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U.S. Supreme Court wrestles with Oklahoma tribal dispute in Breyer’s last case -Breaking


© Reuters. FILE PHOTO: U.S. Supreme Court Judge Stephen Breyer raises a copy the U.S. Constitution to announce that he would be retiring at the conclusion of his current term at the White House, Washington, U.S.A, January 27, 2022. REUTERS/Kevin Lamarque


Lawrence Hurley

WASHINGTON (Reuters] – The U.S. Supreme Court was divided Wednesday as Justice Stephen Breyer gave his last oral argument to the court before retiring. He weighed reducing the effect of its 2020 decision that significantly expanded Native American tribal authority within Oklahoma.

Oklahoma was represented by Victor Castro Huerta (a non-Native American) who was found guilty of child neglect for a crime against a Native American children – the Cherokee Nation stepdaughter, at age 5.

Castro-Huerta was convicted by a state court. The judge ruled that the Supreme Court 2020 decision had deprived Oklahoma authorities from jurisdiction.

Breyer is the oldest judge at age 83. His retirement was announced in January. It will be effective for the remainder of the court’s term. Oklahoma is the final case on the argument calendar. The justices are expected to complete issuing decisions for this term before the end of June. As Breyer’s replacement, Ketanji brown Jackson was confirmed by the Senate by Democratic President Joe Biden on April 7.

Chief Justice John Roberts, the judge, said at the end of the argument that he was grateful for the opportunity to share the bench with Breyer. Breyer joined the court on March 24, 1994.

A case called McGirt. Oklahoma, ruled in 2020 that about 50% of Oklahoma was now recognized as Native American Reservation land. This is a large portion of Oklahoma’s eastern half. Criticized by Republican Governor Kevin Stitt, the ruling meant that Native Americans involved in land crimes must now face federal and tribal justices.

In cases where no Native Americans were involved, the state will prosecute them.

As recognition of tribal sovereignty, the McGirt ruling has been welcomed positively by Tribes. Oklahoma had asked the Supreme Court not to annul it.

This case will examine whether non-Native Americans who have committed crimes against Native Americans on Native American land should be allowed to remain in the state’s jurisdiction. The federal government will now prosecute such crimes, which amount to approximately 3,600 per year, as a result McGirt’s ruling.

The 5-4 McGirt decision was written by Justice Neil Gorsuch, a conservative justice who joined four of the liberal justices. With conservative Justice Amy Coney Barrett taking over from the former liberal justice Ruth Bader Ginsburg and leaving the court with a 6-3 conservative majority, the court has moved to the right. Barrett may cast the decisive vote, having expressed doubts about Castro-Huerta’s arguments.

Gorsuch stated that it was long understood that the states don’t have jurisdiction in such cases. He cited history of discrimination against Native Americans. Gorsuch noted that Oklahoma’s state courts were responsible for denying Native Americans their property rights after oil was discovered.

Gorsuch declared, “The history as well as the truth should confront us all in our faces.”

Breyer pointed out that even if Oklahoma’s McGirt decision is limited, the ruling would also affect the laws in 49 states. There has long been a general assumption that these states don’t prosecute Native Americans who live on Native American land.

Justice Sonia Sotomayor, a fellow liberal, said that “now you’re creating chaos throughout the country.”

Some conservative justices that dissented from the 2020 decision were sympathetic to Oklahoma’s argument.

Justice Brett Kavanaugh raised concerns about the inability to prosecute crimes committed against Native Americans due to lack of federal resources. Kavanaugh also asked whether it would be beneficial for tribal interests to rule against Oklahoma.

I don’t think it will help Indian victims. “It’s going to harm Indian victims,” said he.

The decision, which is due at the end June, won’t affect tribal court cases involving Native Americans being convicted of crimes.

Castro-Huerta was sentenced for 35 years to prison after he was convicted by a state court of neglecting the stepdaughter. The victim has cerebral palsy. This conviction was overturned by the Oklahoma Court of Criminal Appeals in 2012. Castro-Huerta was indicted by federal authorities for the same offense, and transferred to federal custody. He pleaded guilty at trial to child neglect. He is still not sentenced.