Two years ago, the court said about 43 percent of Oklahoma remained an Indian reservation. The ruling, written by Judge Neil M. Gorsuch, who departed from Wednesday`s ruling, prevented state law enforcement from prosecuting Native Americans who commit crimes on Native American lands. Justice Gorsuch, who normally belongs to the most conservative bloc on the court, instead voted with the three liberals on the court. In scathing dissent, he recounted the famous decision written by Chief Justice John Marshall in 1832 prohibiting the state of Georgia from driving some 100,000 Cherokee Indians off their land. However, the decision was in vain as Georgia and President Andrew Jackson flouted it, leading to the Indian trail of tears en route to the newly designated Indian reservations west of the Mississippi. Oklahoma`s decision, announced Wednesday, limits the scope of a 2020 ruling that reclassified much of the state, including the city of Tulsa, as Native American land and suspended law enforcement. The 5-4 decision, which was criticized by tribal leaders, states that state officials have the power to prosecute non-Indians for crimes against Native Americans on a tribal reservation. Georgia ignored the court, sold Cherokee land, and sent in its militia.
In desperation, some Cherokees signed a treaty agreeing to be moved to present-day Oklahoma, with the promise that their new land would remain free from government control. Others refused, only to be forced with the bayonet. Three years ago, Native Americans in Oklahoma rejoiced when the Supreme Court ruled that the eastern half of Oklahoma was on tribal land and that the state could not prosecute crimes committed on Indian lands without the consent of Native American tribes. But on Wednesday, the court reversed that decision, prompting furious dissent from Justice Neil Gorsuch, author of the 2019 decision and a staunch defender of Indian rights. The court ruled Wednesday that, as a matter of state sovereignty, all states have the power to prosecute non-Native American crimes on Native American lands. And in a bold statement that departs from centuries of Indian federal law, Justice Brett M. wrote. Kavanaugh for the majority: «The Indian country is part of the state, not separate from the state.
For example, there were scenarios last week where tribes or the federal government could protect access to reproductive care on tribal lands. Now, after the reversal of Roe v. Wade, nothing prevents a surrounding state from entering tribal lands and prosecuting doctors or non-Native American women — no matter what the tribe has to say about it. The Cherokee Nation challenged the Georgian law and took the case to the Supreme Court. In Worcester v. Georgia, Chief Justice John Marshall ruled in 1832 that the Constitution gave the federal government exclusive authority to administer relations with Native Americans. Georgia`s criminal laws, he said, «have no force» on Cherokee lands because the Cherokee Nation has remained a «nation» — «a distinct community occupying its own territory» that, although part of the United States, «has not ceased to be sovereign and independent.» Today, as in the 1830s, jurisprudence is a question of power. Second, states tried to control Indian lands, not to protect indigenous peoples, but to undermine tribal sovereignty. Perhaps today`s states will choose not to use their newly transferred power to usurp tribal authority over their country. But there are good reasons to doubt it. LISTEN: Supreme Court appears to be divided in Oklahoma Tribal Area Jurisdiction Case Victor Manuel Castro-Huerta, a non-Native American, has been convicted by the state of Oklahoma of criminal negligence toward a citizen of the Eastern Band of Cherokee Indians within the Oklahoma Cherokee Nation reservation. The conviction came before the 2020 court decision in McGirt v.
Oklahoma, which ruled that the Muscogee Nation reservation had not been dissolved with the granting of statehood to Oklahoma. Following McGirt, reservations of other tribes similar to Muskogee are now considered to exist, including the Cherokee Nation. All lands within an existing Indian reserve are considered «Indian lands.» In the 1830s, southern states, including Georgia, wanted Indian lands. They aggressively claimed jurisdiction over indigenous territory within their borders in order to eradicate tribal communities. Georgia attempted to expel non-Native American missionaries who helped the Cherokee, which made it a crime for any non-Indian to remain on Cherokee lands without state permission. Following the 2020 decision, about 43 percent of Oklahoma is now considered Indian land, and the question of the state`s ability to prosecute these crimes «suddenly took on immense importance,» Kavanaugh wrote. McGirt made clear that much of eastern Oklahoma is Indian land and therefore state and local authorities do not have jurisdiction to prosecute Indian defendants accused of crimes committed in that country. Only the federal government and the tribes themselves can prosecute these defendants. This result has its origins in the Trade and Intercourse Act, passed by the First Congress in 1790, which federalized virtually all aspects of Indian affairs. Since then, the criminal jurisdiction of the Indian country has been considered exclusively as a federal and tribal jurisdiction. The court`s 1832 decision in Worcester v.
Georgia confirmed that state law did not have the force of law on Indian lands without congressional approval. However, the Court applied this general rule in United States v. McBratney (1881) and Draper v. United States (1896), which authorized the prosecution by the state of non-Indians who committed crimes against non-Indians on Indian lands, even without congressional approval. «This will have a ripple effect on all Indian lands in the United States,» the tribe said, adding that «public safety would be better served by expanding tribal authority to prosecute any crime committed by an offender within our reservation boundaries, rather than strengthening entities that have shown a lack of commitment to public safety on Indian lands.» Breyer said it would actually give individual states too much authority to withdraw from national decisions on war. This is not the first struggle for state power in India. Indigenous peoples have long fought desperately to prevent state intervention in the tribal areas. Amid many landmark Supreme Court decisions in the final week of his term, the significance of Oklahoma v. Castro-Huerta – a legal dispute between Indian reservations – could be overlooked. But its impact will extend far beyond Oklahoma and its land disputes.
The 5-4 decision curtailed the 2020 Supreme Court`s ruling that much of eastern Oklahoma remains an Indian reservation. The initial decision left the state unable to prosecute Indians accused of crimes committed on tribal lands, which include most of Tulsa, the state`s second-largest city of about 413,000 people.