Witness for Justice: Tribal sovereignty, trampled

 by Rev. Elizabeth Dilley

The end of June always brings a slew of decisions from the United States Supreme Court (SCOTUS). This year, several such decisions overturned decades of precedent in a number of areas. The right to privacy regarding abortion in Roe v. Wade was overturned on slim legal reasoning. The EPA’s authority to regulate greenhouse gasses was circumscribed in West Virginia v. EPA. And the right of states to regulate firearms was severely limited in New York State Rifle and Pistol Association v. Bruen.

  However, one case seemed to have escaped much mainstream media scrutiny, although its impact is nothing short of devastating. Oklahoma v. Castro-Huertas overturned decades of jurisprudence and practice in concluding that “the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.” This cuts to the heart of tribal sovereignty, which asserts that only the native tribes or the federal government can prosecute alleged crimes committed on tribal land (often called “Indian Country” in legal documents).

  In his dissent, Justice Gorsuch writes that “After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands. At various points in its history, Oklahoma has chafed at this limitation…. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s.”

  A power grab is accurate. This ruling expands states’ rights at the expense of not only the federal government but also the tribes who exercise sovereignty over tribal lands (including much of eastern Oklahoma, as referenced in Castro-Huertas). This decision further erodes the self-determination of tribes and limits tribal leaders’ autonomy to prosecute crimes and handle punishment in ways that align with community needs. The Native American Rights Fund offered this statement in response to last week’s ruling: “The Supreme Court’s decision today is an attack on tribal sovereignty and the hard-fought progress of our ancestors to exercise our inherent sovereignty over our own territories.”

  This says nothing of the fact that neither states nor the federal government seems interested in supporting tribal leaders in prosecuting crimes committed in Indian Country. To wit, the number of murdered and missing Indigenous women and two-spirit people is alarmingly high, with most of these crimes being unsolved. When non-Indians are the perpetrators of these crimes (as is very often the case), the prosecution is even more challenging.

  How can the Church support Indigenous tribes in light of this decision? As always, we can defer to the wisdom of tribal leaders rather than impose our own ideas on what best to do. The Council of American Indian Ministries writes that they support communities throughout the UCC in seeking to “maintain our Indian traditions by employing our Native values and cultures to witness in our communities through authentic and postcolonial Indian expressions of the Christian faith.” We can write to our Congressional representatives and demand action to ensure that tribal sovereignty is respected, and that tribal leaders have the support they need to respond to the needs of their tribes.

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