In 2015, the state of Oklahoma convicted Victor Castro-Huerta of neglecting his stepdaughter. Castro-Huerta appealed the decision, and while his appeal was pending in 2020, the Supreme Court issued a ruling in the landmark McGirt v. Oklahoma case.
The court held a majority of the eastern half of the state — including where Castro-Huerta committed his crime — was, for the purposes of criminal jurisdiction, considered tribal land.
Castro-Huerta is not Native American, but his stepdaughter is a citizen of the Cherokee Nation of Oklahoma. As a result of the McGirt decision and complex framework governing criminal jurisdiction on tribal lands, Castro-Huerta appealed his state conviction, arguing the state did not have the authority to convict him.
In line with the McGirt decision and almost 200 years of precedent, the Oklahoma Court of Appeals sided with Castro-Huerta.
The state of Oklahoma appealed, taking the case all the way to the U.S. Supreme Court.
On June 29, the Supreme Court sided with the state of Oklahoma in a ruling reverberating across hundreds of reservations throughout Turtle Island, and granted the state concurrent jurisdiction on tribal lands.
Criminal jurisdiction on tribal lands is a complex affair — various laws and Supreme Court rulings create a tangle when it comes to determining which sovereign entity holds jurisdiction over a particular crime. In the event any conditions of Castro-Huerta’s crime were different — including the type of crime, location on tribal or non-tribal land, Native or non-Native status of the victim, Native or non-Native status of the perpetrator — the jurisdictional framework could be altered.
Experts say the Supreme Court's 5-4 ruling in Castro-Huerta is bound to make the jurisdictional tangle even more convoluted.
Previously, since the 1832 decision in Worcester v. Georgia, the Supreme Court long held states do not have criminal jurisdiction over crimes by non-Indians against Indians on tribal land unless and until Congress passes a law to that effect. Such was the case in 1953 with Public Law 280, or PL-280, which explicitly grants criminal jurisdiction in these cases to the state governments of Oregon, California, Minnesota, Wisconsin, Nebraska and Alaska.
Similar agreements granting states jurisdiction on tribal lands are in place in several other states, including Kansas and New York.
The Castro-Huerta v. Oklahoma ruling rejected the precedent in Worcester — without clear evidence for doing so, according to experts — holding states maintain concurrent jurisdiction over these crimes along with federal and tribal governments even without Congressional action.
While the exact effects of the Castro-Huerta ruling remain to be seen, experts say states that already have concurrent jurisdiction, like Oregon with PL-280, may be the best predictor.
Public Law 280
PL-280 removes federal jurisdiction and grants state jurisdiction over non-Indians for crimes committed against Indians on tribal land in Oregon, California, Wisconsin, Nebraska, Minnesota and Alaska.
Five of 10 federally recognized tribes in Oregon are PL-280 tribes, while the Confederated Tribes of Warm Springs, Confederated Tribes of the Umatilla Indian Reservation, Cow Creek Band of Umpqua Tribe of Indians and the Burns Paiute Tribe are exempt, according to the first-ever 2020 Oregon State Police Report on Missing and Murdered Native American Women.
In PL-280 states, states already hold concurrent jurisdiction with tribes over crimes by non-Natives against Native victims on tribal lands — but it hasn’t provided Natives increased legal protection.
Although PL-280 expanded states’ responsibilities, it did not provide additional funding for state law enforcement on tribal lands.
Additionally, tribes did not consent to awarding jurisdiction to states through PL-280. It wasn’t until the Tribal Law and Order Act of 2010 tribes were allowed to ask the federal government to reassume jurisdiction from state governments over that tribe’s particular land.
Tribes governed by PL-280 cannot form police departments without approval from the county or counties it shares geography with. Without its own police department, a tribe must rely on state and county police to patrol reservations.
Five tribes in Oregon have police departments, interfacing with 10 counties, including the Confederated Tribes of Grand Ronde and the Confederated Tribes of the Umatilla Indian Reservation.
The Klamath Tribes, located in Southern Oregon, historically without a police department because of PL-280, are in the process of forming their own department. Currently, the Klamath County Sheriff’s Department patrols Klamath tribal land. Last December, the Klamath Tribes hired their first-ever police chief, and are in the process of hiring officers and staff. The Cow Creek Band of Lower Umpqua formed its own police department in April 2021.
According to the OSP report, the Burns Paiute tribe dissolved its tribal police department in August 2020 due to budget constraints, leaving only federal authorities with jurisdiction. The Siletz Tribe terminated its contract with the city of Toledo in 2014, leaving the town of Siletz, which is located on tribal land, without a police department.
In a statement to an Oregon State Senate Committee last March in support of a bill expanding cooperation between tribal, state and federal law enforcement, Confederated Tribes of Warm Springs Police Chief William Elliott described the conditions his department operates under.
“We have four different counties with which we interface, and a major state highway (Highway 26) that bisects the reservation, in addition to tribal, federal, or state criminal jurisdiction being applied to various violations due to the status of the land or that of the victims/offenders,” Elliott said. “Thus we have a need to access all available jurisdictional tools in order to carry out the public safety issues affecting the Warm Springs Community, and in supporting our law enforcement partners in the Central Oregon area.”
Although comprehensive data regarding the effects of PL-280 on crime is lacking, Carole Goldberg, a distinguished law professor at UCLA and the preeminent expert on PL-280, said PL-280 hurts tribes, and its reversal is long overdue in a report for the American Bar Association.
“The affront to tribal sovereignty alone was ground for criticism,” Goldberg wrote. “To make matters worse, state criminal justice has functioned poorly on reservations. Local authorities have sometimes failed to serve tribal communities and sometimes have reacted with excessive harshness.”
Concerns over potentially ineffective state law enforcement are palpable in Oregon, where Native Americans face significantly higher rates of criminal victimization, according to a February report by the Oregon Criminal Justice Commission. The report estimates Native Americans face violent crime at rates up to three times that of the general population.
Lauren van Schilfgaarde (Cochiti Pueblo), the San Manuel Band of Mission Indians Tribal Legal Development Clinic Director at UCLA School of Law, is an expert on criminal jurisdiction on tribal lands. She said historically, awarding states jurisdiction over some crimes on tribal land resulted in lower-than-average prosecution rates for crimes falling under state jurisdiction, and the exact effects of the Castro-Huerta decision in PL-280 states remains unclear.
“On the one hand, I see PL-280 states as not having any impact (from Castro-Huerta),” van Schilfgaarde said. “PL-280 states are already exercising concurrent state jurisdiction; it also means that tribes in PL-280 states already have a really clear sense of what this concurrent jurisdiction means."
How PL-280 states operate may provide an idea of how other states will operate with their expanded jurisdiction under Castro-Huerta.
“Even though PL-280 didn't technically impact tribal jurisdiction, it had the effect of really stunting tribal growth,” van Schilfgaarde said. “It also meant that tribal systems, including courts and law enforcement, are severely underfunded, even compared to non-PL-280 states — which are not sufficiently funded. PL-280 tribes are even worse-positioned, and so we can speculate that Castro-Huerta is going to have a comparable impact in diminishing the role of tribes to self-govern their territories.
“It's way too soon to anticipate how states beyond the state of Oklahoma are going to respond to Castro-Huerta. PL-280 is the biggest metric.”
Judicial context
The ruling in Castro-Huerta can best be understood in the context of the McGirt v. Oklahoma decision.
The 5-4 decision in McGirt, where Neil Gorsuch joined liberal justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, held that the Muscogee Creek Reservation, which makes up approximately one-third of the total landmass of what is now Eastern Oklahoma, was never officially disestablished.
As such, the state of Oklahoma did not hold criminal jurisdiction over crimes committed against Indians by non-Indians on these now-reaffirmed tribal lands.
The decision was a massive victory for tribal nations, widely recognized as an affirmation of tribal sovereignty. Since the decision, an additional five tribes in the state had their reservations reaffirmed by lower courts. Nearly half of Oklahoma is now considered tribal land.
Sarah Hill, attorney general for Cherokee Nation, spoke during a UCLA Native Nations Law and Policy Institute panel analyzing the Castro-Huerta decision, reflecting on the path her tribe followed in the wake of the McGirt decision.
“As goes the Muscogee Nation, so go the Five Tribes, because our tribal histories are so intertwined since we were removed from our original homelands we have been sort of treated as a separate block,” Hill said.
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In the wake of this decision, the Five Tribes, consisting of the Mvskoke (Creek) Nation, Cherokee Nation, Chickasaw Nation, Seminole Nation and Choctaw Nation in Oklahoma, expanded their criminal justice systems and law enforcement capabilities to prepare for the increased jurisdictional capabilities recognized by the Supreme Court in McGirt.
The Cherokee Nation had its Oklahoma reservation reaffirmed by a lower court in the aftermath of the McGirt ruling. Hill said her office increased the number of cases it handles substantially.
“From March 11 of ‘21 to March 10 of ‘22, the Cherokee Nation Office of the Attorney General filed 3,700 cases in the tribal court,” Hill said. “In a previous year, prior to McGirt, that number would be around between 60 and 100 per year, depending on the sort of year we were having.”
However, the government of Oklahoma, particularly Oklahoma Governor Kevin Stitt, who is of Cherokee descent, felt the decision was an existential threat to the power of the state.
Oklahoma hired a powerful private law firm in an attempt to overturn or gut the McGirt decision, filing dozens of briefs with the Supreme Court in a move that could cost the state close to $1.5 million, according to Bloomberg Law. The state also embarked on a media campaign portraying Eastern Oklahoma as lawless. The Wall Street Journal published a dozen editorials parroting the state's talking points after the McGirt decision.
On July 7, the National Congress of American Indians and the Native American Rights Fund hosted a roundtable discussion featuring tribal leaders and legal experts to discuss the implications of the Castro-Huerta decision and its potential impacts on tribal communities across Indian Country.
During the discussion, Cherokee Nation Chief Chuck Hoskin Jr. called the post-McGirt campaign by the state of Oklahoma “a vicious campaign against tribes that was wholly disconnected from reality, untethered to any facts or even a basic understanding of federal Indian law.”
“(Stitt) engaged in that assault, and then we had other folks in Oklahoma running for office parroting him, saying things like 'McGirt is the greatest threat to Oklahomans,' and other very harmful anti-sovereignty comments,” said Hoskin. “The idea that some are implying that tribal justice systems are not competent and capable of doing what, frankly, we often do better than our state counterparts, suggesting that there's some — and this will creep in, of course, and has crept into the Brackeen v. Haaland case — that there's some sort of a racial analysis that one has to engage in, and somebody might not be ‘Indian enough’ (to initiate a prosecution).”
Since the July 2020 McGirt ruling, the court’s makeup shifted, with Ginsburg replaced by Justice Amy Coney Barrett. But in another victory for tribes, and despite Oklahoma’s claims, the court ultimately announced it would not revisit McGirt.
It would, however, consider the question of concurrent jurisdiction for states by taking up Castro-Huerta v. Oklahoma, one of the dozens of cases filed by Oklahoma in the wake of the McGirt decision.
The state of Oklahoma presented figures as evidence in Castro-Huerta, claiming the state was now unable to prosecute or investigate 18,000 cases per year due to the McGirt ruling, a figure for which they could not produce a source or methodology. An Atlantic report called the state’s numbers into question, but despite serious doubts regarding the accuracy of Oklahoma’s figures, the majority relied heavily on those figures in their decision in Castro-Huerta.
A major concern for tribes in both McGirt and Castro-Huerta was a lack of direct representation in the cases, which directly affected tribal interests. The court limited tribal involvement to filing amici curiae, which means individuals or organizations who are not parties to the case (tribes, in this instance) can only file supporting legal documents to the court offering advice or expertise on the case’s issues.
"...As we work through the ebbs and flows of policy and political change, we're going to remain standing, and we're going to remain strong, and it's events like this that are going to unify our effort."
Fawn Sharp, President
National Congress of American Indians
Conservative justices Brett Kavanaugh, Samuel Alito, John Roberts, Clarence Thomas and Barrett composed the majority in the Castro-Huerta ruling. Kavanaugh authored the majority opinion, which contained language some tribal advocates considered outright anti-sovereignty.
Sotomayor, Breyer and Kagan — three liberal justices — were joined by conservative Justice Neil Gorsuch to form the dissent. Gorsuch authored a fiery dissenting opinion.
Federal Indian law is not a purely partisan issue, as evidenced by Gorsuch’s departure from his fellow conservative justices. Gorsuch, who has significant knowledge of federal Indian law, was also the decisive vote in the McGirt case.
However, the appointment of Barrett was viewed as a wildcard regarding her stance, as she has virtually no experience in federal Indian law — and has since supported rulings both expanding and restricting tribal sovereignty.
The uncertainty of the current Supreme Court’s stance towards issues affecting tribal sovereignty poses a concern for tribes, which already grapple with a confusing patchwork of laws, regulations and rulings limiting tribal governance, like PL-280.
Consequences
Legal experts and advocates for Native Americans worry the same issues present in PL-280 states will appear in states with expanded jurisdiction under Castro-Huerta — including underenforcement of crime at the expense of Native victims and tribal sovereignty.
Furthermore, the ruling cuts at the heart of a sovereign government’s ability to undertake a fundamental task: enforcing its laws within its borders.
Professor Elizabeth Hidalgo Reese (Yunpoví, Tewa: Willow Flower) is an assistant professor of law at Stanford Law School. She said a lack of tribal jurisdiction contradicts a basic principle of law held by sovereign states.
“If I live in California, if I cross the border into Oregon and I commit a crime there, Oregon gets to prosecute me because Oregon is a sovereign, and I am on its territory,” Hidalgo Reese said. “Tribes are the only government and jurisdiction that doesn't get to do that, and the reason they can't … is it because our governments are run by Native people? By the group of descendants and citizens and self-governing people of the original nations of this country?
“It doesn't make sense, the continued disrespect that our nations get within the family of governments here. We should have the right to impose all of our laws and it wouldn't make sense for Oregon to impose its laws in California, or California in Oregon.”
Native peoples and tribal leaders have long maintained tribal governments are best-equipped to take care of Native victims. Federal and state entities lack ties to tribal communities and trust from tribal members. Non-tribal law enforcement is often located some distance from tribal communities, leading not only to delays in investigations, but a heightened disconnect from the impacted communities.
That lack of trust and connection extend to Oregon, as evidence by The Oregon State Police report on missing and murdered Indigenous women which concluded state law enforcement needs to do more to build trust with Native American communities. The report made several recommendations — chief among them was strengthening partnerships between state and tribal authorities and cultural sensitivity training for officers interacting with Native American people.
Future implications
There are also concerns among tribal leaders and advocates about what the decision in Castro-Huerta could mean for future court cases affecting tribal sovereignty, such as the upcoming Brackeen v. Haaland case, which could potentially result in the reversal of the Indian Child Welfare Act.
The Indian Child Welfare act is designed to keep Native American adoptees within Native communities. Prior to the Indian Child Welfare Act, officials removed Native children from their families at disproportionately high rates and often placed them in non-Native families, disconnecting them from their Native identity and community.
Although the legal questions posed in Castro-Huerta and Brackeen are completely different, both involve tribal sovereignty, and there are concerns over how the Supreme Court will rule.
In Castro-Huerta, the language in the majority’s opinion implies tribal lands are a part of the state they are located within rather than a separate sovereign entity.
“I think that there's a real concern that tribal jurisdiction is going to be further diminished because it's now considered duplicative; unnecessary because the states have the authority to intervene, and especially because tribal courts are still subjected to a sentencing limitation,” van Schilfgaarde said.
Muscogee Creek Nation, the tribe at the center of the McGirt case, is prepared to continue legal battles defending its tribal sovereignty. Muscogee Nation Principal Chief David Hill spoke during the NCAI roundtable about how his tribe is handling the Castro-Huerta verdict.
“I recognize there are a lot of ideas and emotions swirling around right now, but I believe strongly that further empowering tribes to protect all citizens should be at the heart of any next step,” David Hill said during the NCAI roundtable. "But we are going to have to be strategic and smart and understand that this fight may take a long time, but we at Muscogee Creek Nation are up to the task.”
The decision in Castro-Huerta felt like a “body blow” to the many Native people and allies who work to strengthen tribal sovereignty — but they are not giving up the fight to restore tribal jurisdiction for all crimes on tribal land.
During NCAI roundtable closing remarks, NCAI President and Quinault Nation Vice President Fawn Sharp said although the implications of Castro-Huerta are concerning, the collective voice of Indian Country is powerful.
“There's no question, we know exactly who we are, the powers that we possess — inherently, that no one can take away with or without states, with or without the United States,” Sharp said. “We have a vision for building our future.
“As we work through the ebbs and flows of policy and political change, we're going to remain standing, and we're going to remain strong, and it's events like this that are going to unify our effort.”
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