Castro-Huerta: A New Era of Indian Law?

The recent U.S. Supreme Court decision may signal a massive shift in the legal relationship between tribes and the states

BY DREW POLLOM

In 2015, Victor Castro-Huerta was charged in Oklahoma state court with neglecting his 5-year-old stepdaughter.¹1 A full recounting of the facts can be found at: Oklahoma v. Castro-Huerta, ___ U.S. ____, 142 S.Ct. 2486, 2491-93, 213 L. Ed. 2d 847 (2022). He was convicted and sentenced to 35 years in prison. While his conviction was on appeal, the U.S. Supreme Court issued its epochal decision in McGirt v. Oklahoma, holding that one-half of Oklahoma was still Indian Country and its state courts had no criminal jurisdiction over Indians in that section of the state.²2 McGirt v. Oklahoma,  ____ U.S.____, 140 S.Ct. 2452, 207 L. Ed. 2d 985 (2020). Castro-Huerta was a non-Indian; the stepdaughter he was convicted of neglecting was a member of the Cherokee Nation. He appealed his conviction all the way to the U.S. Supreme Court, arguing under McGirt that the state courts had no authority over him. The Court disagreed and, in doing so, issued a decision that may signal a massive shift in the legal relationship between the tribes and the states. 

The intersection of the three sovereigns within the United States—the federal government, the tribes, and the states—is complex. Through the Indian Commerce Clause, the federal government has “plenary jurisdiction” over the tribes, with the power to increase and decrease their sovereignty and regulate their affairs.³3 Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S. Ct. 216, 47 L. Ed. 299 (1903). The tribes retain their inherent sovereignty, which existed prior to the existence of the United States, subject to acts of Congress.⁴4 Worcester v. Georgia, 31 U.S. 515, 8 L. Ed. 483 (1832). Finally, the states’ criminal and civil authority over tribes and tribal members depends on the invitation of Congress, such as the enactment of Public Law 280, which allows states to assume criminal jurisdiction over tribal members living on reservations. 

The Supreme Court’s majority opinion in Oklahoma v. Castro-Huerta, a case arising from the state of Oklahoma’s criminal jurisdiction over a non-Indian committing a criminal act against an Indian in Indian Country, signals a potential shift in this complex relationship. Writing for the majority, Justice Brett Kavanaugh’s opinion held that Oklahoma had concurrent jurisdiction over non-Indians committing crimes against Indians in Indian Country.⁵5 Castro-Huerta, 142 S. Ct. at 2504. Because tribes do not have inherent authority to prosecute crimes against non-Indians,⁶6 Oliphant v. Suquamish, 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978). the state shares its concurrent jurisdiction with the federal government. The majority’s reinterpretation of the history of Indian law in order to reach that conclusion stands in contrast to the established principles between the three sovereigns.  

The development of Indian law is anchored by three cases known as the Marshall trilogy, so named for U.S. Supreme Court Chief Justice John Marshall, who wrote all three opinions. The three—Johnson v. McIntosh, Cherokee Nation, and Worcester v. Georgia—form the bedrock of Indian law; Worcester v. Georgia, in particular, establishes the boundary of state authority in Indian Country.⁷7 Worcester v. Georgia, 31 U.S. at 559-60. In that decision, Chief Justice Marshall wrote:

The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.⁸8 Id. at 561.

In interpreting Worcester v. Georgia in Castro-Huerta, Justice Kavanaugh did not change the words of Justice Marshall, but rather the place that Worcester held in Indian law. Justice Kavanaugh wrote that:

[T]he ‘general notion drawn from Chief Justice Marshall’s opinion in Worcester v. Georgia’ ‘has yielded to closer analysis.’ Organized Village of Kake v. Egan, 369 U. S. 60, 72, 82 S. Ct. 562, 7 L. Ed. 2d 573 (1962). ‘By 1880 the Court no longer viewed reservations as distinct nations.’ Ibid. Since the latter half of the 1800s, the Court has consistently and explicitly held that Indian reservations are ‘part of the surrounding State’ and subject to the State’s jurisdiction ‘except as forbidden by federal law.’ Ibid.⁹9 Castro-Huerta, 142 S. Ct. at 2493.

Justice Kavanaugh’s conclusion that the Court had abandoned Worcester a century ago, and that Indian reservations are subject to state jurisdiction has raised eyebrows across Indian Country. According to Westlaw, Worcester had been cited no less than 5,000 times in federal, state, and tribal courts since it was decided in 1832. Its foundational principle, that the states do not have jurisdiction over tribes absent an act of Congress, was a forgone conclusion in Indian Law. Justice Neil Gorsuch’s dissent reflects this consensus about Worcester: “The decision established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise. Worcester proved that, even in the ‘[c]ourts of the conqueror,’ the rule of law meant something.”¹⁰10 Id. At 2505. Continuing, Justice Gorsuch forcefully asserts: 

Tribes are not private organizations within state boundaries. 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. Worcester, 6 Pet. at 561.¹¹11 Id. at 2511.

The disagreement displayed in the majority and dissenting opinions in Castro-Huerta, and the debate over the continuing relevance of Worcester, is not an academic one. The federal, tribal, and state relationship supported by U.S. Supreme Court precedent prior to Castro-Huerta has provided the space for tribal sovereignty to reemerge. Economic development projects from retail to mining to gaming to marijuana all rest on the same principles—that the tribes’ sovereign rights prohibit state interference, unless invited in by Congress. The Castro-Huerta decision may be the first and foundational case establishing a new dynamic among the three sovereigns, one where the state’s authority over tribes and tribal individuals is more prevalent. 

Only time will tell whether Castro-Huerta will stand alone or begin a new era of jurisprudence setting the parameters of tribal sovereignty. The Supreme Court’s June 2023 decision in Haaland v. Brackeen¹²12 Haaland v. Brackeen, cert. granted, 142 S. Ct. 1205, 212 L. Ed. 2d 215 (2022). (rejecting a challenge to the Indian Child Welfare Act) goes to the heart of Congress’ authority to pass laws affecting tribal members and to compel the states to follow them. Justice Barrett’s majority opinion in Haaland reaffirmed Congress’ authority to regulate tribal affairs. However, Justice Thomas’s dissent sets the stage for the next phase of this fight over the foundation of Indian law: the authority of Congress to regulate tribal affairs and whether it’s limited only to commercial activities. Justice Barrett’s opinion represents the consensus in Indian Country about the federal government’s authority, while Justice Thomas’ dissent represents the potential to limit the federal government’s power to regulate, and presumably enable states more power to intrude on, tribal affairs. Future decisions will determine whether the status quo will prevail or whether Indian law will be reimagined. 

NOTES

1. A full recounting of the facts can be found at: Oklahoma v. Castro-Huerta, ___ U.S. ____, 142 S.Ct. 2486, 2491-93, 213 L. Ed. 2d 847 (2022).

2. McGirt v. Oklahoma,  ____ U.S.____, 140 S.Ct. 2452, 207 L. Ed. 2d 985 (2020).

3. Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S. Ct. 216, 47 L. Ed. 299 (1903).

4. Worcester v. Georgia, 31 U.S. 515, 8 L. Ed. 483 (1832).

5. Castro-Huerta, 142 S. Ct. at 2504.

6. Oliphant v. Suquamish, 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978).

7. Worcester v. Georgia, 31 U.S. at 559-60.

8. Id. at 561.

9. Castro-Huerta, 142 S. Ct. at 2493.

10. Id. At 2505. 

11. Id. at 2511.

12. Haaland v. Brackeen, cert. granted, 142 S. Ct. 1205, 212 L. Ed. 2d 215 (2022).