Jun 29, 2022 - Politics & Policy

SCOTUS rules states can prosecute non-Native Americans on Indigenous lands

Photo of the Supreme Court facade as the sun sets
The U.S. Supreme Cour. Photo: Eric Lee/Bloomberg via Getty Images

The U.S. Supreme Court on Wednesday ruled states can prosecute non-Native Americans who commit crimes against Native Americans within Indigenous reservations.

Why it matters: The opinion could redo the court system not just in Oklahoma but in all 50 states, and it highlights the precarious nature of Indigenous sovereignty in the U.S.

  • "The Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country," according to the 5-4 opinion, written by Justice Brett Kavanaugh.

Details: "To begin with, the Constitution allows a State to exercise jurisdiction in Indian country. Indian country is part of the State, not separate from the State," Kavanaugh wrote.

  • "To be sure, under this Court's precedents, federal law may preempt that state jurisdiction in certain circumstances. But otherwise, as a matter of sovereignty, a State has jurisdiction over all of its territory, including Indian country."
  • "[N]o federal law preempts the State's exercise of jurisdiction over crimes committed by non-Indians against Indians in Indian country. And principles of tribal self-government likewise do not preempt state jurisdiction here."

Justice Neil Gorsuch dissented, and was joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. He argues that a 1831 Supreme Court decision "established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise."

  • "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 for-ever 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."

Context: Vincent Castro-Huerta is a non-Native American who was living on Cherokee land when he was charged with, and convicted of, child neglect of his stepdaughter, who is Native American, in state court. He was sentenced to 35 years in prison.

  • Castro-Huerta, who had already pleaded guilty to federal charges, sued to challenge his conviction, arguing that due to the Supreme Court’s 2020 McGirt v. Oklahoma decision, the state did not have jurisdiction over his case.
  • In McGirt, the court ruled that states cannot prosecute crimes committed on Native lands without prior federal approval. The federal government had exclusive jurisdiction over certain major crimes committed by a Native American on tribal land, per the decision. It meant states cannot try Native Americans who commit crimes on tribal lands.
  • Oklahoma, however, claimed it had jurisdiction over Castro-Huerta’s case because the perpetrator is not a Native American, whereas McGirt involved a Native American defendant.
  • Part of the state’s argument was that it allegedly lost jurisdiction over thousands of cases that are "going un-investigated and unprosecuted, endangering public safety" following the McGirt ruling. (Those numbers have been contested.)
  • The court's decision limits McGirt's scope, meaning that now tribes only have power over Native Americans who commit crimes on indigenous reservations.

But it's not just an issue of policing. The case is part of a long fight for Indigenous sovereignty and self-determination.

  • The tribal nations countered that the state's claims are not rooted in the law and that prior treaty agreements must be honored.
  • They also pointed to the fact that historically states have overreached to strip Native Americans of their rights, which Gorsuch alluded to during oral arguments in April. The U.S. has a long history "of states abusing Indian victims in their courts," he said.
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