U.S. Supreme Court decision could have big impact on tribal sovereignty

Tribal Flag Plaza
Posted at 11:16 AM, Jul 01, 2022
and last updated 2022-07-01 13:16:30-04

HELENA — During a term full of consequential decisions, the U.S. Supreme Court also made a ruling that could have a big impact in Indian Country.

The court released an opinion in the case Oklahoma v. Castro-Huerta Wednesday. In it, justices ruled 5-4 that states do have jurisdiction – shared with the federal government – to prosecute crimes committed by non-Indians against Indians on tribal land.

Justice Brett Kavanaugh wrote in his opinion that “Indian country is part of the State, not separate from the State,” and that states maintain their authority in those areas unless it is preempted by federal law or it would infringe on tribal self-government. He said allowing states to prosecute these crimes wouldn’t violate either of those requirements.

The decision narrows a 2020 ruling that confirmed states don’t have jurisdiction over crimes committed by Indians in Indian Country – and which placed much of eastern Oklahoma in that category.

In a dissent, Justice Neil Gorsuch said there was a long history of cases and legal precedent showing that states don’t have the inherent authority to prosecute crimes “by or against Indians” on tribal land, and that Oklahoma should have been required to get approval from Congress or from tribes to begin exercising that jurisdiction. He said the court was “wilting” instead of protecting the tribes’ interests.

Shane Morigeau, a Democratic state senator and attorney from Missoula, echoed that. He called the court’s decision “troubling and disturbing,” and said it appeared to chip away at precedents that safeguarded tribal sovereignty.

“I think it’s very scary to me to see where we’re going, what direction things are heading in the future,” he said.

Morigeau is a member of the Confederated Salish and Kootenai Tribes and has done legal work for the tribes. He noted that they have made an agreement to let counties prosecute major crimes on their territory – but emphasized that they had a seat at the table.

“In that process of coming up with that structure, the parties have over the years worked together to come up with agreements on law enforcement responses, working together with the county and the tribe and the local city law enforcement officers as well – and it’s worked quite well,” he said.

He said the Oklahoma decision wasn’t giving other tribes that same consideration.

“Instead of empowering and encouraging governments to work together, to partner together, we’ve diminished that and basically diminished tribes’ sovereignty in being able to be recognized in that equation,” he said. “So I just think it’s a really missed opportunity.”

Morigeau said many cases involving Native American law end up in the U.S. Supreme Court, but he’s concerned too many justices don’t have an understanding of Indian Country.

“That’s just why it’s so important in this country to have balance on our Supreme Court, and to have equal representation,” he said.