Indian law nerds, how bad was Castro-Huerta?

Poll time. Plus, consider subscribing with a special anniversary discount!

We’ve been wanting to try out a new poll feature, and this week’s U.S. Supreme Court Castro-Huerta decision provides some good impetus for it. (And stay tuned at the end of this piece for a note on our 6-month anniversary and why you should consider a paid subscription.)

First, some background. Native Twitter — and especially Native legal Twitter — absolutely lit up like a firecracker this week after the decision allowing concurrent state jurisdiction over criminal justice matters involving non-Indians in Indian Country was handed down.

It caught fire for good reason. People (including dissenting Justice Neil Gorsuch) were ticked off at the erosion of tribal sovereignty sprinkled throughout Justice Brett Kavanaugh’s majority opinion, and they now worry how far the implications of this Oklahoma-based case will reach. State sovereignty has almost never been legally reasoned by the Supremes as being on the level with tribal and federal sovereignty in terms of political and legal decision-making in contemporary America, so the ruling stands out. (Gorsuch himself goes to great lengths to eloquently make this point in his 42-page dissent to the majority’s 25-page ruling.) Sans tribal consent, tribes and the feds have been the default to handle criminal jurisdiction in Indian Country, so this is indeed a new, deep wrinkle.

“The sky is falling” is the simplest shorthand to describe how most of Native Twitter — and its allies, even misguided ones who thought the worst part of the ruling was Kavanaugh’s use of the word “Indian,” which itself is rooted in tribal-federal relations for centuries as a legal term — viewed the ruling. That makes sense. During the same short time span that the Supreme Court ruled in favor of more guns, limited women’s reproductive choices, and curtailed portions of the EPA’s efforts to aid the environment, it also handed down this anti-tribal sovereignty decision. And tribal advocates generally seem to feel this will be another tool in the arsenal of a new high court that is willing to make up whatever reasoning it wants to in order to support the philosophies of the majority of the ruling conservative justices now in control there.

Enter Brett Chapman, a Tulsa-based Native affairs lawyer and a citizen of the Pawnee Nation, trying to get everyone to keep their powder dry (excuse the saying, especially given that aforementioned 2nd Amendment ruling).

“Perspective: the Castro-Huerta opinion isn’t even in the Top 100 worst decisions regarding Native Americans in SCOTUS history,” Chapman tweeted.

“The case should have gone the other way, but the catastrophizing and hot takes are becoming too much to bear,” he wrote to Native Twitter. “The catastrophe would have been overruling McGirt after 2 years. They didn’t do that.”

“If McGirt were overturned, that’s the unmitigated disaster,” he continued. “SCOTUS chose not to hear cases seeking that. They could have granted certiorari and done it. Oklahoma only asked 5000x.”

Chapman is correct that McGirt being overturned would have been bad for Indian Country, especially for the 6 Oklahoma tribes whose lands were determined never to have been disestablished as a result of McGirt, but just how right is he in stating that Castro-Huerta decision is not in the top 100 worst decisions for the rest of Indian Country?

Castro-Huerta is going to apply across the nation, likely impacting all tribes, including tribes that don’t want to have concurrent criminal jurisdiction with states. It also serves to create another legal path for state control over Native issues on, say, the Indian Child Welfare Act (coming up for review this fall at the same Supreme Court), or gaming, or health, or money, or anything else that involves tribes and sovereignty (true fact: most things in life do).

While Eastman is right in writing, “Yesterday, SCOTUS issued Castro-Huerta. Today, the sun came up and at 9:00 AM in the Cherokee Nation, the Muscogee Nation, the Choctaw Nation, the Chickasaw Nation and Seminole Nation, court was held as usual there for nearly every case involving Native Americans in Indian country” — he also misses the larger picture for Indian Country. He’s based in Oklahoma with strong tribal roots in that region, so maybe he’s okay with that. And if he is, that is certainly fine and reasonable.

More broadly, it’s important to tribes at large that McGirt led to the positive #landback developments for at least 6 tribes in Oklahoma so far, but will McGirt ever do the same for tribes outside of Oklahoma? We don’t know yet, but we suspect not under the make-up of today’s court. And, yes, Indian jurisdiction over Indian crimes in Indian Country is seemingly protected as a result of McGirt, but non-Indians commit a lot of crimes on reservations, including the majority of crimes on some reservations. If Castro-Huerta — and its increased state control over tribal criminal jurisdiction over non-Indians — is the main legacy of McGirt for tribes outside of Oklahoma, then forget about the dangers of Castro-Huerta, one can even start questioning how positive McGirt was for everyone else. Thus far, Castro-Huerta is the main legal legacy of McGirt affecting the vast majority of tribes outside of Oklahoma and even the majority of tribes in Oklahoma.

Back to Eastman’s main point, which is a great one. There have been some very bad Supreme Court decisions for tribes — if you consider rulings aimed at decimating Native American populations bad, that is.

On the other hand, both reasonable and impassioned people have disagreed with Chapman on Twitter thus far, saying this case easily ranks in the top 10 worst Supreme Court decisions involving tribes.

The Native American Rights Fund and several Native legal consortia are set in the coming days to host meetings on the decision and its impacts, and they will probably speculate on where this case falls in the history of bad Supreme Court Indigenous-focused opinions.

For now, we wanted to put our new poll feature to good use, so you can share your own important opinion. We hope that some of the top legal minds focused on Indian Country will actually vote here. They read us, they email us, they chat with us, but they don’t tend to engage in the comments. They save that for Native Twitter, letting Elon Musk ponder whether owning their discussions is attractive enough to pad his bottom line. This is a simple way to engage through an independent, Native-owned journalism outlet, which is what Indigenous Wire is about. So, whether you are one of the top 100 Native legal minds working today — or not — please vote, too. Feel free to name the worst high court tribal decisions — and your rankings of them — in the comments. And read on after your vote for a special anniversary message from Indigenous Wire.

Here it is, our anniversary message. Indigenous Wire is now 6 months old — we’re almost walking on our own! — and we now have several thousand subscribers. Many of them are unpaid, and the vast majority of articles we have published in the past 6 months have been free. You get what you pay for, as the old saying goes, and we want to give you your money’s worth. Serious reporting involves time, resources and investment, and we’d like you to invest in our independent, Native-owned journalism.

Castro-Huerta should give you all the journalism-focused reasoning you need to know that Indigenous Wire is necessary — and should be supported, typos and all. (We’d love to one day be able to hire a Native copy editor!)

When Indigenous Wire was founded, we told you that the current Native press tends to celebrate Indian Country too much while missing the deeper stories, and we told you that the mainstream tends to do a horrible job of covering Native issues in general.

We’ve been proven right time and again over these past 180 days.

If you were only reading one popular Native news outlet back in January, you might have thought Castro-Huerta wasn’t going to be a big deal. That outlet was caught with its proverbial pants down, celebrating that the high court knocked down 30-plus other challenges to McGirt made by Oklahoma. That outlet at the same time under-reported the significance of Castro-Huerta, which we called them on, and this week we saw why Castro-Huerta might actually be more significant for all of Indian Country than McGirt itself. They missed that possibility, and they shouldn’t have. As we stated when we started this thing, we need Native journalists to be doing serious reporting and analysis — not playing the role of popular, celebratory advocates. We’ve got enough advocates, we need more journalists.

At launch, we also said that the mainstream press does a really bad job at covering Indigenous issues, despite our growing populations worldwide, despite our involvement in all levels of governments, despite our increasing economic, political and social power, and despite our potential as a largely untapped media market.

When it comes to Castro-Huerta, just look at what one of the top correspondents at Vox Media — who focuses on writing about the Supreme Court, no less — said on Twitter this week about Gorsuch’s dissent:

Ian Millhiser @imillhiser

My honest and immediate take on the Castro-Huerta decision is that this is a fraught and complicated area of the law, and I wish the dissent were written by someone other than Gorsuch who can be trusted to accurately convey what’s really going on.

He’s got 99 likes and counting on that truly ridiculous, ignorant statement, and he’s got 119k followers. If you want to better understand Indian law, Gorsuch would probably be at the top of most Indian legal scholars lists to go to for his rationale — and to seek to influence him. He’s not a Native law advocate, as NPR incorrectly identified him earlier this week; he’s a Native law expert. We also have far too few of those, and none have served on the contemporary Supreme Court before Gorsuch — and none who are themselves Indigenous, of course. We assume Millhiser’s gut reaction to seeing Gorsuch’s dissent was that it must be a bad explanation because Gorsuch is conservative, and the conservative justices have issued some whoppers this season. Well, we’ve got some news for you, Millhiser, Indian law is more complex than partisan American-made divides. You are right that this area is complicated, but you are wrong that Gorsuch should not be trusted as a source on Indian law. In fact, the 3 liberal justices on the high court trusted him enough to write the dissent for them, which they signed onto. He wrote McGirt, too.

Since starting this thing, we’ve called out egregious reporting and other errors by the likes of Roll Call, The Daily Caller, Fox News, NPR, CNN, Axios (which doesn’t even know where Native Americans live), Voice of America — the list goes on — for basic problems in their coverage of Indigenous issues. The problems run across all types of outlets from a broad political spectrum. The only common denominators are that these outlets are all wealthy, not Native inclusive, and they simply do not care if the Indigenous beat gets covered accurately. Plus they don’t see us as a moneymakers, apparently. The understanding of Native issues has suffered in this manner in the media for centuries now, and you have to ask yourself why. Has it been oversight? Or has it been purposeful? The longer we’re around, we lean toward purposeful. But that’s journalists for you: We’re skeptical. We should be. Native journalists, especially so.

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