Americans would have to be prosecuted in tribal or federal courts.
Castro-Huerta’s attorney, Zachary Schauf, said the decision was “devastating” for his client and others affected, but glad the court did not overturn the McGirt decision.
“We look forward to continuing the fight 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 authority to exercise criminal jurisdiction over crimes committed by non-Native Americans against Native Americans on Native American lands.
This includes western states with large Native American populations, including Arizona and New Mexico.
Stacy Leeds, a professor at Arizona State University School of Law who specializes in Native American legal issues, said the decision upsets “the whole area of Indian federal law” which was based on the assumption that the Congress decided the extent of state power over the tribes.
“He seems to be inviting the state in – not by federal action or tribal consent. Somehow the states have now magically acquired inherent state jurisdiction “, added Leeds.
Writing in dissent, 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.
“One can only hope that the political branches and future courts will do their duty to honor this nation’s promises, even if we failed today to deliver on ours,” Gorsuch added.
Thirty-five states are home to federally recognized tribes, according to the National Congress of American Indians. Prior to the Supreme Court’s decision, 16 had already been authorized by Congress to assert jurisdiction over at least some tribal lands for crimes involving Native Americans.
Oklahoma Attorney General John O’Connor, a Republican, said that as a result of the McGirt ruling, many crimes were not being prosecuted by federal authorities.
“Now state prosecutors can take over and go back to what we’ve been doing for 113 years,” O’Connor added.
The state already prosecutes crimes committed in the affected lands in which no Native Americans are involved. Tribal courts deal with crimes committed by and against Native Americans.
Chuck Hoskin, senior chief of the Cherokee Nation, said the judges ignored legal precedents and “fundamental principles” of law.
The tribes had welcomed the McGirt decision as recognition of their sovereignty. The Supreme Court in January rejected Oklahoma’s request to strike it down outright. Read more
Castro-Huerta was found guilty in state court of neglecting his stepdaughter, who has cerebral palsy and is legally blind, and sentenced to 35 years in prison. Last year, the Oklahoma Court of Criminal Appeals threw out that conviction because of the 2020 precedent. Castro-Huerta was then already charged with the same underlying offense by federal authorities, transferred to federal custody and pleaded guilty to child neglect. He has not yet been sentenced.
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Reporting by Lawrence Hurley; Editing by Will Dunham
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