Over the past 50 years, Congress and the US Supreme Court have increasingly diverged in how they view laws relating to Indian tribes. Congress passed important legislation that expanded tribal governments’ sovereignty and control over their lands, while the Supreme Court ignored long-standing principles of federal Indian law that protect tribal sovereignty and Prevent the states from exercising authority in the Indian country.
This trend in court was recently observed in a ruling from late June that, as one longtime court observer said, erased “centuries of tradition and practice”. Justice Neil Gorsuch scorned the decision in his dissent: “Indeed, it would be difficult to fathom a more ahistorical and incorrect statement of Indian law.”
From my point of view as an expert on federal Indian law, the most recent case is notable because it says that states can exercise authority in an Indian country without the permission of Congress. It was not so for centuries.
Here is the background:
The US Constitution gives Congress authority over Indian affairs, including the power to curtail and restore tribal powers. Since 1885, Congress has empowered federal prosecutors to try major crimes committed in the Indian country, such as murder and rape, in federal courts. Tribal governments could probably try these crimes, but Congress has limited the punishments that tribal courts can inflict on convicted criminals. As a result, the federal government has long been the primary enforcer of criminal law in the Indian country.
With limited exceptions, the Supreme Court has interpreted the Constitution to hold that states do not have rights in an Indian country unless Congress explicitly grants such authority. Congress has rarely authorized states to exercise authority in an Indian country, and since 1968 it has required tribal consent before a state can be granted any such right.
The background to this allocation of authority is a long history of states trying to usurp tribal sovereignty by asserting jurisdiction over Indians in the Indian country. Early attempts by the states to rule over Indians led to violence and encouraged the Founding Fathers to give the federal government all authority over Indian affairs in the Constitution.
Yet on June 29, 2022, in Oklahoma v. Castro-Huerta, the Supreme Court ruled that Oklahoma could prosecute Manuel Castro-Huerta, a non-Indian, for neglect and abuse of an Indian child on the Cherokee Reservation. By ruling that Oklahoma could prosecute non-Indians for crimes committed against Indians in the Indian country, the court empowered the states in the Indian country to do so, even if the relevant law did not expressly authorize the states to do so. does. This was a serious blow to the tribal governments across the country.
The Castro-Huerta case stemmed from Oklahoma’s prosecution and 2015 conviction of Castro-Huerta, in which her legally blind and developmentally disabled 5-year-old Cherokee stepdaughter was severely malnourished and neglected by her . While his appeal was pending, the Supreme Court ruled in McGurt v. Oklahoma in 2020, which held that the Muskogee Creek reservation in Oklahoma is an Indian country. That decision meant that federal criminal laws applied to much of eastern Oklahoma as an Indian country and enabled the federal government – rather than the state of Oklahoma – to prosecute crimes committed by and against Indians there. .
Courts have since held that the lands of five additional tribes in Oklahoma—the Cherokee Nation, Choctaw Nation, Seminole Nation, Chickasaw Nation, and Quapaw Nation—also remain Indian countries. This meant that the relevant legislation, enacted in 1817 and known as the Common Crimes Act, extended federal criminal laws even further in eastern Oklahoma and enabled federal prosecution of crimes committed against Indians there.
In light of McGurt’s decision, Castro-Huerta claimed that only the federal government had the authority to prosecute him, not the state, as his crimes were committed against an Indian within an Indian country.
Prior to this case, no state had argued that states had criminal jurisdiction in the Indian country under the Common Offenses Act, other than the federal government. Yet the state of Oklahoma made just this argument in response to Castro-Huerta’s claims. It also actively opposed the implementation of McGurt’s decision and asked the Supreme Court to reverse it more than 40 times.
Two Approaches to Federal Indian Law
Conflict between state and tribal governments is nothing new; States have long tried to assert power – often violently – over sovereign tribes. In 1790, the first Congress enacted the Trade and Intercourse Act, which reaffirmed the power of the federal government over almost all aspects of Indian affairs. For crimes committed by non-Indians against non-Indians, the criminal jurisdiction in the Indian country is considered federal and tribal, with only a limited exception.
In 1832, the Supreme Court interpreted the US Constitution as giving the jurisdiction of Indian affairs exclusively to the federal government and affirmed that there was no force of state law in an Indian country without specific congressional authority.
The majority in Castro-Huerta departs from this long-established premise, concluding that the state’s jurisdiction should be considered an action of absent Congress to prevent it. The court then rejected Castro-Herta’s claim that Oklahoma did not have jurisdiction over non-Indians who had committed crimes against Indians in the Indian country.
The disagreement presented a very different point of view. Justice Neil Gorsuch wrote that the US Constitution, Congress, and the court’s own previous precedents treat tribes as separate sovereign governments. He focused on Congress, which has authorized only a few states – including Oklahoma – to exercise criminal jurisdiction in the Indian country. Gorsuch concluded by calling on Congress to correct the outcome of the decision and reinstate the notion that the states did not have authority in the Indian country, absent express Congress authority.
Congress’s support of sovereignty
Castro-Huerta is the most recent example of the growing divide between the Supreme Court and Congress over federal Indian law.
As my research shows, Congress has actively rebuilt federal Indian law over the past 50 years. Congress members introduced about 8,000 bills related to Indian affairs from 1975 to 2012. Congress enacted about 13% of them—typically twice the percentage of bills enacted by Congress.
Congress has supported tribal sovereignty through legislation that promoted tribal legal systems, ensured tribes operated effective child welfare systems, treated tribes like states for tax and environmental purposes, Agreements with governments to provide federal services to their communities, and reinstate Aboriginal criminals. Jurisdiction over specific offenses committed by non-Indians in an Indian country. Also, it has denied rights to the states in the absence of tribal consent in the Indian country.
The Supreme Court has repeatedly limited tribal sovereignty, often when faced with conflicting state claims to power. It has not been deferred to Congress as required by the Constitution, but has taken over the power to make laws for itself. This has resulted in confusion within federal Indian law and at the grassroots level in the Indian country.
Nowhere is this division more apparent in the context of criminal law, between the court and Congress’s approach to federal Indian law. Congress has repeatedly limited Supreme Court decisions that interfere with its framework for criminal jurisdiction in the Indian country. In doing so, it has promoted tribal jurisdiction, not state jurisdiction, over alleged criminals in the Indian country.
As the primary legislature in the United States, Congress can legislate to overturn or replace certain Supreme Court decisions. In 1991, Congress overturned the court’s decision in Duro v Reina and held that tribal governments have criminal jurisdiction over non-member Indians. More recently, in 2013 and 2022, Congress began to reverse a court ruling in Oliphant v. Suquamish Tribe by restoring tribal rights over nine crimes committed by non-Indians in the Indian country.
Castro-Huerta arose out of a dispute between a state government and the federal and tribal governments, but it refers to a larger conflict between Congress and the Supreme Court over federal Indian law. It is unlikely that the decision will even be resolved. It may be time for Congress, as Gorsuch urges, to back down. But even this does not end the struggle.