Tribal law upended after rulings, experts say
Three rulings in three years from the U.S. Supreme Court have resulted in confusion over tribal sovereignty on Native American lands.
That was the consensus of four experts who discussed the issue at a September 21 webinar sponsored by the American Bar Association Judicial Division, “Impaired Driving in a Shifting Landscape: New Realities in Indian Country After McGirt, Cooley and Castro-Huerta.”
“Over the last three terms, the Supreme Court upended long-held notions about the nature of Indian Country, the lands of the federally recognized Indian tribes, and about the ability to exercise police power and criminal jurisdiction over them,” said moderator J. Matthew Martin, a former judge of the Cherokee Court and an ABA tribal courts fellow.
“Governments – tribal, federal and state – as well as practitioners, scrambled to decode these decisions within the broad context of federal Indian law,” Martin said. “Some states sought to overturn one of the decisions. People used the word chaos” to describe the resulting situation.
Two cases upheld the sovereignty of Native American tribes over their tribal lands. Native Americans saw the third decision as a setback to that authority.
In the first case, McGirt v. Oklahoma in 2020, the Supreme Court held that land reserved for the Creek Nation since the 19th century remains “Indian country,” where Native Americans are sovereign. Therefore, the court ruled, the state cannot prosecute a tribe member for crimes on tribal land.
In the second case, U.S. v. Cooley in 2021, the court ruled that a tribal police officer could temporarily detain and search non-Indian people traveling on public roads through a reservation for potential state or federal violations.
But in the third case, Oklahoma v. Castro-Huerta in June 2022, the court ruled that the federal government and state government have concurrent jurisdiction to prosecute crimes committed by non-Native Americans against Native Americans on tribal land.
The result of these cases, panelists said, is confusion. “Indian law is famously characterized as a maze, a mess,” said panelist Lauren van Schilfgaarde, a research fellow at the UCLA School of Law. “In part, Indian law is very complex because it is multiple policies that have been piled on top of each other over the course of the last two centuries.”
She called the Castro-Huerta decision “a major problem” for Native American sovereignty on tribal lands. “Hopefully, it’s an outlier,” van Schilfgaarde said. “I fear that it’s not.”
Another panelist, Judge Mary Jane Knisely of Montana’s 13th Judicial District Court, said state and federal courts cannot handle the volume of new cases that will come to them as a result of the Castro-Huerta ruling. She specifically cited cases of domestic violence involving attacks by non-Native Americans against tribe members on tribal land. “The courts are absolutely not equipped to do that,” she said.
Sara E. Hill, attorney general of the Cherokee Nation, accused some Oklahoma politicians of scaring the public by claiming that crime will run rampant if Native American tribes are given full sovereignty to police and prosecute crimes on their lands.
“The pearl clutching about public safety needs to end because this isn't about public safety,” Hill said. “How is public safety served by tribes and states spending their resources fighting each other in court, when they could instead be spending their resources cooperatively and collaboratively?”
ABA mobilizes to help survivors of hurricanes Ian and Fiona
The American Bar Association Young Lawyers Division Disaster Legal Services Program, in partnership with the Federal Emergency Management Agency (FEMA) and local legal aid offices, is providing legal assistance to survivors of several recent natural disasters, including hurricanes Ian in Florida and Fiona in Puerto Rico.
Hotlines are available to connect survivors who cannot afford an attorney to free legal services in qualifying areas. Individuals may get help with such legal issues as:
• FEMA and SBA financial benefits
• Home repair contracts and property insurance claims
• Re-doing wills and other important legal documents destroyed or lost in the disaster
• Price gouging, scams or identity theft
• Landlord or tenant problems, or threats of foreclosure
• Disability-related access to federal, state and local disaster programs
Since September 2007, YLD has responded to more than 238 declared disasters in 45 states and five U.S. territories.
Hurricanes, wildfires, floods and tornadoes are among the more than 300 federal major disaster declarations across the United States and territories in the past five years. The increasingly common catastrophes underscore the importance of disaster resiliency, which is the ability to prepare for, absorb, recover from and better adapt to changed circumstances.
“Legal issues inevitably arise after natural disasters,” said ABA President Deborah Enix-Ross. “The ABA’s Disaster Legal Services Program has been mobilizing lawyers for 15 years to help people quickly get the aid they need to get back on their feet. We applaud the lawyers who assist our fellow citizens recovering from a disaster.”
Legal aid and pro bono attorneys who want to access additional specialized disaster advocacy resources can join the National Disaster Legal Aid Advocacy Center (www.disasterlegalaid.org/advocates), a growing online community of advocates working on disaster response and recovery.
