The United States Supreme Court, on June 29, restricted a 2020 ruling that granted First Nations people increased legal rights on their land in Oklahoma.
Given that about half of Oklahoma is covered by Indian reservations of the Chickasaw, Choctaw, Cherokee, Seminole and Muscogee (Creek) Nations, this has important legal implications.
The court ruled in McGirt v Oklahoma in 2020 that the state could not prosecute crimes by or against Native Americans on Indian reservations, who are instead subject to tribal or federal courts.
The new ruling does not technically overturn McGirt v Oklahoma, but grants state courts the power to prosecute crimes committed on reservations.
This represents a major setback to indigenous tribes’ legal rights and will impact not only Oklahoma, but every state with reservations.
The federal government created Indian reservations in the 1800s, codifying limited rights in treaties that were rarely honoured. States imposed their own laws on First Nations people, especially in those with legal segregation.
First Nations people began to assert themselves after the 1960’s civil rights movement and won many gains on and off reservations.
Republican states, and those run by anti-democratic politicians, responded with a counter-campaign to return to the past — when the genocidal national oppression of tribes was accepted.
With Donald Trump as president, Oklahoma’s Republicans took legal action, arguing that “state rights” allowed them to impose their will over First Nations laws.
What changed from 2020 to 2022? Not the facts, but the composition of the court. “Liberal” justice Ruth Bader Ginsburg died and a Trumpist was appointed.
The new reactionary majority of the court operates on right-wing ideology. Even if one rightist judge changes side, the reactionaries would still have a 5 to 4 majority.
The court majority decided to quickly take a new Oklahoma case on the same issue — a vote of 5 to 4 gutted the 2020 decision.
Justice Brett Kavanaugh, nominated by Trump in 2018, wrote the decision for the court’s five reactionaries. As in other reversals of legal rights cases, the five justices did not address the arguments contained in the 2020 ruling.
Justice Neil Gorsuch — a hard right reactionary usually aligned with the most conservative bloc of the court — voted against the ruling and criticised it in a written dissent.
He argued that the ruling overturns an 1832 Supreme Court decision that deemed that First Nations peoples retain their sovereignty unless Congress legislates otherwise.
“Standing before us is a mountain of statutes and precedents making plain that Oklahoma possesses no authority to prosecute crimes against tribal members on tribal reservations,” he said.
Cherokee Nation Principal Chief Chuck Hoskin jnr said the ruling was a betrayal.
“With today’s decision the US Supreme Court ruled against legal precedent and the basic principles of congressional authority and Indian law.”
He said it could have been worse, as “the court has refused to overturn the [2020] McGirt decision”.
The Oklahoma government wants to impose long sentences and overturn acquittals or lesser sentences given by tribal courts.
The power to prosecute will most likely shift to the state and away from the federal government. Tribal courts will be restricted to prosecuting crimes mainly committed by and between First Nations people.