{"id":25953,"date":"2022-07-07T12:04:37","date_gmt":"2022-07-07T16:04:37","guid":{"rendered":"https:\/\/www.indianz.com\/News\/?p=25953"},"modified":"2022-07-07T12:05:00","modified_gmt":"2022-07-07T16:05:00","slug":"derrick-beetso-justices-ignore-the-u-s-constitution-when-it-comes-to-indian-country","status":"publish","type":"post","link":"https:\/\/indianz.com\/News\/2022\/07\/07\/derrick-beetso-justices-ignore-the-u-s-constitution-when-it-comes-to-indian-country\/","title":{"rendered":"Derrick Beetso: Justices ignore the law when it comes to Indian Country"},"content":{"rendered":" \"U.S.<\/a>
The U.S. Supreme Court is seen behind barricades on June 26, 2022, as the justices closed out their current session amid widespread controversy. Photo by Indianz.Com (CC BY-NC-SA 4.0)<\/a><\/figcaption>\r\n
SCOTUS\u2019 Decision in Oklahoma v. Castro-Huerta<\/em> Departs Wildly from U.S. Constitution<\/div>\r\n
SCOTUS and Native Peoples<\/div>\r\n
Thursday, July 7, 2022<\/div>\r\n
By Derrick Beetso<\/div>\r\n

<\/p>\r\nIn March 2022, a bipartisan Congress passed and the President signed a restoration of tribal criminal jurisdiction over certain crimes committed by non-Indians against Indian victims on Indian land. Only because of decades of hard work from tribal advocates and allies, strong tribal leadership, and the painstaking efforts of the VAWA 2013 implementing tribes, was this possible. \r\n

<\/p>\r\nLast week, in Oklahoma v. Castro-Huerta<\/em>, the State of Oklahoma achieved the same results after a couple years of crying “the sky is falling” and complaining to the American people, Congress, the Administration, and the U.S. Supreme Court, about the Court\u2019s decision in McGirt v. Oklahoma<\/em> \u2013- the 2020 decision that confirmed that a large portion of eastern Oklahoma is \u201cIndian Country\u201d under federal law.\r\n

<\/p>\r\nIn fact, TMZ reported that just before authoring the majority opinion in Oklahoma v. Castro-Huerta, Brett Kavanaugh said, \u201chold my beer and watch me Andrew Jackson these sovereignty hobbyists.\u201d Well not really, but reading through the Court\u2019s highly anticipated decision felt a lot like reading a termination bill in 2022. \r\n

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<\/p>\r\nWhile some will argue that the Court\u2019s holding — that states share concurrent jurisdiction with the federal government in prosecuting crimes committed by non-Indians against Indians in Indian Country — may improve law enforcement services in Indian Country via more boots on the ground, the meandering frolic and detour the majority took to arrive at that holding was nothing less than a full frontal assault on the sovereign prerogatives of Indian tribes. \r\n

<\/p>\r\nThrough this opinion, Kavanaugh rallied his cavalry of 5 to perform the modern version of slashing and burning peaceful Native communities and their resources and provisions to the ground. Make no mistake, this decision was woefully ignorant at best, and intended to severely undercut the political autonomy of our Indian Nations.\r\n

<\/p>\r\nJustice Kavanaugh disregarded centuries of statutes, precedent, and fundamental legal principles to announce boldly that \u201c[t]he default is that States have criminal jurisdiction in Indian country unless that jurisdiction is preempted.\u201d \r\n

<\/p>\r\nPrior to this, perhaps one of the most profound legal minds steeped in federal Indian law, Judge William Canby of the Ninth Circuit, stated clearly in his \u2018American Indian Law in a Nut Shell\u2019 publication that \u201cStates traditionally have no criminal jurisdiction in Indian Country over crimes committed by . . . non-Indians against Indians . . .and crimes by non-Indians against Indians are punishable exclusively by the federal government.\u201d \r\n

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<\/P>\r\nFelix Cohen, who many consider the Godfather of federal Indian law, wrote in his treatise on federal Indian law, \u201c[a]s a general rule, states lack jurisdiction in Indian Country absent a special grant of jurisdiction\u201d, and even George Washington himself believed that Indian nations should be considered as foreign nations, \u201cnot as subjects of the states.\u201d Calloway, The Indian World of George Washington 331 (2018).\r\n

<\/p>\r\nBut I can grudgingly forgive a Supreme Court justice for botching foundational principles of federal Indian law — tt happens, but it was the majority\u2019s self-serving and short shrift read of the Constitution that left me very concerned about the current Court\u2019s ability to understand the foundational organic document of the United States. \r\n

<\/p>\r\nYou see, Kavanaugh cites the 10th Amendment of the Constitution to support his blanket jurisdictional statement, which reads \u201cthe powers not delegated to the United States by the Constitution . . . are reserved to the State respectively.\u201d The problem with Kavanaugh\u2019s entire opinion then is that another clause, the Property or Territory Clause, delegates to Congress\u2014not the states nor the Court\u2014the exclusive authority to \u201cmake all needful Rules and Regulations respecting . . . Property belonging to the United States.\u201d Yup, Kavanaugh\u2019s 10th Amendment rationale fails when a more specific clause delegates exclusive regulatory authority to Congress over federal property, like Indian trust lands. \r\n

<\/p>\r\nMy colleagues Sam Hirsch, Leonard Powell, Jacob Schellinger and I once filed a brief in a California tax case describing the relationship between Indian trust lands and the Territory Clause, but the basic premise is the United States holds title to Indian lands, and by operation of law and through congressional enactments Indian trust lands are necessarily insulated from state regulatory authority. In fact, one of the main questions asked when the federal government takes land into trust is what effect the removal of the lands from the state\u2019s tax roles will have on the state and local governments. \r\n

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