United States Supreme Court: The New Battleground of the War on Indian Country


Opinion. Centuries ago, the federal government used the American cavalry to strip us of our lands, the natives, by slaughtering us on horseback across the Great Plains.

In contemporary times, the slaughter continues on another type of battlefield. The incivility of the US government against Native Americans continues in the courts, which seeks to nullify the power and sovereignty of tribal nations.

That’s what happened this week when the U.S. Supreme Court announced its 5-4 decision allowing the state of Oklahoma to have jurisdiction over whether or not to prosecute non-natives who commit crimes against Native Americans in Indian Country.

Wednesday’s decision in the Oklahoma v. Castro-Huerta case, which was argued in the Supreme Court in April, was made by the state of Oklahoma following an earlier Supreme Court decision that upset the state.

In the earlier July 2020 ruling, the court said much of eastern Oklahoma — three million acres, including most of the city of Tulsa — is on an Indian reservation and that the land promised to the Muscogee (Creek) Nation by treaty remained by right theirs.

The nation’s highest court ruled two years ago that Congress had never “disestablished” the Muscogee Nation’s 1866 boundaries.

Oklahoma GOP Governor Kevin Stitt, a tribal citizen of the Cherokee Nation, opposed the McGirt v. Oklahoma and decreed that the state would fight the decision.

According to the National Congress of American Indians (NCAI), the Castro-Huerta case was linked to the 2020 McGirt decision.

When the Supreme Court released its decision Wednesday in Castro-Huerta v. Oklahoma, she ruled that “the federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian Country.”

This diminishes tribal sovereignty and jurisdiction to protect tribal citizens. Failing to protect tribal citizens is effectively waging war on us.

“Unauthorized and non-consensual intrusions into tribal sovereignty are contrary to tribal sovereignty and tribal treaty rights,” John Echohawk (Pawnee), executive director of the Native American Rights Fund (NARF), said Wednesday.

Lawyer Mary Kathryn Nagle (Cherokee) expressed concern about the lack of protection for Indigenous women and children in particular.

“The Court’s decision not only contradicts the plain language of the United States Constitution and the Court’s previous jurisprudence, but it also significantly compromises the safety and well-being of Indigenous women and children living on lands. tribal. Considered in conjunction with the Court’s 1978 decision in Oliphant, the Court removed tribal jurisdiction to protect Indigenous women and children and gave that jurisdiction to the states. Nothing is more colonial and harmful than telling indigenous women and children that they will not be protected by their own tribal nations, but rather must seek refuge in the courts of states that have historically and still that day, sought to exterminate them. “In the Oliphant case, the court ruled that Indian tribal courts had no criminal jurisdiction over non-Indians.

Following Wednesday’s announcement, Supreme Court Justice Neil Gorsuch blasted the decision, saying it “did not” “honor this nation’s promises.” Clearly, Gorsuch understands Indian law better than his colleagues who voted on the wrong side of Indian law. His 42-page dissenting opinion made a strong case for the federal government to honor its treaty obligations with tribal nations.

“Where this Court once stood firm, now it withers. After the Cherokee 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. At various times in its history, Oklahoma has chafed at this limitation…Where our predecessors refused to participate in the unlawful seizure of state power from the Cherokee, today’s Court accedes to that of another,” writes Gorsuch.

In a special edition of Native Bidaské of Native News Online, the senior chief of the Cherokee nation referenced Gorsuch’s dissent.

In the 19th century, a non-Indian named Samuel Worcester living on Cherokee land was imprisoned by the state of Georgia “for living on a reservation without a permit.” The case went to the Supreme Court, which ruled that Georgia state law had no effect on him and should not have applied.

“The dissent said the court was strong then, and now the court is falling apart,” Hoskin said. “It really upsets a lot of precedents.”

The good news is that Congress can and must act now to right the injustice rendered by the Supreme Court.

“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 have failed today to deliver on ours,” Gorsuch wrote in his dissent.

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About the Author

Levi Rickert
Author: Levi RickertE-mail: This email address is protected from spam. You need JavaScript enabled to view it.
Levi Rickert (Prairie Band Potawatomi Nation) is the founder, publisher and editor of Native News Online. Rickert was awarded the 2021 Native Media Award Best Column for the Print/Online Category by the Native American Journalists Association. He sits on the advisory board of the Multicultural Media Correspondents Association. He can be reached at [email protected]


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