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Uncertainty, fear surrounds Supreme Court decision's possible impact on tribal sovereignty

In Oklahoma v. Castro-Huerta, the U.S. Supreme Court gave states new power to prosecute alleged crimes by non-Natives against Natives committed on reservations. Though the immediate changes stemming from the case remain unclear, some Native sources say the implementation of this decision could mean further infringement on tribal sovereignty.

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The U.S. Supreme Court building stands in Washington, D.C., on April 10, 2018.
Al Drago / Bloomberg
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SIOUX FALLS, S.D. — A recent U.S. Supreme Court case has left many tribal communities concerned about a possible threat to their hard-won sovereignty.

The decision in Oklahoma v. Castro-Huerta likely gives South Dakota the ability to prosecute crimes by non-Natives against Indigenous people on tribal land, an authority that had historically been available only to the federal government. In the majority opinion, Justice Brett Kavanaugh reasoned that tribal land “is part of the State, not separate from the State,” leading to the case’s final conclusion.

“Any time there's a ruling that goes against self-determination or tribal sovereignty, that's obviously something that we keep an eye on very closely,” said David Kills A Hundred, who serves as communications director for the Flandreau Santee Sioux Tribe. “We're very concerned about what implications that will have for the tribe moving forward.”

In a public statement , Fawn Sharp, president of the National Congress of American Indians, said “the Supreme Court has dealt a massive blow to tribal sovereignty and Congress must, again, respond.” In the opinion, Kavanaugh acknowledged Congress has the power to “render federal jurisdiction exclusive” over these types of cases.

South Dakota Attorney General Mark Vargo said the practical consequences of the case are still “new and evolving,” and stressed that his office would need to coordinate with law enforcement at all levels before knowing which types of cases might fall under this newly acquired power by state prosecutors to try crimes by non-Natives against Indigenous people on reservations.

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He added that, based on the text of the decision, an effective working relationship among federal, state and tribal law enforcement would take on greater importance.

“It's important to get the tribes involved because ultimately these are things that are happening in their home, in their community,” Vargo said. “And so even if we do end up taking some of [these cases] up, being able to do so in a way that they support and that works for them would be extremely critical.”

Vargo did not agree that the case represents a threat to tribal sovereignty.

Gregg Peterman, the First Assistant U.S. Attorney in the District of South Dakota, said the office is “aware of the opinion and its historical significance,” and remains “in consultation with the Department of Justice in Washington about its ramifications.”

Some legal experts say that rather than resulting in more effective law enforcement, the addition of state jurisdictional authority to prosecute certain crimes could have a “pass-the-buck” effect.

“My concern right now is, if you talk to law enforcement and to tribes about criminal justice on Indian land, the No. 1 issue is the complex jurisdictional questions that already exist,” said Brendan Johnson, a former U.S. Attorney for the District of South Dakota. “What this decision does is it adds another layer of complexity to what was already a very confused landscape.”

Adding to this confusion is an array of questions relating to how the state would go about prosecuting the case itself. For example, trying a case involving a crime by a non-Native person against a Native person on reservation land could require subpoenas for Indigenous witnesses, an action currently outside of state power.

Many Indigenous sources referenced a history of warranted fear and distrust toward legal encroachment on Indigenous sovereignty as a chief cause for concern, especially when the practical application of this decision will result in new questions that could end up back in the Supreme Court.

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Chase Iron Eyes, an attorney at Lakota Law, a nonprofit working in legal policy and advocacy to protect Indigenous sovereignty, called this newest entry into the legal relationship between tribal, state and federal government part of a strategy of “death by a thousand cuts.”

“Hopefully state governments, traditional leaders and attorneys will be able to meet and talk about what the decision means,” Iron Eyes said. “But if the state indicates that it is willing to take this case and somehow increase or enhance the nature of state jurisdiction or regulatory authority in Indian country, then there's going to be problems.”

Formal statements and reactions from tribes across South Dakota are expected in the coming days.

Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or jharward@forumcomm.com.

Jason Harward covers South Dakota news for Forum News Service. Email him at jharward@forumcomm.com.
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