The US Supreme Court, amid decisions radically expanding gun rights and removing a woman’s constitutional right to abortion, has toppled almost 200 years of law protecting Native American tribal independence and sovereignty.
On Wednesday, the Supreme Court ruled individual US states have authority over tribes within their borders.
In a 5-4 decision defining the scope of the 2020 McGirt ruling, Justice Brett Kavanaugh writes: “The court holds that Indian country within a state’s territory is part of a state, not separate from a state.
The decision specifically had to do with the issue of state jurisdiction of criminal law on tribal lands, but comes with massive ramifications. Simply put, it means, in the 20 states where tribal reservations exist, US state law now supersedes Indigenous law.
In the United States, tribes are generally independent, with governments that administer their own justice, health and education systems in collaboration with the Bureau of Indian Affairs. Tribal authorities are virtual partners; with state and tribal law often carrying similar weight in the eyes of the federal government.
This was the original vision of the Supreme Court for how Indians should be treated, emerging from the famous “Marshall trilogy” cases in the 1830s. Then-chief justice John Marshall wrote in 1832: “Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil.”
While Marshall’s decision wasn’t followed for decades — ignored famously by president Andrew Jackson, who hated Indigenous Peoples — this decision was one of the finer moments in US-Indigenous relations, facilitating a measure of economic and political independence for tribes (something even First Nations in Canada desire).
For nearly two centuries, federal law has guided the ways US citizens legally interact with Indigenous nations, creating a consistency and fairness in the basic recognition Indigenous peoples have decision making power over their own recognized territories.
Now, this is in peril, with tribal nations falling to the mercy of state governments — most of whom have combative relationships over issues such as gaming, resources and land.
It’s a brutal decision with potentially devastating consequences. Even Republicans disagreed, with conservative Justice Neil Gorsuch publicly calling out his colleagues.
Writing in dissent, Gorsuch said the decision will be a “grim result for different tribes in different states… One can only hope the political branches and future courts will do their duty to honor this nation’s promises even as we have failed today to do our own .”
Now, conceivably, a state government can legally claim tribal lands by arguing it is in the state’s interest.States can also pass laws to force tribal businesses to come under their control and pay tax to non-Indigenous peoples instead of tribal governments. States can even send their police to tribal communities to carry out demands and force their decisions to carry the day.
Anyone who knows how Republican-controlled state legislatures work in Florida, Michigan, Wisconsin, Oklahoma, Texas, Arizona, North and South Dakota will know how impactful this change can — and doubtful will — be.
It has been tried before.
The decision by the US Supreme Court is precisely what the federal government led by Pierre Trudeau tried in 1969, with the infamous “white paper on federal Indian policy.” It sought to download control over First Nations onto provincial authorities, erase treaties from history and deny First Nations rights and law.
It took 10 years of activism, but Ottawa eventually realized this change was illegal and unconstitutional, undermining the very principles Canada claimed to base itself upon.
The United States, too, will one day realize this same error with this Supreme Court decision — and the others the court made this week — but this has yet to pass.
Until that day, a lot of hate, division and struggle will come before justice will emerge.
Over one tumultuous month, a group of conservative justices hell-bent on overturning laws not suiting their political taste have tossed aside the rights of Indigenous peoples, a woman’s right to control her body and damaged attempts to limit gun violence.
At least one conservative is right: it’s a grim result.
Niigaan Sinclair is Anishinaabe and is a columnist at the Winnipeg Free Press.
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