U.S. Supreme Court upends Indian Country criminal jurisdiction
The United States Supreme Court has issued an opinion giving states concurrent jurisdiction with the federal government over major crimes in Indian Country. The 5-4 ruling overturns precedent, laws, and traditions going as far back as 200 years.
Now tribal leaders are holding a virtual round-table on Thursday, July 7, to determine how to move forward.
An attorney with the Native American Rights Fund says the opinion affects tribes throughout the country, with varying potential consequences.
Two years ago, the U.S. Supreme Court issued its McGirt ruling that restored historical reservation boundaries in Oklahoma. As a result, almost half of that state, including Tulsa, is now Indian Country.
Before that decision came out, the state of Oklahoma tried and convicted Victor Castro-Huerta for child neglect. After the McGirt ruling, Castro-Huerta appealed his conviction, saying the state did not have jurisdiction because the crime occurred in Tulsa, on tribal land, and the young victim is Cherokee.
The Supreme Court disagreed and found that the state has concurrent jurisdiction with the feds over a non-Indian even under these circumstances.
The situation in Oklahoma is extremely unusual, with a large and sudden increase in tribal land mass and on-reservation population. Oklahoma argued that federal prosecutors have been overwhelmed with felony cases, and so the state needs to step in.
But NARF attorney Melody McCoy says the recent opinion affects more states than Oklahoma, which was joined by Texas as an amicus.
“There’s 35 states around the United States that have federally recognized tribes within their borders,” she said. “I’m not convinced that every single state has the same level of and type of interest that Oklahoma and Texas have.”
McCoy says federal prosecutors have long had jurisdiction over major crimes in Indian Country and are more familiar with the Native concepts of justice that aren’t necessarily focused on retribution.
“What is it that the family or the clan upon whom the wrong was inflicted wanted, or what needed to happen,” McCoy said.
She says there are 574 federally recognized tribes of varying sizes and relationships with states, and it will fall to their leaders to find ways to protect tribal sovereignty and keep their citizens safe.