Continued consternation re: Castro-Huerta
House on fire or pants on fire?
Updated August 18, 8:50 p.m. — see Editor’s note.
In response to our recent posting of Mary Kathryn Nagle’s feelings about and explanation of the June U.S. Supreme Court decision in Castro-Huerta, several people have emailed and/or commented on social media that the decision need not be seen as so dire for tribal sovereignty at large.
“Mary Kathryn is a treasure,” wrote Troy Eid, co-chair of Greenberg Traurig’s American Indian Law Practice Group, on our LinkedIn posting of Nagle’s op-ed. “But too soon to deliver Sherman-esque predictions. Life need not imitate art. Or jurisprudence.”
Editor’s note: Eid, in a follow-up answer to a question we asked him after this piece originally published, asked “other than potentially Oklahoma, are states rushing to avail themselves of concurrent criminal and potentially civil jurisdiction?”
“That would be an unfunded mandate for them,” Eid said. “Castro-Huerta is disappointing, of course. But now let’s see if (m)any states seek to avail themselves of what I consider to be a misreading of the law. I say this as counsel of record to one of the pro-tribal amici, the former US Attorneys’ brief. The majority’s intent, taken at face value, is to enable more boots-on-the-ground law enforcement. If Castro-Huerta is ultimately limited to that, and perhaps realistically in just one place, it might be either managed or the eventual subject of a Congressional fix led by Tom Cole and others.”
Original post continues here: Eid is correct that none of us knows how this decision will play out for sure state by state, tribal jurisdiction by jurisdiction.
However, the time is ripe for predictions of all types, Sherman-esque and otherwise. We know for sure that some states often look for ways to infringe on tribal sovereignty (for recent examples, see two or three taxation machinations noted in Law360 articles from the past couple of weeks alone). Castro-Huerta — along with Justice Brett Kavanaugh’s pro-state rationale therein — does seem to open a Pandora’s box for any state that wishes to test multiple boundaries.
Eid’s view is reminiscent of those we’ve heard from some Oklahoma-centric tribal affairs experts, who are downplaying the significance of the decision overall. They have generally said that the high court’s mandate of state concurrent criminal jurisdiction over non-Indians could actually be a good added tool for addressing criminal jurisdiction — in Oklahoma’s Indian Country, especially.
Others have made quite clear that they believe the ruling is equivalent to the house being on fire, and they are working feverishly on getting a congressional fix to pass muster with Congress.
Biden administration officials appear to be in the latter camp. No one knows for sure if a legislative fix can pass this or any other Congress, but there is certainly a fevered push from some quarters already.
Three recent powwows of Native legal experts offer a spectrum of viewpoints on how one might go about thinking about the ruling in terms of overall tribal sovereignty.
They are all worth a watch, if you haven’t seen them already. Enjoy:
“Oklahoma v. Castro-Huerta: Rebalancing Federal-State-Tribal Power” from the Indian Legal Program at Arizona State University’s Sandra Day O'Connor College of Law:
The Native American Rights Fund’s “The Castro-Huerta Decision: Understanding the Case and Discussing Next Steps”:
“Castro-Huerta v. Oklahoma and the Attack on Tribal Sovereignty: Where Do We Go From Here?” from the UCLA School of Law’s Native Nations Law & Policy Center:
If there are other online discussions or articles that readers might find compelling specifically about Castro-Huerta, feel free to email, and we will post, or drop them in the comments.
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