Tribes' reduced jurisdiction & Gorsuch's diminished influence over major Indian law
SCOTUS' Castro-Huerta ruling another wake-up call for tribal sovereignty.
WASHINGTON — The U.S. Supreme Court, in a decision that will have the most wide-ranging reverberations in Indian Country this term, today ruled that the state of Oklahoma could oversee matters of criminal jurisdiction over non-Indians on tribal lands. In short, it creates a whole new underpinning of federal Indian law that simply did not exist before today.
The 5 - 4 decision in Oklahoma v. Castro-Huerta was penned by Justice Brett Kavanaugh. He was joined by 4 other conservative justices on the court.
Justice Neil Gorsuch wrote the dissent, joined by all 3 liberal justices.
The ruling was a 180-degree turn away from major components of the 2020 McGirt decision, which allowed tribes to oversee criminal jurisdiction on their lands. The high court concurrently said in McGirt that most of the eastern half of Oklahoma was effectively still Indian Country.
Gorsuch wrote the McGirt decision for the majority, and it is abundantly clear in his dissent today that he was irked that the court’s new majority reverted his rationale favoring tribal sovereignty and jurisdiction.
“Now, at the bidding of Oklahoma's executive branch, this Court unravels those lower-court decisions, defies Congress's statutes requiring tribal consent, offers its own consent in place of the Tribe's, and allows Oklahoma to intrude on a feature of tribal sovereignty recognized since the founding,” Gorsuch wrote, in part.
Oklahoma interests, led by Republican Gov. Kevin Stitt — a citizen of the Cherokee Nation — found the McGirt decision loathsome since the moment it was handed down. They have since argued that tribes can’t handle the increased criminal caseloads and that the federal government wasn’t equipped to cover the shortcomings.
Stitt further made arguments that the federal government was wrongly infringing on Oklahoma’s sovereignty as a result of the decision.
The federal government, under the Biden administration and the current U.S. Congress, funneled more money to tribes to help them combat some of the issues, but that didn’t stop Oklahoma’s legal machinations.
Oklahoma filed over 30 complaints trying to get McGirt knocked down this session. The Supreme Court chose to take up only one, and one was enough to gut a large part of McGirt — and perhaps much more tribal sovereignty across the nation. Indian legal experts and tribal leaders are widely noting that Castro-Huerta reverses major Indian case law and congressional relations going back decades and even centuries.
Gorsuch’s background, which includes serving as a judge on the 10th Circuit from 2006 - 17, allowed him to become familiar with Indian law before joining the high court in 2017, and tribal advocates have generally welcomed his expertise.
Most justices have not had vast Indian law experience before coming to the court, and U.S. presidents don’t usually — or ever — care about a judge’s Indian law beliefs when deciding on whom they will pick to join the court. Put simply, Indian law is poorly served in many ways through the American treatment of it in its political, executive, legislative, judicial and media systems.
That Gorsuch is now in the minority of the Supreme Court on the most important Indian law ruling since McGirt itself is yet another sign of just how much has changed in the short time that the 3 conservative justices appointed by former President Trump have taken their seats.
Tribes have indeed prevailed in cases under the new conservative majority — including within two recent rulings this term (here and here) — but if Castro-Huerta is indicative of what tribal interests will face on upcoming major cases (including whether the high court will tinker with the Indian Child Welfare Act in the upcoming Brackeen v. Haaland), it is not good news.
Tribal advocates are already calling on the U.S. Congress for a simple fix to Castro-Huerta. But nothing with Congress and tribes is simple. Just ask those who are still pining for a fix to the still standing 2009 Supreme Court Carcieri decision, which called into question the ability of the U.S. Interior Department to take lands into trust for tribes federally recognized after 1934.
Gorsuch also expressed hope that today’s ruling will not stand the test of time.
“One can only hope the political branches and future courts will do their duty to honor this Nation's promises even as we have failed today to do our own,” he wrote in his dissent.
Choctaw Nation Statement Regarding
Supreme Court Ruling in Castro-Huerta Case
DURANT, Okla. (June 29, 2022) – Choctaw Nation of Oklahoma Chief Gary Batton released the following statement regarding the U.S. Supreme Court in a case known as Castro-Huerta.
“We are extremely disappointed in this ruling, in part because it appears to rely on faulty information provided by the opposition,” he said. “Of course, we respect the authority of the Supreme Court, and we will integrate this into our continued efforts to provide effective criminal justice in our reservation as we work with law enforcement agencies at the federal, state, local and tribal level.”
“To be clear, this ruling does not affect the main holding of the McGirt decision, which affirmed tribal sovereignty and requires the United States to uphold its treaty obligations,” he said.
“Our focus remains on protecting our members, as well as all 4 million Oklahoma residents,” he said.
TAHLEQUAH, Okla. — Following today’s United States Supreme Court decision in Oklahoma v. Castro-Huerta, Cherokee Nation Principal Chief Chuck Hoskin Jr. issued the following statement:
“With today’s decision, the U.S. Supreme Court ruled against legal precedent and the basic principles of congressional authority and Indian law. During arguments, Justice Gorsuch asked if the Court would ‘wilt today because of a social media campaign’ – it is unfortunate that the answer appears to be yes. The dissent today did not mince words – the Court failed in its duty to honor this nation’s promises, defied Congress’s statutes, and accepted the “lawless disregard of the Cherokee’s sovereignty.”
While we are disappointed in this ruling, it does not diminish our commitment to meeting our public safety responsibilities and to protecting Oklahomans on our reservations and across the state. Tribal and federal jurisdiction remain unchanged by this decision, but the need to work together on behalf of Oklahomans has never been more clear.
Also unchanged is the affirmation of our reservation and our sovereignty. Despite the Oklahoma governor’s lies and attacks, the Court has refused to overturn the McGirt decision. As we enter a chapter of concurrent jurisdiction, tribes will continue to seek partnership and collaboration with state authorities while expanding our own justice systems. We hope that with these legal questions behind us, Governor Stitt will finally lay his anti-tribal agenda to rest and come to the table to move forward with us – for the sake of Oklahomans and public safety.”