Tribal leaders testify before Congress about sovereignty in legal systems

A Supreme Court ruling earlier this year sows confusion in prosecutions and concerns about public safety

By: - September 21, 2022 4:00 pm

The U.S. Supreme Court in September 2022 (Photo by Jim Small / Arizona Mirror)

Sovereignty on Native American land is being attacked by the United States’ highest court, leaders from various tribal nations told members of Congress this week.

The Supreme Court’s ruling in Oklahoma v. Castro-Huerta earlier this year allows state prosecutors to take over criminal prosecutions for crimes that occur on Indigenous nations, and it’s causing confusion and concern that the decision will not only undermine tribal law but slow the wheels of justice.

“The court essentially flipped the script on state criminal jurisdiction in Indian Country,” Cherokee Nation Attorney General Sara Hill told lawmakers. “But the most troubling aspect of Castro-Huerta could be what it may portend for future cases and legislative efforts.”

During the hearing of the congressional Subcommittee for Indigenous Peoples of the United States, Hill was joined by witnesses from the Oglala Sioux, Muscogee Creek Nation, Bay Mills Indian Community and Tulalip Tribes.

Rep. Theresa Ledger-Fernandez (D-N.M.) chairs the subcommittee.

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

Assistant Secretary of the Interior Department Bryan Newland (Ojibwe) also testified and said his agency will soon host two listening sessions with tribal leaders to gather input on how they’d like to see the administration react to the ruling.

“The Castro-Huerta opinion creates uncertainty across Indian Country. State prosecutors may now accept or decline cases involving crimes committed by non-Indians against Indians in Indian Country, without getting the consent of the tribe,” Newland said at Tuesday’s hearing. “This invites further conflict, and it diminishes the ability of tribes to coordinate with federal agencies on public safety priorities within their communities.

Oklahoma v. Castro-Huerta started is a case out of the Cherokee Nation and involves a child from that community. Hill said it was an attempt to reverse an earlier Supreme Court ruling that actually affirmed the power of tribal courts while prosecuting crimes.

“The case was one of dozens the Oklahoma Attorney General brought in front of the High Court hoping for an opportunity to overturn the landmark ruling in McGirt v. Oklahoma,” Hill said.

While the ramifications of Castro-Huerta are still unknown, Hill did mention that federal efforts such as the Violence Against Women Act and McGirt are fostering a tribal court system on the Cherokee Nation that is proving more effective than the state.

She said prior to the McGirt decision in 2020, the Cherokee Nation pursued fewer than 100 criminal cases annually. In 2021, her office has now filed more than 3,700 cases and is on track to increase that workload this year.

With provisions from the Violence Against Women Act, which grants tribes the ability to prosecute people who are non-Native for crimes they are accused of committing against Native Americans, Hill said the Cherokee Nation is preparing “for another jump in our caseload.”

“Given an opportunity to flourish post-McGirt, and post Castro-Huerta I have no doubt that tribal justice systems will continue to be a source of innovation and public safety throughout our nation,” she said.

Hill said Congress needs to meet its obligations and provide adequate funding to tribes so they can meet their obligations to public safety.

Jonodev Chaudhuri, Muscogee Creek Nation ambassador, said further congressional reforms must address sentencing and jurisdictional limitations. Many tribes, due to federal law, are limited in their ability to call for hard-time penalties, including for crimes that are violent.

“If we really want to keep people safe, whether they’re Native or non-Native in Indian Country, we have to empower local decision-makers on the ground and the governments who have the greatest interest in protecting people,” Chaudhuri said. “That should appeal to both sides of the aisle.”

Teri Gobin, chairwoman of the Tulalip Tribes, said her government was forced into policies that gave the state of Washington greater authority to prosecute crimes, even those that occurred in her community. She said that the relationship, which was enacted by Congress in 1953, historically failed her people.

“The Castro-Huerta case couldn’t be more wrong with its underlying assumption that states will do a better job of protecting our children,” she said.

With decades of experience with the state having this jurisdiction on a reservation, we are here to tell you that there is great harm. It simply doesn't work.

– Teri Gobin, chairwoman of the Tulalip Tribes

Tulalip began exercising its jurisdictional muscle in 2013 when the Violence Against Women Act was first passed. She said children were found to be present in more than half of the violent cases they took on, but that the state of Washington did not prosecute a single case of those incidents when the accused was non-Native.

“Aside from the chaos and confusion that occurs when a state has jurisdiction over tribal lands, that jurisdiction is rarely exercised,” she testified. “And if the state does exercise this authority there’s often bias treatment, discrimination and an insensitivity toward the tribal victim and their families.”

Along with everyone else who spoke, Gobin said Congress must act to make clear definitions over jurisdiction and affirm the authority tribal court systems carry.

“Ultimately, the court’s decision restricts the ability of tribal nations to seek self-sufficiency and build strong governments,” she said. “And it disregards the connection between sovereignty and safety for Native children, threatening to obscure the critical work this Congress has done to restore our inherent right to protect our children.”

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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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