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- By Levi Rickert
Opinion. Centuries ago, the federal government used the U.S. Cavalry to strip us Native people of our lands, massacring us on horseback riding through the Great Plains.
In contemporary times, the throat slashing continues on a different kind of battlefield. The incivility of the U.S. government against Native Americans continues in the courts, which aims to nullify the power and sovereignty of tribal nations.
That is what happened this week when the U.S. Supreme Court announced its 5-4 decision to allow the state of Oklahoma to have jurisdiction to prosecute or not prosecute non-Native people who commit crimes against Native Americans in Indian Country.
Wednesday’s decision on the Oklahoma v. Castro-Huerta case, which was argued before the Supreme Court in April, was brought by the state of Oklahoma following an earlier Supreme Court ruling that upset the state.
In the earlier July 2020 decision, the court affirmed that a large swath of eastern Oklahoma – three million acres, including most of the city of Tulsa – is on an Indian reservation, and that the land promised to the Muscogee (Creek) Nation by treaty remained rightfully theirs.
The country’s highest court ruled two years ago that Congress never “disestablished” the 1866 boundaries of the Muscogee Nation.
Oklahoma GOP Gov. Kevin Stitt, a tribal citizen of the Cherokee Nation, opposed the McGirt v. Oklahoma ruling and decreed the state would fight the decision.
According to the National Congress of American Indians (NCAI), the Castro-Huerta case was connected to the 2020 McGirt decision.
When the Supreme Court rendered its decision Wednesday in Castro-Huerta v. Oklahoma, it held that “the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian Country.”
This diminishes tribal sovereignty and jurisdiction to protect Tribal citizens. Failure to protect Tribal citizens is, in effect, the same as waging war against us.
“Unauthorized and unconsented intrusions on tribal sovereignty are antithetical to tribal sovereignty and tribal treaty rights,” said John Echohawk (Pawnee), executive director of the Native American Rights Fund (NARF), in a statement Wednesday.
Legal scholar Mary Kathryn Nagle (Cherokee) voiced her concerns about the lack of protections of Native women and children in particular.
“The Court’s decision not only contradicts the plain language in the United States Constitution and prior Court precedent, it also significantly jeopardizes the safety and welfare of Native women and children who live on tribal lands. When considered in combination with the Court’s 1978 decision in Oliphant, the Court has taken away tribal jurisdiction to protect Native women and children and given that jurisdiction to the states. Nothing is more colonial and harmful than telling Native women and children they will not be protected by their own tribal nations, but rather, must seek refuge in the courts of the states that have, historically and still to this day, sought to exterminate them.” In the Oliphant case, the court ruled that Indian tribal courts have no criminal jurisdiction over non-Indians.
Following Wednesday’s announcement, Supreme Court Justice Neil Gorsuch blasted the ruling, saying it "failed" to "honor this Nation's promises." Clearly, Gorsuch understands Indian law better than his colleagues who voted on the wrong side of Indian law. His 42-page dissent opinion strongly argued for the federal government to uphold its obligations to treaties made with Tribal nations.
“Where this Court once stood firm, today it wilts. After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands. At various points in its history, Oklahoma has chafed at this limitation….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,” Gorsuch writes.
On a special edition of Native News Online’s Native Bidaské, Cherokee Nation Principal Chief, referenced Gorsuch’s dissent.
In the 19th century, a non-Indian named Samuel Worcester living on Cherokee land was imprisoned by the state of Georgia “for living on a reservation without a license.” The case went to the Supreme Court, which ruled that the state of Georgia law had no effect on him and shouldn't have applied.
“The dissent said that the court stood strong at that time and today the court did wilt,” Hoskin says. “It really upends a great deal of precedent.”
The good news is Congress can and must act now to fix the injustice rendered by the Supreme Court.
"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," Gorsuch wrote in his dissent.
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