WASHINGTON — The Biden administration is assisting members of the U.S. Congress in developing a legislative fix to the recent U.S. Supreme Court Castro-Huerta decision.

That June 29 ruling overturned decades of settled federal Indian law by saying that states hold some newly found sovereignty within Indian Country. The decision specifically granted Oklahoma the ability to oversee matters of criminal jurisdiction over non-Indians on tribal lands.

Justice Brett Kavanaugh wrote the decision in such a way that many tribal legal advocates believe it could open the door to states taking sovereign control away from tribes in other areas beyond criminal jurisdiction, including in gaming, economic development, taxation and over issues related to the Indian Child Welfare Act. The Supreme Court is set to hear a case involving that adoption-related law this fall, and tribes are broadly worried that the court could strike it down altogether.

Bryan Newland, the U.S. Interior Department’s Assistant Secretary for Indian Affairs, today confirmed that his department is providing “technical assistance” to at least one member of Congress who is attempting to address the newly-created state sovereignty concurrency with tribal sovereignty.

Newland’s explanation came during a hearing of the U.S. Senate Committee on Indian Affairs in which U.S. Sen. James Lankford (R-OK) specifically asked the assistant secretary whether the Interior Department is working on a legislative fix to Castro-Huerta or the related 2020 McGirt ruling.

“The Executive Branch has been asked to provide technical assistance on legislative language in response to the Supreme Court’s recent decision,” said Newland, a citizen of the Bay Mills Indian Community.

Newland said the language applies to Castro-Huerta, not to McGirt, which found much of the eastern half of Oklahoma to still be Indian Country because it was never disestablished by Congress.

Lankford then asked Newland whether he would be willing to share the language with him, since Lankford is a senator from Oklahoma, serving since 2015.

“No reason comes to mind why we wouldn’t be able to share that, senator,” Newland responded.

U.S. Sen. Brian Schatz, chair of the committee, then followed up, saying directly to Lankford that he doesn’t know to whom the technical assistance is being provided — in fact, Schatz said the assistance may be for his own staff — but he said he wants to make sure the Congress member and/or committee requesting help have “the ability to work confidentially” with counsel and the Executive Branch.

Schatz further told Lankford that “Oklahoma equities are well taken.”

Lankford said he agreed that confidentiality is important, but he added that he doesn’t want something being “worked on or developed that’s a piece of legislation…that has an immediate impact on the Oklahoma tribes and the state” without his knowledge.

“Nothing about me without me, I got it,” Schatz replied.

Many tribal legal advocates nationwide have called for an immediate, simple legislative fix to Castro-Huerta in order to prevent states from gaining a larger foothold over tribal sovereignty.

Some Native legal advocates who hail from Oklahoma tribes, including former Assistant Secretary for Indian Affairs Kevin Washburn, a citizen of the Chickasaw Nation, have been slower to call for Castro-Huerta to be amended by congressional action.

That’s because some Oklahoma tribal legal advocates make the case that Castro-Huerta is actually a good thing for law and order for Oklahoma tribes, at least, because it gives an added layer of protection in making sure crime is addressed — that is, a state-led component on top of tribal and federal components.

But many Native legal advocates beyond Oklahoma are having none of that, saying that too much is at risk as a result of the decision — and that state infringement on tribal sovereignty created by Castro-Huerta could exceed far beyond criminal jurisdiction matters in the future.

The Biden administration appears to be taking the position that it needs to aid in the protection of tribal sovereignty, so a legislative fix is necessary.

Few people believe that such a legislative fix will be easy, especially given the slowness and opposition of the Congress to enact a long-called for legislative fix to the controversial 2009 Supreme Court Carcieri decision, which called into question the Interior Department’s ability to take lands into trust for tribes federally recognized after 1934.