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Trump-prepping SCOTUS says states' rights get more enumerated power over Indian Country [1]

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Date: 2022-07-22

States’ rights get inappropriately strengthened in another attack by a RW SCOTUS on protections from the arbitrary authority of states and the vestiges of hostile settler colonialism. Giving states more power with such a specious reading of the 10th Amendment moves the needle closer to a Civil War 2.0 that could start in the already planned second Trump term in 2025.

That’s why the court affirmed in Kagama, like it has for nearly two centuries, that Indian country sat apart from states and was instead subject to congressional and federal authority. Put simply, states had no business in tribal affairs.

That decision and others like it – however imperfect and drenched in conquest they were – supposedly shielded Native people and their reservations from the arbitrary authority of states and hostile white settlers.

Last month, the supreme court tore up that decision and centuries of legal precedent with it. The 5-4 decision in Oklahoma v Castro-Huerta found that state governments have the right to prosecute non-Natives for crimes committed against tribal members on reservation lands. The decision weakens the effects of McGirt v Oklahoma, which found that most of eastern Oklahoma was still legally Indian Country, where many crimes were beyond the grasp of state law. But the court applied Castro-Huerta far beyond Oklahoma.

“A state has jurisdiction over all of its territory, including Indian country,” Brett Kavanaugh wrote, resting his argument on a false 10th amendment claim, which doesn’t authorize states to intervene in tribal affairs.

His words could have come from the most ardent anti-Indian racist of a bygone era. Asserting state criminal jurisdiction over Native lands has been a primary tactic of legally eliminating Native people. Chief Justice John Roberts’ court draws from a long tradition of violent conquest, going back to Cherokee removal in the 19th century and to the termination policies of the 20th.

The theory of state supremacy, supposedly enshrined in the final amendment of the Bill of Rights, has a sordid history of white supremacy and reactionary politics. The same reasoning found its way into the Dredd Scott decision in 1859 to keep Black people as white property in slave states. More recently, Kavanaugh cited the 10th amendment in his concurring opinion overturning Roe v Wade.

States, according to this extremist – and now dominant – view in the court, possess the authority to abolish and criminalize abortions, potentially curb voting rights and now abrogate treaties and redefine federal relations with Native nations.

Neil Gorsuch – who, like Kavanaugh, is a Trump-appointee and a proponent of the revanchist legal theory known as “originalism” – wrote the dissenting opinion for Castro-Huerta. “Unknown to anyone until today,” Gorsuch sarcastically wrote, “state law applied all along” to Indian country. While scathing in his rebuke, Gorsuch strangely didn’t touch Kavanaugh’s shaky 10th amendment claim.

www.theguardian.com/...

x “The rightwing supreme court has another target: Native American rights; In last month’s Oklahoma v Castro-Huerta, the court tore up centuries of legal precedent and Native sovereignty.” Nick Estes has this essay online at The Guardian (UK). https://t.co/ywLJ75WY2T — Howard Bashman (@howappealing) July 21, 2022

x In the aftermath of the opinion in Oklahoma v. Castro-Huerta, the National Congress of American Indians and Native American Rights Fund brought indigenous leaders together for a virtual roundtable to sort out what the ruling means.



2/2https://t.co/bBUi0wpZvw — SDPB News (@SDPBNews) July 22, 2022

x A Must-Read: Professor @yunpovi (@StanfordLaw) says the majority opinion in Oklahoma v. Castro-Huerta "is not firmly rooted in the law that I have dedicated my life to studying and the history as I know it to be true. And that’s just really concerning.” https://t.co/FXrB5VwCBM pic.twitter.com/QKGVPq25sw — Women Also Know Law (@womenknowlaw) July 20, 2022

x Justice Neil Gorsuch dissent re Justice Brett Kavanaugh majority opinion: “the ruling in Oklahoma v. Castro-Huerta is…an embarrassing new entry into the anti-canon of Indian law...Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom." https://t.co/RhZlWnYeTb — Gregory Zaragoza (@ZaragozaGregory) July 21, 2022

Written by conservative Justice Brett Kavanaugh, the language of the majority opinion is almost as concerning as the decision itself. For the first time, the Supreme Court framed Native American land as being territory within the boundaries of states, rather than sovereign nations. This perspective is an extreme departure from existing legal precedent. By regarding native land as subsections of states, the Supreme Court has undermined tribal sovereignty, therefore threatening Native Americans’ rights, safety and security.

The Castro-Huerta decision came as a shock to many tribes and Native American rights advocates, leaving many feeling both deeply disappointed and frightened for the future. Native American activists claim that this ruling was not only a blatant failure of the nation to honor its promises of sovereignty to tribes, but a lawless disregard of Native Americans’ essential rights altogether.

Without a treaty, congressional delegation or tribal input, the Supreme Court fundamentally altered the balance of power between states and tribes. To make matters worse, this decision is not only pertinent to Oklahoma. In fact, over 20 other states may soon seek to extend state authority and gain criminal jurisdiction in tribal lands. To make matters worse, this decision is not only pertinent to Oklahoma. In fact, overmay soon seek to extend state authority and gain criminal jurisdiction in tribal lands.

Historically, Native American tribes have been promised to be spared from state interference, especially in the context of criminal law. Oklahoma v. Castro-Huerta demonstrates that this promise had an expiration date. The Castro-Huerta decision proves that the future of self-governing tribes lies in the lands of the Supreme Court; based on this decision, the outlook for Native American rights is grim.

studybreaks.com/...

x The Grim Implications of Oklahoma v. Castro-Huerta https://t.co/UWkUQ4LjYz via @https://twitter.com/Study_Breaks Part of Gov. Stitt's proxy war on the tribes. Kavenaugh wrote the opinion. — Barbara Elaine Lemons (@L3Barbara) July 21, 2022

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[1] Url: https://www.dailykos.com/stories/2022/7/22/2112000/-Trump-prepping-SCOTUS-says-states-rights-get-more-enumerated-power-over-Indian-Country

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