In a decision that stunned legal experts, the Supreme Court ruled Wednesday that state governments have the authority to prosecute certain cases on tribal lands, effectively undermining centuries of legal precedent by expanding the power of states.
The court’s ruling in Oklahoma v. Castro-Huerta is a heavy blow to the sovereignty of tribes over their land and governance, federal Indian law experts and tribal leaders said. They raised concerns that states would usurp the hard-won autonomy of tribes to prosecute crimes on their own lands in a community-based way that meets the needs of their own citizens, which they said could complicate prosecutions in domestic violence and sexual assault cases.
The experts and leaders also worry the decision is a sign the high court could further erode other areas in which federal and tribal governments have authority, such as environmental regulation and child welfare on reservations, and give more power to states.
Elizabeth Reese, an assistant professor at Stanford Law School and a citizen of the Nambé Pueblo, is among many Indigenous legal experts and attorneys who worry Wednesday’s ruling will embolden state governments to diminish the ability of tribal nations to self-govern, instead making tribal citizens rely on “institutions that are not designed to represent us and that have historically fought against us,” she said.
States have traditionally been at odds with tribal interests, from the beginning of colonization to the present, often competing for space and resources, she said.
“As a citizen of a tribal nation, I feel violated,” Reese said of the court’s ruling. “After fighting for our own independence, and then negotiating this shared situation with the federal government for so long, it’s just an erosion of our ability to be the governments that we are.”
Wednesday’s decision had been widely expected to affirm the Supreme Court’s McGirt ruling, which had backed the authority of tribal nations in eastern Oklahoma. That ruling, in 2020, found that the state did not have the authority to prosecute violent crimes by or against Native Americans that happened on those tribes’ lands, because they fell under the jurisdiction of the federal and tribal governments.
Oklahoma challenged the McGirt decision. Wednesday’s ruling did not invalidate the decision, but the Supreme Court did narrow it by finding that state authorities, not just in Oklahoma but also across the country, have authority alongside tribal and federal governments. That means federal, tribal and state governments can prosecute cases in which a non-Native person commits a crime against a Native person on tribal land.
The court’s majority opinion, written by Justice Brett Kavanaugh, found that tribal lands are part of the states they are in, and not entirely separate sovereign powers. “As a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country,” he wrote.
That overturns nearly 200 years of Supreme Court precedent recognizing the right of tribal nations to self-govern without being infringed by the states.
“Where this Court once stood firm, today it wilts,” Justice Neil Gorsuch wrote in a scathing dissent, in which he was joined by the court’s three liberals.
Gorsuch wrote the majority opinion in McGirt, in which he noted that before it forcibly relocated the Cherokee Nation via the Trail of Tears beginning in the 1830s, the federal government made a promise to uphold the tribe’s sovereign right to resist the state governments that sought to destroy it.
“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’s,” Gorsuch wrote in his dissent.
Oklahoma Gov. Kevin Stitt, a Republican, called Wednesday’s ruling “a clear victory for all four million Oklahomans, the state of Oklahoma, and the rule of law.” His statement continued: “I am heartened that the Supreme Court ruled in our favor, allowing Oklahoma to prosecute non-Natives who violate the law and protect Native victims.”
But some tribal leaders and legal experts questioned whether the decision would, in fact, benefit Indigenous victims of crimes. Since McGirt, Indigenous domestic violence victims have been able to rely on tribal courts in Oklahoma, which typically emphasize restorative justice. Some experts worry now that states will no longer feel compelled to consult with or defer to tribal justice systems in cases in which non-Natives attack tribal citizens.
“I do worry that this case is going to raise more tension between tribal officials and state officials,” said Sarah Deer, a professor of women, gender and sexuality studies at the University of Kansas and a citizen of the Muscogee Nation. “I think it’s going to create more confusion and chaos. And that always concerns me, because victims of crime are often left out of those challenging discussions and end up not understanding who has their case and who’s prosecuting it and who’s investigating it.”
The federal government has had jurisdiction over violent crimes that happen on tribal lands since a 1978 Supreme Court decision, which found tribal nations did not have the authority to prosecute suspects who are not tribal citizens. But for many years, federal prosecutors declined to pursue about half of all cases of violence against Native Americans. Predators exploited the low prosecution rate, legal experts say, turning tribal lands into targets and contributing to the epidemic of missing and murdered Indigenous women.
To address that, Congress has recently begun allowing tribal nations to prosecute some felonies, including domestic violence and sexual assault, in partnership with the Justice Department.
Several city and county police departments in Oklahoma, as well as the state’s highway patrol, already partner with tribal law enforcement in what are known as cross-deputization agreements, which allow officers to make arrests regardless of the suspects’ nationalities. After the initial arrest, authorities in such agreements then make decisions about which jurisdictions have the authority to detain and prosecute the suspects.
The McGirt decision returned jurisdiction to tribal nations in eastern and southern Oklahoma, dramatically expanding the areas where their police departments now have authority. Tribes hired more police officers, and the federal government brought in more staff members to handle an influx of thousands of cases that were appealed in state court on jurisdictional grounds.
Despite the federal government’s and tribes’ efforts, Stitt has said repeatedly that the McGirt decision has wreaked havoc on the courts by overturning cases involving Native American victims and requiring that they be retried in federal courts. He also said the decision caused confusion among law enforcement about their authority to police areas of Oklahoma now considered Indian country.
Trent Shores, the U.S. attorney for the Northern District of Oklahoma during the Trump administration and a citizen of the Choctaw Nation, agreed that the fallout of the McGirt decision raised “a lot of questions about the capacity of both federal and tribal justice systems to meet the onslaught of criminal cases that were coming through their doors.” He added that while tribes were building the capacity to meet those needs, “this decision brings a little bit of relief.”
But some legal experts said they were concerned that Wednesday’s ruling could mean that state and local authorities could be emboldened to undermine tribal sovereignty in new ways.
Wednesday’s decision removes the jurisdictional boundaries of tribal sovereignty that have kept state and local police from entering tribal lands in some cases, said Stacy Leeds, a professor of law at Arizona State University and a citizen of the Cherokee Nation. “Then presumptively they can be on the reservation, they can be making arrests, they can be doing investigations, they can be issuing subpoenas, and they can be searching houses.”
In a joint statement released by five of the tribal nations affected by the ruling, tribal leaders expressed disappointment but vowed to maintain and expand the hundreds of cross-deputization agreements they already have with state and local law enforcement agencies in Oklahoma.
“We all had to take the same oath, to protect the citizens, regardless what nation you’re from,” Muscogee Nation Chief David Hill said days before the ruling. “I’m Creek by blood, but I’m also an Oklahoman, and we have to protect everyone.”