Fallout from SCOTUS decision on tribal legal authority may not be felt so keenly in NM

Government-to-government relationships could soften the impact of Oklahoma v. Castro-Huerta ruling

By: - July 13, 2022 5:05 am

A view of the front portico of the United States Supreme Court building in Washington, D.C. (Getty Images)

Tribal courts in New Mexico could be shielded from ramifications of a recent Supreme Court decision due to established law codified by Congress and a friendlier relationship with the state government.

The Supreme Court ruling in Oklahoma v. Castro-Huerta is causing some concern for Native American legal experts because the court grants greater power by state governments to prosecute criminal cases of non-Native Americans for crimes that occur on tribal lands. 

This could have sweeping implications on tribal nations across the country running their own courts and criminal legal systems. Immediately, Huerta will have the most direct impact on sovereign nations in Oklahoma, as the case was a direct appeal to the recent SCOTUS decision McGirt v. Oklahoma, which established tribal court jurisdiction over wide swaths of the state, strengthening those courts. 

In 2015, Victor Manuel Castro was convicted of child neglect in Oklahoma. Castro is non-Native and his daughter is an enrolled citizen of the Cherokee Nation. Castro’s attorneys appealed the decision arguing that the state did not have jurisdiction to convict him because the crimes occurred within tribal lands. The state of Oklahoma, seeking to reverse the McGirt case, petitioned the Supreme Court to review more than 40 cases it lost on appeal. The one that got through to the high court, Castro-Huerta, established the state’s authority on crimes involving non-Natives that happen on tribal land.

The SCOTUS ruling upheld the state’s conviction, arguing that state police and prosecutors share concurrent criminal jurisdiction with the federal government to prosecute crimes committed by non-Natives within tribal communities.

In New Mexico, the tribal governments could be insulated from the authority encroaching on tribal criminal prosecutions due to congressional amendments made in 2005 to the Indian Public Land Act that specifies jurisdictional powers between Pueblos, federal and state governments. 

On top of that, the state’s government-to-government relationships could also benefit tribal interests, said University of New Mexico Law Professor John Lavelle. 

“New Mexico is right up at the top of the most respectful states in regards to the state’s relationship with the tribes and respecting the federal-tribal relationship,” he said.

LaVelle (Santee Sioux Nation) said the Navajo Nation also has legal protections in the state due to the Navajo Treaty of 1868, which allowed Navajos to live on ancestral lands and run their own government, including a justice department. 

He said Apache bands, too, have court precedent for protections.

The protections Lavelle pointed out for Pueblos were passed by Congress in 2005 and made three things clear that were not present in the Huerta case. Pueblos can prosecute Native Americans accused of committing crimes within a Pueblo community. The federal government has jurisdiction over crimes committed by non-Native American people for crimes committed on tribal lands. And the state can take cases the feds cannot prosecute under these same circumstances. 

Because this was passed by Congress, LaVelle said there should be no conflict between the tribes and New Mexico’s legal system over how these cases will be handled going forward — an issue he said was highlighted in the opinions on the Huerta ruling. 

Because Oklahoma tribes do not have jurisdictional issues sorted by Congress in the same way as Pueblos in New Mexico, it ultimately came down to the Supreme Court, LaVelle said. Still, depending on the tribe and the state, criminal jurisdiction could be a “a case-by-case determination.”

Legal experts on tribal law spoke on the issues the Huerta case could present during a seminar hosted by Arizona State University. 

Stacy Leeds, a law professor at ASU, said it would be unlikely for Congress to adopt a similar amendment to the one that was put in place for the Pueblos in New Mexico. 

“I think it’s unrealistic that you’re going to go to Congress and get a Castro-Huerta complete fix,” she said. “I don’t think that’s realistic. I don’t think all tribes would necessarily support that.”

Leeds (Cherokee Nation) said tribal courts across the country might not see much change to their caseload if state governments try to take on their cases. “Maybe their dockets would be reduced 10% to 20% in size, but the core of their mission, what they do every single day, doesn’t change a bit.”

“The only place where I see now that there’s going to be a big overlap that is worrisome to me is in the domestic and family violence cases,” Leeds said. 

Kevin Washburn, a dean and law professor at the University of Iowa, said states do have an obligation to consult with tribes on the cases they might prosecute but it’s more or less just a rule on paper.

“The state now has the power, but it does not necessarily have the same sense of responsibility to tribes and Indian people,” said Washburn (Chickasaw Nation). “Remember that states don’t have a trust responsibility.”

The ‘trust responsibility’ is a legal framework for federal Indian Law where the Supreme Court established in 1983 “the undisputed existence of a general trust relationship between the United States and Indian people.”

That and five bucks will get you a cup of coffee at Starbucks, Washburn joked. 

Huerta is not the end of tribal law. It’s another step in the long process that Native Americans undertook to build restorative justice. The SCOTUS opinion is a volley back to tribes in the slow mechanism of forming equality through the courts. 

And as we’ve seen from the 2022 SCOTUS rulings that put more power in the hands of the state governments on topics like gun control and reproductive rights, tribes will have to do even more work with states that now have greater authority to prosecute crimes that occur in tribal communities.

LaVelle points out the high court has had a role in framing Native American rights since the early 1830s when Justice John Marshall carved out the court’s role in establishing a relationship between the feds and tribes.

“That’s one of the bedrock principles of the field, and it has endured all these years for (nearly) 200 years,” LaVelle said. “The basic bedrock principle is that Indians and Indian Country are basically free from or insulated from at least state authority. Now we have this Castro-Huerta decision which turns that on its head. And that’s what’s most concerning.”

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Shaun Griswold
Shaun Griswold

Shaun Griswold is a journalist in Albuquerque. He is a citizen of the Pueblo of Laguna, and his ancestry also includes Jemez and Zuni on the maternal side of his family. He grew up in Albuquerque and Gallup. He brings a decade of print and broadcast news experience. Most recently he covered Indigenous affairs with New Mexico In Depth. Shaun reports on issues important to Native Americans in urban and tribal communities throughout the state, including education and child welfare.

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