The Supreme Court Says Oklahoma Can Protect Native American Victims

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The U.S. Supreme Court building in Washington, D.C.



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Patrick Semansky/Associated Press

When the Supreme Court in 2020 resurrected Native American reservations that now cover nearly half of Oklahoma, it was a win for tribal rights. But it was a calamity for Native crime victims, who lost access to justice. On Wednesday the Justices voted 5-4 to correct part of their mistake.

Oklahoma v. Castro-Huerta involved a man sentenced to 35 years for child neglect. His disabled 5-year-old stepdaughter weighed 19 pounds when she was rushed to the hospital. Her crib, the state said, was “filled with bedbugs and cockroaches and contained a single, dry sippy cup, the top of which was chewed through.”

The man isn’t Native American, but the stepdaughter is, and the crime happened in Cherokee territory. That was enough to make state jurisdiction vanish, at least under the High Court’s 2020 McGirt ruling. The man was indicted by the feds and took a plea deal for seven years.

Federal prosecutors have been overwhelmed by the new case load. The two U.S. Attorneys in the affected area, covering Tulsa and almost two million people, opened 22% and 31% of felony referrals in 2021. The FBI does “not have the capacity to work the single car theft, the small property thefts,” the state’s top agent said. It’s intolerable to have half a state where a white criminal can hurt a minority with impunity because the feds won’t act and the state’s hands are tied.

Oklahoma argued in Castro-Huerta that it retained concurrent jurisdiction to prosecute such crimes, by virtue of statehood. A majority of the Supreme Court agrees. We’ll spare you Justice

Brett Kavanaugh’s

parsing of statutes dating to 1834, but here’s his bottom line: “No federal law preempts the State’s exercise of jurisdiction over crimes committed by non-Indians against Indians in Indian country.”

This won’t solve all the McGirt problems, but one sheriff told us it would “bring back about 60% to 70% of our case load.” It could deliver justice to

Crystal Jensen.

She has a bit of Cherokee blood, as she found out in high school, which killed the charge against the peeping Tom who allegedly peered into her bathroom.

Or think of

Pamela Chuculate-Sequichie,

whose 12-year-old son Billy was killed by a drunken driver. If Billy had been Hispanic instead of Native, there’d be no questioning the driver’s 20-year sentence. But that case was thrown out under McGirt, and the federal statute of limitations had expired, meaning the driver could have gone free. “I don’t feel like I have a people anymore,” Ms. Chuculate-Sequichie told us. “Even though Billy was tribal, does that exclude him from being a citizen of the United States, citizen of Oklahoma?” Now it appears the conviction will stand.

The author of McGirt, Justice

Neil Gorsuch,

issued a furious dissent Wednesday that almost runs out of adjectives. He calls the decision (in alphabetical order) “ahistorical,” “baffling,” “bewildering,” “egregious,” “embarrassing,” “staggering,” and “unsound.” He says it “makes a mockery” of laws passed by Congress to handle crimes on reservations: “Unknown to anyone until today, state law applied all along.”

Funny, that’s pretty much what the McGirt dissenters had said: that Oklahoma’s reservations were ended as it neared statehood, after which the state exercised “unquestioned jurisdiction for more than 100 years.” Tulsa grew from 7,000 residents to a million. Unknown to them until 2020, they were living on a reservation all along.

Justice Gorsuch is trying to defend his McGirt ruling, which he wrote when Justice

Ruth Bader Ginsburg

was still on the Court. But Justice Kavanaugh says the Court had never before “fully explored” the concurrent jurisdiction question. The argument of Oklahoma’s opponents, he adds, “would require this Court to treat Indian victims as second-class citizens. We decline to do so.”

While abortion has not been banned in the United States, the Democratic Party is using the overturning of Roe v Wade to move attention away from inflation and the economy. Images: Shutterstock/Getty Images/Zuma Press Composite: Mark Kelly

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Appeared in the June 30, 2022, print edition as ‘Oklahoma’s Right to Protect Native Victims.’

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