Tribal Reaction to Oklahoma v. Castro, 597 U.S. ______ (2022

No. 21–429. Argued April 27, 2022—Decided June 29, 2022

Castro-Huerta was convicted of child neglect in Oklahoma state court. The Supreme Court subsequently held that the Creek Nation’s eastern Oklahoma reservation was never properly disestablished and remained “Indian country.” Castro-Huerta then argued that the federal government had exclusive jurisdiction to prosecute him (a non-Indian) for a crime committed against his stepdaughter (Cherokee Indian) in Tulsa (Indian country). The Oklahoma Court of Criminal Appeals vacated his conviction.

The Supreme Court reversed. The federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. States have jurisdiction to prosecute crimes committed in Indian country unless preempted either under ordinary preemption principles, or when the exercise of state jurisdiction would unlawfully infringe on tribal self-government. Neither preempts state jurisdiction in this case.

Reaction from the Indian tribal communities has been swift. On the same day the decision was released, The National Congress of American Indians (NCAI) and the Native American Rights Fund NAIF) issued a joint statement stating that the Castro-Huerta holding “strikes against tribal sovereignty  and jurisdiction to protect tribal citizens. The consequences of the decision for Tribal Nations, the Federal government, and the state will take time to unravel.” The president of the NCAI. Fawn Sharp wrote  “… make no mistake today {June 29} the Supreme Court has dealt a massive blow to tribal sovereignty and Congress must, again respond” and John Echohawk, Executive Director of NAIF agreed, writing “…unauthorized and unconsented intrusions on tribal sovereignty are antithetical to tribal sovereignty and tribal treaty rights.” As expected, there have been other reactions to the Oklahoma v. Castro holding, but the primary focus of this posting is on official tribal reactions.

In his dissent to the majority holding, Justice Gorsuch seems more sympathetic to the official tribal positions mentioned above, writing: “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 by state authorities. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands….Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s court accedes to another.”


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