The U.S. Supreme Court last month issued a decision that allows states to prosecute non-Indians who commit crimes against Native Americans in Indian country, a power exclusively held by tribal and federal courts previously.
Tribal leaders across the country say the decision is an infringement on tribal sovereignty.
MTPR’s Freddy Monares spoke with Indian law attorneys to break down the ruling. He shared his findings with MTPR’s Corin Cates-Carney.
Corin Cates-Carney: Freddy, what is this case about?
Freddy Monares: Three years ago an Oklahoma man was sentenced to prison for abusing his Cherokee stepdaughter. He later argued the state couldn’t prosecute him for the crime without the consent of the tribe and eventually got a lighter sentence in federal court. The Supreme Court’s ruling last month allows states to step into Indian country to prosecute non-tribal members.
The case is narrow in scope, but the language in the decision has broader implications for tribal sovereignty.
What are those broader implications?
I spoke with a few tribal law experts about this who say the case is one of several issues before the U.S. Supreme Court they’re watching that could threaten tribal sovereignty — the ability of tribal nations to act as independent governments.
Dylan Hedden-Nicely, a professor and director for the University of Idaho Native American Law Program, says one component of sovereignty is that one governing body doesn’t have authority over another governing body.
Hedden-Nicely: “And so what the Supreme Court has done is flipped this and is now saying states have the power unless Congress expressly says otherwise. We’re going to presume that states have the power to invade tribal sovereignty and do all of these things.”
Monares: In the court’s majority decision, Justice Brett Kavanaugh writes that Indian country is not separate from any state.
Monte Mills is a professor and co-director of the Marjorie Brown Indian Clinic at the University of Montana. He says previous recent decisions from the Supreme Court leaned toward upholding treaty rights limiting states' authority in Indian country. He called the Oklahoma v Castro-Huerta decision a “return to some of the bad old days of the Supreme Court,” and says it lacks understanding in federal Indian law.
Mills: “That is a concerning indication of where this court might go in the future. It remains to be seen whether we have the sort of Gorsuch vision represented in the dissent or the Kavanaugh vision in the majority remains to be seen sort of how that plays out.”
Cates-Carney: What did justices write in their opinions?
Again, Kavanaugh views that Indian country is a part of states. Justice Neil Gorsuch, who wrote the dissent in the case, says the court’s decision unravels and allows states to intrude on tribal sovereignty. Gorsuch goes further to suggest that Congress and future courts should honor the country’s promise of sovereignty to tribes.
I should note that Indian country is a legal term that includes places like allotments off of reservations.
Congress has designated some states to have criminal jurisdiction over reservations, like the Confederated Salish and Kootenai Tribes on the Flathead Reservation.
How does this U.S. Supreme Court decision affect tribes here?
This probably isn’t the answer you’re looking for but it really depends. Monte Mills again.
Mills: “And it remains to be seen sort of how it plays out, because even though the Supreme Court majority here said states have this authority, it’s not a requirement that the state exercise it.”
Monares: Mills says the state expanding law enforcement into Indian country comes with a price tag.
Mills: “It’s conceivably, you know, additional responsibility that the states would have to exercise.”
Monares: This ruling means the state of Montana, if it wanted to, could start sending law enforcement to prosecute non-natives in Indian country. This was already happening on the Flathead Reservation under a previous law.
I did reach out to the Montana Attorney General’s Office and asked how this would affect the state. A spokesperson there said it appears it doesn’t.
What are tribal leaders saying about this, and what do they hope happens now?
I’ll let Montana state Sen. Shane Morigeau, who is part of the Montana American Indian Caucus, answer that.
Morigeau: “I would hope that Congress would step up and fix this.”
Monares: Congress has acted a handful of times after the Supreme Court issued decisions that affect tribal criminal jurisdiction.
In 1990, for example, the Supreme Court issued the Duro decision that held tribal courts lacked criminal jurisdiction over Indians from other tribes. A year later, Congress clarified in federal law that tribal courts have criminal jurisdiction over all Indians.
UM law professor Monte Mills says Congress could clarify jurisdiction lines.
Mills: “But yeah, I think Justice Gorsuch said in the dissent, one way Congress could do that was simply say, look, states, you can have authority if you follow the procedures that we already set out in the 1950s. And if Congress said that, then that would sort of put an end to this issue.”
Monares: It’s hard to say whether that will happen. Most of the law professors I spoke with noted it’s hard to get bipartisan support from this congressional body on certain issues.
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