Two years ago, Justice Neil Gorsuch was the deciding vote in a 5-4 opinion that declared the Creek Nations reservations in Eastern Oklahoma to be sovereign tribal land for the purposes of land administration and law enforcement.
That was of course before the death of the late Justice Ruth Bader Ginsburg and replacing her with Racist PTA Karen, and today with personnel change, that declaration is now gone, and the state of Oklahoma now has control of these lands back when it comes to prosecuting crimes of non-Native suspects.
The Supreme Court on Wednesday narrowed the sweep of its landmark 2020 decision declaring that much of eastern Oklahoma falls within Indian reservation lands, allowing state authorities to prosecute non-Indians who commit crimes against Indians on the reservations.
The ruling left in place the basic holding of the 2020 decision, McGirt v. Oklahoma, which said that Native Americans who commit crimes on the reservations, which include much of the city of Tulsa, cannot be prosecuted by state or local law enforcement and must instead face justice in tribal or federal courts.
The vote on Wednesday was 5 to 4, with Justice Amy Coney Barrett, who was not on the court when the McGirt case was decided, casting the decisive vote.
The new case concerned Victor Manuel Castro-Huerta, who was convicted of severely neglecting his 5-year-old stepdaughter, a member of the Eastern Band of Cherokee Indians who has cerebral palsy and is legally blind. In 2015, she was found dehydrated, emaciated and covered in lice and excrement, weighing just 19 pounds.
Mr. Castro-Huerta, who is not an Indian, was prosecuted by state authorities, convicted in state court and sentenced to 35 years in prison.
After the McGirt decision, an Oklahoma appeals court vacated his conviction on the ground that the crime had taken place in Indian Country. The appeals court relied on earlier rulings that crimes committed on reservations by or against Indians could not be prosecuted by state authorities.
Federal prosecutors then pursued charges against Mr. Castro-Huerta, and he pleaded guilty to child neglect in federal court and entered a plea agreement calling for a seven-year sentence. His sentencing is scheduled for August.
Prosecution in a tribal court was not an option in the case, as tribal courts generally lack authority to try non-Indians for crimes against Indians.
In asking the Supreme Court to weigh in on the case, Oklahoma v. Castro-Huerta, No. 21-429, John M. O’Connor, Oklahoma’s attorney general, said the justices had “never squarely held that states do not have concurrent authority to prosecute non-Indians for state-law crimes committed against Indians in Indian Country.”
Lawyers for Mr. Castro-Huerta responded that the Supreme Court, lower courts and Congress had all said that crimes committed on reservations by or against Indians could not be prosecuted by state authorities.
In his petition seeking review, Mr. O’Connor had also asked the Supreme Court to address a second question: whether the McGirt decision should be overruled. In its order granting review, however, the Supreme Court said it would only consider the narrower question of whether states can prosecute non-Indians for crimes against Indians on reservations.
Writing for the majority in McGirt, which was decided by a 5-to-4 vote, Justice Neil M. Gorsuch said the court was vindicating a commitment that grew out of an ugly history of forced removals and broken treaties.
“On the far end of the Trail of Tears was a promise,” he wrote, joined by what was then the court’s four-member liberal wing. “Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.”
Oklahoma Republicans demanded control over these lands again for non-Native folks, and SCOTUS gave it to them. The assurances Justice Gorsuch said the US Government gave the Creek Nations, assurances that his ruling remedied, were all but reversed in just two years.
When I say the Roberts Court is coming for the entire Civil Rights era, what Justice Thomas calls "wrongly decided substantive due process decisions", I mean everything is on the table, and everything will be gone unless this court is stopped.
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