Three years ago, Native Americans in Oklahoma rejoiced when the Supreme Court ruled that the eastern half of Oklahoma is on tribal land, and that the state could not bring criminal prosecutions for crimes on Indian land without the consent of the Indian tribes. But on Wednesday, the court narrowed that decision, prompting an angry dissent from Justice Neil Gorsuch, the author of the 2019 decision, and an ardent proponent of Indian rights.
On the surface, this might look like a cut-and-dried case. In the aftermath of the court's 2019 decision, the state was no longer empowered to prosecute those accused of committing crimes on Indian territory. Only the tribal courts, or the federal government, could do that, and the tribal courts were generally not authorized to prosecute non-Indians. According to the federal government, effect of that decision was a 400% increase in federal prosecutions from 2020 to 2021, with many people either not held accountable or receiving lighter sentences in plea deals.
In light of that, Oklahoma's governor and attorney general asked the Supreme Court to reverse its earlier decision. The high court refused, but on Wednesday it issued a more limited decision, declaring that the state may prosecute crimes committed against Native American victims by non-Indians in Indian country. Bottom line: power to prosecute will most likely now shift back to the state, and away from the federal government.
Justice Brett Kavanaugh wrote the decision for the court's five conservatives, minus Gorsuch.
The ruling came in the case of Manuel Castro-Huerta, a non-Indian first prosecuted by the state and sentenced to 35 years in prison for the criminal abuse of his five year old Cherokee stepdaughter, who weighed only 19 pounds and was covered in feces and lice when she was taken to the hospital. His conviction was set aside after the Supreme Court's 2019 decision, and he was then sentenced to seven years in a plea deal with federal prosecutors.
But on Wednesday, the Supreme Court ruled that the state had concurrent power to prosecute him.
Gov. Kevin Stitt called the decision "a pivotal victory" that would allow the state to prosecute non-Indians and to protect Native American victims.
But Chuck Hoskin, Jr., the principal chief of the Cherokee Nation, said that unlike previous governors, Stitt has been unwilling to work cooperatively with the tribes.
"Gov. Stitt is an outlier in my experience with Oklahoma governors," he said. "In the last 20 years, we've had very good relationship with governors. It's only been under Gov. Stitt that we've ran into someone who just fundamentally does not see a role for tribes in the modern world."
Justice Kavanaugh's majority decision was based in large part on practicalities. Indian country is part of the state, not separate from the state, he said, and therefore, unless Congress says otherwise, a state has jurisdiction over all of its territory, including Indian territory.
Justice Gorsuch, who usually is part of the court's most conservative bloc, instead voted with the court's three liberals. In a scathing dissent, he recounted the famous decision, written by chief Justice John Marshall in 1832, which barred the state of Georgia from throwing some 100,000 Cherokee Indians off their land. The decision was for naught, though, because both Georgia and President Andrew Jackson flouted it, leading to the Indian Trail of Tears en route to newly designated Indian reservations west of the Mississippi River.
As Gorsuch recounted the history, that 1832 decision, though defied at the time, came to be recognized as one of the Supreme Court's "finer hours," and for 200 years stood for the proposition that Native American tribes retain their sovereignty unless and until Congress ordains otherwise. "Where this court stood firm then," Gorsuch said, "today it wilts."