Albert Bender: US Supreme Court takes Indian country back in time


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National Congress of American Indians: The Castro-Huerta Decision: Understanding the Case and Discussing Next Steps

Latest Rogue Supreme Court Indian Law Ruling Is a Huge Step Back in Time

Wednesday, July 20, 2022

By Albert Bender

people’s world

As the retrograde Supreme Court has turned back time on right to abortionblurring the centuries-old separation between Church and State, limit the authority of the EPA to control carbon emissions, by lowering restrictions on the transport of fire arms, and restricting the rights of Miranda, it also dealt a reactionary blow to the tribal sovereignty of the indigenous nations of this land. The court imposes Trump’s vision, through his appointees, in the United States, which is disconnected from the vast majority of the country’s population. This is the rule of right-wing tyranny. On Wednesday, June 29, the rogue court ruled in Oklahoma vs. Castro-Huerta that states have concurrent jurisdiction, with the federal government, in cases where non-Indians commit crimes against Indians on Native American reservations.

This granting of the states the right to encroach on indigenous lands overturns for more than 200 years one of the most entrenched principles of Indian federal law, beginning with the Indian Trade and Intercourse Act of 1790 and proclaimed in the decision from Worcester v. Georgia issued by the John Marshall court in 1832.

The worcester The decision defined the relationship between Indigenous nations, the federal government and the states. Marshall said the following in establishing the parameters of the relationship: “The Cherokee Nation is therefore a distinct community occupying its own territory…in which the laws of Georgia can have no force and in which the citizens of Georgia have no are not allowed to enter. but with the consent of the Cherokees themselves, or in accordance with treaties and acts of Congress. The judgment in worcester established the principle that the relationship of Indigenous nations with the federal government is one of nation-to-nation in which individual states have no jurisdiction. Under this long-established principle, states have no authority over Native American lands. The federal government has exclusive authority to deal with Indian nations. The judgment in Castro Huerta gives the states a foothold of jurisdiction in Indian country. This is the first time in American history that the states have concurrent jurisdiction with the federal government in Indian Country. Under previous law, as a general rule, jurisdiction in Indian Country was limited to tribal governments and the United States government. The court’s decision reverses, for the time being, the long-established principle of federal Indian law that only tribal and federal courts had the power to prosecute crimes committed against Indians on tribal lands. The court’s decision couldn’t be more disturbing, outrageous and disturbing, especially in light of some of its specific wording. The decision, written by Judge Brett Kavanaugh, a Trump appointee, in some of its most chilling parts, states the following:

  • “To begin with, the Constitution allows a state to exercise jurisdiction over Indian Country. Indian Country is part of the state, it is not separate from the state.
  • The stunning decision continues: “…as a matter of sovereignty, a state has jurisdiction over all of its territory, including Indian Country.”

This is incredible in light of enshrined, settled and established federal Indian law and precedents. worcester says quite the opposite. Either Kavanaugh never even read worcesterdo not understand worcesteror totally reject worcester. At the very least, it’s abundantly clear that Kavanaugh doesn’t even have the slightest understanding of Indian federal law. He is completely out of his domain. With the preposterous, nonsensical, states-rights wording of the decision, it doesn’t take a rocket scientist to see where it might lead in the foreseeable future. Here, the defendant, Castro-Huerta, a non-Indian, criminally neglected his Cherokee stepdaughter, who is a member of the Eastern Band of Cherokee Indians. It happened on the Cherokee Nation reservation in eastern Oklahoma. Initially, he was convicted in state court of a state crime. But after 2020 from the Supreme Court McGirt decision, the Oklahoma Court of Criminal Appeals ruled that Castro-Huerta’s conviction was invalid because only tribal or federal officials had the authority to prosecute crimes committed by or against Native Americans on tribal lands. In McGirt, the Court returned three million acres of eastern Oklahoma to the Muscogee Creek Nation (MCN). This is the area comprising the nation’s original borders under the 1866 treaty. It has been seen as a giant legal step forward for Indigenous peoples, not just in Oklahoma, but across the country. Oklahoma’s statehood in 1907 crushed the dreams and aspirations of generations of Native people on the unrelenting rocks of racism when the state was admitted into the Union with the dismantling of the governments of the five tribal nations of the South: Muscogee Creek, Cherokee, Choctaw, Chickasaw, and Seminole. The substance of the McGirt case focused on which government has sovereignty – the state of Oklahoma or the federal government – ​​over serious criminal cases in the eastern Oklahoma region. Jimcy McGirt, a Seminole man, was convicted of sex crimes by the state of Oklahoma, but in his appeal, McGirt’s lawyers claimed that because old Muscogee treaty rights were never overturned by Congress, only the federal government could judge his case. The State of Oklahoma argued that Muscogee sovereignty had effectively been extinguished in practice if not in legislation. In cases involving tribal citizens, the Supreme Court has permanently declared that these treaty rights remain in effect, giving the federal government the power to prosecute serious crimes on reservation lands, which eastern Oklahoma does. part. But in the Castro Huerta case, the offender was a non-Indian. After McGirt led to Castro-Huerta’s conviction being overturned, federal authorities re-indicted him, and he was again convicted. Oklahoma State, however, sought to overturn the decision and reasserted jurisdiction over Castro-Huerta and transferred him from federal prison to state incarceration to complete his state sentence. It was just a bad attempt by Oklahoma to gain a foothold to exercise some jurisdiction over crimes involving Indians on tribal lands. Justice Neil Gorsuch filed a powerful dissent in the case, saying, “Where this Court once stood firm, today it weakens. After the Cherokees were exiled to what became Oklahoma, the federal government promised the tribe that they would forever remain free from interference by state authorities. Only the tribe or the federal government could punish crimes committed by or against tribal members on tribal land. Gorsuch, in his dissent, more than amply illustrates his expertise in the area of ​​federal Indian law. At one point, he describes the court’s decision as “particularly disconcerting”. At another, Gorsuch writes that “the Court may choose to disregard our precedents…. Accordingly, today’s ruling surely marks yet another embarrassing entry into the anti-canon of Indian law. But his mistakes should not – and must not – be repeated. This decision, like so many other recent decisions, shows that the Supreme Court is out of step with public opinion and is an exception in American society. It has become an anachronism that weighs on the political future of the country. The court became the leading institution on the road to fascism. It’s no wonder that public confidence in the Supreme Court has plummeted to an all-time low of 25%. Its decisions are not in line with modern, progressive thinking and feeling. The Supreme Court must be stopped!


Albert Bender is a Cherokee activist, historian, political columnist and freelance journalist for Native and non-Native publications. He is currently writing a legal treatise on Native American sovereignty and working on a book on war crimes committed by the United States against the Maya people during the Guatemalan Civil War. He is counsel on Indigenous sovereignty, land restoration and Indian child welfare law. (ICWA) and a former staff attorney at Legal Services of Eastern Oklahoma (LSEO) in Muskogee, Oklahoma.


This article originally appeared on people’s world. It is published under a Creative Commons License.

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