September 8, 2022 | By Albert Bender People's World peoplesworld.org
“States have no criminal jurisdiction in Indian Country over crimes by Indians against anyone or crimes by non-Indians against Indians. Crimes by Indians are punishable either by the tribe or the federal government, and crimes by non-Indians against Indians are punishable exclusively by the federal government.” Williams v. United States (1946)The above passage is from the much-esteemed book, American Indian Law, by William C. Canby Jr., Senior Judge of the U.S. Court of Appeals for the Ninth Circuit. Canby was a former Director of the Office of Indian Law of the Arizona State College of Law and a foremost authority on Federal Indian law. The ruling cited by Judge Canby is quite clear— and on point—in reference to states and criminal jurisdiction regarding crimes committed by non-Indians against Indians in Indian Country. On June 29 of this year, the Supreme Court issued a decision striking an unprecedented body blow against the Tribal sovereignty of Indigenous nations. The retrograde Court ruled in the case of Oklahoma v. Castro-Huerta, that states have concurrent jurisdiction with the federal government in crimes of non-Indians against Indians on Tribal lands.
The Court stated in its inflammatory decision that Indian Country is part of state territory. This is incredibly shocking and betrays an apparent complete ignorance of Federal Indian law.As an attorney whose specialty is federal Indian law, and having practiced on a number of reservations, I shall review the recent Supreme Court decision from the standpoint of its most basic egregious errors, while also scrutinizing the ruling from the perspective of the scathing dissent issued by Supreme Court Justice—and Indian law authority—Neil Gorsuch. The general foundational rule is that state jurisdiction is limited to those crimes that do not concern Indians or Indian interests. Hence, state jurisdiction is limited to crimes committed by non-Indians against non-Indians in Indian Country. Otherwise, the state has no authority on Tribal lands absent Congressional authorization. This is clear and unambiguous. But it must also be kept in mind that Federal Indian law is filled with ambiguities, uncertainties, inconsistencies, and nuances, more so than any other body of law in the entire United States. However, this discourse addresses the more salient errors and lack of knowledge, history, and law embodied in the Court’s latest excursion into Indigenous jurisprudence.
Supreme Court decision foreshadows Tribal-State conflict
Justice Kavanaugh’s assertion that a reservation is part of state territory lowers Tribal land to a subordinate status and takes away the nation-to-nation status vis-à-vis the federal government proclaimed in Worcester. Federal Indian law has held for over 200 years that reservations are separate from the states. This is founded on treaties, statutes, and case law that the Tribes are sovereign nations with only Congressional limitations.In reference to the Worcester decision, that states have no jurisdiction in Indian Country, Kavanaugh’s retort is that at the time of the ruling territorial separation was the reason that state authority did not extend to Tribal lands. He advances that in the early 1800s Indian Country was separate from the states, therefore state law did not apply. Kavanaugh has no idea of what he is talking about, as he has no knowledge or grasp of history. Georgia was already a state in the Worcester case of 1832 and had been for decades. There was no territorial separation between it and the Cherokee Nation. The Cherokee Nation was geographically within the boundaries of the states of Georgia, Tennessee, North Carolina, and Alabama. Since there was no territory separating those states from the Cherokee Nation, such an argument is absurd. There was a national boundary between those states and the Cherokee Nation based upon treaties with the federal government of the United States. Keep in mind that Kavanaugh, throughout his bumbling opinion, never explains what he means by “territorial separation.” We are left to draw our own reasonable, logical conclusion.
The Justice also delves into Oklahoma Indian history. He cites the famous groundbreaking volume by famed Oklahoma historian, Angie Debo, entitled And Still the Waters Run: The Betrayal of the Five Civilized Tribes, to illustrate that state officials and state courts defrauded the exiled Tribes of land and resources guaranteed by federal treaties. Gorsuch also cites the “deadliest of enemies” description from United States v. Kagama (1886) to further indicate traditional state enmity toward Tribal nations.The dissent notes that “in the decades following statehood, many settlers engaged in schemes to seize Indian lands and mineral rights by subterfuge.” Gorsuch explains that these schemes resulted in the bulk of the landed wealth of the Indians ending up in the hands of the new settlers, and that state officials and courts “were sometimes complicit in the process.” I would add that this happened more than “sometimes” considering that the vast amount of Oklahoma Indian land was taken in stolen allotments. For Kavanaugh to continue claiming that Indian Country is part of the state is inflammatory and provocative language that will foster further conflict and confrontation in Tribal-State relations. Some tribal communities are already pondering whether the decision means that state police will enter reservations patrolling and policing for non-Indian law violators. Will the ruling foster state jurisdictional intrusions into Indian land and interests? Will the Court’s decision “that Indian Country is part of a state and not separate from it” be tested by an overzealous state to further this intrusion into Indigenous sovereignty?
Albert Bender is a Cherokee activist, historian, political columnist, and freelance reporter for Native and Non-Native publications. He is currently writing a legal treatise on Native American sovereignty and working on a book on the war crimes committed by the U.S. against the Maya people in the Guatemalan civil war He is a consulting attorney on Indigenous sovereignty, land restoration, and Indian Child Welfare Act (ICWA) issues and a former staff attorney with Legal Services of Eastern Oklahoma (LSEO) in Muskogee, Oklahoma.
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