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The Supreme Court ruled last week the state of Oklahoma has some jurisdiction over tribal lands.
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Native law experts told Insider the ruling ran counter to decades of Native law.
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They said the court bought into Oklahoma’s dubious narrative of reservations as “lawless dystopias.”
Oklahoma engaged in a coordinated effort to disparage Native American tribes and convince the Supreme Court to weaken tribal sovereignty — and it worked, according to Native law experts.
On Wednesday, the Supreme Court sided with the state in Oklahoma v. Castro-Huerta in a 5-4 opinionholding that the state of Oklahoma had concurrent jurisdiction with the federal government to prosecute some crimes committed on reservations.
But Native law experts said the decision ran counter to nearly 200 years of precedent and has significant implications for what it means for Native nations as sovereigns.
“Truly, a more historical and mistaken statement of Indian law would be hard to fathom,” Justice Neil Gorsuch wrote in a scathing dissent that was joined by the court’s liberal wing, adding: “Tribes are not private organizations within state boundaries. Their reservations are not glorified private campgrounds. Tribes are sovereigns.”
The win for Oklahoma came two years after another case decided by the high court, McGirt v. Oklahoma, held that much of eastern Oklahoma was reservation land. The result was that 43% of the state was acknowledged as Indian country, limiting the ability of the state to persecute crimes there.
Following that decision, Oklahoma could have sought jurisdiction by working with the tribes and going to Congress to pass legislation. Instead, Gorsuch writes, the state responded with a “media and litigation campaign” to portray reservations as “lawless dystopias.”
Oklahoma spent $10 million on a tribal litigation fund
“The court has never had the authority to give states any jurisdiction over tribal lands,” Mary Kathryn Nagle, a lawyer who specializes in federal Indian law, told Insider. That power has belonged to the federal government and Congress. But she said the governor “spent 10 million on a PR campaign” to convince the Supreme Court otherwise.
In 2021, Gov. Kevin Stitt successfully sought $10 million for a tribal litigation fund to hire private attorneys to work on disputes between the state and the tribes.
In the state’s recent argument before the Supreme Court, it argue McGirt caused “instant and sweeping turmoil” in Oklahoma. The state claimed it lost jurisdiction over 18,000 cases per year and that “numerous crimes are going uninvestigated and unprosecuted, endangering public safety.”
However, it’s unclear how exactly Oklahoma came up with its numbers. Tribal governments and journalists have been unable to confirm them and accused the state of exaggerating. A months-long analysis by The Atlantic found the state’s numbers dubious at best and “inaccurate and misleading” at worst.
The state’s characterization of the situation has also been disputed by some officials. Trent Shores, who served as the US attorney for the Northern District of Oklahoma from 2017 to 2021, said the reality on the ground is far more reassuring.
“I have experience working with and in the tribal court system, and I know that they are just as dedicated to justice and ensure that these victims get a measure of justice,” he told KOSU last year.
Still, the Supreme Court appeared to take Oklahoma at its word, with Justice Brett Kavanaugh repeating Oklahoma’s claims in the majority opinion.
“It’s very clear they’re buying this false narrative that McGirt created a public safety issue,” Nagle said.
Tribes will ‘guard their sovereignty and protect it very closely’
James Maggesto, an attorney who focuses on Native American Law, agreed that “the sky wasn’t falling at the local jurisdictions” but that Oklahoma’s efforts to paint it that way lamentably “carried the day in this case.”
He said that despite the state asserting otherwise, there is “no tension between respecting tribal sovereignty and law and order.” Similar to how states respect one another’s jurisdiction over their own lands, the jurisdiction of the tribes, as sovereign nations, should also be honored and respected.
Maggesto said it was just another example of the court wanting a specific outcome and finding a way to get there, rather than following the law where it actually leads: “The majority opinion is a pretzel twisting itself to get to that outcome instead of letting it flows.”
“Far from settling things, I think the court has kind of muddied the water now,” he said, adding he expects to see the tribes fight the implications through legislation or the courts. “One thing tribes have shown throughout all of this, they will guard their sovereignty and protect it very closely.”
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