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Oklahoma v. Castro-Huerta: Resources and Webinars

August 1, 2022

 

Supreme Court Decision in Castro-Huerta

On June 29, 2022, the U.S. Supreme Court decision in Oklahoma v Castro-Huerta authorized states and the federal government to prosecute non-Indians who commit crimes against Indians in Indian country. Ignoring nearly 200 years of existing law and policy, and violating treaties, this decision expands state power while undermining the hard-fought principle that tribes, as sovereign nations, have the inherent right to govern themselves and their own territory.

Facts of the Castro-Huerta Case

Victor Castro-Huerta, a non-Native, was found guilty and sentenced by the State of Oklahoma for abusing a Native child. After he was convicted, the U.S. Supreme Court in 2020 decided McGirt v. Oklahoma, which held that much of eastern Oklahoma remains Indian country to this day. After McGirt was decided, Castro-Huerta appealed his case and argued that only the federal government had the authority to prosecute him since McGirt held that his criminal actions occurred on Cherokee Nation land. The lower courts agreed and overturned his conviction and Oklahoma brought the case to the Supreme Court in the hopes of completely overturning McGirt. The US Supreme Court held that the federal government and the state have jurisdiction to prosecute crimes by non-Indians in Indian country unless Congress says otherwise.

Impact of Castro-Huerta

The Court did not consider overturning McGirt, but focused on the question of whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country. The ruling has disrupted tribal sovereignty and jurisdiction in criminal cases. For the first time in history, every state, along with the federal government, will have concurrent jurisdiction over Indian country. For the first time in history, every state, along with the federal government, will have concurrent jurisdiction over Indian country. Unless Congress acts to preempt state jurisdiction, states can prosecute non-Natives for all crimes committed on tribal lands. The true impact of Castro-Huerta depends on how states respond to their newly granted jurisdiction. Some important considerations are the need for intergovernmental collaborations and funding for tribal law enforcement and tribal justice systems.

Public Law 83-280, a law established by Congress in 1953 that resulted in a delegation of federal authority to certain states over crimes in Indian country, demonstrated that without federal funding for the expansion of state authority on tribal lands, tribes may continue to see a failure by both the federal government and state governments to prosecute crimes by non-Indians in Indian Country. Public Law 280 has exposed a whole host of issues and challenges with state authority in Indian country. 

Additionally, there now may be situations where tribal governments, the federal government, and state governments all may have the authority to prosecute a crime committed by a non-Indian against an Indian on tribal lands. While the 1978 Oliphant v Suquamish ruling stripped tribes of any criminal jurisdiction over non-Natives on their reservations, the Reauthorization of the Violence Against Women Act (VAWA) in 2013 restored some of that authority in limited instances through Special Domestic Violence Criminal Jurisdiction (SDVCJ) and further expanded it to additional “covered crimes” earlier this year through what is now known as Special Tribal Criminal Jurisdiction (STCJ) under the 2022 Reauthorization of VAWA. Communication, collaboration and cooperation between states and tribes and the federal government are critical tools to help navigate the impacts of Castro-Huerta.

Castro-Huerta Webinars and Resources

 

Memorandum of September 2, 2022 from US, DOJ, Executive Office for United States Attorneys 

 

Hearing of September 20, 2022, House Subcommittee for Indigenous Peoples (SCIP) 

 The Subcommittee for Indigenous Peoples of the United States (SCIP) held an oversight hearing entitled “Examining Oklahoma v. Castro-Huerta: The Implications of the Supreme Court's Ruling on Tribal Sovereignty.” This hearing was streamed on YouTube . 

 

Webinar hosted on July 7, 2022 by the Arizona State University Indian Legal Program

Oklahoma v. Castro-Huerta: Rebalancing Federal-State-Tribal Power

The Arizona State University Indian Legal Program hosted a webinar “Oklahoma v. Castro-Huerta: Rebalancing Federal-State-Tribal Power” regarding the recent Supreme Court ruling.

  • Moderated by Derrick Beetso (Navajo Nation), Director, Indian Gaming and Tribal Self-Governance programs, Indian Legal Program, ASU Law
  • Stacy Leeds (Cherokee Nation), Foundation Professor of Law and Leadership, ASU Law
  • Robert Miller (Eastern Shawnee), Willard H. Pedrick Distinguished Research Scholar and Faculty Director, Rosette, LLP, American Indian Economic Development Program, ASU Law
  • Kevin Washburn (Chickasaw Nation of Oklahoma), N. William Hines Dean and Professor of Law, University of Iowa College of Law and Leader of the Biden Transition Team

Webinar hosted on July 7, 2022 by NCAI and NARF

The Castro-Huerta Decision: Understanding the Case and Discussing Next Steps

The National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF) hosted a virtual tribal leaders’ roundtable entitled, “The Castro-Huerta Decision: Understanding the Case and Discussing Next Steps.” The Supreme Court’s decision in Oklahoma v. Castro-Huerta, which held that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country, has major implications for tribal sovereignty. This webinar provides an overview of the Supreme Court decision and include comments from tribal leaders and legal experts about how the outcome will impact Tribal Nations and what steps can be taken to strengthen tribal sovereignty.

  • Moderated by Larry Wright Jr. (Ponca Tribe of Nebraska), Director of Leadership Engagement, National Congress of American Indians (NCAI)
  • Frank Ettawageshik (Little Traverse Bay Bands of Odawa Indians) (Opening Prayer), President, Association on American Indian Affairs
  • Fawn R. Sharp (Quinault), President, NCAI
  • John E. Echohawk (Pawnee), Executive Director, Native American Rights Fund (NARF)
  • Zachary C. Schauf, Partner, Jenner & Block
  • Chief Chuck Hoskin Jr. (Cherokee Nation), Chief, Cherokee Nation
  • Chief David Hill (Muscogee [Creek]), Principal Chief, Muscogee (Creek) Nation
  • Jonodev Chaudhuri (Muscogee [Creek]), Ambassador, Muscogee (Creek) Nation
  • Elizabeth Hidalgo Reese (Pueblo of Nambe), Assistant Professor of Law, Stanford University
  • Melody McCoy (Cherokee Nation), Staff Attorney, NARF

Webinar hosted on July 14, 2022 by UCLA Native Nations Law and Policy Center 

Castro-Huerta v. Oklahoma and the Attack on Tribal Sovereignty: Where Do We Go From Here?

UCLA School of Law's Native Nations Law and Policy Center  hosted a webinar that included a discussion with the nation’s leading legal practitioners and scholars about how this case came to be and what we might expect in the wake of its holding. In Castro-Huerta, the Supreme Court upended two hundred years of settled law regarding criminal jurisdiction in Indian country. In an opinion stemming from the McGirt case, the astonishing decision asserted that there is a presumption of state criminal jurisdiction that must be preempted in Indian country, undermining tribal sovereignty and threatening safety and security for Indian people.

  • Moderated by Angela R. Riley (Citizen Potawatomi Nation), Director, Native Nations Law and Policy Center
  • Riyaz Kanji, Founding Member and Directing Attorney, Kanji & Katzen
  • Carole E. Goldberg, Jonathan D. Varat Distinguished Professor of Law Emerita, UCLA School of Law
  • Sara Hill, Attorney General, Cherokee Nation

Webinar hosted on August 25, 2022 by George Mason University, Antonin Scalia Law School

The Future of Tribal Sovereignty: Implications of Oklahoma v. Castro-Huerta

George Mason University, Antonin Scalia Law School hosted this webinar on how the Castro-Huerta unsettled over 200 years of federal law and practice, with as yet unknown implications.  The webinar featured leading experts in the field of Indian law  exploring Castro-Huerta’s implications for tribal sovereignty.

  • Moderated by Adam Crepelle, Assistant Professor of Law and Director of the LEC Tribal Law & Economics Program, Antonin Scalia Law School at George Mason University
  • Thomas F. Gede, Principal, Morgan Lewis Consulting and Of Counsel, Morgan, Lewis and Bockius LLP
  • Brendan V. Johnson, Partner, Robins Kaplan LLP and Former US Attorney for the District of South Dakota
  • Leonard R. Powell, Senior Associate, Jenner & Block

Additional Articles and Resources

Castro-Huerta decision ‘flips federal Indian law on its head’ - ICT (indiancountrytoday.com) by Mary Kathryn Nagle, Cherokee

Scholars’ Circle – SCOTUS on the path to take back tribal sovereignty set in law by the US Congress – July 24, 2022

L.A. Times Op/Ed on Castro-Huerta by Greg Ablavsky and Liz Reese

High Country News on SCOTUS and Indian Law Post-Castro-Huerta Featuring Leeds, Reese, Fletcher, Berger

In 5-4 ruling, court dramatically expands the power of states to prosecute crimes on reservations by Matthew Fletcher

Related Resources

Information about the economic impacts of McGirt: Economic evidence on the impact of McGirt v. Oklahoma

 

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