The U.S. Supreme Court, in a narrow ruling Wednesday, made a jurisdictional decision mitigating the impact of its 2020 McGirt opinion.
In a 5-4 ruling, the Court agreed with legal counsel for the state of Oklahoma, who in April argued that, McGirt's affirmation of tribal sovereignty notwithstanding, the state should have the authority to prosecute non-Indians who commit crimes against Indians in Indian country.
Lower courts in Oklahoma had essentially taken away that authority in the wake of McGirt.
Writing for the majority and on behalf of his colleagues -- Thomas, Alito, Roberts, and Barrett -- Associate Justice Brett Kavanaugh said, "the Court today holds that Indian country within a State’s territory is part of a State, not separate from a State. Therefore, a State has jurisdiction to prosecute crimes committed in Indian country unless state jurisdiction is preempted."
In oral arguments, attorneys representing the plaintiff, Victor Manuel Castro-Huerta, argued that there are numerous ways, in fact, that state jurisdiction is preempted. But Kavanaugh took a different position.
"With respect to crimes committed by non-Indians against Indians in Indian country, the Court today further holds," Kavanaugh opined, "that the General Crimes Act does not preempt the State’s authority to prosecute; that Public Law 280 does not preempt the State’s authority to prosecute; that no principle of tribal self-government preempts the State’s authority to prosecute; that the cited treaties do not preempt Oklahoma’s authority to prosecute; and that the Oklahoma Enabling Act does not preempt Oklahoma’s authority to prosecute (indeed, it solidifies the State’s presumptive sovereign authority to prosecute). Comments in the dissenting opinion suggesting anything otherwise are just that: comments in a dissenting opinion."
But Justice Neil Gorsuch, placing great weight on the importance of past treaties and promises made -- and broken -- to Tribal sovereigns, broke from the conservative pack and authored a blistering dissent on behalf of Justices Kagan, Sotomayor, and Breyer.
"Today the Court rules for Oklahoma. In doing so," wrote Gorsuch, "the Court announces that, when it comes to crimes by non-Indians against tribal members within tribal reservations, Oklahoma may “exercise jurisdiction.” But this declaration comes as if by oracle, without any sense of the history recounted above and unattached to any colorable legal authority. Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom."
Gorsuch said the majority's reasoning that there is no preemption makes a 'mockery' of the many laws passed by Congress addressing jurisdictional issues from 1834 to 1968, and in contrary to the sound judgment of Oklahoma's lower courts.
"Oklahoma’s courts exercised the fortitude to stand athwart their own State’s lawless disregard of the Cherokee’s sovereignty," Gorsuch stated. "Now, 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. 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."
In Oklahoma, the decision, understandably, was celebrated. Attorney General John O'Connor called the ruling “…an important first step in restoring law and order in our great State.”
Senator Lankford put a positive spin on the decision, saying it means the state will now have to work in harmony with the tribes and the federal government. “Today’s decision enables Oklahoma state and local law enforcement and our Oklahoma courts to work with our friends and neighbors in tribal government to prosecute crimes committed by non-tribal members on reservation land."
But tribal governments don't see that necessarily as a good thing. In a statement, the Muscogee (Creek) Nation said the decision "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."