In one of its last decisions of the 2021-22 term, the U.S. Supreme Court threw out almost two hundred years of American jurisprudence to side with the state of Oklahoma, according to a professor of Indian Law at the University of Oklahoma.
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Dick Pryor: This is Capitol Insider - taking you inside politics, policy and government in Oklahoma. I'm Dick Pryor with Quorum Call publisher Shawn Ashley. Our guest is Professor Taiawagi Helton, who teaches federal Indian law, environmental law and property law at the University of Oklahoma College of Law. Professor Helton, we're glad you could join us.
Taiawagi Helton: It's a delight to be here. Thank you.
Shawn Ashley: Professor, in a 5 to 4 decision, the U.S. Supreme Court found in favor of Oklahoma in the case of Oklahoma v. Castro-Huerta, which determined that Oklahoma has concurrent jurisdiction with tribal nations in prosecuting non-Indians who commit criminal offenses against Indians on reservation lands. Do you agree with the majority's rationale in this decision?
Taiawagi Helton: I do not. I think perhaps the best description of the majority's rationale is provided by Justice Gorsuch in his dissent, suggesting that it would be impossible to come up with a more unoriginalist and more ahistorical statement of what federal Indian law is.
Dick Pryor: To be sure, we'll be talking more about Justice Gorsuch’s dissent in a minute but Governor Kevin Stitt has argued the McGirt case may have ramifications beyond criminal jurisdictions. Other legal challenges have been filed relating to property and income taxes. Does the Castro-Huerta decision shed any light on how those cases might be decided?
Taiawagi Helton: It does not yet. Its meaning will really depend on what happens in future cases. To understand Castro-Huerta, I think you first need to go back a couple of years to a June 2020 case, McGirt v. Oklahoma. As some of your listeners might know, that's a case in which Justice Gorsuch wrote a 5-4 majority opinion saying that the Muscogee (Creek) Nation had not been disestablished, and therefore the special rules of federal Indian law apply. Those special rules said that for interracial crimes, the federal government had exclusive jurisdiction or concurrent with the tribe, and then the tribe had jurisdiction over Indian-on-Indian crimes, except for major crimes for which the federal government had taken jurisdiction. States only had jurisdiction over non-Indian on non-Indian crime under the set up. Under Oklahoma v. Castro-Huerta, the Supreme Court threw out almost two centuries of jurisprudence in order to come to the conclusion that federal jurisdiction is not exclusive of the states here, but rather the state has concurrent jurisdiction with the feds.
Shawn Ashley: You referred to Gorsuch’s majority opinion in McGirt and his dissent in Castro-Huerta, which read pretty much as a treatise on Native American law and history. What is your read on Gorsuch’s dissent for the minority?
Taiawagi Helton: It's frankly the right answer. Gorsuch’s dissent is anchored in the foundational principles of federal Indian law and two centuries of jurisprudence. And what he says is that we start with the proposition that only tribal sovereigns have jurisdiction. And it was a remarkable intrusion when the federal government decided not only to regulate affairs with Indians, but at least in the criminal context, to regulate the affairs of Indians. That is Indian versus Indian crime if it is a major crime. So, it was a major intrusion. But after the collapse of the Articles of Confederation, one of the first acts of the first Congress was to implement the exclusion of the states from trade and intercourse with tribal nations by implementing the Trade and (Non)Intercourse Act. So, the most originalist position is stated in Worcester v. Georgia, which says that the laws of the state of Georgia can have no effect within the Cherokee Nation because it is a discrete political community with its own defined boundaries. I think it's worth noting there in Worcester the court said there were two reasons why state law could have no effect: Inherent tribal sovereignty preempted the state, as did federal supremacy. The Supreme Court did away with federal supremacy here, and they make virtually no mention whatsoever of inherent tribal sovereignty.
Dick Pryor: Justice Gorsuch clearly has deep understanding of Native American law and the history behind it. And it was illustrated in his dissent. Why do you think Justice Gorsuch's position did not prevail?
Taiawagi Helton: This is an unsatisfying answer for legal scholars, but this is what I think is the correct answer. If you look at the 5-4 shift to 4-5 between McGirt and Castro-Huerta, the difference is that Justice Ginsburg was replaced by Justice Coney Barrett. So, Ginsburg voted with Gorsuch in McGirt and she was replaced by Barrett, who voted with Kavanaugh in this case. And so, it is the change of a single justice that flips this decision in favor of the state abandoning foundational principles of federal Indian law and allowing for the state intrusion in within the area. I should note this case has no effect on tribal jurisdiction, and it's only stated in terms of criminal jurisdiction. But I understand why the governor is suggesting that it can be used as a wedge to allow for state intrusions in other areas like civil jurisdiction or taxes, because the court did so much damage to the underlying legal doctrine that it now created incoherence and that incoherence can be exploited in order to create more state jurisdiction in Indian Country, despite it being ahistorical and as unoriginalist as one can get.
I am particularly struck by the state spending $10 million in a PR campaign to convince the world that McGirt led to lawlessness in the Indian Territory. And I just think that's so striking because it was these false claims of lawlessness that led the federal courts to take over the Indian Territory in the late 1800s. Remarkably, the hanging judge, Justice Isaac Parker, who inspired the Clint Eastwood film Hang ‘Em High, he said the lawlessness that he saw in the Indian Territory was the result of non-Indians entering the territory and committing crimes. But that false claim of lawlessness justified federal intrusion in the Indian Territory, it justified incorporating the Indian Territory into the state of Oklahoma, it justified the passage of the Indian Civil Rights Act, and now it's being used to justify a further intrusion of state law into Indian territory.
Shawn Ashley: Gorsuch noted that Oklahoma could have sought tribal consent or petitioned Congress to adopt a state specific statute authorizing jurisdiction. But sort of as you mentioned, the state of Oklahoma did neither. In future cases, do you think Oklahoma would need to follow established legal avenues for resolving tribal issues or use this case to justify taking another approach?
Taiawagi Helton: Well, I suspect that the state of Oklahoma desiring to expand its authority over tribal persons and tribal property, my guess is that they will use every tool in their toolbox. Frankly, they ought to look more toward precedent but the fact that they have been inventing new legal theories in the hopes that the court will adopt them does not bode well. Having said that, I think Justice Coney Barrett is educable on the subject of Indian law. In two other Indian law cases she voted more consistent with foundational principles, although both of those cases favored additional prosecutions. This decision appears to favor additional prosecutions as well by allowing the state to prosecute as well as the feds. So it may be that she was favoring additional policing and prosecutions in Indian Country but once she learns more about this work during her time on the court, perhaps she would be one who would be more respectful of the longstanding principles of federal Indian law articulated in the Gorsuch dissent.
Dick Pryor: Professor Helton, what do you think is the ultimate significance of the Castro- Huerta case on tribal sovereignty?
Taiawagi Helton: Well, again, we won't know that until the court tells us what this case means by applying it in future cases. But I have some fear that if I'm wrong about Justice Coney Barrett being educable on this subject, then it may mean that the new majority is willing to simply fashion new rules out of whole cloth and disregard precedent in order to come to results with which they're comfortable. And, you know, I'm reminded of a 1978 case, Oliphant (Oliphant v. Suquamish Indian Tribe), where after a century and a half of the court saying only Congress can take away tribal powers, all of a sudden the court said, although Congress hasn't taken it away, we will declare that power gone in the criminal context. And I fear that this could be some sort of Oliphant 2.0, where the court once again turns Indian law on its head, abandons stare decisis and foundational principles, and then starts to expand state power into Indian territory despite both federal supremacy and inherit tribal sovereignty. We won't know, though, until we see what the state does and what the courts do in response to that.
Dick Pryor: Professor Taiawagi Helton from the University of Oklahoma College of Law, thank you for your insights.
Taiawagi Helton: Wonderful to be with you. Thank you both, Dick and Shawn.
Dick Pryor: And that's Capitol Insider. If you have questions, email them to news@kgou.org or contact us on Twitter @kgounews and @QuorumCallShawn. Until next time, with Shawn Ashley, I'm Dick Pryor.
