The recent stretch of U.S. Supreme Court decisions has made big headlines. There was the decision that returned the question of abortion rights to the states, another one that limited the Environmental Protection Agency's regulatory power, and then there's Oklahoma v. Castro-Huerta.
In this case, the majority ruled 5-4 that states do share jurisdictional authority with federal and tribal entities in the prosecution of crimes within Indian Country, when those crimes involve a non-Native American defendant and a Native American victim.
To understand better the ramifications for Michigan tribes, we wanted to talk to two people with deep expertise in this subject.
Jocelyn Fabry, chief judge of the Sault Ste. Marie Tribe of Chippewa Indians, explained that this most recent case was related to a 2020 Supreme Court decision, McGirt v. Oklahoma.
McGirt held that the Creek Nation’s reservation in eastern Oklahoma had never been disestablished, meaning that “the tribal and federal government had the jurisdiction to prosecute crimes by Indians on those lands.”
As a result, jurisdiction in these areas was shared by tribal and federal prosecutors. Kirsten Carlson, professor of law at Wayne State University, explained that the state of Oklahoma was dissatisfied with this decision.
“Post-McGirt, the state has been really hostile towards the tribes in Oklahoma,” Carlson said. “It has sought to overturn the decision in McGirt 40 times, which is unheard of.”
Now, two years later, the Castro-Huerta decision gave the state a win.
The case centered around a non-Native American man who abused his step-daughter, who is a member of the Eastern Band of Cherokee. Originally convicted by the state of Oklahoma, the man argued the state had no authority to hear his case after the decision in McGirt. He was later re-convicted by a federal court, but handed a lighter sentence.
The U.S. Supreme Court held that states have a right to prosecute crimes in Indian Country that involve a non-Native perpetrator and a Native American victim. The state’s case relied on the argument that tribal and federal prosecutors were ill-equipped to handle the case load they would now face. Many people who work in tribal law disagree with that assessment and say it threatens tribal sovereignty.
“The parts of this opinion that really sort of made my blood boil a little bit,” Fabry said, “was this notion that the state has to step in and save this lawless area because ‘if we don't, who will protect these tribal people?’”
In fact, Fabry went on, in Michigan, tribal prosecutors have a productive relationship with federal prosecutors.
There may be a silver lining to the decision, however, Fabry explained. She sees state involvement as potentially beneficial to the “ongoing crisis of missing and murdered indigenous people in the United States.”
“We are adding more resources by way of state jurisdictions, state law enforcement, and state prosecutors,” Fabry said.
Looking to the future, Carlson said that a lot is unclear, from the practical questions of authority, to how long the Castro-Huerta decision will stand. Already, there is strong opposition from within the court.
“This case is unique because it has an extremely powerful descent by Justice Gorsuch,” Carlson said. “It is very clear to me that when Gorsuch wrote the dissent, he was giving arguments to people so that they could make this opinion less important in the future. But it's really hard to know whether that's going to happen or not.”
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