The Supreme Court of the United States (Photo by Jim Small from the Arizona Mirror for States Newsroom).
Sovereignty over Native American lands is under attack from the highest court in the United States, leaders of various tribal nations told members of Congress this week.
The Supreme Court’s decision in Castro v. Huerta earlier this year allows state prosecutors to take over criminal prosecutions for crimes committed against Indigenous nations, and it sows confusion and fear that the decision not only undermines tribal law, but slows down the wheels of justice.
“The court has essentially turned the script around on state criminal jurisdiction in Indian Country,” Cherokee Nation Attorney General Sara Hill told lawmakers. “But perhaps the most troubling aspect of Castro-Huerta is what he may portend for future business and legislative efforts.”
At the Congressional Subcommittee on Indigenous Peoples of the United States hearing, Hill was joined by witnesses from the Oglala Sioux, Muscogee Creek Nation, Bay Mills Indian Community and Tulalip Tribes.
Representative Theresa Ledger-Fernandez, DN.M., leads the subcommittee.
Deputy Home Secretary Bryan Newland (Ojibwe) also testified and said his agency would soon hold two listening sessions with tribal leaders to get feedback on how they would like to see the administration respond to decision.
“Castro-Huerta’s opinion creates uncertainty throughout Indian Country. State prosecutors can now accept or deny cases involving crimes committed by non-Indians against Indians in Indian Country, without obtaining tribal consent,” Newland said during Tuesday’s hearing. “This invites further conflict and diminishes the ability of tribes to coordinate with federal agencies on public safety priorities within their communities.
Castro vs. Huerta began is a Cherokee Nation case and involves a child from that community. Hill said it was an attempt to overturn an earlier Supreme Court ruling that effectively affirmed the power of tribal courts when prosecuting crimes.
“The case was one of dozens the Oklahoma attorney general took to the High Court in hopes of having the opportunity to overturn the landmark decision in McGirt v. Oklahoma,” Hill said.
Although the ramifications of Castro-Huerta are still unknown, Hill mentioned that federal efforts such as the Violence Against Women Act and McGirt promote a tribal justice system on the Cherokee Nation that proves more effective than the state. .
She said that before the McGirt decision in 2020, the Cherokee Nation was prosecuting less than 100 criminal cases a year. In 2021, his office has now filed more than 3,700 cases and is on track to increase that workload this year.
With the provisions of the Violence Against Women Act, which grants tribes the ability to prosecute non-Native people for crimes they are accused of committing against Native Americans, Hill said the nation Cherokee was preparing for “another leap in our workload”.
“Given the opportunity to thrive after McGirt and after Castro-Huerta, I have no doubt that tribal justice systems will continue to be a source of innovation and public safety across our country,” she said. declared.
Hill said Congress must meet its obligations and provide adequate funding to tribes so they can meet their public safety obligations.
Muscogee Creek Nation ambassador Jonodev Chaudhuri said further congressional reforms must address penalties and jurisdictional limits. Many tribes, due to federal law, are limited in their ability to seek harsh sentences, including for violent crimes.
“If we are serious about keeping people safe, whether they are indigenous or not in Indian country, we need to hold local decision-makers on the ground and governments who have the greatest interest in protecting people accountable,” Chaudhuri said. “That should appeal to both sides of the aisle.”
Teri Gobin, president of the Tulalip Tribes, said her government was forced to adopt policies that gave Washington state greater authority to prosecute crimes, even those that occurred in her community. She said the relationship, which was signed into law by Congress in 1953, has historically failed her people.
“The Castro-Huerta case couldn’t be more wrong with its underlying assumption that states will do a better job of protecting our children,” she said.
Tulalip began exercising jurisdictional power in 2013 when the Violence Against Women Act was first passed. She said children were present in more than half of the violent cases they took on, but Washington state did not prosecute any of those incidents when the accused was non-Native.
“Aside from the chaos and confusion that occurs when a state has jurisdiction over tribal lands, that jurisdiction is rarely exercised,” she testified. “And if the state exercises that authority, there is often biased treatment, discrimination and insensitivity towards the tribal victim and their family.”
Along with all who spoke, Gobin said Congress must act to clearly define the jurisdiction and assert the authority of tribal court systems.
“Ultimately, the court’s decision limits the ability of tribal nations to pursue self-sufficiency and build strong governments,” she said. “And it ignores the connection between sovereignty and the safety of Indigenous children, threatening to obscure the essential work this Congress has done to restore our inherent right to protect our children.”
This story was originally written and produced by Source New Mexico which is part of States Newsroom, a network of news outlets, including the Daily Montanan, supported by grants and a coalition of donors as a 501c(3) public charity.
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