Once Again The Supreme Court Breaks America’s Promise To Tribes

The highest court in the land has ruled that state governments can now prosecute non-Natives for crimes committed against Natives on tribal land.
The Supreme Court has ruled against “a feature of tribal sovereignty recognized since the founding,” Justice Neil Gorsuch wrote in dissent.
The Supreme Court has ruled against “a feature of tribal sovereignty recognized since the founding,” Justice Neil Gorsuch wrote in dissent.
Drew Angerer via Getty Images

In April, Justice Neil Gorsuch asked his colleagues on the Supreme Court if they would “wilt today because of a social media campaign.” The case was Oklahoma v. Castro-Huerta, in which the state of Oklahoma claimed it holds jurisdiction to prosecute certain crimes committed against Indian citizens on Indian reservations. That claim was backed by neither the law nor history, falling afoul of court precedent, established practices in other states, and clear congressional intent and authority.

This week, Gorsuch got his answer: Yes, the court would wilt and take the side of an aggressively political media campaign over the rule of law. Tribes once again saw another broken promise ― despite our best hopes, the court sent a message that the word of the United States is meaningless when it comes to the promises made to Indian Country.

The issue stems from the 2020 McGirt v. Oklahoma decision, in which the Supreme Court and subsequent lower court cases ruled that the reservations of several tribes in Oklahoma had never been disestablished, and that state authorities had therefore been illegally exercising jurisdiction on Indian land. That includes the Cherokee Nation, which I have the honor of serving as principal chief, and our reservation covering 7,000 square miles in northeastern Oklahoma.

Even before the decision, tribes recognized the tremendous work that would be required to rebuild our justice systems following over a century of suppression, and the importance of working with our state, local and federal partners to meet our renewed public safety responsibilities. There would be challenges ahead, but we certainly all had the same goal of protecting our people, and working cooperatively with the state was the obvious way to succeed.

Or so we thought. Oklahoma Gov. Kevin Stitt has spent the past two years not just railing against the McGirt decision but actively impeding cooperation with tribes, from vetoing public safety legislation passed by his own party to canceling hunting and fishing agreements that were a win-win for tribes and the state. And he has wasted time and taxpayer dollars on legal fights, backed by an aggressive media campaign that proved more than willing to exaggerate or outright lie in order to paint a picture of a state in chaos that no amount of cooperation could resolve.

“Unfortunately, the Constitution’s clear language ... was not important to the justices who sided with Oklahoma on Wednesday.”

While the court rejected the state’s numerous requests to outright overturn McGirt, it granted the separate Castro-Huerta question on jurisdiction, which impacts not just reservations in Oklahoma but across the country. Until this case, there was little reputable dispute on that question ― outside of clear exceptions, crimes committed against Indian victims on Indian land would be prosecuted in tribal court if the perpetrator was Indian, or in federal court if not. Unless both parties were non-Indian, state jurisdiction would not apply. That was the clear reality recognized by the U.S. Congress, which has passed laws granting exceptions to these situations in multiple states that would be outright nonsensical if the state’s claims of jurisdiction were correct.

Unfortunately, the Constitution’s clear language regarding congressional authority on matters of Indian law was not important to the justices who sided with Oklahoma on Wednesday. “Now,” Gorsuch wrote in his dissent, “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.”

This may not diminish tribal authority ― the cases in question would only be prosecuted in federal court, not tribal court ― but it is yet another unacceptable infringement on our inherent sovereignty. We are yet again facing broken promises.

Yet, unlike those who prioritize fighting against our rights and our sovereignty, my goal remains providing a blanket of protection to everyone on our reservation, both Indian and non-Indian. With this legal question behind us, Gov. Stitt will hopefully recognize it is time to come to the table and join all of us who have been calling for a cooperative effort to support victims and public safety. The Cherokee Nation has filed over 6,000 cases in tribal court since McGirt and has invested tens of millions into expanding our justice system ― from hiring new staff to building new courthouses. We did so because, regardless of how wrong or right the court may decide, we are going to protect our people. And now it is time for Oklahoma to do the same.

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