The Supreme Court's attack on tribal sovereignty, explained

The Supreme Court's attack on tribal sovereignty, explained was originally published July 1, 2022 at High Country News.

As part of its recent precedent-breaking spree, the U.S. Supreme Court turned federal Indian law on its head this week on Wednesday, June 29. In the case of Oklahoma v. Castro-Huerta, a majority of five conservative justices sided with the state of Oklahoma, finding that state governments have the legal jurisdiction to prosecute non-Native citizens for crimes committed against Native citizens on sovereign tribal lands. The opinion, authored by Trump-appointed Justice Brett Kavanaugh, breaks with centuries of established federal Indian law. Until this decision, state law enforcement agencies could intervene in Indian Country crimes only by an act of Congress.

The Castro-Huerta case revisited questions of jurisdiction and sovereignty that were central to the landmarkJuly 2020 case McGirt v. Oklahoma. That case concluded that Congress had never disestablished the reservations of the Cherokee, Choctaw, Seminole, Chickasaw and Muscogee Creek nations in Oklahoma — roughly half of the state’s present land base — and that individuals charged with crimes on tribal lands could be prosecuted by either federal or tribal officials. This latest case now narrows the court’s previous ruling on tribal sovereignty in McGirt, and inserts state jurisdiction, as well. As the author of the dissenting opinion, Justice Neil Gorsuch denounced the majority decision reached by his conservative colleagues. “This declaration comes as if by oracle, without any sense of the history recounted above and unattached to any colorable legal authority,” Gorsuch wrote. “Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.”

High Country News spoke with four federal Indian law experts in an effort to unpack precisely what this new ruling means for the citizens and nations of Indian Country, and to better understand what the court’s willingness to eschew established precedent will mean for the health of Indigenous sovereignty in the months and years to come.

This conversation has been edited for clarity and length.

High Country News: On Wednesday, June 29, the U.S. Supreme Court ruled 5-4 in Oklahoma v. Castro-Huerta that the state of Oklahoma, and presumably all states, have jurisdiction to charge non-Natives committing crimes against Native citizens. How significant of a departure is this from existing precedent, where a state’s right to prosecute in Indian Country required an act of Congress?

Stacy Leeds (Cherokee Nation; foundation professor of law and leadership at the Sandra Day O'Connor College of Law, Arizona State University): The ruling represents a shocking disregard for centuries of prior precedent and a profound disconnect from historical context. The most basic tenet for federal Indian law is that the power over Indian Affairs is consolidated with the federal government to the exclusion of the states.

The sweeping language in this case upends the very foundations of the field. The court casually states without citation to any legal authority.

Elizabeth Reese (Yunpoví; assistant professor of law, Stanford Law School): This decision is a sweeping change in Indian law. It flips precedent and existing presumptions on their head. Yesterday, the preemption was that states have no power over crimes in Indian Country. The narrow exception, from McBratney, that states have jurisdiction over non-Indian on non-Indian crime was always a bit of a puzzle, given how contrary its reasoning was to the rest of Indian law decisions. It was treated like an outlier, a case with fragile foundations that scholars would occasionally ask me to make sense of because it was so inconsistent with the rest of federal Indian law doctrine. The holding in this case is ostensibly limited to just non-Indian on Indian crimes, but its reasoning supports a new era where state authority over tribal lands is the default assumption. I barely recognize the federal Indian law or the American history described in the majority opinion — it’s just that off base.

Matthew Fletcher (Grand Traverse Band of Ottawa and Chippewa Indians; foundation professor of law and director of the Indigenous Law and Policy Center, Michigan State University): Castro-Huerta is a dramatic departure and cannot be reconciled with McGirt v. Oklahoma. The court seems to believe that the (1832) Worcester v. Georgia rule that state law has no force in Indian Country — one of the foundations of federal Indian law — is dead. It doesn’t point to any case that says that, so it cannot even point to a year when that general rule went away, but there it is. The majority is going back to what I call “Canary Textualism,” where the Supreme Court takes the lead on national Indian affairs policy instead of Congress or the tribes.

Bethany Berger (Wallace Stevens professor of law, UConn School of Law): It’s big. It rejects the established law taught to every federal prosecutor working in Indian Country, every law student studying federal Indian law, and agreed to by every state court considering the question.

HCN: I recognize there will be a litany of responses to this question that will be determined by the relationship between states and the bordering tribal nations, but what do you perceive as being the immediate effects of this decision for tribal citizens throughout Indian Country?

Leeds: Read in its most restrictive light, this case is only about state concurrent jurisdiction over non-Indians who commit crimes inside Indian Country. It may lead to more law enforcement confusion in the field because starting Oct. 1, when the expanded Violence Against Women Act kicks in, all three sovereigns will be recognized as having jurisdiction over some situations. Two of those situations, the federal and tribal jurisdiction are expressly provided for by Congress in various statutes. Only one of those situations springs anew by judicial fiat.

Read in its most expansive light, this case seems to support many types of state intrusion into Indian Country with the erasure of Indigenous nations and their rights to be governed by their own laws to the exclusion of state law. Tribal sovereignty is the right to make local laws and be ruled (only) by those local laws. Now it seems as if the court would support states’ rights to pass laws that tribes oppose and the barrier to state power would not be tribal sovereignty and express treaty rights, but instead, whether a case-by-case federal preemption analysis would keep the state at bay.

Reese: You are correct to flag that a lot will depend on what different states decide to do and their relationships with tribes. Immediately, however, this means that non-Indian crime on Indian crime — including the domestic violence cases that led to all the VAWA activism and reform over the last few decades — are now going to fall to the state and federal government. Increased state police presence could happen on tribal lands immediately, and tribal laws or federal law which previously may have shielded non-Indians from certain state law decisions are no longer a shield.

Fletcher: I don’t know that states and counties are going to swoop into Indian Country to subvert federal and tribal criminal justice prerogatives right away, but they could. Suddenly, without any preparation or cooperation, states and counties are a third sovereign in Indian Country. Who knows what could happen? Justice Gorsuch’s dissent provides an easy suggestion for Congress to fix the decision. Some state legislatures could choose — at tribal request — to stand down from exercising jurisdiction. And — though very unlikely given the history of conflict between sovereigns, states and counties — (it) could actually enhance Indian Country criminal jurisdiction

Berger: It will mean that tribal citizens will face less protection and more abuse by police. We have years of studies of criminal justice on reservations where Congress gave states full criminal jurisdiction, and state jurisdiction just undermines support for tribal and federal systems without increasing effective responses to crime. Tribal victims are less likely to trust or report crimes to state police, and witnesses are less likely to work with them. But states don’t do the effective community policing that makes tribal citizens safer. The Castro-Huerta case is an example of this. For two years, the Oklahoma Department of Human Services had received reports of possible neglect of the victim in this case, a little girl with severe disabilities who could not feed herself and needed five bottles of specialized feeding a day. Her mother had several other children, and her stepfather, Mr. Castro-Huerta, was an immigrant who worked multiple jobs. It was only when Mr. Castro-Huerta and her mother — who had just given birth — brought the child to the emergency room that the state took her into custody. Oklahoma also never notified the girl’s tribe, the Eastern Band of Cherokee Indians in North Carolina, to seek their help in finding a better placement for the child. The state’s response — to arrest the stepfather and sentence him to 35 (years) — is sadly typical in cases involving state criminal jurisdiction in cases involving Indians, focusing just on punishment and not on effective prevention.

HCN: I have a two-parter to end on: First, do you anticipate that the politicization of the court and its ruling today will embolden more states and private entities to challenge the sovereign rights of tribal nations?

Leeds: Yes, this provides the road map for the extension of state power.

Reese: Unfortunately, yes. Tribal sovereignty is even more vulnerable when the court is willing to disregard precedent and history. I fear that this case demonstrates how Oklahoma's campaign to claw back power was more persuasive to the court than its precedents — that, in the words of Justice Gorsuch in McGirt, that “rule of the strong, not the rule of law” is what we can expect from this five-justice majority.

Fletcher: Justice Kavanaugh’s majority opinion is his first major writing in an Indian law case and it’s not good for Indian Country. He’s firmly in the Scalia-Rehnquist camp of skepticism toward Indian tribes, skepticism toward congressional policy decisions in Indian affairs, and extreme deference to states’ preferences. He claims to be a textualist, but he is happy to deviate from the text to fulfill those political commitments. The jury is still out on Justice Coney Barrett, another justice who has stated a commitment to textualism (and even wrote about textualism in her work as a law scholar). Her opinion in the Ysleta del Sur Pueblo bingo case was a good omen. When she is confronted with relatively clear text, she doesn’t so easily give up on her commitment to textualism just because a state government complains. Her vote in Castro-Huerta is disconcerting, however. We don’t have a separate writing from her in that case so we can’t be sure, but it appears she approved of the assertion of judicial power that has wreaked havoc in Indian affairs since the 19th century.

This court is quite likely the most radically activist court in American history. The court’s overruling of Roe is the tip of the iceberg. The court struck down the separation of church and state as well. In the next term, it’ll strike down affirmative action in higher education as well. This is a self-proclaimed textualist court that gratuitously deviates from its methodological commitments to advance certain political commitments — deference to states, deference to the police, deference to mainstream religion, and extreme skepticism of racial, gender and sexual minorities.

Berger: States and private entities have never stopped challenging the sovereign rights of tribal nations. This case just shows that — after a handful of cases where tribal sovereignty and precedent seemed to get some respect — the Supreme Court remains a very dangerous place for tribal rights.

HCN: And the second part: Given this is our bench for the foreseeable future, how much faith can those invested in the long-term political and legal strength of tribal nations truly put in this court? Particularly, I am thinking about Brackeen v. Haaland, the state-backed Indian Child Welfare Act challenge, among others. Put simply, can tribal citizens (and electeds and attorneys, etc.) trust SCOTUS after this decision?

Reese: Very little and no. I join the growing chorus of legal experts who are criticizing the faith we've put in the Supreme Court — particularly since Brown v. Board of Education — to be a guardian of law and the moral arc of the universe's bend toward justice. We’ve given them a lot of power by putting so much faith in them. Far too much, I think. It's time to stop waiting for the court to fix things or hoping that the best legal argument will prevail. It's time to start talking about institutional reform to the Supreme Court, and to the Constitution broadly.

Fletcher: I would not trust this Court much at all, but that’s been true for the entire history of the United States. What makes this Court worse, however, is the extremity of its radicalism and lack of discipline. Nothing is sacred to this Court.

Berger: Given how much easier it is for the Justices to sympathize with states and non-Indians than with tribes and tribal citizens, trusting SCOTUS was never a safe move. For a few years starting in 2016, the Court seemed to be actually paying attention to precedent and the realities of life in tribal communities, and this breaks from that. It’s a bad sign for Brackeen, but that case always played into a lot of justices’ biases. But the choices facing tribes and their citizens are still the same: Try to stay out of the court, and try to make the best case possible if you have to go.

High Country News is an independent magazine dedicated to coverage of the Western U.S.