Supreme Court still divided on ‘Indian country’ lawsuits

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A sharply divided Supreme Court ruling in 2020 dramatically increased the scope of “Indian Country” in Oklahoma and halted criminal prosecutions there. A case argued on Wednesday that seeks to limit the decision showed that these divisions remain.

Wednesday’s case would allow the state to prosecute non-Indians for crimes against Native Americans on Indian lands, which following the 2020 ruling means about 40% of the state, including most of Tulsa. It emerged that the only judge absent from court that year for McGirt v. Oklahoma – Judge Amy Coney Barrett – could provide the deciding vote.

The court spent well over two hours on the case, which took place on the last scheduled day of oral arguments for the warrant. It meant it was also the last for Justice Stephen G. Breyer, who is expected to retire this summer after the court completes its work. His former clerk, Justice Ketanji Brown Jackson, was confirmed as his successor.

Supreme Court says much of eastern Oklahoma remains Indian land

Chief Justice John G. Roberts Jr.’s voice cracked with emotion as he recognized Breyer at the end of Wednesday’s hearing. The two are seat neighbors and perhaps the two Supreme Court members most willing to seek compromise in their ideological differences.

“For 28 years, this has been his arena for deep and moving remarks, thought-provoking and insightful questions, and downright silly hypotheticals,” Roberts said, pausing at times as he read the statement. “This session alone brought us radioactive muskrats and ‘John the Tiger Man.’ He was referring to recent examples of Breyer’s imaginary subjects.

Roberts concluded, “We leave the courtroom with deep gratitude for the privilege of sharing this bench with him.”

If this moment was melancholic, the audience itself was sometimes biting.

Supreme Court to revisit Oklahoma dispute with tribal leaders

Washington attorney Kannon K. Shanmugam, representing Oklahoma, said the 2020 ruling disrupted the normal system for prosecuting crimes because it meant Native Americans who commit crimes on vastly expanded reservation lands were to be tried in tribal or federal courts. He said state prosecutors should at least share responsibility for prosecuting non-Native American defendants.

The federal government’s position that it is solely responsible for these prosecutions “is simply astounding in light of the situation in Oklahoma, where, by the government’s own admission, entire categories of crimes are not being prosecuted as a result of McGirt.”

Conservative Judge Neil M. Gorsuch was a strong advocate of tribal rights while on court, and he joined the four liberal members of the court at the time. McGirt decision he wrote. He was the main antagonist of Shanmugam.

Gorsuch said he finds it rich that the state presents itself as the protector of Indian victims. There is a long history “in this country of states abusing Indian victims in their courts,” he said, adding that Oklahoma’s request would violate court precedent.

The state of criminal prosecutions in the state is a matter of dispute between the federal government, tribes and Oklahoma politicians, led by Republican Gov. Kevin Stitt.

“The law enforcement issues are very real,” Shanmugam said. “And just earlier this week, the senior FBI agent in Oklahoma admitted that there are entire categories of crimes, by our estimate, thousands of crimes, that are not being prosecuted because that the federal government, which has exclusive jurisdiction over this class of cases, has simply not been able to prosecute them.

Judge Sonia Sotomayor suggested the numbers were exaggerated. Judge Stephen G. Breyer said the solution was more federal prosecutors, rather than changing the system. He pointed out that Oklahoma’s request would affect the other 49 states as well.

Gorsuch remained indifferent, saying that federal law and court precedent were on the side of the tribes and the federal government.

“Are we going to wither today because of a social media campaign?” He asked.

Oklahoma in shock after Supreme Court ruling on Indian tribes

The Supreme Court case involves Victor Castro-Huerta, who is not Native American and was found guilty in state court of abusive neglect of his 5-year-old stepdaughter, a paralyzed tribesman. cerebral and legally blind. He was sentenced to 35 years in prison. The Oklahoma Court of Criminal Appeals overturned his conviction because the crime occurred in what is now considered tribal land.

A Muscogee (Creek) Nation court filing said the case is actually an example of how the system has worked since McGirt. Castro-Huerta has been convicted again in federal court and is awaiting sentencing, he added. His Supreme Court attorney, Zachary C. Schauf, said the plea deal called for seven years in prison.

Schauf and Deputy Solicitor General Edwin S. Kneedler — whom Roberts would later note was making his 150th case as a federal government representative — were forcefully questioned by the justices who dissented in the McGirt Decision — Roberts and Justices Clarence Thomas, Samuel A. Alito Jr., and Brett M. Kavanaugh.

Kavanaugh said he doesn’t understand how the tribes would be harmed by Oklahoma’s request.

“Indian victims are currently unprotected because the federal government does not have the resources to prosecute all these crimes,” he said. “And that would not move the federal government. They are additional prosecutors to protect Indian victims against non-Indians.

Kneedler said that the exclusive jurisdiction of the federal government dates back “to the foundation, when the framers cast aside divided authority under the Articles of Confederation and vested full and exclusive power over Indian affairs in the national government.”

But Alito wondered if the federal government was going to live up to its responsibility.

“Will the federal government be able to provide enough federal officers, enough federal prosecutors, enough federal judges, enough federal courtrooms, enough federal probation officers to handle the workload which was previously run by state law enforcement?” Alito asked.

If no judge is influenced by his previous position in McGirt, the result will depend on Barrett. She replaced Justice Ruth Bader Ginsburg, who voted with the majority. But Barrett asked only a few discreet and technical questions, without shaking her hand.

The case is Oklahoma versus Castro-Huerta.


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