By Felicia Fonseca and Lindsay Whitehurst | Associated press
FLAGSTAFF, Ariz. — A U.S. Supreme Court decision expanding state authority to prosecute certain crimes on Native American lands breaks decades of law built around the hard-fought principle that tribes have the right to rule on their own turf, say legal experts.
Wednesday’s decision is a clear departure from federal Indian law and moves away from the desire to increase the ability of tribes to prosecute all crimes on reservations, regardless of who was involved. It has also cast tribes within the framework of states, rather than the sovereign nations that they are, infuriating many across Indian Country.
“The majority (the opinion) is not firmly rooted in the law that I have dedicated my life to studying and in history as I know it to be true,” said Elizabeth Hidalgo Reese, assistant professor of law at Stanford University enrolled in Nambé. Pueblo in New Mexico. “And that’s really worrying,”
Federal authorities have largely maintained their exclusive jurisdiction to investigate serious and violent crimes on reservations across much of the United States when the suspect or victim is Native American. The High Court’s 5-4 decision in a case out of Oklahoma means states will share that authority when the suspect is not Native American and the victim is.
Criminal justice on tribal lands may already be a tangled web, and the decision will likely raise thorny new questions about jurisdiction, the possibility of triple jeopardy and how to tackle complex crimes in remote areas where resources are limited. States had the power to prosecute crimes involving only non-Indigenous people on reservations even before this week’s Supreme Court ruling.
“It will have an impact in Indian Country, so only time will tell if it’s good or not,” said Robert Miller, a law professor at Arizona State University and a citizen of the Eastern Shawnee Tribe. “Is it better to have more criminal prosecutions, more governments cracking down on crime, or less?”
Justice Neil Gorsuch wrote a scathing dissent joined by the three liberal members of the court, saying “one can only hope that the political branches and future courts will do their duty to honor the promises of this nation, even if we failed today to do it on our own”.
Senior Chief Chuck Hoskin Jr. of the Cherokee Nation said the court “failed to honor this nation’s promises, defied the statutes of Congress, and accepted ‘lawless disregard for Cherokee sovereignty.’ “
It’s unclear how the decision will ultimately play out for the tribes, but there is precedent. Congress established a law in 1953 known as PL-280, in part to relieve the federal government of public safety funding on certain reservations. The law resulted in state authority over crime in several states, including Alaska and California, where about three-fifths of the 574 federally recognized tribes are based.
As in Oklahoma v. Castro-Huerta, the tribes did not consent. Neither Congress nor the Supreme Court then funded the expansion of state authority over tribal lands.
“This is far from the first time,” said Lauren van Schilfgaarde, a member of Cochiti Pueblo in New Mexico who directs the Tribal Legal Development Clinic at UCLA. “Indian federal law is littered with cases in which tribes have been denied the ability to speak on their own behalf.”
Federal authorities have long been criticized for refusing to prosecute cases in Indian Country – about a third, according to the US Department of Justice. Authorities in PL-280 states have also been criticized for their lack of response to crime in Indian Country, where law enforcement officers often have to travel long distances to investigate reported crimes.
The tribes have asserted in documents filed in court and elsewhere that the federal government — which maintains political relations with the tribes through treaties and acts of Congress — is the appropriate sovereign entity to handle criminal cases. Congress maintains control over Native American and Alaska Native affairs, which are overseen by the Department of the Interior.
States have no such obligation to tribes.
“One of the interesting things for me is how the priority issue emerges,” said Kevin Washburn, who is Chickasaw and dean of the University of Iowa Law School. “That is, will the federal government have primacy or will state attorneys have primacy in cases? And how do they decide who will be first or who will move at all? asked Washburn, a former assistant secretary of the interior for Indian Affairs.
While the Supreme Court’s decision is an extension of state power, it does not come with a similar increase for tribes. A 1978 high court ruling stripped tribes of all criminal jurisdiction over non-natives on their reservations. The reauthorization of the Violence Against Women Act in 2013 restored some of that authority in limited domestic violence cases and expanded it further earlier this year.
Less than 1% of federally recognized tribes in the United States have implemented this authority, one of the most recent being the Salt River Pima-Maricopa Indian community outside of Phoenix. This raises the possibility of tribes, the state and the federal government pursuing a suspect for the same offense. Another U.S. Supreme Court ruling issued last month said tribal members sued in certain tribal courts can also be sued based on the same incident in federal court.
Most tribes can sentence convicted offenders to just one year in prison, regardless of the crime. A 2010 federal law increased tribes’ sentencing power to three years for a single crime, but few tribes have met the federal requirements to use this power. This includes having public defenders, establishing or updating criminal codes, and having legally trained judges.
Oklahoma has its own unique history on tribal affairs, including a 2020 United States Supreme Court decision known as McGirt v. Oklahoma which declared that much of the eastern part of the state remains a Native American reservation. The ruling, authored by Gorsuch, left the state unable to prosecute Native Americans accused of crimes on tribal lands that include most of Tulsa, the state’s second-largest city with a population of about 413,000. .
The Supreme Court declined to reconsider McGirt. Oklahoma has filed a flurry of petitions related to the case, leading to the most recent ruling on state power over crime on reservations that stretch widely across the United States. Justice Brett Kavanaugh, writing for the majority, said the state’s interest lies in protecting all victims of crime.
Tulsa Mayor GT Bynum, a Republican, applauded the decision and pledged to work with state and tribal nations “who are our partners in building a safe city.”
Whitehurst reported from Salt Lake City. Fonseca covers Indigenous affairs on the AP’s Race and Ethnicity team. Follow Whitehurst on Twitter at https://twitter.com/lwhitehurst and Fonseca at https://twitter.com/FonsecaAP