U.S. Supreme Court overrules itself, diminishes Native Nations’ sovereignty

[The original version has been edited for clarity.]

A mere two years, the U.S. Supreme Court issued a landmark ruling in McGirt v. Oklahoma, affirming Tribal sovereignty in criminal justice matters involving Native Americans on reservation lands.

On Wednesday, the Supreme Court reversed itself in Oklahoma v. Victor Manuel Castro-Huerta, giving states “concurrent jurisdiction” on those cases.

Former U.S. Attorney Generals call it a “radical departure from U.S. law.” One analyst said it could create a “massive” disruption in Indian Country criminal law.

Landmark U.S. Supreme Court ruling a big win for tribal sovereignty

McGirt v. Oklahoma acknowledges broken treaties

Implies that much of eastern Oklahoma is reservation lands

Ruling puts tribes in strong negotiating position

Oklahoma today. Image: Wikimedia.

On the surface, MCGIRT v. OKLAHOMA was an effort by Jimcy McGirt, an enrolled member of the Seminole Nation, to get a new trial on sexual assault conviction, a crime that took place on the Creek Reservation.

The underlying issues the case needed to resolve gave the decision a much broader impact.

At issue was whether the State of Oklahoma or U.S. government had jurisdiction to prosecute McGirt’s crime. The Supreme Court ruled that the federal government had jurisdiction because the Creek Nation effectively was an Indian reservation, at least as far as prosecuting major crimes such as sexual assault.

This was a roundabout way of a broken treaty getting long-overdue attention.

The decision’s impact ranges from overturning more convictions, like McGirts’, that were committed by an Indigenous person on Indigenous lands. It also could affect such things as zoning, taxation, and environmental law within reservation borders.

The decision will spark significant negotiations between the U.S. government, the state of Oklahoma, and the five Native Nations in the state.

U.S. Supreme Court Rules in Favor of Crow Nation’s Off-Reservation Hunting Rights

Off-reservation treaty rights to hunt, fish and gather remain an important and unresolved issue in the efforts to stop the Enbridge Line 3 tar sands crude oil pipeline.

The Minnesota Public Utilities Commission (PUC) voted last year to approve the pipeline, doing so over objections by Anishiaabe bands that argued the pipeline violated their treaties. Line 3 would cross a large area of land where the bands retained “usufractuary” rights, a.k.a. rights to hunt fish and gather. The PUC decided — incorrectly — that it could approve the pipeline without first having the appropriate judicial review of these treaty rights

So it should be encouraging to Native nations and Line 3 opponents that the U.S. Supreme Court today upheld the Crow Nation’s off-reservation hunting rights, granted under the 1868 treaty, in the case of Clayvin Herrera v. Wyoming.