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June 29, 2022

Via 5-4 ruling, Supreme Court limits reach of McGirt to rule states can "prosecute crimes committed by non-Indians against Indians in Indian country"

The last big criminal law case on the Supreme Court's docket was handed down this morning, and the Court split 5-4 in Oklahoma v. Castro-Huerta, No. 21-429 (S. Ct. June 29, 2022) (available here). The opinion for the Court was authored by Justice Kavanaugh, and it starts and ends this way: 

This case presents a jurisdictional question about the prosecution of crimes committed by non-Indians against Indians in Indian country: Under current federal law, does the Federal Government have exclusive jurisdiction to prosecute those crimes?  Or do the Federal Government and the State have concurrent jurisdiction to prosecute those crimes?  We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country....

We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.  We therefore reverse the judgment of the Oklahoma Court of Criminal Appeals and remand the case for further proceedings not inconsistent with this opinion.

Justice Gorsuch authored the dissent, which was joined by Justices Breyer, Sotomayor and Kagan. It starts this way:

In 1831, Georgia arrested Samuel Worcester, a white missionary, for preaching to the Cherokee on tribal lands without a license.  Really, the prosecution was a show of force — an attempt by the State to demonstrate its authority over tribal lands. S peaking for this Court, Chief Justice Marshall refused to endorse Georgia’s ploy because the State enjoyed no lawful right to govern the territory of a separate sovereign.  See Worcester v. Georgia, 6 Pet. 515, 561 (1832).  The Court’s decision was deeply unpopular, and both Georgia and President Jackson flouted it.  But in time, Worcester came to be recognized as one of this Court’s finer hours.  The decision established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise.  Worcester proved that, even in the “[c]ourts of the conqueror,” the rule of law meant something. Johnson’s Lessee v. McIntosh, 8 Wheat. 543, 588 (1823).

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.  Now, the State seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee Reservation.  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.  Respectfully, I dissent.

June 29, 2022 at 10:10 AM | Permalink


Ultimately, this case is less about the ultimate result than the power of one justice. The line-up today was the same as in McGirt except for one justice having died and a new justice having taken her place. I don't think a credible argument can be made that Justice Barrett would have joined the McGirt majority or that Justice Ginsburg would have joined the Castro-Huerta majority.

It is also about the relationship between the federal government, the state governments, and the tribes and is another chapter in that uneasy history. After 233 years, we still do not have a clear answer on how tribal governments fit into our federal system of government as each generation seems to have a new preferred approach to tribal issues. McGirt, for all of its flaws, was a step toward treating tribal sovereignty as something worthy of respect. This decision will undoubtedly be seen as a step back -- giving the states more authority over the tribes and treating tribal sovereignty as something that is easily ignored when it is "inconvenient." I am not sure what the proper approach to indigenous populations is. Other countries do not seem to have done much better. But this flip-flopping back and forth clearly is not the proper approach.

Posted by: tmm | Jun 29, 2022 1:27:37 PM

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