Supreme Court ruling in Oklahoma case cuts to core of tribal sovereignty and state rights
The U.S. Supreme Court laid the foundation for federal Indian law nearly 200 years ago. Tribal nations retain their sovereign rights, and only Congress can extend state powers over tribal lands.
But in a 5-4 decision issued June 29 in Oklahoma v. Castro-Huerta, the court turned the bedrock principle on its head, shocked legal scholars and left tribal leaders with more questions than answers. Now they are working to understand how far the opinion goes — and to limit decades of potential fallout.
“We, as a nation, have the same law enforcement authority that we had two days ago,” before the court ruled, said Muscogee Nation Ambassador Jonodev Chaudhuri. “What has changed is that the Supreme Court injected state authority in an area it has never injected state authority into before.”
The court said Oklahoma can prosecute non-Native defendants for crimes against Native Americans on tribal lands, because states have a constitutional right to exert criminal jurisdiction within their territory, including in Indian country.
“It is such a radical departure from the field,” said Stacy Leeds, who teaches federal Indian law at Arizona State University. “It seems to be saying that once a state comes into the Union, that they automatically have all of this power, and the distinctness of all of the tribes in the state is either evaporated or diminished.”
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Federal Indian law is based on the principle that states lack authority on tribal lands unless specifically granted by Congress. “If that is flipped, and for every possible power, Congress has to affirmatively say ‘no’ to the states, then you’re asking both Congress and the tribes to prove up a negative,” said Leeds, a Cherokee Nation citizen.
To be sure, the federal government's track record on tribal rights fluctuates. But in recent years, the Supreme Court and Congress had been moving toward reaffirming the rights of tribal governments. In March, Congress gave tribal courts the power to prosecute all people accused of a handful of crimes, such as sex trafficking Native Americans and abusing Native children, on tribal lands.
And the Supreme Court ruled in 2020 that Congress had never disestablished the Muscogee (Creek) reservation in eastern Oklahoma, leading to the recognition of six reservations throughout the state.
Oklahoma’s many attempts to overturn ruling or rein in the McGirt ruling prompted Wednesday’s decision. “If the court wanted to push back on McGirt, perhaps that’s one thing,” Leeds said. “But now they’ve created this extra ruling that will impact all of the tribes in the United States.”
Two top tribal advocacy groups, the National Congress of American Indians and the Native American Rights Fund, quickly organized a virtual meeting with tribal leaders to assess their next steps. Tribal attorneys are combing through federal statutes, state laws and treaties to find anything that might preempt the blanket extension of state criminal jurisdiction in cases involving non-Native defendants.
“Everyone is struggling with what does this mean with our tribe, our state, our reservation, our people,” said Melody McCoy, a staff attorney at the Colorado-based Native American Rights Fund. She is a Cherokee Nation citizen. “We just don’t know.”
How the Supreme Court ruled
At the center of it all is Oklahoma. Before the Supreme Court’s landmark ruling in McGirt v. Oklahoma, state courts prosecuted most criminal cases that involved Native Americans.
But after courts recognized six tribal reservations exist in the state, jurisdiction over cases involving Native Americans on those lands shifted to federal and tribal courts.
Oklahoma Gov. Kevin Stitt and the state’s top attorneys argued the seismic shift has harmed victims and left many crimes unprosecuted.
In Oklahoma v. Castro-Huerta, the state was appealing its right to try Victor Manuel Castro-Huerta, a Mexican citizen convicted of neglecting his 5-year-old Native American stepdaughter. The crime occurred in a part of Tulsa that falls within the Cherokee reservation.
The court considered whether Oklahoma could share jurisdiction with federal prosecutors over such crimes that involve a Native American victim and a non-Native defendant. Tribal court power over defendants who aren’t Native is limited to specific crimes, such as domestic violence.
The majority opinion authored by Justice Brett Kavanaugh found the General Crimes Act does not explicitly stop states from sharing authority over those cases.
Kavanaugh’s legal analysis of the act would have sufficed to decide the case, several legal experts agreed. But the majority opinion goes further and concludes that Indian country is part of, not separate from, a state’s territory.
“Under the Constitution, states have jurisdiction to prosecute crimes within their territory except when preempted (in a manner consistent with the Constitution) by federal law or by principles of tribal self-government,” Kavanaugh wrote.
The ruling met immediate pushback from Justice Neil Gorsuch in his dissent, who excoriated the opinion as “an embarrassing new entry into the anti-canon of Indian law.” Gorsuch wrote the majority opinion in McGirt v. Oklahoma in 2020.
He criticized the reasoning behind the court's follow-up ruling as “carefully curated snippets — a clause here, a sentence there — from six dissenting decisions out of the galaxy of this court’s Indian law juris prudence.”
“Tribes are not private organizations within state boundaries,” Gorsuch wrote. Their reservations are not glorified private campgrounds. Tribes are sovereigns. And the preemption rule applicable to them is exactly the opposite of the normal rule. Tribal sovereignty means that the criminal laws of the states ‘can have no force’ on tribal members within tribal bounds unless and until Congress clearly ordains otherwise.”
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Gorsuch was joined in his dissent by the court’s three liberal justices, Sonia Sotomayor, Elena Kagan and Stephen Breyer. The four also ruled against the state in McGirt v. Oklahoma. But the fifth and deciding vote in that case was Justice Ruth Bader Ginsburg, who died two months later and was succeeded by then-President Donald Trump nominee Amy Coney Barrett.
Elizabeth Hidalgo Reese, an assistant professor of law at Stanford Law School, said the dissent shows a clear understanding of federal Indian law, while the majority opinion reads as if it were from “a different universe somewhere where American history went very differently.”
“The logic needed to get to this holding, that tribes are a part of states and that states have authority unless that has been taken away by Congress — it rewrites large chunks of the holdings within federal Indian law that all of the tribal governments and Indian people have built our lives on,” said Hidalgo Reese, who is enrolled at Nambé Pueblo in New Mexico. “I’m deeply concerned that this exposes a lot more things to attack.”
What impact will the ruling have outside Oklahoma?
The impact of the ruling beyond Oklahoma remains unknown.
In the decision, Kavanaugh wrote that concurrent state jurisdiction over non-Native Americans accused of hurting Native Americans applies on tribal lands throughout the United States. But Gorsuch questioned its potential reach in his dissent.
“The truth is, in this case involving one tribe in one state, the court does not purport to evaluate the (many) treaties, federal statutes, precedents and state laws that may preclude state jurisdiction on specific tribal lands around the country,” he wrote.
One key law that already addresses state criminal jurisdiction in Indian country is called Public Law 280. Congress passed it in 1953 to extend state laws over reservations in a half dozen states, including Nebraska and California. It was part of the federal government’s bigger push to sever its trust responsibilities to tribal nations during a time known as the Termination Era.
The law was not widely adopted and was viewed as a massive policy failure, said Sarah Deer, a University of Kansas professor whose work has focused on federal Indian law.
In 1968, Congress amended the law to require states to receive tribal consent to be covered by the law. “That’s never happened in the state of Oklahoma, yet the court is saying the state of Oklahoma has criminal jurisdiction in this case,” said Deer, a citizen of the Muscogee Nation.
Reservations in states covered by Public Law 280 have not been shown to be safer than tribal lands where states do not have that jurisdiction. And prosecutions in those states could become more confusing by adding state authorities into cases long understood to fall outside of their prosecution.
“Crime is messy, and having a complex jurisdictional regime try to sort it out is not the best way to ensure safety and accountability,” Hidalgo Reese said.
Another question, she said, is how states will pay for extra patrols and prosecutions over crimes that occur on tribal lands. Tribes will have to compete with states for federal money to pay for work that may now appear duplicative, she said.
Gorsuch noted in his dissent that Congress could clear up all confusion by simply amending Public Law 280 to clarify that states lack criminal jurisdiction over crimes by or against Native Americans in Indian Country, except in certain cases, such as with tribal consent. It’s unclear if or when Congress might take that up.
In the mean time, concurrent state jurisdiction likely will look different from state to state and tribal nation to tribal nation, McCoy said.
“I would really look to the tribe leaders to carry the weight of what they want to happen in the wake of this,” she said. “There are states — Oklahoma, Texas — that continue to try to fight these issues, fight against tribes. But not all states are of that view or ilk.”
What's next for tribal nations in Oklahoma
Law enforcement agencies in Oklahoma have pledged to continue working together and build on mutual agreements that have become more commonplace in the two years since McGirt v. Oklahoma.
Trent Shores, former U.S. attorney for the Northern District of Oklahoma, said Wednesday’s ruling underscores the importance of collaborating. Three separate sovereigns — the state, the federal government and tribal nations — will need to coordinate, said Shores, a Choctaw Nation citizen.
Although tribal and state law enforcement agencies work closely together on the ground, talks at the highest levels of tribal and state governments have largely stopped amid friction over McGirt.
In a joint statement, the Cherokee, Chickasaw, Choctaw, Seminole and Muscogee nations said they would continue to partner and work with state authorities, while also expanding their own criminal justice systems.
“Importantly, tribal and federal jurisdiction remain unchanged by this ruling as the Supreme Court has refused to overturn the McGirt decision.”
In his own statement, Stitt described the Supreme Court ruling as a victory that will help ensure equal protection for Oklahomans.
“I look forward to working with leaders across the state to join our efforts in combatting the criminal justice crisis in Oklahoma following McGirt,” he said.
The question now will be how the state of Oklahoma acts on its new jurisdiction and to what extent it will prioritize cases that involve Native American victims, said Kirke Kickingbird, an Oklahoma City attorney who served as then-Gov. Frank Keating’s special counsel on Indian affairs in the 1990s.
Questions about the reach of state power after Wednesday's ruling also will likely move beyond criminal jurisdiction to civil issues that are already in dispute, said Kickingbird, a member of the Kiowa Tribe.
That’s what legal scholars find so concerning about the opinion’s about-face to established principles of federal Indian law. For now, tribal leaders are weighing their next steps.
“We are proud of our history of standing up for our sovereignty and doing so in a way that protects everybody in our borders and builds a better future for all,” said Chaudhuri, Muscogee Nation ambassador. “I’m very confident that history will continue and we will assert our sovereignty to the greatest extent possible for the betterment of all.”
Molly Young covers Indigenous affairs for the USA Today Network's Sunbelt Region. Reach her at mollyyoung@gannett.com or 405-347-3534.