Derrick Beetso: Judges ignoring the law when it comes to Indian country

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The United States Supreme Court is seen behind barricades on June 26, 2022, as the justices wrap up their current session amid widespread controversy. Photo by Indianz.Com (CC BY-NC-SA 4.0)

SCOTUS’ decision in Oklahoma vs. Castro-Huerta Deviates wildly from the US Constitution

SCOTUS and Indigenous Peoples

Thursday, July 7, 2022

By Derrick Beetso

In March 2022, a bipartisan Congress passed and the President signed a restoration of tribal criminal jurisdiction over certain crimes committed by non-Indians against Indian victims on Indian lands. It is only through decades of hard work by tribal advocates and allies, strong tribal leadership, and the painstaking efforts of VAWA 2013 implementing tribes that this has been possible. Last week, in Oklahoma vs. Castro-Huertathe state of Oklahoma achieved the same results after a few years of shouting “the sky is falling” and complaining to the American people, Congress, the administration and the Supreme Court of the United States, of the Court’s decision in McGirt v. Oklahoma — the 2020 ruling that confirmed that much of eastern Oklahoma is “Indian Country” under federal law. In fact, TMZ reported that just before writing the majority opinion in Oklahoma v. Castro-Huerta, Brett Kavanaugh said, “Hold my beer and look at me Andrew Jackson, those sovereignty lovers.” Well not really, but reading the Court’s highly anticipated ruling was a lot like reading a termination bill in 2022.

While some will argue that the Court’s ruling — that states share concurrent jurisdiction with the federal government in prosecuting crimes committed by non-Indians against Indians in Indian Country — can improve law enforcement law in Indian country via more boots on the ground, the meandering romp and detour that the majority took to get to this position was nothing short of a full frontal assault on the sovereign prerogatives of Indian tribes. With this opinion, Kavanaugh rallied his cavalry of 5 to execute the modern version of cutting down and burning peaceful native communities and their resources and supplies to the ground. Make no mistake, this decision was woefully ignorant at best and aimed at seriously undermining the political autonomy of our Indian Nations. Justice Kavanaugh ignored centuries of fundamental law, precedent and legal principles to boldly announce that “[t]By default, states have criminal jurisdiction in Indian Country, unless that jurisdiction is preempted. Before that, perhaps one of the deepest legal minds steeped in Indian federal law, Judge William Canby of the Ninth Circuit, clearly stated in his publication “American Indian Law in a Nut Shell” that “States do not traditionally have no criminal jurisdiction in Indian matters. Country on crimes committed by . . . non-Indians versus Indians. . .and crimes committed by non-Indians against Indians are punishable exclusively by the federal government.

Felix Cohen, considered by many to be the godfather of federal Indian law, wrote in his treatise on federal Indian law:[a]As a general rule, states have no jurisdiction in Indian country unless there is a special grant of jurisdiction”, and even George Washington himself believed that Indian nations should be considered foreign nations, “and not as subjects of States”. Calloway, The Indian World of George Washington 331 (2018). But I can reluctantly forgive a Supreme Court justice for botching the fundamentals of Indian federal law – it does happen, but it was the majority’s self-serving and short reading of the Constitution that left me very concerned about the ability of the current Court to understand fundamental principles. organic document of the United States. You see, Kavanaugh cites the 10th Amendment to the Constitution to support his general jurisdictional statement, which reads: “the powers not delegated to the United States by the Constitution. . . are respectively reserved for the State. The problem with Kavanaugh’s entire opinion then is that another clause, the Property or Territory Clause, delegates to Congress – not the states or the Court – exclusive power to “make all necessary rules and regulations re . . . Property belonging to the United States. Yes, Kavanaugh’s 10th Amendment rationale fails when a more specific clause delegates exclusive regulatory authority to Congress over federal property, such as Indian trust lands. My colleagues Sam Hirsch, Leonard Powell, Jacob Schellinger and I once filed a brief in a California tax case outlining the relationship between Indian trust lands and the territorial clause, but the basic premise is that the United States holds the title to Indian lands, and by operation of law and through enactments of Congress, Indian trust lands are necessarily isolated from the regulatory authority of the state. In fact, one of the main questions posed when the federal government takes land into trust is what effect removing land from state tax rolls will have on state and local governments. All of this to say that an objective reading of the Constitution and a true understanding of how our Indian nations fit into the thinking of the founders is more necessary than ever. And yes, absolutely — the decision in Castro Huerta is hard to swallow and will present immediate legal challenges. But I take comfort in the strong legal minds and rich legal history that we have on our side. I am also encouraged by the youth and their understanding of federal Indian laws and policies. And I remember there were similar challenges in the Rehnquist Court as well, so maybe it’s an ebb and flow. Thus, pursuing the recognition of inherent jurisdictional sovereignty. Also last week, Justice Ketanji Brown Jackson was sworn in as the first black woman to serve on the United States Supreme Court. Congratulations and blessings to her and her community for this historic appointment which is an important step towards restoring the balance and integrity of the Court.

PBS news hour: Justice Ketanji Brown Jackson sworn in as first black woman on Supreme Court
In April, when the White House announced her nomination, Jackson said, “It took 132 years and 115 prior nominations for a black woman to be selected to serve on the Supreme Court of the United States. . but we succeeded. “[W]We succeeded,” she said, embracing the idea that when a member of a historically disenfranchised community succeeds, they bring with them the hopes and dreams of their own community. Maybe one day Indian Country will see its own version of Judge Ketanji Brown Jackson’s swearing-in ceremony. I imagine she’ll be sworn in wearing full regalia or adorned with hints of cultural bling galore. And perhaps we will one day see a Court that fully recognizes our preconstitutional sovereignty as an initial presumption. Wouldn’t that be nice?

Derrick Beetso is a citizen of the Navajo Nation and is currently the Director of Indian Gambling and Tribal Self-Reliance Programs at Sandra Day O’Connor College of Law at Arizona State University. He is the former general counsel for the National Congress of American Indians and former co-director of the Tribal Supreme Court Project. Derrick submits this on a personal basis.

United States Supreme Court decision in Oklahoma vs. Castro-Huerta

Program | Opinion [Kavanaugh] | CONTESTATION [Gorsuch] | Complete document

U.S. Supreme Court documents in Oklahoma vs. Castro-Huerta

Questions presented |
Role sheet: No. 21-429 | Transcription of oral arguments | day call

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