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Supreme Court says Oklahoma can prosecute crimes in ‘Indian country’

Separately, the court ruled for an Army reservist and Iraq War veteran who wants to sue the state of Texas over his treatment upon returning to his civilian job

The Supreme Court in Washington. (Amanda Andrade-Rhoades/Bloomberg News)
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In a pair of closely divided decisions, the Supreme Court on Wednesday sided with Oklahoma officials in a case involving state prosecutions within Indian reservations and ruled for an Army reservist who said he was mistreated by his public employer after returning from Iraq.

The decisions come as the high court prepares to end a consequential term Thursday with two remaining opinions on the president’s powers over immigration policy and to combat climate change. After the court announces its final rulings, Justice Stephen G. Breyer will formally retire at noon. His departure will clear the way for Judge Ketanji Brown Jackson to be sworn in as the first Black woman to serve on the high court.

Ketanji Brown Jackson to take Supreme Court oath as Justice Breyer retires

The Oklahoma decision announced Wednesday limits the reach of a 2020 ruling that reclassified a large swath of the state, including the city of Tulsa, as Indian land and disrupted criminal prosecutions. The 5-to-4 decision, criticized by tribal leaders, said state officials have the authority to prosecute non-Indians for crimes against Native Americans within a tribal reservation.

“The Court’s precedents establish that Indian country is part of a State’s territory and that, unless preempted, States have jurisdiction over crimes committed in Indian country,” Justice Brett M. Kavanaugh wrote for the majority.

He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Amy Coney Barrett, who joined the court after the 2020 decision and provided the key vote Wednesday.

Two years ago, the court said about 43 percent of Oklahoma remains an American Indian reservation. That decision, written by Justice Neil M. Gorsuch, who dissented from Wednesday’s ruling, prevented state law enforcement from prosecuting Native Americans who commit crimes on Indian land.

‘Complete, dysfunctional chaos’: Oklahoma reels after Supreme Court ruling on Indian tribes

In his dissent, Gorsuch said that the majority had misread history and that tribes retain their authority unless Congress intervenes.

“Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom,” wrote Gorsuch, who was joined by Breyer and Justices Elena Kagan and Sonia Sotomayor.

“Tribes are not private organizations within state boundaries. Their reservations are not glorified private campgrounds. … Tribal sovereignty means that the criminal laws of the States ‘can have no force’ on tribal members within tribal bounds unless and until Congress clearly ordains otherwise,” he wrote.

The case involved the state prosecution of Victor Manuel Castro-Huerta, a non-Native American, who was convicted of severely neglecting his 5-year-old disabled stepdaughter, a member of the Eastern Band of Cherokee Indians. Castro-Huerta appealed his 35-year sentence, saying in part that the state did not have the authority to prosecute him because the victim was Native American and the alleged crime took place in Indian territory.

While his appeal was pending, the Supreme Court issued two related opinions that greatly increased the span of Indian country in Oklahoma and held that the state lacked authority to prosecute a Native American who had committed a crime in Indian country against a fellow Native American.

Oklahoma told the court that the shift to tribal and federal court after the 2020 ruling had forced the state to drop some prosecutions and some victims to go through second trials. Castro-Huerta subsequently pleaded guilty in federal court and accepted a seven-year sentence.

Gov. Kevin Stitt (R) called the ruling Wednesday a “pivotal moment” that would allow the state to prosecute non-Native Americans and to “protect Native victims.”

“Justice has been delayed and denied to thousands of Native victims in our state for no reason other than their race. Now Oklahoma law enforcement can help uphold and enforce the law equally, as we have done for over a century,” Stitt said in a statement.

In a statement, the Muscogee (Creek) Nation said the Wednesday ruling is “an alarming step backward for justice on our reservation in cases where non-Native criminals commit crimes against Native people.”

“This will have a ripple effect throughout Indian Country across the United States,” the tribe said, adding that “public safety would be better served by expanding Tribal authority to prosecute any crime committed by any offender within our reservation boundaries rather than empowering entities that have demonstrated a lack of commitment to public safety on Indian lands.”

Cherokee Nation Principal Chief Chuck Hoskin Jr. said in a statement that the court “failed in its duty to honor this nation’s promises” to Native Americans. Even so, he said, tribal and federal jurisdiction remain unchanged, and tribes will “continue to seek partnership and collaboration with state authorities while expanding our own justice systems.”

Court sides with Iraq War veteran

On another 5-to-4 decision, the justices sided with an Army reservist who wants to sue the state of Texas, saying he was treated improperly after he returned from war in Iraq.

At issue was federal legislation passed after the Persian Gulf War that prohibited employers from discriminating when rehiring veterans after their service. Congress’s intent was to encourage Americans to enlist in the military by protecting them upon return to civilian life.

But Texas maintained that the Constitution did not allow Texas state trooper Le Roy Torres to sue it in state court because states have sovereign immunity from such claims.

Breyer wrote for the majority that was wrong.

“Text, history, and precedent show that the States, in coming together to form a Union, agreed to sacrifice their sovereign immunity for the good of the common defense,” Breyer wrote.

Courts in Texas and other states have said that Congress cannot authorize such lawsuits against the states in their own courts.

Breyer said that would in effect give individual states too much authority to retreat from national decisions about war.

Supreme Court examines war powers in reservist’s discrimination case

“If a State — or even 25 States — decided to protest a war by refusing to employ returning servicemembers, Congress, on Texas’ telling, would be powerless to authorize private reinstatement suits against those States,” Breyer wrote. “The potentially debilitating effect on national security would not matter.”

He was joined by Roberts, Sotomayor, Kagan and Kavanaugh.

Thomas wrote a dissent nearly twice as long as Breyer’s opinion.

In his view, joined by Alito, Gorsuch and Barrett, states deserved more autonomy.

“Constitutional text, history, and precedent all show that when the States ratified the Constitution, they did not implicitly consent to private damages actions filed in their own courts — whether authorized by Congress’ war powers or any other Article I power,” Thomas wrote.

Torres was an Army reservist who was deployed in 2007 to Iraq, where he suffered lung damage from exposure to burn pits during his service. When he returned to Texas, he could no longer perform some of the duties as a trooper and asked for an accommodation.

He and the Texas Department of Public Safety disagree about whether a proper accommodation was offered, but Torres resigned and later sued for $5 million under the federal law. He and his wife subsequently started an organization that advocates for service members injured from toxic exposure.

The Biden administration defended the law as intended to provide job protection to reservists and National Guard members the military depends on as recruits.

The cases are Oklahoma v. Castro-Huerta and Torres v. Texas Department of Public Safety.

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