On Wednesday, June 29, the Supreme Court issued a decision with the potential to compromise tribal sovereignty throughout the United States.
Breaking with nearly 200 years of precedent, the 5-4 majority opinion authored by Justice Brett Kavanaugh ruled that the state of Oklahoma can prosecute crimes against Indians victims by non-Indian people on tribal lands. Typically, criminal jurisdiction in Indian territory is shared exclusively between federal and tribal governments.
Richard Monette, Professor of Law at UW-Madison and Director of the Great Lakes Indigenous Law Center, says the ruling, “Is a stain on America’s history. This case ensures that it is a stain on America’s future history as well.”
He claims the ruling could fundamentally change state-tribal relations.
“The states will be playing a major role. And criminal jurisdiction doesn’t come with a nicely confined, in-a-vacuum exercise of a courtroom. It brings the full plethora of state jurisdiction into Indian country in a way that wasn’t there before,” Monette says.
In addition to undermining tribal sovereignty, Monette argues the Castro-Huerta ruling also makes it less likely that crimes committed against Native communities will be prosecuted.
“Here’s an opportunity, or an excuse, for the Feds to step back. And in some jurisdictions, they might not. They will abide by their legal obligations. But in other jurisdictions, as they have been doing, they will stand back,” Monette says.
Monette worries that states will not fill the void left by the retreat of Federal law enforcement. “They don’t fill the void, especially when the defendant, the perpetrator is a non-native and the victim is a native. States have not stepped in to prosecute because, after all, the victim was just an Indian.”
While the Castro-Huerta ruling implies shifts in policing and prosecution in much of Indian territory, Wisconsin is one of a handful of states where the ruling upholds existing law. That’s because in 1953, Congress passed Public Law 280, granting six states criminal jurisdiction on Indian territory, including California, Minnesota, and Wisconsin.
“P.L. 280 was a terrible law. It was a colonizer law intended to continue conquest and assimilation. It has, in some respects, done exactly that,” Monette says.
The only exception to P.L. 280 in the state of Wisconsin is the Menominee Reservation, which is the largest reservation east of the Mississippi River. With the new Supreme Court ruling, the Menominee Tribe’s sovereignty may be at risk.
“Here we are in the state of Wisconsin, 10 tribes subject to P.L. 280, and one not. And the one that’s not, Menominee is going to face all of what I just said–over time, creeping state patrolling, investigating, prosecutions.”
Monette argues that it would be more effective to invest authority and money in tribal law enforcement.
“It would be much more clear for America to treat Indian tribes like sovereigns, a political entity with political relationships, with territory and property and citizens, and everything that that stands for. But that’s not what the Court is doing.”
Photo courtesy of Mark Thomas from Pixabay.