Tribal law experts fear the effects of the Supreme Court on jurisdiction and sovereignty

The U.S. Supreme Court handed down key decisions with implications for Indian Country in the final days of its term and is poised to take up other potentially far-reaching issues in the fall.

Two of the three cases were decided in favor of tribes, but key ruling may signal some substantial changes to tribal sovereignty.

And a case that does not directly affect tribal communities could show how the high court, dominated by conservative justices, may deliberate on at least one issue with even greater impact to Indian Country.

Initial impressions from Indian law experts and working attorneys suggest that tribes are concerned that once-reliable rules of judicial deliberations and decision-making may no longer apply, leaving them uneasy as to what comes next.

"They seem to be wanting to remake the country in an image that many Indian law practitioners won't recognize," said Anthony Broadman, an attorney with the Seattle-based law firm Galanda Broadman, who worries that the court has become ideological and activist in its conservatism. 

"You’re liable to see disruptive decisions in Indian law cases moving forward."

Immigration: Here's what Arizona's congressional delegation is saying about the Supreme Court's 'Remain in Mexico' ruling

Criminal jurisdiction on tribal lands

In one of the cases, Merle Denezpi, a Navajo Nation citizen, pled guilty to assault and battery against a member of the Ute Mountain Ute Tribe in her Towoac, Utah, home. The community is part of the Ute Mountain reservation.

The case, Denezpi vs. United States, was adjudicated in the Court of Indian Offenses, which tries cases on behalf of tribes that have not yet established their own court system. Denezpi served 120 days in jail for that offense.

Because Denezpi also raped the woman and held her hostage within her home, the case was handed over to a federal court in Colorado, where he was convicted of aggravated sexual assault and sentenced to 30 years in federal prison. Under the Major Crimes Act, the federal government also has jurisdiction over crimes committed on Indian reservations when the suspect and victim are both Native. 

Denezpi appealed the indictment and later, the district court's decision, alleging double jeopardy. The high court ruled that both the tribe, through the Court of Indian Offenses, and the federal courts prosecuted Denezpi for his crimes, which is allowed because they are two separate jurisdictions.

"'Denezpi' wasn’t a surprise since many believed that was already the law," Broadman said.

The court also settled a gaming dispute between the state of Texas and a tribe. In the case, Ysleta del Sur Pueblo vs. Texas, the high court ruled that the 4,200-member tribe of Tigua Indians, whose reservation is located near El Paso, has the right to offer electronic bingo in its entertainment center. The state has fought the tribe for decades on the issue. 

Brnovich determination: Territorial-era ban on abortions in Arizona is the law of the land, not 15-week ban

'Castro-Huerta' and criminal jurisdiction

Another Supreme Court ruling may signal a change in how the high court rules on tribal rights and tribal sovereignty in future cases.

In Oklahoma vs. Castro-Huerta, the high court ruled that states have concurrent jurisdiction with the federal government over crimes committed by non-Indians against Indians in Indian Country.

Victor Manuel Castro-Huerta was convicted in a Tulsa, Oklahoma, state court of child neglect against his stepdaughter, a Cherokee, and was sentenced to 35 years in prison.

But while his conviction was under appeal, the Supreme Court issued the groundbreaking McGirt decision, which ruled that most of eastern Oklahoma was still considered reservation lands.

Castro-Huerta sued to overturn the conviction, saying that only the federal government had the authority to prosecute him now that Tulsa was considered a reservation. The state of Oklahoma asked the Supreme Court to resolve the issue as one of several attempts to narrow the scope of the McGirt case. 

States have jurisdiction over crimes committed by non-Indians against non-Indians on tribal lands, while the federal government has jurisdiction over crimes committed by Indians against other Indians in many tribal lands.

Some Indian law experts equated the Castro case to the enactment of Public Law 83-280, commonly known as P.L. 280. This 1953 law shifted criminal jurisdiction over all Indian Country crimes from the federal government to most tribes in six states and extended optional jurisdiction to 10 other states, including Arizona. 

The law did not allocate funding to states that found themselves responsible for law enforcement on tribal lands, though, which created havoc, leading to a lack of police protection and increased lawlessness in tribal communities. Subsequent legislation has softened the effects of the law, but criminal jurisdiction in Indian Country can still be confusing. 

The latest decision sent shockwaves through tribal communities, where some observers feared an uptick in crimes on tribal lands.

The National Indigenous Women’s Resource Center said it was “extremely concerned” with the decision.

“The Supreme Court’s decision to simply grant the State of Oklahoma criminal jurisdiction over crimes committed against Native victims on tribal lands fails to take into consideration the rights and voices of Native victims, as expressed in the amicus brief that we filed with the Court,” said the center's executive director, Lucy Simpson, a Diné.

In the instances where Congress gave states criminal jurisdiction over crimes against Native victims on tribal lands, she said, "we have seen a decrease in prosecutions of crimes committed against Native victims and an increase in violence against Native victims. This decision will undoubtedly result in an increase in violent crimes being committed in Indian country.”

The resource center’s statement noted that the opinion, written by Associate Justice Brett Kavanaugh, said that the state of Oklahoma estimated it would have to transfer prosecutorial authority for more than 18,000 cases per year to federal and tribal governments.

That was disputed by tribes, and two journalists wrote in The Atlantic that they did not find evidence to support the state's numbers. 

A report released by the U.S. Office of Justice Programs in 2016 found that only 35% of Native women experienced violence at the hands of another Native person.

"Castro-Huerta essentially extends much of P.L. 280 beyond the handful of states where it applied to cases with non-Indian defendants and tribal victims," said Broadman. "The only clear thing we can say across the board is that, if the state did not have concurrent jurisdiction with the federal government before of non-Indian on Indian crimes, they do now."

Lauren van Schilfgaarde, a member of the Cochiti Pueblo and the director of the Tribal Legal Development Clinic at the University of California, Los Angeles School of Law, said the cases flipped precedents that tribe are separate sovereigns.

Kavanaugh's opinion explicitly overturns Worchester v. Georgia, one of the Supreme Court's earliest decisions that form the foundation of federal Indian law. And by using a taxation case concerning the White Mountain Apache Tribe, “It’s a really demoralizing time,” she said.

Arizona impact: Supreme Court expanded tribal land. What does that mean for Arizona?

Long-term effects are unclear

Broadman was concerned with the court's direction.

 "It's clear that Kavanaugh and four of his colleagues believe that tribal jurisdictions are simply another category of state territory," he said. "That's new and concerning."

The decision may afford greater protections to P.L. 280 tribes while reducing protections in other tribes, van Schilfgaarde said. "Some tribes that have good working relationships with county or local governments may fare better than those that don't." 

Alfred Lopez Urbina, attorney general of the Pascua Yaqui Tribe, said tribes across the U.S. are reviewing the case.

"On first review, this ruling may not substantially impact the criminal jurisdiction of the Pascua Yaqui Tribe and it may be case- or tribe-specific," he said, "but the implications are serious and the full impact remains to be seen."

When the tribe was recognized by Congress in 1978, it was subject to P.L.280 for both civil and criminal jurisdiction, Urbina said. In 1985, Pascua Yaqui successfully petitioned the state to revert to tribal and federal jurisdiction for law enforcement.

The move has proven beneficial for the 19,000-member tribe, which has communities near Tucson and Phoenix. Pascua Yaqui developed partnerships with federal agencies and courts to prosecute crimes. It's also one of a handful of tribes that is exercising jurisdiction over domestic violence crimes through the Violence Against Women Act. 

"We also work well with Pima County, Pima County Courts, and the Pima County Detention Center," he said.

Urbina said the more than 100 cases perpetrated by non-Indian offenders in the community were not being prosecuted by the federal or state governments.

Robert J. Miller, a law professor at the Indian Legal Program at Arizona State University's Sandra Day O'Connor College of Law, said the decision doesn't actually take away tribal sovereignty.

The Castro case expands state criminal jurisdiction across the country and will have a big effect on law enforcement on the reservations, said Miller, an enrolled citizen of the Eastern Shawnee Tribe.

Still, "there's a lot of reservation communities who say there's not been enough law and order in reservation lands so maybe this could be a good thing."

Miller said the federal government is criticized often for not fully enforcing its jurisdiction on the reservations. U.S. attorneys have declined to prosecute up to 70% of crime cases on reservations. 

"If jurisdiction was concurrent and is concurrent going forward, what is the responsibility of each sovereign?" asked Urbina, the tribal attorney general. "Which sovereign is responsible for cases involving missing and murdered Indigenous women, girls and persons? How do sovereigns best partner to close jurisdictional gaps and work together to address crime that does not care about borders or who has jurisdiction?"

Arizona is considering what it may do in the wake of the Castro-Huerta decision.

"The Arizona Attorney General’s Office was not involved in this case, but we are carefully reviewing the 70-page opinion that was just released," said Brittni Thompson, spokesperson for the agency.

Sensitive issue: Indigenous law experts say it's wrong to expect tribes to offer 'safe harbor' abortion services

Indian Child Welfare Act may be on the chopping block

Another case with no direct effect on Indian Country is worrying many Indian law experts and attorneys.

The Dobbs decision overturning Roe vs. Wade and ending the federal right to abortion could signal the Roberts Court's willingness to ignore legal precedent, experts say, and may indicate how the high court will rule in future Indian law cases.

In the session that begins in October, the court will deliberate the fate of the Indian Child Welfare Act. This 44-year-old law was enacted by Congress to address the disproportionate removal of Native children from their homes to be handed off to non-Indian families.

The Montana Department of Health and Human Services said that prior to the passage of the law, known commonly as ICWA, about 75 to 80% of all families living on reservations lost at least one child to the foster care system.

The National Indian Child Welfare Association said that nationally, up to 35% of all Native children had been removed from their homes with 85% of those children being sent to non-Indian homes before ICWA became law. 

The current case, Brackeen vs. Haaland, will ask the Supreme Court to declare at least some portions of the law unconstitutional. 

Broadman said the Dobbs case shows that the Court has but a fleeting interest in honoring legal precedents.

"There seems to be an ideological goal in mind, a reshaping of how tribes fit into the federalist system of government in America," he said. 

He's also concerned about what may happen if the high court decides to completely dispose of ICWA.

"I’m increasingly pessimistic about the outcome in that case," said Broadman. 

"I like to think that the Court's jurisprudence is a pendulum in the middle, but it sure seems to have swung close to its anti-tribal extreme," he said. "And it's disheartening that we could go from cases like McGirt, where the Court honored the treaties and read them correctly, to a case authored by Justice Kavanaugh, where Justice Gorsuch is in the minority and the court is on the wrong side of history and tribal sovereignty." 

Miller said he's worried about six conservative justices who see the world in a whole different way. The Supreme Court has upheld ICWA in the past, but, he said, "the justices like we have believe in limited government and want the states to have all the power."

Arizona's two senators, both Democrats, weighed in on the case. Sen. Mark Kelly "has always been clear about his support and respect for the sovereignty of tribal nations and governments," said spokesperson Marisol Samayoa. "He maintains regular contact with tribal leaders in Arizona and will continue to hear from them about how this decision and other policies could impact the right of tribes to pursue self-determination and self-governance.”

Sen. Kyrsten Sinema signed on to an amicus brief supporting the constitutionality of the Indian Child Welfare Act when the case was being appealed in the 5th U.S. Circuit Court of Appeals. 

“Senator Sinema remains committed to working with tribal communities across Arizona and her colleagues in the Senate to advance lasting solutions ensuring tribal sovereignty and protecting Arizona tribal communities," a spokesperson for Sinema said in a statement.

As Indian Country continues to digest this and other decisions, the Indian Legal Program at ASU's Sandra Day O'Connor College of Law will hold a free webinar on July 7 to discuss further implications of the Castro-Huerta decision. 

Debra Krol reports on Indigenous communities at the confluence of climate, culture and commerce in Arizona and the Intermountain West. Reach Krol at debra.krol@azcentral.com. Follow her on Twitter at @debkrol. 

Coverage of Indigenous issues at the intersection of climate, culture and commerce is supported by the Catena Foundation.

Support local journalism. Subscribe to azcentral.com today.