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.

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How Native Nations’ sovereign status was taken and how it could be restored

Native Nations made approximately 368 treaties with the U.S. government between 1777 and 1868. Native Nations negotiated those treaties as sovereign, independent entities.

The United States would later unilaterally declare Native Nations “domestic dependent nations.”

When and how did that switch happen? Were the U.S. actions legally valid?

An article published this year by the NYU Law Review, Revitalizing Tribal Sovereignty in Treatymaking, says no. It provides a new analysis on how Native Nations could challenge the paternalistic system the United States has imposed on them — and have their sovereign status recognized.

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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. Continue reading