Native leaders and Indigenous rights lawyers in the Puget Sound region and beyond are raising the alarm about a recent decision by the U.S. Supreme Court, saying it threatens tribal sovereignty with regard to criminal prosecutions and beyond.
Some local tribes are still digesting the June 29 ruling that deals with state power over Native lands, while others are calling it a blow to centuries of legal history and tradition.
Washington Supreme Court Justice Raquel Montoya-Lewis, the country’s first tribal member to sit on a state supreme court, described the decision as a “punch to the gut,” and all seven board members at the Tulalip Tribes of Washington signed an open letter on June 30 condemning it. Leaders from the Quinault Indian Nation and Nisqually Indian Tribe are speaking out.
“What ruling is next?” Tulalip board member Melvin Sheldon Jr. wondered in an interview last week. “What wall are they going to tear down?”
In a 5-4 decision, the court ruled that states have concurrent jurisdiction with the federal government over crimes committed by nontribal members against tribal members on tribal lands unless Congress says otherwise, inverting a longtime presumption that states lack jurisdiction.
“This continues to just chip away at our treaty rights,” said Willie Frank III, Nisqually tribal council chair. “Chipping away at that pride.”
In the specific case the court considered, Oklahoma v. Castro-Huerta, the state of Oklahoma sought jurisdiction, alongside the feds, over the prosecution of a non-Native man, Victor Manuel Castro-Huerta, for neglecting his Native stepdaughter within the Cherokee Nation.
Not only did the court’s majority side with Oklahoma, but it seemed to apply its analysis broadly across the U.S., with Justice Brett Kavanaugh writing: “As a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.”
Kavanaugh discounted the court’s landmark Worcester v. Georgia decision of 1832, which held that tribal lands were separate from the states, describing that stance as outdated. Justice Neil Gorsuch, in a dissenting opinion for the minority, wrote that Worcester v. Georgia correctly established that tribes retain their sovereignty unless and until Congress says otherwise.
“Where this court once stood firm, today it wilts,” Gorsuch wrote, pointing out that Congress could act to blunt the decision’s effects. “Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.”
Fawn Sharp, vice president of the Quinault Indian Nation and president of the National Congress of American Indians, also urged Congress to respond, blasting the ruling as an attack on “the hard-fought progress of our ancestors.”
The five justices in the majority were appointed by Republican presidents, as was Gorsuch. The three other dissenters were appointed by Democrats.
The immediate effects?
The immediate, on-the-ground effects of the decision are not yet clear.
“Nobody knows” exactly, said Eric Eberhard, a University of Washington School of Law affiliate assistant professor and expert on Native legal issues.
Under the status quo, the feds or tribes, depending on the circumstances, held jurisdiction over crimes involving Native people on tribal lands. States have jurisdiction over crimes by non-Native people against non-Native people on tribal lands. Tribes have their own courts and police.
Complicating the picture, Congress decades ago transferred federal jurisdiction on tribal lands to a number of states, with Washington taking charge of certain crimes. More recently, Washington has on some reservations transferred that jurisdiction back, with greater roles for the tribes. Meanwhile, even in instances in which the feds are responsible, they don’t always investigate.
“The jurisdictional maze in Indian country doesn’t serve anyone’s interests,” Eberhard said. “But the court took a bad situation and made it worse.”
In theory, the Castro-Huerta ruling might cause Washington officials, including county sheriffs and county prosecutors, to try to increase activity on some reservations, Eberhard said. In practice, what happens may depend on local prosecutorial discretion, with the state attorney general and U.S. attorneys setting the tone, he said.
The state may not want the extra work anyway, considering the potential costs, said Eberhard, skeptical that there will be big changes right away. Some tribes already cooperate with outside police to handle crimes.
Though county/tribal conflicts could result in muscle-flexing, “I don’t see how this ruling could suddenly give counties the resources” to expand what they do in a major way, Sharp said. More likely it will sow more jurisdictional confusion, which never helps in emergencies, she said.
Jack Fiander, an experienced tribal lawyer and a Yakama Nation member, expects the impacts to vary reservation by reservation. To the extent state officials try to do more, Native people are bound to lose out, said Fiander, citing racial disparities in the state’s legal system.
“This creates a huge amount of uncertainty,” added Dylan Hedden-Nicely, director of the Native American Law Program at the University of Idaho and a Cherokee Nation of Oklahoma member.
Hedden-Nicely said the Castro-Huerta ruling could “completely change” the landscape, obliging state officials to increasingly police Indian country.
“We’re talking about millions of acres of land,” he said.
The Nisqually Tribe wants to work with outside officials to address challenges like drugs, but a ruling that allows nontribal agencies to do whatever they please in Indian country is wrong, Frank said.
Washington Attorney General Bob Ferguson’s office is still reviewing the decision, a spokesperson said. So is the state Office of Indian Affairs, according to a spokesperson for Gov. Jay Inslee, whose administration will “remain committed to collaborating with tribal governments on public safety issues,” a spokesperson said.
What Native leaders are most worried about is that the Castro-Huerta ruling could undermine sovereignty in areas beyond the particulars of the case. The court’s new bent could touch on everything tribal governments do, from environmental regulations to elections, Eberhard said. Hedden-Nicely echoed that concern, partly because Kavanaugh’s analysis cites civil cases prominently, rather than only criminal cases.
Montoya-Lewis, a Pueblo of Isleta member who has served as a judge in tribal courts, said the decision was shaped by misapprehensions about how Native communities are governed. Fears about subsequent rulings are warranted, she said, noting that the court will soon hear a case challenging the constitutionality of the Indian Child Welfare Act, which sets standards for adoption and foster care that prioritize keeping Native children connected to their communities.
The Quinaults are involved in that case, said Sharp, who has adopted three children, describing the situation as a sort of nightmare, muddying the legal waters at a time when tribes are also trying to address a missing and murdered Indigenous people crisis and climate change.
“I have very little hope that the court will uphold the intent of Congress” with respect to the Indian Child Welfare Act, said Anthony Broadman, an Indigenous rights lawyer based in Bend, Oregon.
The justices have shown they are “willing to legislate from the bench,” the Tulalip board members wrote, asking whether the court might next rule that treaties from the 1800s are obsolete, “as so many white supremacists have alleged,” or overturn the Boldt decision of 1974, in which a federal judge reaffirmed tribal fishing rights.
“We’ve seen the beginning and don’t know where it will end,” the board members added.
The Boldt decision ushered in an era of cultural rejuvenation for the Nisqually Tribe, said Frank, whose father was a prominent campaigner for fishing rights. The Castro-Huerta ruling is a setback, he said.
“I think about my dad, all our elders who went through blood, sweat and tears to keep us who we are,” Frank said.
Despite assurances by some politicians, Washington state “has a long history” of trying to assert authority over tribes, Hedden-Nicely said, mentioning a recent dispute between the state and the Tulalips over sales tax revenue from a Tulalip shopping center.
In their open letter, the Tulalip board members pointed to upcoming local and congressional elections as the first step in pushing back against the Castro-Huerta ruling, by voting for pro-sovereignty lawmakers.
“We’re left up to our own devices,” Sheldon Jr. said. “To try to find some kind of light at the end of the tunnel.”