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In wake of Castro-Huerta ruling, tribes propose varied paths forward for criminal justice system

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Natural Resources Committee
Congresswoman Teresa Leger Fernandez (D-New Mexico), chair of the U.S. House of Representatives Natural Resources Subcommittee for Indigenous People of the United States

The U.S. House of Representatives Natural Resources Subcommittee for Indigenous People of the United States says they want to better understand the relationship between tribal governments and state governments around criminal justice matters.

It’s a response to the 5-4 majority opinion in Oklahoma v. Castro-Huerta, in which the Court determined state governments have concurrent criminal jurisdiction with tribal governments in Indian Country.

The ruling overturned almost 200 years of precedent called the Marshall Trilogy. The trilogy, written by Justice John Marshall in 1832, established federal primacy in Indian Affairs, excluded state law from Indian Country and recognized tribal governance authority.

"We are here to listen and learn what this decision means from tribal leaders, from the administration, and from experts in the field," said Subcommittee Chair Teresa Leger Fernandez of New Mexico.

Fernandez said the September subcommittee hearing wasn't being held to advocate for a particular solution or propose legislation, but a few advocates say a proposal to strengthen criminal justice in Indian Country is already being developed.

Jonodev Chaudhuri, Ambassador of the Muscogee Nation, testified at the hearing. Chaudhuri said the risks of misapplication of the ruling, either by the courts or federal agencies, is high. He called on Congress to signal that they will act to honor their treaty and trust responsibility with tribal governments by passing legislation to "improve public safety within Indian Country."

"When the founding framers drafted the Constitution, they took care to eliminate state power over tribes within their borders," said Chaudhuri during his testimony.

"The founding framers also saw fit to declare treaties, once signed by the president and ratified by the Senate, to be ‘the supreme law of the land’," he continued. He also noted the U.S. Constitution tasks Congress with the exclusive role of managing relations with tribal nations.

Matthew Ballard is the District Attorney for Rogers County, Mayes County and Craig County in Oklahoma. He told the Subcommittee that the Supreme Court's decision in Oklahoma v. Castro-Huerta was the correct one. He said in the year between the Court’s ruling in McGirt v. Oklahoma and the Castro-Huerta decision that hundreds of criminal cases were dismissed.

Reporting has shown that many of the cases dismissed in state court were refiled in tribal court or in federal court.

"Two years ago, the law enforcement community in Oklahoma was thrust into chaos when the Supreme Court determined that two million Oklahomans resided on reservations that had never been disestablished," Ballard testified.

He said the McGirt decision created chaos and the Castro-Huerta decision is a win for Native American victims. But, some legal experts say concurrent jurisdiction between the states and tribal nations isn't a win for Indigenous people.

Chaudhuri said it's important for Congress to act before the end of the year. He said clarification is necessary as the Supreme Court hears another case about tribal sovereignty.

Justices are scheduled to hear Brackeen v. Haaland on Nov. 4. The case seeks to overturn the Indian Child Welfare Act, which, in part, recognizes tribes as having a unique political status.

"If we lose the Brackeen case, it will be bootstrapping on Castro-Huerta," said Chaudhuri, implying that if no action is taken on legislation, it sends that wrong message to the nation's highest court.

To that end, tribal leaders from around the country have weighed in on legislation, but not everyone agrees.

Three proposals

Proposed legislation includes three provisions:

  • Sentencing Limitations - The Tribal Law and Order Act, which was passed by Congress and signed by President Barack Obama in 2010 was designed to expand the prosecutorial abilities of tribal courts. However, tribal courts are still allowed to sentence Native people convicted of crimes to three years for each offense, with a maximum sentence of nine years. This proposal seeks to expand that.
  • Public Law 280 - Another proposal calls for Congress to amend Public Law 280, or PL280. Passed by Congress in 1953, the legislation grants certain states criminal jurisdiction over Native people on reservations and allows civil litigation that had come under federal or tribal courts to be handled by state courts.

    Carol Goldberg teaches federal Indian law at UCLA and has been studying the law for 50 years, and she believes tribal citizens often don't get justice under this provision.

    "My empirical research on Public Law 280 shows that under that statute where state jurisdiction does apply, it has produced biased treatment against Indian victims and witnesses in state courts, as well as biased treatment favoring non-Indian perpetrators in state courts," said Goldberg.

  • The Duro Fix - In 1991, Congress amended the Indian Civil Rights Act to allow for tribal jurisdiction over non-Indians and for a tribal nation to have jurisdiction over Native people who are not citizens of that nation. It has become known as the Duro Fix and was a response to the Supreme Court ruling in Duro v. Reina, in which the Court held that tribal courts lack criminal jurisdiction over non-member Indians.

An unclear future

While some tribal leaders are pushing for immediate action from Congress, others are more hesitant.

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Cherokee Nation
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Cherokee Nation Attorney General Sara Hill

"I understand the desire to move forward on legislation to address this case. However, it is important to proceed thoughtfully and with a full understanding of any legal challenges such action might draw," said Cherokee Nation Attorney General Sara Hill.

She says, in the Castro-Huerta ruling, the Supreme Court functionally abandoned more than 200 years of federal Indian Law, and it’s still unclear what the impact of that will be.

Other tribal nations, including Chickasaw Nation, support lifting tribal court sentencing limitations, which is one of the items in the proposal before Congress, but they don’t support the entire package.

"We believe a rush to act without a proper understanding of how an enactment might be construed by this Court would only risk elevating new Constitutional conflicts for this Court to control," said Stephen Greetham, Chickasaw Nation Senior Counsel. "Respectfully, such action would be unwise, if not downright reckless."

In the days after the McGirt v. Oklahoma ruling, Chickasaw Nation and Cherokee Nation supported legislation known as the Cherokee Nation and Chickasaw Nation Criminal Jurisdiction Compacting Act of 2021.

Sponsored by Oklahoma Republican Congressman Tom Cole, it outlined when Oklahoma could exercise criminal jurisdiction in cases involving Native offenders or victims when crimes occur on reservation land. But, the legislation's current status is unclear.

Tribal nations in Oklahoma that were affected by the McGirt decision in 2020 have vastly expanded their criminal justice systems to accommodate new caseloads that were much larger. Congress appropriated $62 million dollars to help in that expansion, but the funds have not been distributed.

Meanwhile, the current murky legal environment is creating additional problems.

Last month, Cherokee Nation announced Oklahoma Department of Corrections facilities were no longer accepting inmates who were convicted in tribal courts in the wake of the Castro-Huerta decision. So, the Nation entered into a contract with a Texas detention facility to house inmates. Muscogee Nation is having to address similar incarceration problems.

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Allison Herrera is a radio and print journalist who's worked for PRX's The World, Colorado Public Radio as the climate and environment editor and as a freelance reporter for High Country News’ Indigenous Affairs desk.
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