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Native Americans in Oklahoma rejoiced when the Supreme Court ruled three years ago that the eastern half of Oklahoma is on tribal land and that the state could not bring criminal prosecutions on Indian land without the consent of the tribes living there. Well today, the court narrowed that decision, ruling that the state could prosecute non-Indigenous people for crimes committed against Native Americans in Indian Country. The decision prompted an angry dissent from Justice Neil Gorsuch, who has written extensively and sympathetically about the abuses inflicted on Indigenous tribes in the course of American history. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: 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, that decision three years ago meant 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 today, it issued a more limited decision, declaring that the state may prosecute crimes committed against Native American victims by non-Indians in Indian Territory. Bottom line - the 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 Neil Gorsuch, the conservative justice with the consistently loud and passionate voice for protection of Native American rights.
The decision 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 5-year-old Cherokee stepdaughter, who weighed only 19 pounds and was covered with 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. Today, the Supreme Court ruled that the state had concurrent power to prosecute him.
Governor Kevin Stitt called the decision a pivotal victory that would allow the state to prosecute non-Indians and to protect Native American victims. But the chief of the Cherokee tribe, Chuck Hoskin Jr., said that unlike previous governors, Stitt has been unwilling to work cooperatively with the tribes.
CHUCK HOSKIN JR: Governor Stitt is an outlier in my experience with Oklahoma governor. In the last certainly 20 years, we've had very good relationships with governors. It's only been under Governor Stitt that we've ran into someone who just fundamentally does not see a role for tribes in the modern world.
TOTENBERG: 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. Where this court stood firm then, Gorsuch said, today, it wilts. Nina Totenberg, NPR News, Washington.
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