‘An attack on tribal sovereignty’: Tribal leaders, experts condemn SCOTUS ruling

By Nora Mabie

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    FORT BELKNAP RESERVATION, Montana (Missoulian) — The U.S. Supreme Court on Wednesday ruled in favor of allowing state law enforcement to prosecute non-Native people who commit crimes against Native people on reservation land.

Experts and tribal leaders condemned the decision, saying it undermines tribal sovereignty.

Jeffrey Stiffarm, president of the Fort Belknap Indian Community, said on Thursday that the ruling was “another attempt to dilute the sovereignty of Indian nations,” calling it a “slap in the face.”

“It is unfortunate that Indian Nations, after more than 200 years, are still fighting to preserve their homelands and right to govern,” Stiffarm said. “But as our ancestors taught us, and because of our need to protect those yet to come, we will continue to fight for our people.”

Cherokee Nation Principal Chief Chuck Hoskin Jr. said in a statement the Supreme Court “ruled against legal precedent and the basic principles of congressional authority and Indian law.”

Fawn Sharp, president of the National Congress of American Indians, called the ruling “an attack on tribal sovereignty.”

John Echohawk, executive director of the Native American Rights Fund, said the “unauthorized and unconsented intrusions on tribal sovereignty are antithetical to tribal sovereignty and tribal treaty rights.”

In 2015, Victor Manuel Castro-Huerta, who is non-Native, was charged by the state of Oklahoma for child neglect. Castro-Huerta was convicted in state court and sentenced to 35 years in prison, according to court documents.

While Castro-Huerta’s case was pending, the Supreme Court decided McGirt v. Oklahoma, which, in a 5-4 vote, found that the state lacked jurisdiction to prosecute violent crimes by or against Native Americans that occurred on tribal lands. The court issued the ruling on the grounds that the Muscogee (Creek) Nation’s treaty reserved lands in eastern Oklahoma were never disestablished for criminal jurisdiction and remained part of Indian Country. (“Indian Country” is a legal term referring to reservations and lands held within tribal jurisdictions.)

Following McGirt, Castro-Huerta argued that the federal government had exclusive jurisdiction to prosecute him for a crime committed against his stepdaughter, who is Cherokee, in an area of Tulsa that is considered Indian Country. He said the state lacked jurisdiction in his case.

Castro-Huerta v. Oklahoma was expected to affirm the McGirt ruling, but the Supreme Court instead found that the federal government and state have concurrent jurisdiction to prosecute crimes committed by non-Natives against Native people in Indian Country.

Justices on the court voted 5-4 in the Castro-Huerta case. Justice Amy Coney Barrett was not on the court when McGirt was decided and cast the deciding vote.

Justice Brett Kavanaugh wrote the majority opinion, stating, in part, “that Indian Country is part of a state, not separate from a state.”

Justice Neil Gorsuch, with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, penned the dissent, saying, “where this court once stood firm, today it wilts.” Gorsuch wrote the majority opinion in McGirt.

“Tribes are not private organizations within state boundaries,” the dissent reads. “Their reservations are not glorified private campgrounds. Tribes are sovereigns. … Tribal sovereignty means that the criminal laws of the states ‘can have no force’ on tribal members within tribal bounds unless and until Congress clearly ordains otherwise.”

Crimes occurring on or near reservations are subject to a patchwork of laws dictating criminal jurisdiction among federal, state and tribal law enforcement entities. The lead agency is determined by the severity and location of the crime and whether the victims or perpetrators are Native or non-Native.

If a non-Native person commits a major crime against a Native person on the Fort Belknap Reservation, for example, federal law enforcement would have jurisdiction.

But jurisdiction on tribal lands also varies by reservation. The Confederated Salish and Kootenai Tribes (CSKT) have adopted Public Law 280, which essentially replaces federal jurisdiction with state jurisdiction. So, if a non-Native person commits a major crime against a Native person on the Flathead Reservation, the state would instead have sole jurisdiction.

While the CSKT acknowledged that the Supreme Court’s ruling will not directly affect them, as the Flathead is a P.L. 280 reservation, the tribes said in a statement that “the sweeping language used by the majority regarding basic federal Indian law and policy could certainly have a destabilizing effect throughout Indian Country.”

Experts say the patchwork of laws establishing jurisdiction lack a coherent approach and was not created with Native people, their values or their communities in mind. The Castro-Huerta case further complicates this system.

The Native American Rights Fund said the decision “not only weakened a component of the McGirt case but has fundamentally altered the long-established understanding of how criminal jurisdiction over non-Indians functions with respect to the federal government, state governments and tribal nation governments.”

David Hill, principal chief of the Muscogee Nation, said in a statement that the ruling “is an alarming step backward for justice on our reservation.”

Hill added that when the state of Oklahoma held “illegal jurisdiction” on the Muscogee Nation’s reservation before the McGirt decision, the state “routinely failed to deliver justice for Native victims.”

“While we hope for the best, we are not optimistic that the quality of effort from the state of Oklahoma will be any better than before,” he said. “This will have a ripple effect throughout Indian Country across the United States.”

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