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WA indigenous sovereignty in question after SCOTUS ruling on state-tribal domain

Jul 5, 2022, 10:34 AM
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Lummi Nation Restoration Specialist Chris Phair (blue shirt), U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) Resource Conservationist Jarad Hamman (tan shirt) and NRCS Tribal Liaison Robin Slate (gray shirt) (USDA via Flickr Creative Commons)
(USDA via Flickr Creative Commons)

In a ruling that could have cascading effects on the indigenous tribes of Washington state, the U.S. Supreme Court has held that the federal government and the states have select, concurrent jurisdiction over Indian country, with dissenters arguing that hundreds of years of legal precedent governing the rule of law on tribal lands have been upended.

In 2015, Victor Manuel Castro-Huerta was charged by the State of Oklahoma with child neglect of his Cherokee Indian step-daughter while living in Tulsa. Following a change in federal classification of eastern Oklahoma’s Creek Nation reservation, Castro-Huerta appealed, arguing that only the federal government had the authority to prosecute his case.

In a 5-4 ruling on Oklahoma v. Castro-Huerta, majority opinion author Justice Brett Kavanaugh held that a state can prosecute crimes committed by non-Indians against Indians on reservations, writing “as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.”

Authoring the minority opinion, Justice Neil Gorsuch wrote, “Native American Tribes retain their sovereignty unless and until Congress ordains otherwise, referencing legal precedent in which the Supreme Court rejected the state of Georgia and former President Andrew Jackson’s attempt to “flout” state authority over tribal lands as “a show of force.”

“Where this Court once stood firm, today it wilts. After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference from state authorities. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands … Now, the State seeks to claim for itself [that] power.”

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As for how the ruling will affect Washington state’s tribes, the ruling is colored by Public Law 280 which grants the state select authority to prosecute crimes committed on tribal land provided the tribe in question has granted consent. Under Public Law 280, the state’s authority was explicitly delineated, whereas now the state and the federal government have concurrent jurisdiction over tribal land.

The local impact of Castro-Huerta will be contingent on how the law is implemented in Washington state.

“When we all went to bed on Tuesday, the law was one thing. And when we woke up on Wednesday, it was new, and it’s changed the status quo that has been in place in Indian country for hundreds of years,” Anthony Broadman, a partner with Indigenous rights law firm Galanda Broadman, told MyNorthwest.

“Nationwide, this is a significant change for tribal sovereignty, because we’ve essentially invited states into another area of criminal jurisdiction.”

“Federal Indian law looks at sovereignty as the idea that tribal people can make their own laws and be ruled by their own laws. This decision allows for state encroachment in an area that previously the federal government had filled. Whenever you invite states into areas that they had not previously occupied, it diminishes tribal sovereignty.”

Broadman claims that no current cases in Washington will be immediately impacted by the ruling because the Supreme Court’s decision represents such an abrupt heel-turn in indigenous law.

“There isn’t a case out there where a state had claimed concurrent jurisdiction … because until Wednesday, they simply didn’t have concurrent jurisdiction,” Broadman continued.

“The way that this case will be tested in Washington would be for … the state to assert concurrent jurisdiction with the federal government over a particular crime. And if it moves forward with that prosecution, that would be the implementation of Castro … But the reason why I don’t think we’re there yet is because of Wednesday’s large change.”

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WA indigenous sovereignty in question after SCOTUS ruling on state-tribal domain