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High court expands state power over tribes

A dissent from nearly half the court says the majority is giving into an unlawful power grab that will harm tribal sovereignty. 

WASHINGTON (CN) — Limiting a watershed ruling on tribal authority, the Supreme Court on Wednesday reinstated a state court conviction related to the abuse of a child who is part Cherokee by her stepfather who has no Native American heritage. 

The 5-4 ruling allows the federal government and states concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.

Balking at that outcome in a dissent, Justice Neil Gorsuch writes that the court “wilts” where it once stood firm. 

“Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s,” said Gorsuch, who rose to the Supreme Court from the 10th Circuit, which covers Oklahoma and five other states in the Southwest.

The Trump appointee notably wrote the majority opinion two years ago in McGirt v. Oklahoma, which held that a large swath of land once part of the Creek Nation could be considered Indian country for the purpose of the Major Crimes Act and that Oklahoma could not prosecute Indians or non-Indians for crimes committed there. 

Just as the court was taking up McGirt, Victor Manuel Castro-Huerta was appealing his conviction by an Oklahoma jury for child neglect after his 5-year-old stepdaughter was rushed to an emergency room in 2015 dehydrated, emaciated and covered in lice. The child — who is legally blind and has cerebral palsy — was only given around 12 bottles of milk per month instead of the recommended five per day. Weighing just 19 lbs., she spent her days confined to a crib infested with bedbugs and cockroaches. 

Castro-Huerta called it unfair to prosecute him in state court for something that happened in Indian country, but the state seized on Castro-Huerta's non-Native heritage, saying it had concurrent jurisdiction with the federal government over crimes committed by non-Indians against Indians in Indian country. Ultimately the Oklahoma Court of Appeals vacated Castro-Huerta's conviction, saying states do not have concurrent criminal jurisdiction with the federal government. 

While the justices declined to reconsider their ruling in McGirt when they took up Castro-Huerta's case in January, the precedent was still a focal point of oral arguments in April. Justice Amy Coney Barrett was the only member of the court who did not participate in the McGirt ruling. While Oklahoma's arguments in April appeared unlikely to sway Gorsuch and the fellow justices in the McGirt majority — Breyer, Sotomayor and Kagan — the justices in the minority in McGirt — Roberts, Thomas, Alito and Kavanaugh — leaned into them. 

Justice Brett Kavanaugh wrote for the majority Tuesday that federal law may preempt state jurisdiction in Indian country under high court precedent, but the Constitution allows the state to exercise jurisdiction. 

“In accord with that overarching jurisdictional principle dating back to the 1800s, States have jurisdiction to prosecute crimes committed in Indian country unless preempted,” Kavanaugh wrote, joined by Justices Roberts, Thomas, Alito and Barrett. 

Kavanaugh wrote that state jurisdiction can be preempted by federal law under ordinary principles of federal preemption or when the state jurisdiction would unlawfully infringe on tribal self-government. 

“No federal law preempts the State’s exercise of jurisdiction over crimes committed by non-Indians against Indians in Indian country,” Kavanaugh wrote. “And principles of tribal self-government likewise do not preempt state jurisdiction here.” 

Responding to the dissent, Kavanaugh notes Gorsuch’s focus on the mistreatment of Indians but said that history does not solve the legal questions presented in the case. 

Gorsuch’s extensive history of tribal sovereignty culminates with a conclusion that the case is less about Castro-Huerta and more about Oklahoma’s effort to acquire legal authority for jurisdiction over crimes on tribal lands. To do this, Gorsuch wrote, the state must not only disavow court rulings, but also its own previous recognition of its lack of authority to bring such a case. Gorsuch said Oklahoma’s argument is so novel that not a single state has successfully attempted anything similar in over 200 years. 

“The real party in interest here isn’t Mr. Castro-Huerta but the Cherokee, a Tribe of 400,000 members with its own government,” Gorsuch wrote. “Yet the Cherokee have no voice as parties in these proceedings; they and other Tribes are relegated to the filing of amicus briefs.” 

Claiming the majority’s declaration of state jurisdiction comes by “oracle,” Gorsuch said the court’s ruling is based on a foundational error. 

“Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom,” Gorsuch wrote. 

Gorsuch said the lower court rulings in the case protected the Cherokee’s sovereignty but the high court now turns that on its head. 

“Now, at the bidding of Oklahoma’s executive branch, this Court unravels those lower-court decisions, defies Congress’s statutes requiring tribal consent, offers its own consent in place of the Tribe’s, and allows Oklahoma to intrude on a feature of tribal sovereignty recognized since the founding,” Gorsuch wrote. “One can only hope the political branches and future courts will do their duty to honor this Nation’s promises even as we have failed today to do our own.” 

Zachary Schauf, an attorney with Jenner & Block representing Castro-Huerta, found a silver lining to the ruling.  

“Today’s decision — though devastating for our clients whom the state of Oklahoma prosecuted without jurisdiction — is narrow in scope,” Schauf said in a statement. “We are gratified that the Court agreed with us in rejecting Oklahoma’s extraordinary request to overrule McGirt v. Oklahoma and denied dozens of petitions raising that issue. We look forward to continuing the fight for tribal sovereignty, in Oklahoma and nationwide.”

Oklahoma Governor Kevin Stitt said the ruling was a win for millions of Oklahomans and the rule of law. 

“This is a pivotal moment,” Stitt said in a statement. “For two years, as a fourth generation Oklahoman, member of the Cherokees, and Governor of the state of Oklahoma, I have been fighting for equal protection under the law for all citizens. Today our efforts proved worthwhile and the Court upheld that Indian country is part of a State, not separate from it. I look forward to working with leaders across the state to join our efforts in combatting the criminal-justice crisis in Oklahoma following McGirt.”

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