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 that had expanded tribal authority in Oklahoma, giving it a victory to the Republican officials of that state.
In a 5-4 decision written by Conservative Judge Brett Kavanaugh, the court ruled in Oklahoma in its attempt to prosecute Victor Castro-Huerta, a non-Native American convicted of child negligence in a crime against a native child American: her 5-year-old stepdaughter – on the Cherokee Nation reservation.
Until now, states generally had no 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 appointment of Conservative Judge Amy Coney Barrett in October 2020 by former Republican President Donald Trump for to replace the late Liberal Judge Ruth Bader Ginsburg, who had been a majority in that decision.
Conservative Judge Neil Gorsuch, as he did in 2020, joined the court’s liberal bloc on Wednesday in favor of Native American interests, but his extended Conservative majority made it a minority this time.
“To be clear, the court today holds that the Indian country within the territory of a state is part of a state, not separate from a state,” Kavanaugh wrote in a ruling that scholars of native North- american said it was a major deviation from the long-standing precedent.
Kavanaugh added that “in accordance with the Constitution and the precedents of this court, the flaw is that states can exercise criminal jurisdiction within their territory.”
In McGirt’s decision, the court recognized approximately half of Oklahoma, much of the eastern part of the state, as Native American reserve land outside the jurisdiction of state authorities. That sentence, criticized by Gov. Kevin Stitt and other Republicans, meant that many crimes on the land in question involving Native Americans would have to be prosecuted in tribal or federal courts.
Castro-Huerta’s lawyer, Zachary Schauf, said the sentence was “devastating” for his client and others affected, but he is glad the court did not overturn McGirt’s decision.
“We hope to continue the fight for tribal sovereignty, in Oklahoma and across the country,” Schauf added.
Wednesday’s ruling affects Oklahoma and could extend to other states. Some 20 states where tribal reserves are located could seek new authority to exercise criminal jurisdiction over crimes committed by non-Native Americans against Native Americans in Native American lands.
This includes western states with large Native American populations, such as Arizona and New Mexico.
Arizona State University law professor Stacy Leeds, an expert on Native American legal issues, said the verdict overturned “the entire field of federal law in India” which was based on the assumption that Congress decided the scope of state power over the tribes.
“It seems to invite the state to enter, not by action of the federal government or the consent of the tribe. Somehow the states have now magically acquired the inherent state jurisdiction,” Leeds added.
“GRIM RESULT”
In a written disagreement, Gorsuch called Wednesday’s ruling a “sad outcome for different tribes in different states,” but said its impact could still be limited by individual treaties and laws passed by Congress.
“Political branches and future courts can only be expected to do their duty of honor to the promises of this nation even though today we have not made 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 ruling, 16 had already received authority from Congress to assert jurisdiction over at least some tribal lands for crimes involving Native Americans.
Oklahoma Attorney General John O’Connor, a Republican, said as a result of the McGirt sentence many crimes were not being prosecuted by federal authorities.
“Now, state prosecutors can take the plunge 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 Native American is involved. Tribal courts handle crimes committed by and against Native Americans.
Chuck Hoskin, chief chief of Cherokee Nation, said the judges had ignored judicial precedents and the “basic principles” of the law.
The tribes had accepted the McGirt ruling as a recognition of their sovereignty. The Supreme Court rejected Oklahoma’s request in January to overturn it permanently. Read more
Castro-Huerta was sentenced in state court for neglecting his stepdaughter, who has cerebral palsy and is legally blind, and sentenced to 35 years in prison. The Oklahoma Court of Criminal Appeals last year overturned that conviction because of the 2020 precedent. By then Castro-Huerta was already charged with the same underlying crime by federal authorities, transferred to federal custody and he pleaded guilty to child negligence. He has not yet been convicted.
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Report by Lawrence Hurley; Editing by Will Dunham
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