Biden administration says Castro-Huerta is causing confusion and conflict

Interior Department puts brakes on legislative fix, awaits results of upcoming tribal listening sessions.

WASHINGTON — The U.S. Congress, in an oversight hearing of the U.S. House Subcommittee for Indigenous Peoples, today explored the controversial Castro-Huerta decision.

The ruling, issued by the U.S. Supreme Court in June, created a new state pathway for overseeing matters of criminal jurisdiction over non-Indians on tribal lands. The decision has been widely seen as subverting tribal sovereignty nationwide and as hampering traditional congressional oversight of federal-tribal policy.

Bryan Newland, assistant secretary for Indian affairs at the U.S. Interior Department, said during the hearing that the Biden administration is concerned about the Castro-Huerta decision and its potential impacts on tribal sovereignty and self-determination.

He further said that the ruling is causing confusion and conflict in addressing criminal jurisdictional issues in Indian Country. Several tribal leaders and advocates later offered testimony that backed up his claim.

Newland had previously testified before Congress that Interior is working with one or more members of Congress on a legislative fix to the ruling.

But Newland withheld giving details on such a potential fix at today’s hearing. And he said Interior has not provided guidance to tribal governments on the case or its impacts to date.

“Before I go so far as to recommend a path forward, I want to be sure we get feedback from Indian Country,” Newland said in response to a question from U.S. Rep. Jay Obernolte (R-CA), ranking member of the subcommittee.

“As part of our trust responsibility, I want to make sure that we are working with Indian Country to present solutions, so I don’t want to offer up specific solutions to the subcommittee without first hearing from tribes. And I also want to make sure that when we do that, we have the Department of Justice at the table.”

Interior is scheduled to hold two listening sessions with tribes on Castro-Huerta on Sept. 26 and 27.

Newland did note that Congress has many times in the past “defend[ed] its prerogative…to set the federal government’s Indian affairs policies.”

Newland’s full written testimony is here.

Obernolte said he feels that Congress needs to act “deliberately but not immediately” on the topic of a Castro-Huerta legislative fix.

Some Democratic members of the subcommittee expressed hope for a quick fix.

But U.S. Rep. Amata Catherine Coleman Radewagen (R-AS) noted that some tribes have “voiced restraint, and they’re concerned about Congress acting too quickly.”

Radewagen classified the position of tribes as lacking unity. Some Oklahoma tribes, for instance, have welcomed the idea of concurrent jurisdiction with states to address some criminal matters.

Newland responded that while this case originated in Oklahoma, its impacts are not confined to Oklahoma.

“There needs to be deliberative and thoughtful action, but, of course, with 576 federally recognized tribes, there’s rarely uniformity on any one view, but it’s going to be important that we get as much feedback as possible before recommending a path forward,” Newland said.

Interior has publicly said there are currently 574 federally recognized tribes, so we are checking with the department for clarification.