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‘The Anticanon of Indian Law’: Gorsuch and Liberals Slam Kavanaugh’s Majority for ‘Embarrassing’ and ‘Ahistorical’ Reasoning


Associate Justice of the Supreme Court Neil Gorsuch (left), Associate Justice of the Supreme Court Brett Kavanaugh (right)

The Supreme Court ruled 5-4 on Wednesday that states have jurisdiction concurrent with that of the federal government to prosecute crimes committed by non-Indians against Indians on Native American lands.

Brett Kavanaugh penned the majority decision, which was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett. Justice Neil Gorsuch, on the other hand, was joined by the Supreme Court’s liberal wing in a lengthy dissent, in which he slammed the majority for creating “an embarrassing new entry into the anticanon of Indian law” based on “ahistorical” reasoning:

Today the Court rules for Oklahoma. In doing so, the Court announces that, when it comes to crimes by non-Indians against tribal members within tribal reservations, Oklahoma may “exercise jurisdiction.” Ante, at 4. But this declaration comes as if by oracle, without any sense of the history recounted above and unattached to any colorable legal authority. Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.

The case is Oklahoma v. Castro-Huerta, the appeal of Victor Manuel CastroHuerta of his conviction for criminal neglect of his 5-year-old stepdaughter. Castro-Huerta is not a Native American, but his stepdaughter is a member of the Eastern Band of Cherokee Indians, and the crime was committed on Indian land. Castro-Huerta argued that Oklahoma lacks jurisdiction to prosecute him.

The Castro-Huerta case is in some ways a sequel to the Supreme Court’s 5-4 decision in McGirt v. Oklahoma, in which SCOTUS ruled that 40-percent of Oklahoma’s land remains a Native American reservation. Now, about two million people live in eastern Oklahoma, and most are non-Indians.

In his ruling against Castro-Huerta, Kavanaugh told the tale of non-Indian criminals getting lighter sentences, or being set free altogether after courts reversed state-court convictions. Kavanaugh reasoned that times have changed in a way that matters to these criminal cases.

“In the early years of the Republic, the Federal Government sometimes treated Indian country as separate from state territory—in the same way that, for example, New Jersey is separate from New York,” he explained.

“Since the latter half of the 1800s, the Court has consistently and explicitly held that Indian reservations are ‘part of the surrounding State’ and subject to the State’s jurisdiction ‘except as forbidden by federal law,'” Kavanaugh added. That being the case, Kavanaugh said, states have concurrent jurisdiction to prosecute in these cases unless that prosecution is preempted by federal law.

The majority rejected Castro-Huerta’s argument that concurrent jurisdiction is preempted by the General Crimes Act. The justices in the majority found that neither the text itself nor Congress’ purpose in enacting it supports preemption.

Kavanaugh also addressed the argument that dicta contained in prior SCOTUS rulings supported preemption, saying SCOTUS had merely made tangential comments on the subject. Before McGirt, the question of concurrent jurisdiction “did not previously matter all that much and did not warrant this Court’s review,” Kavanaugh reasoned.

The majority handled the case as one of first impression, and looked at the ordinary analysis used in preemption jurisprudence. It acknowledged that even without a direct conflict found in federal law, “preemption may still occur if the exercise of state jurisdiction would unlawfully infringe upon tribal self-government.”

Concerns of tribal sovereignty did not foreclose Oklahoma’s concurrent jurisdiction to prosecute in this case, said SCOTUS, because Indian tribes already lack criminal jurisdiction to prosecute crimes committed by non-Indians. Kavanaugh said that federal interests would similarly be undisturbed as the ruling “would supplement federal authority, not supplant federal authority.” Moreover, the justice said, “the State also has a strong interest in ensuring that criminal offenders—especially violent offenders—are appropriately punished and do not harm others in the State.”

Kavanaugh did specifically address his colleagues’ comments in dissent. Gorsuch and others had been wrong, said Kavanaugh, to raise copious examples of the history of mistreatment of American Indians.

“[T]hat history,” wrote Kavanaugh, “does not resolve the legal questions presented in this case.”

Kavanaugh had words for the dissent, its conclusion, and its failure to stay in its own judicial lane:

From start to finish, the dissent employs extraordinary rhetoric in articulating its deeply held policy views about what Indian law should be. The dissent goes so far as to draft a proposed statute for Congress. But this Court’s proper role under Article III of the Constitution is to declare what the law is, not what we think the law should be. The dissent’s views about the jurisdictional question presented in this case are contrary to this Court’s precedents and to the laws enacted by Congress.

Kavanaugh’s take on the dissent was ultimately far kinder than Gorsuch’s views on the majority decision. Gorsuch led his colleagues Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor in a lengthy opinion that slammed the majority at every opportunity.

Gorsuch began with retelling a bit of 19th century history, in which Chief Justice John Marshall ruled in favor of tribal sovereignty and against the State of Georgia’s right to prosecute a non-Indian on Indian lands. Gorsuch chastised the majority for its ruling, and said, “Where this Court once stood firm, today it wilts.” He then provided history of the Cherokee “exile” to Oklahoma, and pointed a finger squarely at the majority for its misdeed in ruling against tribal interests.

“Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s,” he wrote.

Gorsuch also wrote about the state’s efforts to circumvent tribal sovereignty. Oklahoma could have amended its own laws and obtained tribal consent to prosecute, said Gorsuch.

“Instead, Oklahoma responded with a media and litigation campaign seeking to portray reservations within its State— where federal and tribal authorities may prosecute crimes by and against tribal members and Oklahoma can pursue cases involving only non-Indians—as lawless dystopias,” he wrote.

Gorsuch neutralized Kavanaugh’s details of Castro-Huerta’s horrific crimes by saying, “Really, though, this case has less to do with where Mr. Castro-Huerta serves his time and much more to do with Oklahoma’s effort to gain a legal foothold for its wish to exercise jurisdiction over crimes involving tribal members on tribal lands.”

As Gorsuch has done repeatedly in past opinions, he positioned himself as a lone authority on the very nature of Indian tribes:

Tribes are not private organizations within state boundaries. Their reservations are not glorified private campgrounds. Tribes are sovereigns. And the preemption rule applicable to them is exactly the opposite of the normal rule. 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.

Gorsuch slammed the majority for basing its ruling “on a grab bag of decisions issued by our predecessors,” and for using just “six dissenting decisions out of the galaxy of this Court’s Indian law jurisprudence” to “assemble a string of carefully curated snippets” supporting its decision.

Gorsuch went on a bit of a tirade against the majority and its lack of wisdom on this matter:

In the end, the Court cannot fault our predecessors for today’s decision. The blame belongs only with this Court here and now. 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 until it amends its laws and wins tribal consent. This Court may choose to ignore Congress’s statutes and the Nation’s treaties, but it has no power to negate them.

The Court may choose to disregard our precedents, but it does not purport to overrule a single one. As a result, today’s decision surely marks an embarrassing new entry into the anticanon of Indian law. But its mistakes need not—and should not—be repeated.

Gorsuch also addressed the majority’s balancing test in which it evaluated federal, state, and tribal interests.

“Plainly, the Court’s balancing-test game is not one we should be playing in this case,” Gorsuch said, before slamming the majority for its poor application.

“Start with the assertion that allowing state prosecutions in cases like ours will ‘help’ Indians,” Gorsuch remarked, “The old paternalist overtones are hard to ignore.”

The Cherokee, suggested Gorsuch, might not want Oklahoma to prosecute these crimes for all sorts of reasons.

“Maybe the Cherokee have so far withheld their consent because, throughout the Nation’s history, state governments have sometimes proven less than reliable sources of justice for Indian victims,” he reasoned. “Georgia once proved among the Cherokee’s ‘deadliest enemies.'” Or maybe, Gorsuch said, the Cherokee have Oklahoma-specific experiences in mind for why they are not on board with concurrent state prosecution.

For example, he said, in the past Oklahoma has subjected Native American children to “predatory guardianships, and “Oklahoma’s courts also sometimes sanctioned the ‘legalized robbery’ of these Native American children ‘through the probate courts.'”

Gorsuch ended his dissent by calling the majority decision wrong-footed and ill-advised but also ultimately limited.

“Most significantly, the Court leaves undisturbed the ancient rule that States cannot prosecute crimes by Native Americans on tribal lands without clear congressional authorization—for that would touch the heart of ‘tribal self-government,'” Gorsuch said.

The dissenting justice left off with some suggestions for Congress. Congress need not “stand by as this Court sows needless confusion across the country,” Gorsuch said in a line that could as easily be meant for any number of recent SCOTUS rulings. Rather, he said, “Congress can undo its decision and preempt state authority at any time.” Gorsuch even specified just how Congress might take action with “a simple amendment to Public Law 280.”

“It might say: A State lacks criminal jurisdiction over crimes by or against Indians in Indian Country, unless the State complies with the procedures to obtain tribal consent outlined in 25 U. S. C. § 1321, and, where necessary, amends its constitution or statutes pursuant to 25 U. S. C. § 1324,” Gorsuch suggested.

Then, quoting the late Justice Ruth Bader Ginsburg, Gorsuch wrote, “Of course, that reminder of the obvious should hardly be necessary. But thanks to this Court’s egregious misappropriation of legislative authority, ‘the ball is back in Congress’ court.'”

Cherokee Nation Principal Chief Chuck Hoskin, Jr. issued the following statement in response to Wednesday’s ruling:

“With today’s decision, the U.S. Supreme Court ruled against legal precedent and the basic principles of congressional authority and Indian law. During arguments, Justice Gorsuch asked if the Court would ‘wilt today because of a social media campaign’ – it is unfortunate that the answer appears to be yes. The dissent today did not mince words – the Court failed in its duty to honor this nation’s promises, defied Congress’s statutes, and accepted the ‘lawless disregard of the Cherokee’s sovereignty.’

While we are disappointed in this ruling, it does not diminish our commitment to meeting our public safety responsibilities and to protecting Oklahomans on our reservations and across the state. Tribal and federal jurisdiction remain unchanged by this decision, but the need to work together on behalf of Oklahomans has never been more clear.

Also unchanged is the affirmation of our reservation and our sovereignty. Despite the Oklahoma governor’s lies and attacks, the Court has refused to overturn the McGirt decision. As we enter a chapter of concurrent jurisdiction, tribes will continue to seek partnership and collaboration with state authorities while expanding our own justice systems. We hope that with these legal questions behind us, Governor Stitt will finally lay his anti-tribal agenda to rest and come to the table to move forward with us – for the sake of Oklahomans and public safety.”

The Castro-Huerta case was the last in which the soon-to-retire Justice Breyer took part in oral arguments.

[image via Chip Somodevilla/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos