Supreme Court assails tribal sovereignty

Young tribal citizens protest for their rights outside the U.S. Capitol, Washington, D.C., on November 14, 2018. PHOTO: Indianz.com
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The June 29, 2022, U.S. Supreme Court decision in Oklahoma v. Castro-Huerta gave the state of Oklahoma jurisdiction over non-Native crimes against Natives in Indian Country. This decision is the latest step in challenging tribal authority in order to gain control of tribal peoples, lands and resources.

“To put it bluntly, this decision is an act of conquest,” countered Gregory Ablavsky and Elizabeth Hidalgo Reese in their Washington Post editorial. “And it could signal a sea change in federal Indian law, ushering in a new era governed by selective ignorance of history and deference to state power.”

Legal battles galore. In 2015, Oklahoma convicted Manuel Castro-Huerta (a non-Native) of neglecting his blind, developmentally disabled Cherokee stepdaughter. While the defendant’s appeal worked its way through the courts, the U.S. Supreme Court in another case, McGirt v. Oklahoma, upheld in 2020 that most of the eastern half of the Oklahoma is Indian Territory. Only federal and tribal law have jurisdiction to prosecute crimes committed by and against Indians there.

Furthermore, Article VI of the U.S. Constitution gives tribes a legal nation-to-nation relationship with the federal government and that has been official policy since 1832. Treaties signed by the U.S. with the tribes are the same as treaties with other nations. Some major crimes on tribal territory come under federal jurisdiction, but most are dealt with in the tribal court system. Individual states have no authority on tribal lands — only the U.S. Congress can change that, and only with tribal agreement.

Hence, based on the Constitution and technically 200 years of federal policy, Oklahoma had no authority to arrest or prosecute Manuel Castro-Huerta in 2015. That case decision today strengthens right-wing Oklahoma politicians’ opposition to McGirt v. Oklahoma two years ago, which reinforced the Supreme Court 1832 decision on sovereignty.

The 1832 decision, however, did not stop President Jackson or another state, Georgia, from force-marching 60 tribes east of the Mississippi River into Oklahoma and other western territories throughout the 1830s. It is widely known as the Trail of Tears. Thousands died along the way. They were all promised these new lands would be set aside for them to live in peace forever.

In recent decades only one-quarter of the U.S.  Supreme Court’s decisions have been in favor of tribes. Even when they win court cases, the laws are often ignored. As Native activist Ann Rogers said, “White gold seekers tore up the Black Hills in South Dakota in the 1800’s; hundreds of children were removed from families to government and church boarding schools — actually labor camps — from 1869 to the 1960s; tribal lands were decimated for mining uranium, fishing treaty rights destroyed, tribal land and water with oil pipelines contaminated. And now they want policing power on tribal land to arrest white criminals!”

Following the money, not humane law. One immediate impact of the Huerta ruling is utter confusion between federal, tribal, and state jurisdiction over crimes on tribal lands. Will tribal members face less protection and more abuse by police? Will sentences be less than in tribal courts? Tribes in Oklahoma have already received $62 million to support increased legal enforcement responsibility after the McGirt decision. Will that be withdrawn?

Oklahoma has spent $10 million on publicity to convince the non-Native public that they need state law enforcement protection from tribes, because tribal territory is claimed to be a “hotbed of crime and drugs.” Oklahoma has already filed 40 different pleas to overturn the McGirt ruling.

The state wants to enrich its coffers by taxing tribal businesses and land (that is, double-taxation) and to control access to natural resources and land usage. A primary goal, no doubt, would be overturning tribal environmental protections, so that corporations can drill, mine, frack, and run pipelines everywhere.

Congress could overrule the Castro-Huerta decision by passing laws, but that would only be a bump in the road for the current campaign to obliterate tribal sovereignty. In the long run, states’ rights politicians’ goals include taxing tribal enterprises to benefit state governments, erasing fishing and hunting rights, overturning tribal environmental laws, and stealing water and mineral resources. In essence the long-term goal is to assimilate Native people and do away with their culture and rights to control their resources.

Next session the Supreme Court will hear the Brackeen v. Haaland case, an attempt to overturn the Indian Child Welfare Act and break up families, steal tribal children, and erase culture based on the claim that tribes are not nations but races. (See “Native children and sovereignty targeted by right-wing lawsuits” at socialism.com.)

The right-wing majority of the Supreme Court is pushing their agenda — a campaign of genocide on this continent’s earliest inhabitants. It will take determined, collaborative organizing among all civil and human rights activists and groups to defend Native sovereignty and stymie big-money moguls’ attacks on Indian Country.

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