Experts Us Court Violates Decades Of Native American Law

FLAGSTAFF, Ariz. — A U.S. Supreme Court ruling expanding state power to prosecute certain crimes on Native American land overturns decades-old law based on the hard-line principle that tribes have the right to govern themselves on their own land, legal experts say. Wednesday’s decision is a marked departure from federal Indian law and departs from a push to increase the ability of tribes to prosecute all crimes on reservations — regardless of who is involved. It also made the tribes part of the states, instead of the sovereign nations they are, angering many across the country of India. “The majority (opinion) is not firmly rooted in the law that I have devoted my life to studying and history, as I know it to be true,” said Elizabeth Hidalgo Reese, an assistant professor of law at Stanford University who is enrolled in Nambé . Pueblo in New Mexico. “And that’s really worrying,” Federal authorities have largely retained exclusive jurisdiction to investigate serious, violent detention crimes across much of the US when the suspect or victim is Native American. A 5-4 ruling by the high court in a case out of Oklahoma means states will join that authority when the suspect is not Native American and the victim is. Criminal justice on tribal lands can already be a tangled web, and the decision will likely present thorny new questions about jurisdiction, potential triple jeopardy and how to deal with complex crimes in remote areas where resources are limited. States had the power to prosecute crimes involving only non-natives on reservations even before this week’s Supreme Court decision. “It’s going to have an impact on India, so only the future will tell if it’s a good thing or not,” said Robert Miller, an Arizona State University law professor and a citizen of the Eastern Shawnee tribe. “Is it better to have more criminal prosecutions, more governments enforcing crimes, or less?” Justice Neil Gorsuch wrote a scathing dissent in which all three liberal members of the court joined, saying he “can only hope that the political divisions and future courts will do their part to honor the promises of this Nation, even as we have failed to do today on our own.” Captain Chuck Hoskin Jr. of the Cherokee Nation said the court “failed in its duty to honor the promises of this nation, defied the statute of Congress and accepted the ‘unlawful contempt of Cherokee sovereignty.’ It’s not clear how the races will ultimately be decided, but there is precedent. Congress enacted a law in 1953 known as PL-280, in part to exempt the federal government from funding public safety on certain reservations. The law led to state power over the crime in several states, including Alaska and California, home to about three-fifths of the 574 federally recognized tribes. As in Oklahoma v. Castro-Huerta, the tribes disagreed. Neither Congress then nor the Supreme Court now sponsored the expansion of state authority over tribal land. “This is far from the first time,” said Lauren van Schilfgaarde, a member of the Cochiti Pueblo in New Mexico who directs the Tribal Legal Development Clinic at UCLA. “The federal Indian Act is simply replete with cases in which tribes have not had the opportunity to speak for themselves.” Federal authorities have long been criticized for refusing to prosecute cases in India — about a third, according to the US Justice Department. Authorities in PL-280 states have also been criticized for their lack of response to crime in India, where law enforcement officers often have to travel long distances to investigate reported crimes. Tribes have argued in court filings and elsewhere that the federal government — which has a political relationship with tribes through treaties and acts of Congress — is the proper sovereign entity to handle criminal cases. Congress maintains control over Native Americans and Alaska Natives, which are overseen by the Department of the Interior. States have no such obligation to tribes. “One of the interesting things to me is how the question of priority slips away,” said Kevin Washburn, who is Chickasaw and dean of the University of Iowa law school. “So, are the feds going to get the lead or are the state prosecutors going to get the lead on the cases? And how do they decide who will be first or who will move at all?’ asked Washburn, former Assistant Secretary of the Interior for Indian Affairs. While the Supreme Court’s decision is an expansion of power for states, it does not come with a similar increase for tribes. A 1978 Supreme Court ruling stripped tribes of any criminal jurisdiction over non-natives on their reservations. The 2013 reauthorization of the Violence Against Women Act restored some of that power in limited cases of domestic violence and expanded it further earlier this year. Less than 1% of federally recognized tribes in the US have implemented this principle, one of the most recent being the Salt River Pima-Maricopa Indian Community outside of Phoenix. It increases the likelihood that tribes, the state and the feds will prosecute a suspect for the same crime. Another U.S. Supreme Court ruling issued last month said tribal members prosecuted in some tribal courts can also be prosecuted based on the same incident in federal court. Most tribes can sentence convicted felons to only one year in prison, regardless of the crime. A 2010 federal law increased tribes’ sentencing power to three years for a single crime, but few tribes have met federal requirements to use that power. This includes having public defenders, establishing or updating criminal codes, and having judges trained in the law. Oklahoma has its own unique history in tribal cases, including a 2020 US Supreme Court decision known as McGirt v. Oklahoma, which held that a large portion of the eastern part of the state remains a Native American reservation. That ruling, written by Gorsuch, left the state unable to prosecute Native Americans accused of crimes in tribal areas that include most of Tulsa, the state’s second-largest city with a population of about 413,000. The Supreme Court declined to review McGirt. Oklahoma filed numerous briefs in the case, leading to the most recent ruling on state power over crime on reservations that extends widely across the U.S. Judiciary. Brett Kavanaugh, writing for the majority, said the state’s interest lies in the protection of all victims of crime. Tulsa Mayor GT Bynum, a Republican, applauded the decision and pledged to work with the state and tribal nations “who are our partners in building a safe city.” Whitehurst reported from Salt Lake City. Fonseca covers Indigenous affairs in the AP’s Race and Ethnicity team. Follow Whitehurst on Twitter at and Fonseca at

title: “Experts Us Court Violates Decades Of Native American Law " ShowToc: true date: “2022-11-28” author: “Larry Simmons”

Wednesday’s decision is a marked departure from federal Indian law and departs from a push to increase the ability of tribes to prosecute all crimes on reservations — regardless of who is involved. It also made the tribes part of the states, instead of the sovereign nations they are, angering many across the country of India. “The majority (opinion) is not firmly rooted in the law that I have devoted my life to studying and history, as I know it to be true,” said Elizabeth Hidalgo Reese, an assistant professor of law at Stanford University who is enrolled in Nambé . Pueblo in New Mexico. “And that’s really worrying,” Federal authorities have largely retained exclusive jurisdiction to investigate serious, violent detention crimes across much of the US when the suspect or victim is Native American. A 5-4 ruling by the high court in a case out of Oklahoma means states will join that authority when the suspect is not Native American and the victim is. Criminal justice on tribal lands is already a tangled web, and the decision will likely present thorny new questions about jurisdiction, potential triple jeopardy and how to deal with complex crimes in remote areas where resources are limited. States had the power to prosecute crimes involving only non-natives on reservations before this week’s decision. “It’s going to have an impact on India, so only the future will tell if it’s a good thing or not,” said Robert Miller, an Arizona State University law professor and a citizen of the Eastern Shawnee tribe. “Is it better to have more criminal prosecutions, more governments enforcing crimes, or less?” Justice Neil Gorsuch wrote a scathing dissent in which all three liberal members of the court joined, saying he “can only hope that the political divisions and future courts will do their part to honor the promises of this Nation, even as we have failed to do today on our own.” Captain Chuck Hoskin Jr. of the Cherokee Nation said the court “failed in its duty to honor the promises of this nation, defied the statute of Congress and accepted the ‘unlawful contempt of Cherokee sovereignty.’ It’s not clear how the races will ultimately be decided, but there is precedent. Congress enacted a law in 1953 known as PL-280, in part to exempt the federal government from funding public safety on certain reservations. The law led to state power over the crime in several states, including Alaska and California, home to about three-fifths of the 574 federally recognized tribes. As in Oklahoma v. Castro-Huerta, the tribes disagreed. Neither Congress then nor the Supreme Court now sponsored the expansion of state authority over tribal land. “This is far from the first time,” said Lauren van Schilfgaarde, a member of the Cochiti Pueblo in New Mexico who directs the Tribal Legal Development Clinic at UCLA. “The federal Indian Act is simply replete with cases in which tribes have not had the opportunity to speak for themselves.” Federal authorities have long been criticized for refusing to prosecute cases in India — about a third, according to the US Justice Department. Authorities in PL-280 states have also been criticized for their lack of response to crime in India, where law enforcement officers often have to travel long distances to investigate reported crimes. The tribes have argued that the federal government—with which they have a political relationship—is the proper sovereign entity to handle criminal matters. Congress maintains control over Native Americans and Alaska Natives, which are overseen by the Department of the Interior. States have no such obligation to tribes. Kevin Washburn, dean of the University of Iowa law school, said it will be interesting to see how the priority question shakes out. “So, are the feds going to take precedence or are state prosecutors going to have priority in cases?” asked Washburn, who is Chickasaw and a former Assistant Secretary of the Interior for Indian Affairs. “And how do they decide who gets to go first or who gets to move at all?” While the Supreme Court’s decision is an expansion of power for states, it does not come with a similar increase for tribes. A 1978 ruling removed the tribes from any criminal jurisdiction over non-natives on their reservations. The 2013 reauthorization of the Violence Against Women Act restored some of that power in limited cases of domestic violence and expanded it further earlier this year. Less than 1% of federally recognized breeds in the US have implemented this principle. It increases the likelihood that tribes, the state and the feds will prosecute a suspect for the same crime. Another U.S. Supreme Court ruling issued last month said tribal members prosecuted in some tribal courts can also be prosecuted based on the same incident in federal court. Most tribes can sentence convicted felons to only one year in prison, regardless of the crime. A 2010 federal law increased tribal sentences to three years for a single crime. Few tribes have met federal requirements for using that power, including having public defenders and judges trained in the law. Oklahoma has its own unique history in tribal cases, including a 2020 US Supreme Court decision known as McGirt v. Oklahoma, which held that a large portion of the eastern part of the state remains a Native American reservation. That ruling, written by Gorsuch, left the state unable to prosecute Native Americans accused of crimes in tribal areas that include most of Tulsa, the state’s second-largest city with a population of about 413,000. The Supreme Court declined to review McGirt. Oklahoma filed numerous briefs in the case, leading to the most recent ruling on state power over crime on reservations that extends widely across the U.S. Judiciary. Brett Kavanaugh, writing for the majority, said the state’s interest lies in the protection of all victims of crime. Tulsa Mayor GT Bynum, a Republican, applauded the decision and pledged to work with the state and tribal nations “who are our partners in building a safe city.”

Whitehurst reported from Salt Lake City. Fonseca covers Indigenous affairs in the AP’s Race and Ethnicity team. Follow Whitehurst on Twitter at and Fonseca at