BREAKING: SCOTUS rules states can prosecute crimes on Native American lands

The decision was penned by Justice Brett Kavanaugh, and was joined by Roberts, Thomas, Barrett, and Alito, with a dissent from Gorsuch, along with Breyer, Sotomayor and Kagan.

The case is primarily about jurisdiction, and the question, as framed by Kavanaugh, is "Under current federal law, does the Federal Government have exclusive jurisdiction to prosecute those crimes? Or do the Federal Government and the State have concurrent jurisdiction to prosecute those crimes?"

"We conclude," Kavanaugh wrote, "that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country."

The case at issue was one of child neglect and abuse in which Victor Manuel Castro-Huerta, while living with his wife and several other children in Tulsa, was found to have neglected his 5-year-old step-daughter, who is Native American, who suffered from cerebral palsy and is legally blind. The girl was emaciated, dehydrated, and slept in a bed full of cockroaches and bed bugs. At the time she was brought to a nearby hospital by a concerned aunt, she weighed only 19 pounds.

Castro-Huerta was criminally charged by the state of Oklahoma, sentenced to 35 years, but appealed on the basis of a 2020 Supreme Court decision, McGirt v. Oklahoma, which ruled that a state could not prosecute a person for crimes committed on Native American land. This was because, per the ruling, the Court found that Congress had "had never properly disestablished the Creek Nation’s reservation in eastern Oklahoma. As a result, the Court concluded that the Creek Reservation remained 'Indian country.'"

"The status of that part of Oklahoma as Indian country meant that different jurisdictional rules might apply for the prosecution of criminal offenses in that area," the opinion reads.

"In light of McGirt and the follow-on cases, the eastern part of Oklahoma, including Tulsa, is now recognized as Indian country. About two million people live there, and the vast majority are not Indians. The classification of eastern Oklahoma as Indian country has raised urgent questions about which government or governments have jurisdiction to prosecute crimes committed there.

"This case is an example: a crime committed in what is now recognized as Indian country (Tulsa) by a non-Indian (Castro-Huerta) against an Indian (his stepdaughter). All agree that the Federal Government has jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. The question is whether the Federal Government’s jurisdiction is exclusive, or whether the State also has concurrent jurisdiction with the Federal Government."

Castro-Huerta had argued that, due to McGirt, only the federal government could prosecute him, not the state. A federal grand jury took up the charges against Castro-Huerta as a result of McGirt, and issued a new sentence, which reduced the previous sentence effectively by some 28 years. He will then be deported.

"To begin with, the Constitution allows a State to exercise jurisdiction in Indian country. Indian country is part of the State, not separate from the State. To be sure, under this Court’s precedents, federal law may preempt that state jurisdiction in certain circumstances. But otherwise, as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country. See U. S. Const., Amdt. 10. As this Court has phrased it, a State is generally 'entitled to the sovereignty and jurisdiction over all the territory within her limits,'" Kavanaugh wrote.

Gorsuch's dissent tracks through the historical inequities perpetrated by the US federal government against Native Americans and their lands, and notes that Congress had never disestablished the tribal lands.

"Following McGirt, Oklahoma’s courts recognized that what held true for the Creek also held true for the Cherokee: Congress had never disestablished its reservation and, accordingly, the State lacked authority to try offenses by or against tribal members within the Cherokee Reservation," the dissent reads.

In the view of the dissenters, Oklahoma should ask Congress to disestablish the lands, or for "state-specific legislation authorizing it to exercise criminal jurisdiction on tribal lands, as Kansas and various other States have done. The State could have employed the procedures of Public Law 280 to amend its own laws and obtain tribal consent. Instead, Oklahoma responded with a media and litigation campaign seeking to portray reservations within its State— where federal and tribal authorities may prosecute crimes by and against tribal members and Oklahoma can pursue cases involving only non-Indians—as lawless dystopias."

Gorsuch, along with the others in dissent, state that in their view the case is not about who should prosecute what crimes, but about the state of Oklahoma's "effort to gain a legal foothold for its wish to exercise jurisdiction over crimes involving tribal members on tribal lands."

"Today the Court rules for Oklahoma," they write. "In doing so, the Court announces that, when it comes to crimes by non-Indians against tribal members within tribal reservations, Oklahoma may 'exercise jurisdiction.' Ante, at 4. But this declaration comes as if by oracle, without any sense of the history recounted above and unattached to any colorable legal authority. Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom. The source of the Court’s error is foundational. Through most of its opinion, the Court proceeds on the premise that Oklahoma possesses 'inherent' sovereign power to prosecute crimes on tribal reservations until and unless Congress 'preempt[s]' that authority."

"Tribes are sovereigns," reads the dissent.

"Tribal sovereignty means that the criminal laws of the States 'can have no force' on tribal members within tribal bounds unless and until Congress clearly ordains otherwise."

This is a breaking story and will be updated.