It seems we are getting hit from all sides these days. Hard to focus on any one aspect of the news. Our main interest remains Ukraine but I can't help but wonder what is happening to America? The stunning Supreme Court decisions at the end of the summer session are mind numbing. Siding with states on one decision and individuals the next. The conservative justices don't seem to fully understand what the Constitution means and are basing their decisions on ideology. Even they are split on some of these decisions as we saw Neil Gorsuch lash out at his fellow conservatives over the fate of tribal lands in Oklahoma. The USSC authorized Oklahoma to be able to prosecute certain crimes on tribal lands thanks to Chief Justice Roberts ever-vacillating stances.
The Native American reservations have long been semi-autonomous republics. The federal government has jurisdiction over their affairs but states have none. However, the reservations occupy huge swathes of land in some states and may now be subject to state jurisdiction. On the face of it, Oklahoma prosecutors had every right to go after Victor Castor-Huerta given the severity of the charges brought against him. However, the crime occurred on "Indian country" and the Supreme Court in 2020 ruled that Oklahoma had no right to prosecute the case. While Huerta's case is unusual and taken by itself has merit, these cases generally open the door for states to exercise more authority over the reservations. This is what Gorsuch adamantly opposed.
One of the big sore points is gambling. Most states don't allow gambling but the reservations do. Many tribal councils have built lavish casinos over the years as they have proven to be lucrative sources of revenue for otherwise impoverished reservations. How much of that money trickles down to Native Americans is anyone's guess. Many states would love to exercise more regulatory control over these casinos. It's not like the states ever really concerned themselves with the reservations before, but now that these "Indian countries" have found a lucrative source of income, the states want a cut of the action. It doesn't seem long before the Supreme Court rules on this too.
This has long been the story with the reservations. Native Americans were herded onto these lands in the 19th century. Many of these reservations bear no geographical sense to where they came from. For instance, the Cherokee and Muskogee were herded to the Oklahoma territory during the notorious Trail of Tears, where they were given an arid wasteland to try to forge a n new life. Oklahoma wasn't even a state then. The territory fell under federal authority. There were tribes indigenous to this area, but they soon found themselves overwhelmed by the new arrivals.
For decades, the federal government tried to assimilate the native tribes into American society through the Bureau of Indian Affairs. The children were taken from their parents and forced to live in BIA boarding schools, where the government hoped to strip them of any ethnic identity. Finally in the 20th century there were efforts made to redress these appalling conversion attempts, with the reservations given greater authority over their own affairs. They established tribal councils that were answerable to the federal government, but only in extreme cases as when Leonard Peltier stood accused of killing two FBI agents and was prosecuted by the Dept. of Justice. Many felt he was wrongly convicted and that this was just an attempt to break the American Indian Movement in the 1970s.
Over the years, Native American life has come to be celebrated, where before it had been scorned. It seems everyone now likes to claim some part Native American blood, finding themselves unmercifully teased for it if it doesn't add up to much. Even Oklahoma has woven Native American history into its flag. Gorsuch appears to be one of those persons who holds Native Americans in high regard. Unfortunately, it doesn't seem that his fellow conservative justices do, or interpreted this case very differently from him.
The basic problem with this decision is that it once again reinforces state rights over individual rights. I certainly don't have any sympathy for Huerta. But, the idea that Oklahoma is all of the sudden the protector of the young Cherokee girl that he abused flies in the face of a long history of virulent antagonism between the state and the reservations. The Cherokee nation knows full well this is just an attempt on the part of the state to stick its foot through the door.
We've seen this all over the Midwest. In 2020, Governor Kristi Noem tried to get the Trump administration to intercede when the tribal councils in South Dakota issued roadblocks to try to stop the spread of coronavirus on their reservations since Noem did nothing to curb the virus. There is nothing more these conservative states would love than to be able to have direct authority over these reservations.
Given the long history of subjugation and attempts to force assimilation, you can understand why the tribal councils are wary of any attempt to overstep their authority. It's not like these tribal councils necessarily have the best interests of their constituents in mind. Some of these councils are notoriously corrupt, which have led to uprisings on the reservations. Regardless, Native Americans living on the reservations prefer they remain under local authority, not state nor federal.
Sadly, this Supreme Court appears poised to undo decades of legal precedents in favor of a conservative agenda that would return a significant amount of authority to the states. This states' rights argument has long been at the core of the conservative movement. Not that there is any consistency in this ideology, as we recently saw when the Supreme Court voted 6-3 to revoke New York states long-standing handgun laws, ironically citing what they believe to be an individual's right to carry a handgun outside his home.
With its current super-majority on the bench, conservatives can handle the occasional dissenter like Gorsuch, as it pushes through its agenda in a series of cases specifically designed to undo much of the hard-earned civil liberties we gained in the second half of the 20th century, and allow states to set their own draconian laws. Even more unsettling is that conservatives can now use the Supreme Court to undermine liberal state laws and Native American autonomy to exercise their influence over these state and indigenous governments. This is a new chapter in American history. One that threatens do away with many of the individual rights we once thought the "law of the land."
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