NEWS: The U.S. Supreme Court just ruled that Oklahoma prosecutors cannot try Native Americans in state courts for crimes committed on tribal lands, upholding the sovereignty of the Creek Nation and other tribes. This will result in the reversal of some Oklahoma death sentences.
Justice Gorsuch wrote the opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts wrote a dissenting opinion, joined by Justices Alito, Kavanaugh, and Thomas. Justice Thomas also wrote his own dissent.
The issue in this case was whether a large swath of land in NE Oklahoma qualifies as “Indian Country” for purposes of federal criminal law. Only the federal government can prosecute “major crimes” committed by Native Americans on tribal land. The state has no authority.
The Court ruled that Congress granted a reservation in present-day Oklahoma to the Creek Nation by treaty in the 19th century. Despite breaking most of its promises to the Creek over the years, Congress never formally took away the reservation.
Oklahoma tried to come up with a new test for the Court to use in order to get around the clear language of the treaty. Oklahoma wanted the Court to look at past practices, essentially arguing that the treaty had been violated for so long that it shouldn’t be enforced now.
Justice Gorsuch rejected Oklahoma’s idea, writing that the state was asking the Court to “substitute stories for statutes.” Justice Gorsuch also noted that this might not have worked out well for Oklahoma anyway since “the Tribe could tell more than a few stories of its own.”
Justice Gorsuch then continues to systematically dismiss Oklahoma’s remaining arguments. Finally, Justice Gorsuch gets at the unspoken reason behind Oklahoma’s tenuous position: the state is afraid that as much as half of its land will be classified as Indian country.
Oklahoma argued that many residents will be surprised to learn that they’ve been living on tribal lands. Justice Gorsuch replied that members of the Creek Nation who signed the original treaty in 1832 would also be surprised to find them there.
Oklahoma and the dissenting justices argued that the majority’s decision would have a ripple effect and unsettle many criminal cases. Justice Gorsuch responds: “the magnitude of a legal wrong is no reason to perpetuate it.”
Justice Gorsuch concludes: “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law.”
