After U.S. Supreme Court ruling, tribal leaders fear loss of sovereignty
The U.S. Supreme Court has ruled that states have concurrent jurisdiction in Indian country over crimes committed by non-Indians, even if the victim is Native. Prior to that ruling, federal authorities handled major crimes involving any tribal citizen on tribal lands.
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.
Zachary Schauf appeared before the U.S. Supreme Court in April to argue against Oklahoma’s bid to take control of certain crimes in Indian country.
Schauf was also a participant in the tribal roundtable called together within days of the opinion’s release.
Appearing by Zoom, as all participants did, Schauf recapped the upshot of the Supreme Court’s Castro-Huerta decision: “Indian country is part of a state, not separate from a state, and… as a result states have criminal jurisdiction within their boundaries unless you have a preemptive statute.”
The preemptive statute he speaks of does not exist. There is not currently a law passed by Congress that clearly states that the federal government has exclusive jurisdiction over major crimes on trust land committed by a non-Indian against a member of a tribe.
Because the Supreme Court has drawn a broad conclusion—that “Indian country is part of a state, not separate from it”—tribal leaders are scared.
Fawn Sharp is president of the National Congress of American Indians.
“That entity that we have long looked to, to be that independent, objective arbiter of justice that’s neutral, that relies on precedent, stare decisis means something—that level of trust and confidence in an institution, foundationally, has just been shaken,” she said.
Sharp is concerned about the implications of this opinion for tribes who want to build their economies and exercise tax jurisdiction to provide services for their citizens.
“We are poised to continue to make those advancements,” she said. “But if we try to seek to build that structure within our nations and we have the degree of uncertainty that this case has created, not only for purposes of the foundations of federal Indian law but going forward, how are we going to do that?”
“Avoiding this court is sometimes a good strategy.”
Chuck Hoskin Jr. is chief of the Cherokee Nation. He says this decision will be critical in future court challenges, including those involving treaty rights.
“I will always regret that we were not more successful in getting Congress, actually, to pass a bill that would have protected and in fact codified 100 percent of McGirt,” he said.
Hoskin refers to Oklahoma v. McGirt, the Supreme Court opinion from two years ago that found certain reservation boundaries are still intact. Because of that ruling and subsequent lower court decisions based on it, almost half of Oklahoma, including Tulsa, is now tribal land.
“I believe had we been successful in that regard that the Supreme Court would not have even taken this case,” he said. “They would have looked upon the Congress and the tribes as having crafted a potential solution, kept all of McGirt in place, given us new tools to compact if we wanted to, and I think we could have avoided what is an outcome that is going to have long-term implications for Indian country.”
Roundtable leaders expressed concern over this opinion’s potential effect on other federal protections for tribes.
One of them is the Violence Against Women Act, or VAWA.
But Zachary Schauf says VAWA is not threatened by the Castro-Huerta opinion.
In Castro-Huerta, he said, “The court makes a big deal out of the fact that the tribe did not have jurisdiction over this crime, and that’s why it saw no significant tribal interest here. Obviously I think we all disagree with that, but that was sort of their view. Now that’s not going to be true in VAWA cases.”
Congress first passed VAWA in 1994 and reauthorized it in 2022, and the act clearly gives tribal courts jurisdiction, in writing, over non-Indians who commit certain crimes against tribal citizens on tribal land. Those crimes include domestic violence, sexual assault, child abuse, stalking, sex trafficking, and assaults on tribal law enforcement officers.
Another concern for tribal leaders is the future of the Indian Child Welfare Act, or ICWA. That law, passed in 1978, emphasizes placing Native children with relatives or members of tribes when they are removed from their homes for safety reasons. That law faces Supreme Court scrutiny next term.
Schauf says the situation in Castro-Huerta came about because tribal sovereignty was not protected in federal law. By contrast, the ICWA appeal in Brackeen v. Haaland challenges a federal law that does protect tribal sovereignty. The question before the high court is whether that federal law intrudes on state autonomy.
“ICWA is very express in the commands it gives to state courts and the provisions it enacts,” Schauf said. “The question in that case is what… is that within Congress’s power? Does it violate equal protection?”
“I would direct folks to look at footnote 2 in Kavanaugh’s decision.”
Ambassador Jonodev Choudhuri of the Muscogee Creek Nation refers to the Castro-Huerta opinion, authored by Justice Brett Kavanaugh.
“Superficially, Kavanaugh is distinguishing his analysis from other areas of law.”
Choudhuri cautions against attaching too much significance to the ruling itself. He says the threat doesn’t lie so much in the interpretation as in its misinterpretation.
“The concern is that courts will be confused and will get it wrong and will unlawfully broaden the impact of Castro-Huerta, so the battle is going to be how broadly this gets applied,” he said.
But other panelists express concern over the tendency of this current Supreme Court to issue broad decisions.
Elizabeth Hidalgo Reese is on the faculty at Stanford Law.
“There is a possibility for legal confusion on the ground right now,” she said, “and so we need to be really careful to make sure that that doesn’t happen, because there are real lives at stake.”
She says people in Indian country need to know who has jurisdiction over crimes—what police to call and what prosecutors are in charge.
Reese is not confident that the high court will keep the Castro-Huerta opinion in a narrow box.
“These are a lot of young justices who are—particularly in areas of law like Indian law—they don’t know it that well,” she said. “And so, these are some of their first big Indian law decisions.”
And she is concerned that this new court will continue to overreach.
“With a court that’s this young and frankly…a little bit arrogant and willing to be bold, we’re at risk of getting decisions exactly like this one, where there are broad statements, sweeping statements with large implications that are driven by this sort of overconfidence,” she said.
“Justice Amy Coney Barrett has sided with Indian country in some critical cases.”
Jonodev Choudhuri refers to the last of the former president’s Supreme Court appointees. Kavanaugh and Justice Neil Gorsuch are the other two.
“By no means has she been a guaranteed anti-sovereignty vote,” he said. “Her position in this case was extraordinarily disappointing.”
Choudhuri joins other panelists who speak high praise for Gorsuch, who wrote the dissent in Castro-Huerta.
“Justice Gorsuch’s dissent highlights the importance of engaging with folks on both sides of the aisle who truly understand where Indian law comes from,” Choudhuri said.
Chief Chuck Hoskin agrees.
“Reading the dissent in this case, I think, ought to be required reading for anyone in the country with an interest in this case, because it really drives home what the majority missed.”
Hoskin says it’s up to the tribes now to resist broader application of this opinion while building strong and fair criminal justice systems and maintaining the rapport tribes have built with law enforcement agencies, even those who sided with the state of Oklahoma.
This is SDPB’s second feature covering the Castro-Huerta opinion. For more information, listen to the first feature, also by Victoria Wicks, that aired on Thursday, July 21.