The United States Supreme Court has limited the scope of its historic McGirt decision.
In a 5-4 vote, the high court ruled in Oklahoma v. Castro-Huerta that the state of Oklahoma has concurrent jurisdiction and the ability to prosecute non-Natives when the victim is Native and the crime is committed on tribal land.
“From start to finish, the dissent employs extraordinary rhetoric in articulating its deeply held policy views about what Indian law should be,” Justice Brett Kavanaugh’s opinion reads.
Justice Kavanaugh wrote the majority opinion and was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett in the majority. Justice Kavanaugh wrote that the views of the justices in the dissent were contrary to previous Supreme Court precedents and other laws.
“The dissent goes so far as to draft a proposed statute for Congress. But this Court’s proper role under Article III of the Constitution is to declare what the law is, not what we think the law should be,” Justice Kavanaugh wrote.
Tribes, Native lawyers and advocates were disappointed in the decision.
The Muscogee Nation called the ruling an “alarming step backward.”
“It hands jurisdictional responsibility in these cases to the State, which during its long, pre-McGirt, history of illegal jurisdiction on our reservation, routinely failed to deliver justice for Native victims,” the tribe said in a statement. “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.”
Similarly, Cherokee Nation Principal Chief Chuck Hoskin Jr. said the court folded to what amounted to a social media campaign by the state and ruled against legal precedent, congressional authority and federal Indian law.
“The dissent today did not mince words — the Court failed in its duty to honor this nation’s promises, defied Congress’s statutes, and accepted the ‘lawless disregard of the Cherokee’s sovereignty,” Hoskin said in the statement.
Both tribes expressed commitment to continue to work to meet public safety and criminal justice responsibilities, as well as working with Congress, state and federal authorities moving forward.
Justice Neil Gorsuch wrote the dissenting opinion and was joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Gorsuch, the author of the historic McGirt decision, wrote that tribes were promised to be free from interference by state authorities.
“Where this Court once stood firm, today it wilts,” Gorsuch wrote. “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.”
The case pertains to Victor Manuel Castro-Huerta, a non-Native man who was convicted by the state of Oklahoma for criminal child neglect of his step-daughter, a citizen of the Eastern Band of Cherokee Indians.
His conviction came before the 2020 McGirt decision and after the McGirt ruling, Castro-Huerta argued that the federal government had jurisdiction over his prosecution. His conviction was vacated and Castro-Huerta later pleaded guilty to a federal charge.
The state of Oklahoma appealed to the Supreme Court seeking to overturn McGirt entirely, but the high court allowed only to hear arguments regarding the scope of criminal jurisdiction the state has over crimes committed by non-Natives against Natives on tribal lands.
Mary Kathryn Nagle, Cherokee, said Wednesday’s ruling will lead to an increase in violence in Indian Country.
“This, you know, just really broad and epic rewriting of federal Indian law all throughout Indian Country is only going to create chaos and it’s not going to result in greater safety for Native victims,” Nagle, a partner at Pipestem law, said.
Reaction throughout Indian Country was swift, with many sharing the same disappointment expressed from Oklahoma tribes.
After reading Kavanaugh’s opinion, Nagle found it concerning and said Kavanaugh misreads and misuses the 10th amendment, which she says could have implications outside of criminal law in Indian Country.
“He just concludes that states have unlimited authority on tribal reservations and cites the 10th amendment,” Nagle said. “He doesn’t quote any language in the 10th amendment that gives states such authority on tribal reservations. There is no language in the 10th amendment that gives states uninhibited authority on tribal lands.”
Stanford University assistant professor of law, Elizabeth Reese, Nambé Pueblo, described the decision as insulting.
“This #SCOTUS opinion in Castro Huerta is horrifying and insulting to Indian people and tribes. I’m shaken. Every few paragraphs of the majority opinion has another line that dismissively and casually cuts apart tribal independence that Native ancestors gave their lives for.”
Stacy Leeds, Cherokee and Arizona State University law professor, said in a tweet that the ruling is disruptive.
“Wow. Redo the federal Indian law criminal charts! SCOTUS rules, for the 1st time ever, states have prosecutorial power over Indian country crimes involving Natives (as victims) despite zero Congressional delegation. Very disruptive for Indian country nationally. #CastroHuerta”
Moving forward, Nagle said tribes need to come together to find a legislative fix to this case.
“We have a lot of work to do,” Nagle said. “I think tribes need to read this decision carefully. The decision is not limited to criminal law, which is scary.”
With the Castro-Huerta decision being handed down, the Supreme Court has two remaining cases to rule on for the current term before its summer recess. The court will reconvene in October.
Today’s opinion can be found and read here.
This story was originally published by Indian Country Today and is republished here with permission.