Supreme Court GUTS McGirt, Neil Gorsuch in Dissent on Tribal Sovereignty

 The Supreme Court ruled on Wednesday that Oklahoma can prosecute non-Native Americans for crimes committed on tribal land when the victim is Native American. 

The 5-4 decision cut back on the high court’s ruling from 2020 that said a large chunk of eastern Oklahoma remains an American Indian reservation. The first decision left the state unable to prosecute Native Americans accused of crimes on tribal lands that include most of Tulsa, the state’s second-largest city with a population of about 413,000.

Gorsuch’s lengthy dissent — 42 pages, 17 pages longer than the opinion — makes it clear that he feels that the court just gutted it. And in doing so, Gorsuch accuses the majority of intellectual dishonesty

A state court later ruled that the Supreme Court decision also stripped the state of its ability to prosecute anyone for crimes committed on tribal land if either the victim or perpetrator is Native American.

That would have left the federal government with sole authority to prosecute such cases, and federal officials had acknowledged that they lack the resources to prosecute all the crimes that have fallen to them.

But the high court's new ruling said the state also can step in when only the victims are tribal members.

“The State’s interest in protecting crime victims includes both Indian and non-Indian victims," Justice Brett Kavanaugh wrote for the court.

After the 2020 decision, about 43% of Oklahoma is now considered Indian Country, and the issue of the state's ability to prosecute those crimes “has suddenly assumed immense importance," Kavanaugh wrote.

In a dissent joined by the court’s three liberal members, Justice Neil Gorsuch wrote that the decision “allows Oklahoma to intrude on a feature of tribal sovereignty recognized since the founding.”

The case highlighted the already strained relationship between Native tribes in Oklahoma and Republican Gov. Kevin Stitt, who has fought to return legal jurisdiction over tribal lands to the state.