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Gorsuch Scorches Majority Over Ruling in Sovereign Authority Case

June 29, 2022 by Dan McCue
Gorsuch Scorches Majority Over Ruling in Sovereign Authority Case
U.S. Supreme Court Justice Neil Gorsuch at the National Archive. (Screen grab by Dan McCue)

WASHINGTON — It began with a simple question: Do the federal government and a state have concurrent jurisdiction to prosecute crimes committed by non-Native Americans against Native Americans in what the federal government continues to refer to as “Indian country”?

But the ruling in the case, Oklahoma v. Castro-Huerta, which the U.S. Supreme Court handed down Thursday, once again showed that there are deep fissures in the new, conservative version of the Roberts court.

And this time, it wasn’t a liberal member of the court throwing barbed invective at the conservative supermajority. 

This time the rupture was between two of its Trump nominees — Justices Brett Kavanaugh and Neil Gorsuch.

The legal dispute underlying the blowup stems from the 2015 arrest of Victor Manuel Castro-Huerta, who was charged by the state of Oklahoma with child neglect. Castro-Huerta was eventually convicted in state court and sentenced to 35 years in prison.

While his appeal was pending, the U.S. Supreme Court decided McGirt v. Oklahoma, in which the justices held that the Creek Nation reservation in eastern Oklahoma had never been properly disestablished and therefore remained, in a legal sense, “Indian country.”

With nearly all of eastern Oklahoma, including the city of Tulsa, so recognized as Indian country, Castro-Huerta decided to try a new legal tact to gain his freedom, arguing that in light of McGirt, the federal government was the only entity that could prosecute him (a non-Native American) for a crime committed against his stepdaughter (a Cherokee) in Tulsa (Indian country).

The Oklahoma Court of Criminal Appeals agreed and vacated Castro-Huerta’s state court conviction.

Based on McGirt’s reasoning, the Oklahoma Court of Criminal Appeals later recognized that several other Indian reservations in Oklahoma had likewise never been properly disestablished. 

This put Oklahoma in a bind and raised the urgent question of which government or governments have jurisdiction to prosecute crimes committed there.

The state asked the Supreme Court to intervene and decide the issue. On Thursday, the majority said just what the state wanted to hear.

Writing for the majority, Kavanaugh said, “This court has long held that Indian country is part of a state, not separate from it. 

“Under the Constitution, states have jurisdiction to prosecute crimes within their territory except when preempted by federal law or by principles of tribal self-government. The default is that states have criminal jurisdiction in Indian country unless that jurisdiction is preempted. And that jurisdiction has not been,” he wrote.

Kavanaugh noted that while Castro-Huerta’s state appellate proceedings were ongoing, a federal grand jury in Oklahoma indicted him for the same conduct — mistreating a young stepdaughter who has cerebral palsy and is also legally blind.

Castro-Huerta accepted a plea agreement for a seven-year sentence followed by removal from the United States due to his status as an illegal alien.

“In other words, putting aside parole possibilities, Castro-Huerta in effect received a 28-year reduction of his sentence as a result of McGirt,” Kavanaugh wrote. “Castro-Huerta’s case exemplifies a now-familiar pattern in Oklahoma in the wake of McGirt

“The Oklahoma courts have reversed numerous state convictions on that same jurisdictional ground. After having their state convictions reversed, some non-Indian criminals have received lighter sentences in plea deals negotiated with the federal government. Others have simply gone free,” he said.

“The state estimates that it will have to transfer prosecutorial responsibility for more than 18,000 cases per year to the federal and tribal governments. All of this has created a significant challenge for the federal government and for the people of Oklahoma,” Kavanaugh added.

He was joined in the majority by Justices Clarence Thomas, Samuel Alito, Amy Coney Barrett, and Chief Justice John Roberts.

But Gorsuch was having none of this, and he tore into the majority in a 42-page dissent — some 17 pages longer than the original majority opinion.

In laying out his opposition to the ruling, Gorsuch harkened back 191 years, to 1831, when the state of Georgia arrested Samuel Worcester, a White missionary, for preaching to the Cherokee on tribal lands without a license. 

“Really, the prosecution was a show of force — an attempt by the state to demonstrate its authority over tribal lands,” Gorsuch said. “Speaking for this court, Chief Justice [John] Marshall refused to endorse Georgia’s ploy because the state enjoyed no lawful right to govern the territory of a separate sovereign. 

“The court’s decision was deeply unpopular, and both Georgia and President [Andrew] Jackson flouted it,” Gorsuch said. “But in time, Worcester [v. Georgia] came to be recognized as one of this court’s finer hours. The decision established a foundational rule that would persist for over 200 years: Native American tribes retain their sovereignty unless and until Congress ordains otherwise.

Worcester proved that, even in the ‘[c]ourts of the conqueror,’ the rule of law meant something,” Gorsuch said, adding, “Where this court once stood firm, today it wilts.”

“After the Cherokee’s exile to what became Oklahoma, the federal government promised the tribe that it would remain forever free from interference by state authorities. Only the tribe or the federal government could punish crimes by or against tribal members on tribal lands. 

“At various points in its history Oklahoma has chafed at this limitation. Now, the state seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee reservation. Where our predecessors refused to participate in one state’s unlawful power grab at the expense of the Cherokee.

“Really, though, this case has less to do with where Mr. Castro-Huerta serves his time and much more to do with Oklahoma’s effort to gain a legal foothold for its wish to exercise jurisdiction over crimes involving tribal members on tribal lands. To succeed, Oklahoma must disavow adverse rulings from its own courts; disregard its 1991 recognition.”

Throughout his dissent, on which he was joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, Gorsuch refers time and again to what he sees as the “astonishing errors” of his colleagues on the court as they ignored “fundamental principles” like those of tribal sovereignty, a treaty, the Oklahoma Enabling Act, its own state constitution, and Public Law 280. 

“Oklahoma must pursue a proposition so novel and so unlikely that in over two centuries not a single state has successfully attempted it in this court,” Gorsuch said. “Incredibly, too, the defense of tribal interests against the state’s gambit falls to a non-Indian criminal defendant. 

“The real party in interest here isn’t Mr. Castro-Huerta but the Cherokee, a tribe of 400,000 members with its own government. Yet the Cherokee have no voice as parties in these proceedings; they and other tribes are relegated to the filing of amicus briefs,” the justice said.

“Today the court rules for Oklahoma. 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.’ 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.” 

Indignant, Gorsuch ended with this: “In the 1830s, this court struggled to keep our nation’s promises to the Cherokee. Justice [Joseph] Story celebrated the decision in Worcester: ‘[T]hanks be to God, the court can wash [its] hands clean of the iniquity of oppressing the Indians and disregarding their rights. … The court had done its duty, even if Georgia refused to do its own.’

“Today, the tables turn,” Gorsuch continued. “Oklahoma’s courts exercised the fortitude to stand athwart their own state’s lawless disregard of the Cherokee’s sovereignty. Now, at the bidding of Oklahoma’s executive branch, this court unravels those lower-court decisions, defies Congress’ statutes requiring tribal consent, offers its own consent in place of the tribe’s, and allows Oklahoma to intrude on a feature of tribal sovereignty recognized since the founding. One can only hope the political branches and future courts will do their duty to honor this nation’s promises even as we have failed today to do our own,” he said.

Kavanaugh responded: “From start to finish, the dissent employs extraordinary rhetoric in articulating its deeply held policy views about what Indian law should be. 

“The dissent goes so far as to draft a proposed statute for Congress. But this court’s proper role under Article III of the Constitution is to declare what the law is, not what we think the law should be. 

“The dissent’s views about the jurisdictional question presented in this case are contrary to this court’s precedents and to the laws enacted by Congress,” Kavanaugh said.

Dan can be reached at dan@thewellnews.com and @DanMcCue

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