[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
EXAMINING OKLAHOMA v. CASTRO-HUERTA: THE IMPLICATIONS OF THE SUPREME
COURT'S RULING ON TRIBAL SOVEREIGNTY
=======================================================================
OVERSIGHT HEARING
BEFORE THE
SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
Tuesday, September 20, 2022
__________
Serial No. 117-27
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
___________
U.S. GOVERNMENT PUBLISHING OFFICE
48-655 PDF WASHINGTON : 2022
COMMITTEE ON NATURAL RESOURCES
RAUL M. GRIJALVA, AZ, Chair
JESUS G. ``CHUY'' GARCIA, IL, Vice Chair
GREGORIO KILILI CAMACHO SABLAN, CNMI, Vice Chair, Insular Affairs
BRUCE WESTERMAN, AR, Ranking Member
Grace F. Napolitano, CA Louie Gohmert, TX
Jim Costa, CA Doug Lamborn, CO
Gregorio Kilili Camacho Sablan, Robert J. Wittman, VA
CNMI Tom McClintock, CA
Jared Huffman, CA Garret Graves, LA
Alan S. Lowenthal, CA Jody B. Hice, GA
Ruben Gallego, AZ Aumua Amata Coleman Radewagen, AS
Joe Neguse, CO Daniel Webster, FL
Mike Levin, CA Jenniffer Gonzalez-Colon, PR
Katie Porter, CA Russ Fulcher, ID
Teresa Leger Fernandez, NM Pete Stauber, MN
Melanie A. Stansbury, NM Thomas P. Tiffany, WI
Mary Sattler Peltola, AK Jerry L. Carl, AL
Nydia M. Velazquez, NY Matthew M. Rosendale, Sr., MT
Diana DeGette, CO Blake D. Moore, UT
Julia Brownley, CA Yvette Herrell, NM
Debbie Dingell, MI .L.auren Boebert, CO
A. Donald McEachin, VA Jay Obernolte, CA
Darren Soto, FL Cliff Bentz, OR
Michael F. Q. San Nicolas, GU Connie Conway, CA
Jesus G. ``Chuy'' Garcia, IL Vacancy
Ed Case, HI
Betty McCollum, MN
Steve Cohen, TN
Paul Tonko, NY
Rashida Tlaib, MI
David Watkins, Staff Director
Luis Urbina, Chief Counsel
Vivian Moeglein, Republican Staff Director
http://naturalresources.house.gov
SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES
TERESA LEGER FERNANDEZ, NM, Chair
JAY OBERNOLTE, CA, Acting Ranking Member
Ruben Gallego, AZ Aumua Amata Coleman Radewagen, AS
Darren Soto, FL Jerry L. Carl, AL
Betty McCollum, MN Matthew M. Rosendale, Sr., MT
Michael F. Q. San Nicolas, GU .L.auren Boebert, CO
Ed Case, HI Cliff Bentz, OR
Jesus G. ``Chuy'' Garcia, IL Vacancy
Melanie A. Stansbury, NM Bruce Westerman, AR, ex officio
Raul M. Grijalva, AZ, ex officio
CONTENTS
Page
Hearing held on Tuesday, September 20, 2022...................... 1
Statement of Members:
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona, prepared statement of.................... 100
Leger Fernandez, Hon. Teresa, a Representative in Congress
from the State of New Mexico............................... 2
Prepared statement of.................................... 3
Obernolte, Hon. Jay, a Representative in Congress from the
State of California........................................ 5
Prepared statement of.................................... 6
Statement of Witnesses:
Panel 1
Newland, Hon. Bryan, Assistant Secretary for Indian Affairs,
U.S. Department of the Interior, Washington, DC............ 7
Prepared statement of.................................... 8
Questions submitted for the record....................... 11
Panel 2
Andrews-Maltais, Hon. Cheryl, Chairwoman, Wampanoag Tribe of
Gay Head, Aquinnah, Massachusetts.......................... 38
Prepared statement of.................................... 40
Questions submitted for the record....................... 42
Chaudhuri, Hon. Jonodev, Ambassador, Muscogee Creek Nation,
Okmulgee, Oklahoma......................................... 17
Prepared statement of.................................... 18
Questions submitted for the record....................... 20
Gobin, Hon. Teri, Chairwoman, Tulalip Tribes, Tulalip,
Washington................................................. 47
Prepared statement of.................................... 48
Questions submitted for the record....................... 51
Gravelle, Hon. Whitney, President, Bay Mills Indian
Community, Brimley, Michigan............................... 43
Prepared statement of.................................... 44
Questions submitted for the record....................... 46
Hill, Hon. Sara, Attorney General, Cherokee Nation,
Tahlequah, Oklahoma........................................ 51
Prepared statement of.................................... 53
Questions submitted for the record....................... 54
Killer, Hon. Kevin, President, Oglala Sioux Tribe, Pine
Ridge, South Dakota........................................ 27
Prepared statement of.................................... 29
Questions submitted for the record....................... 34
Panel 3
Ballard, Hon. Matthew, District Attorney, Oklahoma District
12, Claremore, Oklahoma.................................... 83
Prepared statement of.................................... 84
Questions submitted for the record....................... 87
Berger, Bethany, Wallace Stevens Professor of Law, University
of Connecticut School of Law, Hartford, Connecticut........ 69
Prepared statement of.................................... 70
Questions submitted for the record....................... 75
Goldberg, Carole, Jonathan D. Varat Distinguished Professor
of Law, University of California School of Law; Chief
Justice, Court of Appeals, Hualapai Tribe; Chief Justice,
Court of Appeals, Pechanga Band of Indians, Los Angeles,
California................................................. 77
Prepared statement of.................................... 78
Questions submitted for the record....................... 80
Mansinghani, Mithun, Partner, Lehotsky Keller LLP, Oklahoma
City, Oklahoma............................................. 91
Prepared statement of.................................... 92
Questions submitted for the record....................... 94
Nagle, Mary Kathryn, Counsel, National Indigenous Women's
Resource Center, Washington, DC............................ 63
Prepared statement of.................................... 65
Questions submitted for the record....................... 66
Additional Materials Submitted for the Record:
Chickasaw Nation, Statement for the Record................... 101
Choctaw Nation of Oklahoma, Letter with Statement for the
Record..................................................... 104
Department of Justice, Statement for the Record.............. 106
United Keetoowah Band of Cherokee Indians, Statement for the
Record..................................................... 108
Ute Indian Tribe, Statement for the Record................... 109
OVERSIGHT HEARING ON ``EXAMINING OKLAHOMA v. CASTRO-HUERTA: THE
IMPLICATIONS OF THE SUPREME COURT'S RULING ON TRIBAL SOVEREIGNTY''
Tuesday, September 20, 2022
U.S. House of Representatives
Subcommittee for Indigenous Peoples of the United States
Committee on Natural Resources
Washington, DC
The Subcommittee met, pursuant to notice, at 11:05 a.m., in
room 1324, Longworth House Office Building, Hon. Teresa Leger
Fernandez [Chairwoman of the Subcommittee] presiding.
Present: Representatives Leger Fernandez, Gallego, San
Nicolas, Stansbury; Obernolte, Radewagen, Carl, and Rosendale.
Ms. Leger Fernandez. The Subcommittee for Indigenous
Peoples of the United States will now come to order. The
Subcommittee is meeting today to hear testimony on Examining
Oklahoma v. Castro-Huerta: The Implications of the Supreme
Court's Ruling on Tribal Sovereignty.
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chair and the Ranking Minority
Member or their designees. This will allow us to hear from our
witnesses sooner and help Members keep to their schedules.
Therefore, I ask unanimous consent that all other Members'
opening statements be made part of the hearing record if they
are submitted to the Clerk by 5 p.m. today or the close of the
hearing, whichever comes first. Hearing no objection, so
ordered.
Without objection, the Chair may also declare a recess
subject to the call of the Chair. Hearing no objection, so
ordered.
As described in the notice, statements, documents, or
motions must be submitted to the electronic repository at
[email protected]. Members physically present should
provide a hard copy for staff to distribute by e-mail.
Please note that Members are responsible for their own
microphones. As with our fully in-person meetings, Members can
be muted by staff only to avoid inadvertent background noise.
Finally, Members or witnesses experiencing technical
problems should inform Committee staff immediately. I would
also like to thank the Ranking Member for the change of time so
that we could try to get the testimony in considering the votes
we will be having this afternoon.
I will begin by recognizing myself for my opening
statement.
STATEMENT OF THE HON. TERESA LEGER FERNANDEZ, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW MEXICO
Ms. Leger Fernandez. Good morning. Thank you all for
joining us today at this important oversight hearing titled,
``Examining Oklahoma v. Castro-Huerta: The Implications of the
Supreme Court's Ruling on Tribal Sovereignty.''
As many remember, the 2020 landmark U.S. Supreme Court
ruling in McGirt v. Oklahoma recognized that Congress had never
disestablished the Creek Reservation in Eastern Oklahoma,
reaffirming that it remained Indian Country.
The McGirt ruling was a victory for tribes across the
country as it indicated the Court's commitment to upholding
treaty rights through historic legal precedent.
Unfortunately, 2 years later, the Court's ruling this
summer in Oklahoma v. Castro-Huerta now serves as a sharp
contrast to the McGirt ruling. In a 5-4 majority opinion, the
Court determined that state governments maintain inherent
concurrent criminal jurisdiction over Indian Country.
More importantly, for many, the Castro-Huerta case
overturned almost 200 years of precedent that was known as the
Marshall Trilogy.
I learned this when I first started practicing law because
it is seen as the bedrock foundation of Indian law. I don't
know how many times I cited the trilogy in my cases.
Worcester v. Georgia, the third case in the trilogy, was
decided in 1832, which as Justice Gorsuch stated in his
dissent, ``established the foundational rule that Native
American tribes retain their sovereignty unless and until
Congress ordains otherwise.''
The Marshall Trilogy of cases underpins not only
recognition of tribal-state criminal relations, but many other
foundational legal precedents governing tribal-state
relationships in a wide range of circumstances. It is often
cited not just for criminal law, but also very much, in fact,
sometimes more often in the civil contest.
So, the Castro-Huerta case, understandably, sent shockwaves
across Indian Country and in the legal community, which
understood its potential vast implications.
The Missing and Murdered Indigenous Women and People
Crisis, the aftermath of the McGirt case, and many other
examples of the Federal Government's failure to recognize its
trust responsibilities to investigate and prosecute crimes in
Indian Country, are rooted in the Federal Government's failures
to adequately fund and prioritize the safety of tribal
communities.
Castro-Huerta has broad implications for Indian Country,
implications that vary deeply amongst tribes. Until Castro-
Huerta, states were largely excluded from Indian Affairs unless
Congress provided otherwise.
Today, we are here to listen and to learn what this
decision means from tribal leaders, from the Administration,
and from experts in the field.
This is the beginning of our discussion on Castro-Huerta.
This hearing is not to advocate a particular solution or a
particular piece of legislation. It is meant to better
understand the nuances and impacts of the decision.
The Court's expansion of state criminal jurisdiction may
add greater uncertainty over whom tribal citizens may or should
call in response to a public safety emergency, what police
force may be allowed to respond, and what authority tribes and
tribal victims may look to prosecute a case.
Prior to Castro-Huerta, existing jurisdictions in Indian
Country were already complicated. The standard framework
consisted of the Federal Government maintaining criminal
jurisdiction, alongside tribal governments, depending on the
offenses committed, and the legal status of both victim and the
offender.
Exceptions to this framework, such as Public Law 280
states, existed. But, importantly, though, Congress, not the
Supreme Court, enacted those exceptions. Congress retained the
authority to decide how and when the state was authorized to
operate within tribal lands.
So, Castro-Huerta has complicated this existing patchwork
of jurisdictions by adding in state authorities, leading to
uncertainties that I discussed earlier.
Tribal governments already face a variety of public safety
crises, some of those issues we have discussed in this
Committee.
There are concerns about the Murdered and Missing
Indigenous People Crisis being run, the lack of jurisdictional
authority to respond or prosecute because of Oliphant, and just
the lack of resources for their judiciary branch and their
police branches.
We know that the precise impacts of this case will look
different for each tribe. That is why it is important for us to
have this hearing today. Our witnesses hail from across the
country and represent different legal perspectives, as well as
different legal nations.
I am grateful that we will hear testimony from the Cherokee
Nation, where the Castro-Huerta case originated, and from
another Oklahoma tribe, the Muscogee Creek Nation, where the
McGirt decision originated.
Supreme Court cases rarely confine their impact to the
jurisdictions where they originate. Indeed, the Supreme Court's
decision to take a case often is precisely because of the
national impact. Tribes in P.L. 280 states and tribes in non-
P.L. 280 states, who have fought intense battles within their
states to protect tribal sovereignty from state intrusion are
also present here today. We will hear also, finally, from legal
experts, and in our first panel from the Administration, about
the impacts that Castro-Huerta may have in Indian Country and
more broadly.
Once again, I look forward to this discussion. I want to
again thank the witnesses for their presence here today to
share their expertise.
[The prepared statement of Ms. Leger Fernandez follows:]
Prepared Statement of the Hon. Teresa Leger Fernandez, a Representative
in Congress from the State of New Mexico
Good morning. Thank you all for joining us today at this important
oversight hearing titled, ``Examining Oklahoma v. Castro-Huerta: The
Implications of the Supreme Court's Ruling on Tribal Sovereignty.''
As many remember, the 2020 landmark U.S. Supreme Court ruling in
McGirt v. Oklahoma recognized that Congress had never disestablished
the Creek Reservation in eastern Oklahoma, reaffirming that it remained
Indian Country.
The McGirt ruling was a victory for tribes across the country, as
it indicated the Court's commitment to upholding treaty rights through
historic legal precedent.
Unfortunately, two years later the Court's ruling this summer in
Oklahoma v. Castro-Huerta now serves as a sharp contrast to the McGirt
ruling. In a 5-4 majority opinion, the Court determined that state
governments maintain inherent concurrent criminal jurisdiction over
Indian Country.
More importantly for many, the Castro-Huerta case overturned almost
200 years of precedent that was known as the Marshall Trilogy that is
at the bedrock foundation of Indian law. Worcester v. Georgia, the
third case in the trilogy, was decided in 1832, which as Justice
Gorsuch stated in his dissent, established the foundational rule that
Native American tribes retain their sovereignty unless and until
Congress ordains otherwise.
The Marshall Trilogy underpins not only recognition of tribal-state
criminal relations, but many other foundational legal precedents
governing tribal-state precedent. This trilogy of cases also implicates
Federal-state relationships in a wide range of circumstances.
Castro-Huerta, understandably, sent shock waves across Indian
Country and in the legal community, which understood its potential vast
implications.
The murdered and missing Indigenous peoples crisis, the aftermath
of the McGirt case, and many other examples of the Federal Government's
failure to recognize its trust responsibilities to investigate and
prosecute crimes in Indian Country are rooted in the Federal
Government's failures to adequately fund and prioritize the safety of
tribal communities.
The implications of Castro-Huerta vary deeply amongst tribes. Until
Castro-Huerta, states were largely excluded from Indian Affairs unless
Congress provided otherwise.
Today, we are here to listen. To learn what this decision means
from tribal leaders and experts themselves. This is the beginning of
our discussion on Castro-Huerta. This hearing is not to advance
particular solutions or legislation. It is to better understand the
nuances and impacts of the decision.
The Court's expansion of state criminal jurisdiction may add
greater uncertainty over whom tribal citizens may call in response to a
public safety emergency, what police force may be allowed to respond,
and what authority may prosecute a case.
Prior to Castro-Huerta, existing jurisdictions in Indian Country
were already complicated. The standard framework consisted of the
Federal Government maintaining criminal jurisdiction alongside tribal
governments depending on the offenses committed and the political
status of both the offender and victim.
Exceptions to this framework--such as Public Law 280 States--
existed. Importantly, though, Congress, not the Supreme Court, enacted
these exceptions.
Castro-Huerta has complicated this existing patchwork of
jurisdictions by adding in state authorities, leading to uncertainty
about who will address tribal public safety concerns on the ground.
Tribal governments already face a variety of public safety crises--
the murdered and missing Indigenous peoples crisis being one--for which
they lack jurisdictional authority to respond or prosecute because of
Oliphant.
As I noted earlier, the precise impacts of this case will look
different for each tribe. That's why it's important for us to have this
hearing today. Our witnesses hail from across the country and represent
different legal perspectives, as well as different tribal nations.
I am grateful that we will hear testimony from the Cherokee Nation,
where the Castro-Huerta case originated, and from another Oklahoma
Tribe, the Muscogee Creek Nation where the McGirt decision originated.
Supreme Court cases rarely confine their impact to the
jurisdictions where they originate. Indeed, the Supreme Court's
decision to take a case often is precisely because of the national
impact. Tribes in P.L. 280 states and tribes in non-P.L. 280 states who
have fought intense battles within their states to protect tribal
sovereignty from state intrusion are also present here today. We will
also hear from legal experts and the administration about the impacts
that Castro-Huerta may have in Indian Country and more broadly.
I look forward to this discussion and want to again extend my
thanks to the witnesses for being present today.
______
Ms. Leger Fernandez. I would now like to recognize Ranking
Member Obernolte for his opening statement.
STATEMENT OF THE HON. JAY OBERNOLTE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Obernolte. Thank you very much, Madam Chair. And thank
you for convening this hearing on what is really an extremely
critical topic, the topic of whether or not states have
criminal jurisdiction to prosecute crimes committed against
Indians by non-Indians in Indian Country.
This Huerta decision really has the potential of attacking
tribal sovereignty in a lot of different parts of the country.
Certainly, it reaches far beyond just the territorial dispute
that is going on in Eastern Oklahoma.
I think that a couple of things should guide our discussion
when we are talking about this important topic. First of all,
the respect for tribal sovereignty which I think is something
that everyone on the Subcommittee shares.
But, also, a conviction to avoid the kind of legal chaos
that resulted after the McGirt Supreme Court decision. We had
thousands of cases that were refiled in tribal and Federal
courts after that, on criminal convictions that had occurred
years in the past. So, I think it is important that we think
about the implications of decisions that we might make in that
respect.
And I would also like to ask that we consider the feelings
and the well-being of the victims of these crimes and of their
families. Because when we allow a criminal case to be retried,
we are essentially dragging all of those victims and their
families through what, for many of them, was the worst
experience of their life. So, I am hopeful that we can remember
those victims when we have this discussion.
And I also would like to make the point that all of this
legal chaos, from McGirt all the way to Castro-Huerta, could
have been avoided had Congress done its job.
Our job as lawmakers is to be explicit when we write laws.
And because of the ambiguity that has persisted surrounding
this issue, we are having courts issuing conflicting opinions
in different jurisdictions which is exactly the kind of thing
that a nation who respects the rule of law should be trying to
avoid.
And if you look at the Castro-Huerta decision, I mean it is
really a fascinating exercise in exactly this problem. Because
you have Supreme Court Justices on both sides of the issues,
making what seemed to be very legitimate and well-reasoned
arguments that completely contradict each other.
So, I am very glad we are having this hearing. I am hopeful
that perhaps this can catalyze Congress to be explicit about
what its intentions are toward the prosecution of crimes in
Indian Country and explicit about what the boundaries of
reservations are which could have avoided the chaos of McGirt,
and what exactly the jurisdictions of states are to perform
these criminal prosecutions which could have avoided now the
chaos that we have in Castro-Huerta.
So, I want to thank all of the witnesses that we have here
today. I think this is exactly the right way to go about having
this discussion, to start by listening to the people who would
be affected. I also am glad that we are being deliberate
because, obviously, it has only been 12 weeks since the Supreme
Court decision was handed down. I think it is going to take
some time for Congress to process this issue.
But I am hopeful that at the end of this discussion, we can
come up with some concrete rules that will clarify this issue
for everyone, which would be Congress doing its job and not
allowing the throwing it open to interpretation by the courts,
which I think is something that should be avoided. So, I want
to thank you, Madam Chair. I yield back.
[The prepared statement of Mr. Obernolte follows:]
Prepared Statement of the Hon. Jay Obernolte, a Representative in
Congress from the State of California
Good afternoon and thank you, Madam Chair. As you mentioned, the
Subcommittee will be receiving testimony on the effect of the June 2022
U.S. Supreme Court ruling in Oklahoma v. Castro-Huerta.
In Oklahoma v. Castro-Huerta, the court held that states have
inherent concurrent jurisdiction over non-Indians when they commit
crimes against Indians in Indian Country. I'll note that I'm using the
terms Indian, non-Indian, and Indian Country within their legal
meanings here and do not intend them to be pejorative.
But I think we also need to be clear about what we are speaking
about here during this hearing and use the proper legal terms when
necessary. The Castro-Huerta decision mitigates the effects of the 2020
Supreme Court decision of McGirt v. Oklahoma.
That decision held that the Muscogee Creek reservation was never
clearly disestablished by Congress.
Oklahoma courts then held that the Cherokee, Choctaw, Seminole, and
Chickasaw reservations, along with the Muscogee reservation were never
disestablished by Congress.
This had the legal effect of declaring that most of eastern
Oklahoma is Indian Country, which had an immediate impact on what kind
of criminal jurisdiction--federal, state, or tribal--existed, both
going forward and looking back.
Many Oklahoma State criminal convictions are being challenged
because of this change of the status of the land in eastern Oklahoma.
And many convictions have also been dismissed from state jurisdiction
and have been or are being refiled in federal and tribal courts.
Castro-Huerta obviously will practically affect what cases and
convictions from Oklahoma must be retried in federal and tribal courts
because of the McGirt decision. It is less clear how both Supreme Court
decisions may impact other states and other tribes with lands outside
of the eastern part of Oklahoma.
I look forward to hearing concrete, current examples of what some
of our witnesses will have to say on that.
I'll also note that we are having this hearing less than 12 weeks
after the Castro-Huerta decision was handed down.
Respectfully, I do not think that is enough time for the Five
Tribes, the state of Oklahoma, other states and tribes to fully grapple
with what is a way forward and what is the best solution for tribes,
states, and victims of crime. And, through all these discussions and
testimony today, I believe we should remember the practical effects on
victims and families of victims that in many cases are now being asked
to relive what likely was the worst day of their lives.
I want to thank our witnesses for being here today and look forward
to their testimony.
______
Ms. Leger Fernandez. Thank you very much, Ranking Member
Obernolte. Now I would like to transition to our first witness
panel for today. Under our Committee Rules, oral statements are
limited to 5 minutes, but you may submit a longer statement for
the record if you choose.
When you begin, the on-screen timer will begin counting
down, and it will turn orange when you have 1 minute remaining.
I recommend that Members and witnesses joining remotely lock
the timer on the screen.
When you go over the allotted time, I will tap my gavel and
kindly ask you to please wrap up your statement. After your
testimony is complete, please remember to mute yourself to
avoid any inadvertent background noise.
The Chair now recognizes the Honorable Bryan Newland, who
is the Assistant Secretary for Indian Affairs at the U.S.
Department of the Interior. Assistant Secretary, the floor is
yours.
STATEMENT OF THE HONORABLE BRYAN NEWLAND, ASSISTANT SECRETARY
FOR INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR,
WASHINGTON, DC
Mr. Newland. Thank you, Madam Chair. And good morning,
Ranking Member, and members of the Committee. My name is Bryan
Newland. I have the privilege of serving as Assistant Secretary
for Indian Affairs at the Department of the Interior. I
appreciate the invitation and the opportunity from the
Committee to appear here this morning to share our views on
this important case.
Throughout the history of this country, criminal
jurisdiction in Indian Country has proven to be quite complex.
A number of variables determine whether a tribe, the Federal
Government, or the state have jurisdiction to prosecute crimes
committed in Indian Country.
These include the tribal affiliation of the offender, the
tribal affiliation of the victim, as well as the land status of
the crime scene. Any change in one of these variables will
change who exercises criminal jurisdiction.
And this complex maze was developed largely through
judicial decisions, and it has made it difficult for tribal
governments to police tribal communities.
Congress, working with the executive branch and tribes, has
legislated to clarify criminal jurisdiction in Indian Country.
And in the past half-century, the trend in these statutes has
been to affirm tribal sovereignty and to strengthen the ability
of tribal governments to protect communities in their
reservations.
In fact, Congress has acted on at least seven different
occasions in the last half-century to strengthen and affirm
tribal criminal jurisdiction within Indian Country, often in
response to Supreme Court decisions.
The Court's decision in Castro-Huerta, for the first time
in the history of this country, gave states criminal
jurisdiction over crimes committed against Indian people by
non-Indians within every reservation in every state. The
Castro-Huerta opinion creates uncertainty across Indian
Country.
State prosecutors may now accept or decline cases involving
crimes committed by non-Indians against Indians in Indian
Country without getting the consent of the tribe. This invites
further conflict, and it diminishes the ability of tribes to
coordinate with Federal agencies on public safety priorities
within their communities.
The Department is reviewing the effects of this decision in
determining how to further our trust obligations to protect
tribal sovereignty, self-determination, and how to strengthen
tribal jurisdiction.
Centuries of interactions between tribes and states have
shown that a delicate relationship exists between the two.
Under Public Law 280, we have seen the difficulty of concurrent
Federal and state jurisdiction in Indian Country. Tribes in
P.L. 280 states have repeatedly told the Department that state
resources don't always make it to their communities. Many
tribes have built up their own law enforcement capacity and
have successfully retroceded from Public Law 280, reinstating
concurrent Federal and tribal jurisdiction.
Castro-Huerta not only disrupts the process that Congress
established for allocating criminal jurisdiction between tribes
and states, but it has the potential to spread these challenges
to tribes located in non-Public Law 280 states. Tribes have
repeatedly proven that they can best meet the public safety and
justice needs of their reservations. Congress has agreed and
has affirmed the principle of tribal self-determination
repeatedly in the last half-century.
In the 2013 and 2022 bylaw reauthorizations, Congress
created a path for tribes to exercise criminal jurisdiction in
certain cases over non-Indians. And it is a Federal trust
obligation to assist tribes in meeting VAWA standards for
expanded criminal jurisdiction.
It is also important to note that Congress has paired its
legislation affirming tribal jurisdiction and sovereignty with
increased investments in tribal law enforcement agencies and
tribal courts. This includes an additional $62 million in funds
to support tribes in Oklahoma after the McGirt decision. Recent
increases in funding have strengthened Federal and tribal law
enforcement capacity across Indian Country.
Next week, the Department of the Interior and the
Department of Justice are hosting two listening sessions with
tribes to discuss the Supreme Court's Castro-Huerta decision.
We are seeking comments on a number of questions related to the
outcome of the case.
As trustee to tribes, the Department will continue to
prioritize and reinforce tribal sovereignty, tribal self-
determination, and tribal jurisdiction to ensure public safety
can be realized across Indian Country.
So, Madam Chair, Mr. Ranking Member, and members of the
Subcommittee, I want to thank you again for the opportunity to
be here today to provide the Department's views. I am happy to
answer any questions you may have.
[The prepared statement of Mr. Newland follows:]
Prepared Statement of Bryan Newland, Assistant Secretary for Indian
Affairs, United States Department of the Interior
Good afternoon, Chair Leger Fernandez, Ranking Member Obernolte,
and Members of the Subcommittee. My name is Bryan Newland, and I serve
as the Assistant Secretary for Indian Affairs at the U.S. Department of
the Interior (Department). Thank you for the opportunity to present the
Department's testimony at this important oversight hearing, ``Examining
Oklahoma v. Castro-Huerta: The Implications of the Supreme Court's
Ruling on Tribal Sovereignty.''
Background
Throughout the history of the United States, the jurisdictional
framework between Indian Tribes, the federal government, and states has
proved to be complex, especially as it relates to criminal
jurisdiction. Both Congress and the courts have tied criminal
jurisdiction in Indian Country to variables such as the type of crime
perpetrated, the Tribal affiliation of the criminal defendant, the
Tribal membership status of the victim, and the landownership status of
the crime scene. All of these variables must be determined before it is
known whether a Tribal government, the federal government, a state, or
some combination of these entities, may exercise criminal jurisdiction.
Congress, working with the Executive Branch and Tribes, has
legislated to affirm, assign, or clarify criminal jurisdiction in
Indian Country. In the past half-century, the trend in these statutes
has been to affirm Tribal sovereignty and clarify and strengthen the
ability of Tribal governments to protect public safety within their
reservations. Those enactments include:
the 1968 amendments to Public Law 83-280 (Public Law 280),
which allows States to obtain criminal jurisdiction in
Indian Country only with the consent of an Indian Tribe
through a special election;
the 1991 amendments to the Indian Civil Rights Act, which
affirm the Tribes' inherent criminal jurisdiction over non-
member Indians;
the 2010 Tribal Law and Order Act, which enhanced the
criminal sentencing authority of Tribal courts;
the 2013 reauthorization of the Violence Against Women
Act, which recognized and affirmed Tribes' inherent
jurisdiction to prosecute non-Indians for certain crimes
committed in Indian Country;
the 2019 enactment of Savanna's Act, which closed gaps in
law enforcement investigations and data reporting to
improve the ability of federal and Tribal agencies to
address instances of missing and murdered Indigenous
people;
the 2019 enactment of the Not Invisible Act to create a
Commission to study and report on improving
intergovernmental coordination for Tribal, federal, and
state law enforcement and strategies to improve resources
for survivors and victims' families ; and
the 2022 reauthorization of the Violence Against Women
Act, which expanded the recognition and affirmation of
Tribes' inherent jurisdiction to prosecute non-Indians for
additional crimes committed in Indian Country and
authorized an Alaska pilot program under which the Attorney
General may designate participating tribes to exercise
criminal jurisdiction over non-Indians who commit covered
crimes.
In addition, President Biden issued Executive Order 14053,
Improving Public Safety and Criminal Justice for Native Americans and
Addressing the Crisis of Missing or Murdered Indigenous People on
November 15, 2021, to improve the coordination of federal agencies'
work with Tribes to improve public safety in Tribal communities.
Castro-Huerta
On June 29, 2022, the U.S. Supreme Court decided Oklahoma v.
Castro-Huerta, 142 S.Ct. 2486 (2022). The decision drastically altered
the status quo, overturning nearly 200 years of law enforcement
practice nationwide where federal jurisdiction over crimes committed by
non-Indians against Indians in Indian Country has always been exclusive
of state jurisdiction. In Castro-Huerta, the Court upended settled law,
holding for the first time, ``that the federal government and states
have concurrent jurisdiction over crimes committed by non-Indians
against Indians in Indian Country.'' Id. at 2504.
According to the Castro-Huerta decision, because of McGirt v.
Oklahoma, 591 U.S. ___, 140 S.Ct. 2452 (2020)--a recent Supreme Court
decision which held that the Creek reservation remained intact and was
never disestablished--the ``classification of eastern Oklahoma as
Indian Country has raised urgent questions about which government or
governments have jurisdiction to prosecute crimes committed there.''
Castro-Huerta, 142 S.Ct. at 2492. The Court granted certiorari to
decide Castro-Huerta ``[i]n light of the sudden significance of this
jurisdictional question for public safety and the criminal justice
system in Oklahoma.'' Id.
While McGirt's impacts were limited to Oklahoma, Castro-Huerta has
national implications, altering the previously-settled understanding of
state jurisdiction throughout Indian Country.
Castro-Huerta has introduced additional complexities for Tribal
governments and Indian victims as they seek to determine who is
responsible for ensuring public safety on Tribal lands. The Department
is working to understand the implications of this decision, and to
determine how to continue our work to fulfill our treaty, trust, legal,
and moral obligations to promote Tribal sovereignty, Indian self-
determination, and strengthen Tribal jurisdiction.
Impact of Castro-Huerta on Public Safety in Indian Country
The Castro-Huerta opinion injects uncertainty into Indian Country.
State prosecutors may now accept or decline cases involving crimes
committed by non-Indians against Indians in Indian Country without
obtaining consent from the Tribe, as Congress explicitly required for
states to exercise such jurisdiction under the Public Law 280
framework. If state prosecutorial activity conflicts with the exercise
of Tribal and federal jurisdiction and public safety goals, that
conflict will come at the expense of communities on Indian
reservations. State actions at odds with Tribal and federal public
safety needs and priorities will confuse the public, add conflict to
the already fragile relationships between Indian Tribes and states, and
abet increased crime in Indian Country.
Tribal-State Relationships
Tribal nations are pre-existing sovereigns over which states have
historically lacked authority. One of the roles of the federal
government, since the time of this Nation's founding, has been to
protect Tribal nations from state regulation, intrusion, and overreach.
Centuries of interactions between Indian Tribes and states have shown
that a delicate relationship exists between the two. Under Public Law
280, the mechanism established by Congress for certain states to
acquire criminal jurisdiction over parts of Indian Country, we have
seen first-hand challenges with the exercise of state jurisdiction in
Indian Country. At times, some states have limited or denied public
safety services to Tribal communities, leaving Tribes without coverage.
Tribes in the six mandatory Public Law 280 states (Alaska, California,
Minnesota, Nebraska, Oregon, and Wisconsin) and in other states that
Congress has allowed to exercise criminal jurisdiction in Indian
Country have repeatedly told the Department that state resources do not
always filter to their communities and that coordination of law
enforcement is challenging and inadequate. Many Tribes in these states
are dissatisfied with state jurisdiction over criminal matters on their
lands. As a result, many Tribes have proactively built up their own law
enforcement capacity and have worked with states to successfully
retrocede from Public Law 280--limiting jurisdiction to that of the
federal government and the Tribe with the state's support. Castro-
Huerta not only disrupts the process Congress established for
allocating criminal jurisdiction between Tribes and states, but it has
the potential to spread the above enumerated challenges to Tribes
located in non-Public Law 280 states.
Tribes are Their Own Best Stewards
Time and time again, Tribes have proven that they can best meet the
public welfare and safety needs of communities on their reservations.
To that end, the Department supports energized investment in Tribal
justice systems, infrastructure, and law enforcement. In the 2013 and
2022 Violence Against Women Act (VAWA) reauthorizations, Congress
created a path for Tribal justice systems to exercise criminal
jurisdiction in certain cases over non-Indians. It is a trust and moral
obligation for the United States to assist Tribes in achieving VAWA's
necessary and complex prerequisites to be eligible for such
jurisdiction.
Congress has paired its legislation affirming Tribal jurisdiction
and sovereignty with increased investments in Tribal law enforcement
agencies and Tribal courts in recent years. This includes an additional
$62 million in funds for Bureau of Indian Affairs (BIA) to support
Tribes in Oklahoma to enhance public safety in the wake of the McGirt
decision. Recent increases in funding have increased the BIA's and
Tribal law enforcement capacity in Indian Country to improve public
safety in Indian Country.
Conclusion
The Department of the Interior and the Department of Justice are
hosting two listening sessions with Indian Tribes to discuss the
Supreme Court's Castro-Huerta decision on September 26 and 27, 2022.
Specifically, the Departments are seeking comments on the impact of the
decision on Tribal law enforcement and justice systems, whether the
decision impacts standing cooperative agreements or processes with
state or federal agencies, and what the Tribal-specific reactions are
to the decision, including views about concurrent state criminal
jurisdiction in Indian Country.
As a trustee to Indian Tribes, the Department of the Interior
continues to prioritize and reinforce Tribal sovereignty and self-
determination, including working to protect Indian territorial
integrity and ensure public safety can be realized across Indian
Country.
Chair Leger Fernandez, Ranking Member Obernolte, and Members of the
Subcommittee, thank you for the opportunity to provide the Department's
views. The Department looks forward to working with Congress to affirm
Tribal sovereignty and public safety within the boundaries of Tribal
lands. I look forward to answering any questions that you may have.
______
Questions Submitted for the Record to Hon. Bryan Newland, Assistant
Secretary for Indian Affairs, U.S. Department of the Interior
The Honorable Bryan Newland did not submit responses to the Committee
by the appropriate deadline for inclusion in the printed record.
Questions Submitted by Representative Leger Fernandez
Question 1. As Assistant Secretary for Indian Affairs, what is the
agency's view of the Castro-Huerta ruling?
(1a). In addition to the listening sessions referenced in your
testimony, how is the Department working to communicate with and assist
tribal governments in the aftermath of the Castro-Huerta ruling?
Questions Submitted by Representative Grijalva
Question 1. Can you elaborate on how the Department of Interior is
working with the Department of Justice to address the concerns of
tribal leaders regarding the Castro-Huerta ruling?
Questions Submitted by Representative Westerman
Question 1. Lead Up: In your recent testimony before the Senate
Committee on Indian Affairs, you mentioned that the Department was
providing Technical Assistance on legislative efforts related to the
Castro-Huerta decision.
(1a). Does the Department of the Interior support a legislative
efforts that would alter the current criminal jurisdiction states
possess in Indian Country post-Castro-Huerta?
(1b). What specific actions has the Department of the Interior
taken since the Castro-Huerta decision was handed down in regard to
public safety in Indian Country and what other actions are being
contemplated for the future?
Question 2. How is the Department of the Interior coordinating with
the Department of Justice on future actions that may be taken and
policy recommendations for Congress to consider?
______
Ms. Leger Fernandez. Thank you so much for your testimony
here today. I am going to remind Members that Committee Rule
3(d) imposes a 5-minute limit on questions. The Chair will now
recognize Members for any questions they may wish to ask the
witness. I will start by recognizing myself for 5 minutes.
Thank you again, Assistant Secretary. This is the second
time you have been before the Committee in less than a week. We
know we have a lot to cover. So, I wanted to pick up on the
statement with regards to VAWA and Congress did give tribes
additional authority to prosecute in those cases, right?
We have heard, and some of the testimony we believe we will
be hearing later today, points out that in some states, they
have already decided, or at least this was out of Oklahoma,
that they are not being referred. That the tribes aren't
getting referrals of our cases, of abuse against children, of
abuse against women.
What have you heard out there regarding the immediate
impact from the Castro-Huerta case in terms of those referrals
which I think are key? Because as you pointed out, tribes,
tribal leaders, tribal government is the closest to the family,
the women, the children that are being impacted.
Mr. Newland. Thank you, Madam Chair. The main thing that we
have been hearing in light of this case is confusion and
stories about the potential to create more conflict in public
safety in Indian Country.
Prior to serving in this role, I served as an elected
tribal leader and also as a tribal court judge. And tribal
officials are often charged with setting policy for their
communities on the reservation. And just like state
legislatures and just like Congress, that is always based on
conversation and feedback from constituents.
And in light of this case now, we see the ability of states
to come in and exercise jurisdiction over cases like this
without tribal consent. So, it disrupts the ability of tribal
officials to set the public policy priorities within their
reservations. And it removes the leverage that they have to
cooperate with their neighboring communities and neighboring
jurisdiction.
So, the themes that we have been hearing after this case
are confusion and the potential for this case to invite more
conflict.
Ms. Leger Fernandez. That is interesting, the point you are
making about that. What we want to see is more opportunity for
collaboration and cooperation. I mean we have seen that
whenever different law enforcement agencies cooperate, Federal-
state, tribal-Federal, state-local, it is the cooperation that
often leads to the breakthrough, because a perpetrator is not
necessarily going to stay within one jurisdiction.
So, you are saying that the worry is that this will now
rather than enhancing, it will undermine. Is that correct?
Mr. Newland. That is correct.
Ms. Leger Fernandez. Can you share with us? I do look
forward to receiving feedback on your listening sessions. I am
glad that we are all engaged in determining what the impacts
are. But can you share with us any thoughts that the Department
has with regards to providing additional law enforcement
support and resources to tribal governments and how that might
have changed your calculus after Castro-Huerta?
Mr. Newland. Thank you, Madam Chair. We have been working
with Congress and with Indian Country to increase funding for
public safety across Indian Country and within tribal
communities. In my work, in this role, far and away, the No. 1
thing I hear from tribal leaders is about the need to do better
in working together on public safety issues in tribal
communities. That has been a consistent theme no matter where I
have visited in every region of the country.
So, we have been working again with Congress to increase
that funding, to increase resources to tribal governments, and
to also support them in the exercise of their criminal
jurisdiction to ensure safe communities.
Ms. Leger Fernandez. Thank you. And in these listening
sessions that you are going to be doing, will you be conducting
those as official government-to-government consultation or as
listening sessions?
Mr. Newland. Madam Chair, these are titled listening
sessions and the distinction will allow us to hear also from
scholars and legal advocates as well as tribal leaders. Of
course, we always want to engage directly in a government-to-
government relationship and that will be a part of these
listening sessions.
Ms. Leger Fernandez. And I take it that after the listening
sessions, have you already begun the work to provide guidance
to tribal governments following Castro-Huerta?
Mr. Newland. We have not. We want to hear from Indian
Country first. Then, of course, we have to work together with
the Department of Justice before proceeding.
Ms. Leger Fernandez. Well, I believe we all want to hear
from the Department of Justice as well, and we look forward to
having that opportunity in the future. So, thank you very much.
The Chair will now recognize the Ranking Member.
Mr. Obernolte. Mr. Newland, it is very nice to see you
again. It has only been a few days. It is great that the DOI is
taking the step of conducting these listening sessions.
I wonder if you could fill us in on what contacts you have
had from tribes outside of Oklahoma who are concerned about how
the Castro-Huerta decision changes the jurisdiction of state
prosecution of crimes.
Mr. Newland. Thank you, Congressman. We have had meetings
with tribal leaders from different regions of the country. In
particular, we have had representatives from the Great Plains
Tribal Chairman's Association tell us directly that they are
worried about the impact of this decision and the potential for
confusion in policing in their communities.
Mr. Obernolte. And have you had contact with states that
are now interested in pursuing criminal cases in Indian
Country, I mean outside of the Public Law 280 instances that
already exist?
Mr. Newland. I have not.
Mr. Obernolte. So, you obviously have a lot of experience
in this issue. You have a good grasp of the cases, the
decisions, and their implications. I am wondering if you could
advise us in Congress as to what actions Congress should take
in response to the Castro-Huerta decision. What would you
advise us to do?
Mr. Newland. Thank you, Ranking Member. Before I go so far
as to recommend a path forward, I want to make sure we get
feedback from Indian Country.
But on the whole, I think as we have tried to show in our
testimony, we have had now since the self-determination era.
Congress is led by both parties. Administrations from both
parties have been very consistent in affirming the principle of
self-determination and tribal sovereignty. And Congress has
acted consistently to clarify and strengthen tribal
jurisdiction within the boundaries of tribal reservations.
So, it will be in keeping with that trend and with the
policy of self-determination for Congress, as you indicated in
your opening remarks, to clarify and strengthen the ability of
tribes to determine how public safety is protected in tribal
communities. And the hallmark of that is consent.
And that is a law that Congress has already enacted more
than 50 years ago, is to ensure that tribes have the ability to
provide consent when other jurisdictions are acting within the
boundaries of their reservations.
Mr. Obernolte. OK. So, the issue of consent, I mean I think
that is a great one. I mean, really, we already have that,
right? Because when a tribe consents to have states bring
criminal prosecutions in Indian Country, that is a completely
different situation to a tribe that might want to try those
cases itself.
So, how would we, in Congress, how would we act? What
action would we take to strengthen the ability of tribes to
consent and to protect tribal sovereignty in cases when they do
not wish to?
Mr. Newland. Again, Ranking Member, as part of our trust
responsibility, I want to make sure that we are working with
Indian Country to present solutions. I don't want to offer up
specific solutions to the Subcommittee without first hearing
from tribes. And I also want to make sure that when we do that,
we have the Department of Justice at the table. They are going
to be participating in these listening sessions.
But I think on the whole, again, Congress has been
consistent in acting, many times in response to the Supreme
Court, to defend its prerogative here to set the Federal
Government's Indian Affairs policies. And in doing that, has
worked with tribes and has worked with the executive branch in
fulfilling those obligations.
Mr. Obernolte. Right. Well, I completely agree with you on
both of those issues. I do think that Congress needs to act
deliberately, not immediately, but deliberately. And I applaud
you for how thorough you have been in soliciting the input of
everyone involved, and I think the DOJ also needs to be at the
table.
And I also think that you brought up a very important point
which is the protection of people should be at the forefront of
the decisions that we make. And the worst thing that can happen
is that crimes go unprosecuted. Crimes against Indians in
Indian Country go unprosecuted. That is unacceptable. We
absolutely cannot allow that to happen no matter what we do.
But I hope that the end of this process is Congress chooses
to act. We do it deliberately. We do it fairly. And we do it
explicitly so that we don't throw open the interpretations of
the actions of Congress to the courts which I don't think
serves anyone's interest. I want to thank you for your
testimony. I yield back, Madam Chair.
Ms. Leger Fernandez. Thank you. The Chair will now
recognize the gentleperson from Arizona, Representative
Gallego.
Mr. Gallego. Thank you, Madam Chair. I want to start by
thanking Chair Leger Fernandez for calling this hearing, and by
thanking our witnesses, especially the tribal leaders, for
testifying.
Unfortunately, we are here today to examine yet another
blow to tribal sovereignty in the form of the Castro-Huerta
Supreme Court decision. On this Subcommittee, we spend much of
our time righting past injustices and working toward a future
where the Federal Government finally fully lives up to its
trust responsibilities.
The Castro-Huerta decision makes this task even more
difficult by undermining tribal sovereignty and unraveling
hundreds of years of precedent around criminal jurisdiction in
Indian Country.
Part of the Court's motivation for this decision appears to
be that upholding tribal sovereignty, in this case, was an
inconvenience. But we in this Committee know that upholding the
trust responsibility isn't about convenience. It is about
complying with the treaty obligations the United States is
legally bound to do.
That is why I believe Congress must act swiftly to address
Castro-Huerta before it is more harmful and disruptive, and its
disruptive impacts can come to pass. I look forward today to
hearing from tribal leaders directly about what they believe
Congress' next steps should be in the wake of Castro-Huerta.
With that, I have a couple of questions for our witnesses.
Assistant Secretary Newland, I appreciate that your written
testimony spoke not only about clarifying the jurisdictional
issues raised by Castro-Huerta, but also ensuring that tribes
have the Federal support to build capacity for law enforcement
and self-governance on their own land--a key element of
combating the Missing and Murdered Indigenous Persons Crisis.
That is why later this week, I am planning to reintroduce
the BADGES for Native Communities Act. The bill would support
hiring personnel and resolving unmet needs for law enforcement
in Indian Country. How is your department working to help build
this capacity in Indian Country, especially post-VAWA
reauthorization?
Mr. Newland. Thank you, Congressman. And it is great to see
you again. Secretary Haaland is passionate about this issue and
has been forceful in directing us to work with the Department
of Justice and under President Biden's Executive Order on
public safety in Indian Country coordinating across agencies.
And we know data is a key component to make sure that we have
effective policing.
So, through the Not Invisible Act Commission and existing
statutes that Congress has already enacted, we have been
working with the Department of Justice to make sure that we are
bridging those data gaps.
Mr. Gallego. A follow-up question, there is a concern that
Castro-Huerta's determination of concurrent state jurisdiction
over major crimes committed in Indian Country will cause the
Federal Government to pull out its law enforcement forces on
tribal lands. Does the Department plan on doing this or have
you heard of this concern?
Mr. Newland. No. We don't plan to do that.
Mr. Gallego. Has there been any concern expressed by some
of our tribal leaders in terms of have they expressed their
concern to you?
Mr. Newland. Not to me directly, Congressman. We don't have
plans to pull out of Indian Country and let tribes fend for
themselves on this, and I will defer to the tribal leader
witnesses to share their views on that.
Mr. Gallego. Thank you. And, Assistant Secretary, just from
my experience visiting tribal lands and visiting with our
tribal law enforcement, you know there is a backlog even just
in terms of tribal infrastructure, in terms of law enforcement
buildings, for example, jails, prisons, as well as, of course,
how hard it is to recruit these police officers to come and
serve these communities that sometimes are far away from
metropolitan areas.
So, of course, I just want to make sure I highlight that.
Because you know they want and deserve security just like
anybody else. And these types of court decisions really, I
think, scare a lot of people into thinking that that may not
happen.
With that, thank you, Madam Chair, and Ranking Member for
hosting this.
Ms. Leger Fernandez. Thank you very much. The Chair will
now recognize the gentleperson from the American Samoa,
Representative Radewagen, for 5 minutes. Hello.
Mrs. Radewagen. Thank you, Madam Chair. My question is for
Mr. Newland as well. There have been some who have proposed
ambitious legislative proposals and that action should be taken
immediately, yet there are some tribes that have voiced
restraint, and they are concerned about Congress acting too
quickly.
What are your thoughts on the lack of unified position from
tribes in Oklahoma and tribes throughout the United States?
Mr. Newland. Thank you, Madam Congresswoman. I think it is
important to affirm at the outset that while this case
originated in Oklahoma, it is not confined to Oklahoma. That is
why we are soliciting the views of tribal leaders and tribal
attorneys and scholars across Indian Country on the best way to
move forward.
I think that there needs to be deliberate and thoughtful
action but, of course, with 576 federally recognized tribes,
there is rarely uniformity on any one view. But it is going to
be important that we get as much feedback as possible before
recommending a path forward.
Mrs. Radewagen. Thank you and I yield back the balance of
my time.
Ms. Leger Fernandez. Thank you very much. Are there any
other Members who wish to ask questions who have not asked
questions? Seeing none, I would like to thank you very much for
your testimony. We look forward to hearing feedback on your
listening sessions and to continuing this conversation so that
we can have deliberate, but actual congressional response.
We will now move on to our second witness panel. We will be
transitioning to our second panel of witnesses today. And as
they take their seats, I will remind non-Administration
witnesses that they are encouraged to participate in the
witness diversity survey created by the Congressional Office of
Diversity and Inclusion. Witnesses may refer to their hearing
invitation materials for further information.
Under our Committee Rules, oral statements are limited to 5
minutes, but you may submit a longer statement for the record
if you choose. When you begin, the onscreen timer will begin
counting down and will turn orange when you have 1 minute
remaining.
I recommend that Members and witnesses joining remotely
lock the timer on their screen. When you go over the allotted
time, I will tap my gavel and kindly ask you to please wrap up
your statement. After your testimony is complete, please
remember to mute yourself to avoid any inadvertent background
noise. I will allow the entire panel to testify before we begin
the question portion of the hearing.
The Chair now recognizes the Honorable Jonodev Chaudhuri,
who is the Ambassador for the Muskogee Creek Nation.
STATEMENT OF THE HONORABLE JONODEV CHAUDHURI, AMBASSADOR,
MUSCOGEE CREEK NATION, OKMULGEE, OKLAHOMA
Mr. Chaudhuri. [Speaking Native language.] Hesci.
Madame Chairwoman and members of the Committee, thank you
for the opportunity to testify on the impacts of Castro-Huerta
which are already manifesting themselves in numerous ways
across all of Indian Country. My name is Jonodev Chaudhuri, and
I am proud to serve as the Ambassador for the Muskogee Creek
Nation, the fourth largest tribe in the United States.
I am joined today by our Attorney General, Geri Wisner, who
is available to answer any questions here today or in QFRs
related to public safety on our reservation.
Castro-Huerta requires immediate action. The risk of
misapplication of the holding, either by the courts or
important Federal agencies, is very high. And as a result, we
need Congress to immediately signal its ongoing intent to
adhere to honor its treaty and trust responsibilities.
As Justice Gorsuch noted in his dissent, when the founding
framers drafted the Constitution, they took care to eliminate
state power over tribes within their borders. The founding
framers also saw fit to declare treaties, once signed by the
President and ratified by the Senate, to be, ``the supreme law
of the land.'' The Constitution then tasked Congress with the
exclusive role of managing relations with Tribal Nations.
As the Muscogee Creek Nation, we signed the very first
treaty entered into under the Constitution as we know it today.
In 1790, President George Washington gathered with Mvskoke
leaders to sign the Treaty of New York. That treaty delineated
the boundaries of the fledgling United States, as well as the
duties, responsibilities, and obligations of the United States
to my Nation.
The decision in Castro-Huerta dangerously infringes on
Congress' ability to effectuate its treaty responsibilities and
obligations to Tribal Nations.
In the modern era, Congress has in a consistent, bipartisan
manner steadily worked to restore tribal sovereignty and secure
tribal empowerment.
From the Indian Reorganization Act in 1934, to the Indian
Child Welfare Act in 1978, from the 2010 Tribal Law and Order
Act, to the 2013 and 2022 Reauthorization of the Violence
Against Women Act, Congress' message has been clear.
The best and only real solution to addressing public safety
in Indian Country is restoring tribal jurisdiction and
sovereignty. Castro-Huerta undermines tribal jurisdiction and
sovereignty by creating a false narrative that Native victims
are best protected by the state. They are not.
And now post-Castro-Huerta, there is no law or mechanism
requiring local county law enforcement agencies to inform
Tribal Nations when they learn of crimes committed against
Indian victims, even if the county agency ultimately declines
to prosecute.
We are already receiving alarming reports that county
officials are reluctant to do so. We will simply have no way to
know about the crimes that are not being prosecuted. This is
precisely the public safety crisis Congress sought to avoid by
passing VAWA 2022.
And although I know other voices testifying here today may
tell you Castro-Huerta was necessary to address a public safety
crisis, any actual crisis was entirely manufactured by the
individual county sheriffs, prosecutors, and others who have
not only refused to collaborate, but actively use criminal
cases, and most disgustingly, victims as political proxies to
create the illusions of a crisis.
The solutions to Castro-Huerta are clear. They are not new.
Over a decade ago, the Tribal Law and Order Act Commission,
created through bipartisan legislation and composed of
bipartisan legal experts, traveled throughout Indian Country
studying the public safety crisis and reported one overarching
solution: restore tribal jurisdiction and authority.
The solution to the problems created by Castro-Huerta is
not to study a problem we already understand. The solution is
restoration of tribal jurisdiction and authority, plain and
simple. Including the removal of outdated, misguided
limitations imposed on the ability of Tribal Nations to ensure
criminals receive sentences commensurate with the seriousness
of the crimes they commit.
Following our victory in McGirt, the state spent millions,
tens of millions of dollars to file over 30 cert petitions and
hired multiple PR firms to create the perception that McGirt
created a public safety crisis.
And as the Atlantic reported in an article published on
April 26, 2022, the numbers backing up Oklahoma's public safety
crisis claims have been nothing but hyperbole.
The Court's decision in Castro-Huerta constitutes an
outcome determinative decision designed to appease one
governor's misleading and false PR campaign against tribal
sovereignty. The decision, however, has implications that
extend far beyond Oklahoma.
As the Nation that has fought to preserve Indian Country's
historic victory in McGirt, we understand what's at stake when
states attempt to usurp Congress' exclusive management of
Indian affairs.
The Court's misreading of the General Crimes Act and
disregard for clear congressional intent only fans the flames
of an already existing public safety issue throughout all of
Indian Country.
We are asking Congress to take action.
[Speaking Native language.] Mvto.
I am available to answer questions.
[The prepared statement of Mr. Chaudhuri follows:]
Prepared Statement of Jonodev Chaudhuri, Ambassador of the Muscogee
(Creek) Nation
Hesci. Jonodev Osceola Chaudhuri Cvhecefkvtos. Hvsvketvmvset,
Epofvnkv, Vmvlkvt Pormetvs.
Madame Chairwoman and members of the committee, thank you for the
opportunity to testify on the impacts of Castro-Huerta, which are
already manifesting themselves in numerous ways. My name is Jonodev
Chaudhuri, and I am proud to serve as the Ambassador for the Muscogee
(Creek) Nation, the fourth largest tribe in the United States.
The Court's decision in Castro-Huerta requires immediate action.
The decision misinterprets congressional intent in the General Crimes
Act, purports to overturn Indian law's most foundational precedent,
Worcester v. Georgia, and threatens to usurp Congress' constitutional
role in legislating over Indian affairs. The risk of misapplication of
the holding, either by courts or important federal government agencies,
is very high, and as a result, we need Congress to immediately signal
its ongoing intent to adhere to its trust responsibility to empower
tribal nations in the wake of the Court's harmful and erroneous
decision.
As Justice Gorsuch noted in his dissent, the Articles of
Confederation originally reserved legislative authority over Indian
affairs to the States. This, however, quickly proved chaotic and
problematic, and so when our founding fathers drafted the Constitution,
they took care to eliminate the Articles' carveout for state power over
tribes within their borders. Our U.S. Constitution was deliberately
drafted to grant Congress the exclusive power to legislate over the
United States' sovereign-to-sovereign relationship with tribes. The
founding fathers also saw fit to declare treaties, once signed by the
President and ratified by the Senate, to be the ``supreme Law of the
Land.'' The Constitution, then, tasks Congress with the incredibly
important task of ensuring that federal Indian law comports with the
``supreme Law of the Land,'' or what we commonly refer to as the
federal government's treaty trust duty and responsibility to empower
tribal nations and tribal self-determination.
At the Muscogee (Creek) Nation, we know a little something about
how and why the founding fathers assigned Congress this critical role
in the Constitution. Indeed, the very first treaty entered into under
the Constitution as we know it today was with the Muscogee (Creek)
Nation. In 1790, President George Washington gathered with Mvskoke
leaders in his own home to sign the Treaty of New York. That treaty
delineated the boundaries of the fledgling United States, as well as
the duties, responsibilities and obligations of the United States to my
nation.
But the Court's decision in Castro-Huerta dangerously infringes on
Congress's ability to exercise its constitutional authority and
effectuate its treaty trust duties and responsibilities to tribal
nations. Although United States history is replete with examples of
federal Indian law and policy that undermine tribal sovereignty, in the
modern era, Congress has--in a consistent bi-partisan manner--steadily
worked to restore tribal sovereignty and secure tribal empowerment.
From the Indian Reorganization Act in 1934, to the Indian Child Welfare
Act in 1978, from the 2010 Tribal Law and Order Act to the 2013 and
2022 reauthorizations of the Violence Against Women Act, Congress'
message has been clear: Congress is working steadily to restore the
inherent sovereign authority of our tribal nations because Congress
understands that the best and only real solution to addressing the
public safety crisis in Indian Country is empowering tribal nations to
ensure they are able to protect everyone within their borders,
regardless of an individual's tribal citizenship status.
In VAWA 2022, Congress made very clear that no sovereign has a
greater interest in protecting Indian children from non-Indian abusers
than the child's tribal nation. And yet, despite the fact that Congress
had recently restored this jurisdiction to tribal nations, the Court
decided that states should be the ones to exercise this jurisdiction.
Now, within the borders of our Reservation, certain local and county
law enforcement agencies have decided that the Court's decision in
Castro-Huerta means that they do not have to report crimes committed
against our children to our Attorney General's Office for prosecution
at the Muscogee (Creek) Nation. We are aware of District Attorneys who
have authored memos stating that, because of Castro-Huerta, VAWA cases
need not be referred to tribes, even if county prosecution is
ultimately declined. It is our understanding that states will not be
required to inform the United States Attorneys' Offices either. This is
precisely the public safety crisis Congress sought to avoid by passing
VAWA 2022.
The solutions to Castro-Huerta are clear. They are not new. Over a
decade ago, the Tribal Law and Order Act Commission, created through
bi-partisan legislation and composed of bi-partisan federal Indian law
experts, traveled throughout Indian Country studying the public safety
crisis and reported one overarching solution: restore tribal
jurisdiction and authority. In 2013, the Commission reported that when
tribal governments ``are supported--rather than discouraged--from
taking primary responsibility over the dispensation of local justice,
they are often better, stronger, faster, and more effective in
providing justice in Indian Country than their non-Native counterparts
located elsewhere.''
The solution to the problems created by Castro-Huerta is not to
study a problem we already understand. It is not another commission.
The solution is restoration of tribal jurisdiction and authority, full
stop. Plain and simple. Including the removal of outdated, misguided
limitations imposed on the ability of tribal nations to ensure
criminals receive sentences commiserate with the seriousness of the
crimes they commit.
Two years ago, the Supreme Court affirmed that when Congress passed
legislation to make Oklahoma a state, Congress declined to destroy our
Reservation. Because of the Supreme Court's decision in McGirt, our
Reservation remains in existence today. It is no secret that that the
state of Oklahoma has sought to overturn our victory in McGirt since
the day the decision came out. Initially, Oklahoma sought legislation
in Congress that would have either disestablished our Reservation, or,
significantly diminished our authority to exercise jurisdiction over
it. Oklahoma's efforts failed. This Congress has repeatedly refused to
abdicate its trust duties and responsibilities to protect and preserve
the ``supreme Law of the Land'' as declared in our Treaty of 1866, and
the hundreds of other treaties signed by the United States and tribal
nations.
When Oklahoma could not convince Congress to eliminate our
reservation, Oklahoma returned to the Court. The state spent tens of
millions of dollars to file over thirty cert petitions and hired
multiple PR firms to create the perception that McGirt created a public
safety crisis. And, as the Atlantic reported in an article published on
April 26, 2022, Oklahoma has dramatically inflated the number of
convicted defendants Oklahoma claims to be releasing as a result of the
Court's decision in McGirt. Ultimately, Oklahoma's numbers were
demonstrated to be baseless, nothing but hyperbole. The real public
crisis is not McGirt. It is Oklahoma's refusal to respect the
sovereignty of tribal nations and cooperate with them when it comes to
intergovernmental agreements and shared reporting.
And although the Supreme Court did decline Oklahoma's invitation to
revisit its decision in McGirt, the Court's decision in Castro-Huerta
constitutes an outcome determinative decision designed to appease one
governor's misleading and false PR campaign against tribal sovereignty.
The decision, however, has implications that extend far beyond
Oklahoma's borders. As the Nation that has fought to preserve Indian
Country's historic victory in McGirt, we understand what is at stake
when states attempt to usurp Congress' exclusive management of Indian
affairs. As my colleagues on today's panel will explain, the Castro-
Huerta Court's misreading of the General Crimes Act and disregard for
clear congressional intent only fans the flames of an already existing
public safety crisis throughout all of Indian Country. We are asking
Congress to take action. Mvto.
______
Questions Submitted for the Record to Hon. Jonodev Chaudhuri,
Ambassador, Muscogee Creek Nation
Questions Submitted by Representative Stansbury
Question 1. What can Congress do to hear from Tribal Nations in
order to find a reasonable consensus in Indian Country to respond to
Castro-Huerta?
Answer. Conversations have been happening all across Indian Country
to understand the implications of the Castro-Huerta decision and
discuss potential solutions for moving forward and it has become clear
that a majority of Indian Country believes that legislation is urgently
needed. Many are rallying around the attached Legislative Proposal to
Improve Public Safety in Indian Country. This proposal is rooted in the
decade old findings of the bipartisan Tribal Law and Order Act
Commission, which concluded that empowering tribes is the best and only
viable solution to improving public safety in Indian Country.
Consensus does not require unanimity. The proposed legislation
would restore the voluntary mechanism that tribes fought for in the
1968 amendments to PL-280, resulting in a mechanism through which
tribal nations could choose to exercise jurisdiction or to hand it off
to the state or to exercise it concurrently. No tribe will be obligated
to do anything they don't wish to do. As such, no tribe or group of
tribes should be granted veto authority to prevent other nations from
receiving this sovereign choice.
The legislative process in Congress is established to create
consensus. Your recent oversight hearing was an excellent and
beneficial first step. Immediate introduction of the Legislative
Proposal to Improve Public Safety in Indian Country will provide a
framework for tribal nations to offer input and feedback to negotiate
the content and direction of the legislation as we move quickly to
prevent agencies and courts from using the Castro-Huerta decision to
worsen existing problems in Indian Country.
Questions Submitted by Representative Grijalva
Question 1. If you are able to, can you describe the Muscogee Creek
Nation's relationship with Oklahoma's State government?
Answer. The relationship between the Muscogee (Creek) Nation (MCN)
and the State of Oklahoma could be best characterized as unsteady
depending upon the agency or entity involved. In some instances, MCN
officials maintain deep relationships that facilitate coordination,
particularly among fellow law enforcement officers. However, at the
structural and policy level, the State's Governor has not only been
uncooperative, but openly hostile to tribal nations exercising their
inherent sovereignty. Rather than negotiate and coordinate, the
Governor has studiously avoided cooperation and actively sought to
leverage crime victims as props in a political campaign to overturn
tribal jurisdiction. The environment created by his actions have caused
others to follow his lead. Some District Attorneys have released
prisoners into society instead of properly notifying tribes to ensure a
secure transfer. We have seen similar impacts with a few law
enforcement agencies. Historically, the government of Oklahoma has
sought to eradicate the Muscogee (Creek) Nation, as well as other
tribal nations, and unfortunately the current Governor seems set on
repeating the most regrettable aspects of Oklahoma history.
(1a). How do you anticipate this relationship to affect the
delivery of public safety services on the Nation's lands following the
Castro-Huerta ruling?
Answer. The State of Oklahoma illegally exercised jurisdiction over
reservations in Oklahoma for decades, and its track record speaks for
itself. The State did not prioritize crimes against Natives, it did not
properly allocate resources, and many cases went unaddressed. All of
this happened before the State's Governor was actively seeking to
undermine tribal jurisdiction. So it would seem fantastical to expect
that the State would improve its performance in this environment under
jurisdiction granted by a court decision that does not require any
coordination with the tribal governments. In fact, we have already seen
District Attorneys offering guidance to withhold Violence Against Women
Act (VAWA) cases from tribes that have authority to prosecute them.
Moving forward, tribes will have no assurances that they will even be
notified that VAWA cases exist, nor is there any mechanism in place to
ensure tribes know whether the state is choosing to prosecute or not.
Likewise, there is no way to ensure that United States Attorneys
Offices and other federal agencies will be notified if and when
District Attorneys decline to prosecute a VAWA case. This ignores
congressional intent in expanding VAWA jurisdiction for tribes and
leaves Native victims vulnerable to the whims of hostile state
politicians.
These facts are the driving force behind measures in the Inter-
Tribal Proposal to Improve Public Safety (attached), a proposal tribal
nations have collaboratively drafted to change the mechanism by which
states may exercise jurisdiction on Indian lands and require them to do
so in collaboration with tribal governments. Codified collaborative
cooperation improves public safety. The current patchwork jurisdiction
exacerbated by Castro-Huerta promotes disunity, abets political public
safety decisions, and creates perverse incentives for state or federal
agencies to continue to exclude, defund and weaken tribal law
enforcement agencies and courts. All of this comes at the expense of
public safety.
Question 2. Although the facts of Oklahoma v. Castro-Huerta are
rooted in Oklahoma, can you describe why you are certain that this
ruling will impact tribal governments throughout Indian Country?
Answer. There are many reasons why the Court's decision in Castro-
Huerta will bring negative consequences to public safety across Indian
Country and outside of Oklahoma. First, the Court made clear that its
decision applies on all Indian lands across the United States. The
Supreme Court did not limit its decision to Oklahoma.
Because the Court's decision is national in scope, there is a high
risk that other federal courts and federal agencies could misinterpret
the Court's decision and apply it to limit tribal sovereignty, or
expand state authority, outside of the criminal context. Many federal
agencies continue to fail to fully and faithfully implement the Court's
previous decision in McGirt v. Oklahoma. It is critical that Congress
act immediately in order to ensure that federal agencies do not
erroneously interpret Castro-Huerta as somehow limiting or alleviating
their federal trust duties and responsibilities to tribal nations and
their citizens.
History has shown us that in the few instances where Congress
historically granted states criminal jurisdiction over tribal lands,
public safety on tribal lands decreased, and the rate of violent
victimization of Native people increased. This is because states do not
have a trust relationship with tribal nations. The Constitution does
not grant states any authority over tribal nations. There is nothing to
incentivize states to dedicate the resources necessary to protect
Native lives on Native lives, and historically, they have not. Prior to
Castro-Huerta, tribes located within PL-280 states, or in Kansas (where
tribes are subject to state jurisdiction under the Kansas Act), had
some of the highest rates of crime against Native people since these
states did very little to investigate and prosecute violent crimes
committed against Native people.
Likewise, there is significant risk that because states now have
jurisdiction to prosecute crimes on Indian Country lands, the Federal
Bureau of Investigation, the United States Attorneys Offices, and other
federal agencies will decrease the amount of resources they dedicate to
public safety in Indian Country, as they have done historically in PL-
280 states.
It is clear this issue is not considered significant to the
Department of Justice since not a single political appointee from the
DOJ participated in the consultations with tribal nations that DOJ set
up this past week. This lack of commitment from those exercise power
and authority at DOJ is concerning.
Ultimately, the Court's decision in Castro-Huerta will decrease
safety for Native women across the United States. As Professor Goldberg
pointed out during her testimony, the Court's erroneous interpretation
of PL-280 throws tribes in former PL-280 states across Indian Country
into chaos, as the Court's decision calls into question the ability of
tribes to obtain retrocession under existing mechanisms.
Castro-Huerta creates national chaos and demands a national
solution.
ATTACHMENT
Legislative Proposal to Improve Public Safety in Indian Country
In 1991, after the Supreme Court's ruling in Duro v. Reina, 495
U.S. 676 (1990), Congress sought to clarify various jurisdictional
issues created by the decision. This Congressional action is commonly
referred to as the ``Duro Fix.'' The way Congress enacted this language
and the statutory placement of this clarifying language provides a
helpful guide as to how Congress may address the new jurisdictional
complications created by the Court's recent decisions. A summary of the
Duro-related language is therefore provided for background purposes to
provide context to the 2022 legislative proposal set forth below.
Duro Congressional Fix
Congress amended the Indian Civil Rights Act in 1991 to overturn
the U.S. Supreme Court's decision in Duro v. Reina, 495 U.S. 676
(1990). The Court had held that tribal courts lack criminal
jurisdiction over non-member Indians. Congress subsequently acted to
restore tribal criminal jurisdiction over all Indians--including non-
member Indians.
Congress overturned Duro by adding language to 25 U.S.C. Sec. 1301,
the definitions section that defines ``powers of self-government.''
Prior to the Duro fix, that section read as follows:
``powers of self-government'' means and includes all
governmental powers possessed by an Indian tribe, executive,
legislative, and judicial, and all offices, bodies, and
tribunals by and through which they are executed, including
courts of Indian offenses . . . .
25 U.S.C. Sec. 1301(2). Congress amended this definition to include
that powers of self-government ``means the inherent power of Indian
tribes, hereby recognized and affirmed, to exercise criminal
jurisdiction over all Indians.'' Thus, overturning SCOTUS's Duro
decision and reaffirming that tribal governments possess the inherent
power to exercise criminal jurisdiction over all Indians.
Amending the ICRA to Relax Restrictions and Remove Sentencing
Limitations
The Indian Civil Rights Act should be amended to relax restrictions
regarding tribal authority over non-Indian criminal activity and to
remove sentencing limitations. These changes would ensure tribal
nations are empowered to exercise criminal jurisdiction over any
individual who commits a crime on tribal lands, regardless of whether
they are Indian or non-Indian. In furtherance of this goal, the
following preamble should be added to the ICRA:
It is the sense of Congress that Indian tribes, as sovereigns
that pre-date both the United States and the United States
Constitution, maintain their inherent sovereignty to govern and
engage in self-government within their territorial borders.
It is the sense of Congress that the treaties the United States
has signed with tribal nations, ``according to the constitution
of the United States, compose a part of the supreme law of the
land.'' Worcester v. State of Ga., 31 U.S. 515, 531 (1832).
It is the sense of Congress that because the treaties the
United States signed with tribal nations ``have been duly
ratified by the senate of the United States of America,'' and
because they acknowledge tribal nations to be ``sovereign
nation[s], authorised to govern themselves, and all persons who
have settled within their territory,'' tribal nations are
therefore ``free from any right of legislative interference by
the several states composing [the] United States of America.''
Id. at 530.
Thus, it is the sense of Congress that state laws ``are
unconstitutional and void'' when they seek to exercise
jurisdiction over tribal lands absent legislation from Congress
authorizing a state's exercise of jurisdiction since under the
United States Constitution, that power ``belongs exclusively to
the Congress of the United States.'' Id. at 531.
Much like in the Duro fix, Congress should amend 25 U.S.C.
Sec. 1301 by adding the red language [italic for this printed hearing]
as follows:
``powers of self-government'' means and includes all governmental
powers possessed by an Indian tribe, executive, legislative, and
judicial, and all offices, bodies, and tribunals by and through which
they are executed, including courts of Indian offenses; and means the
inherent power of Indian tribes, hereby recognized and affirmed, to
exercise criminal jurisdiction over all persons, Indian and non-Indian,
located on or within ``Indian Country'' as defined by 18 U.S.C. Sec.
1151.
25 U.S.C. Sec. 1301 (proposed language).
Moreover, additional language should be added to ensure the
protection of non-Indian defendants' due process rights. Suggested
language is as follows:
Any tribal nation seeking to exercise criminal jurisdiction
over non-Indian defendants not otherwise provided for by other
independent statutory authority may only do so if the due
process requirements set forth in 25 U.S.C. Sec. 1302(c) are
ensured.
ICRA should also be amended to remove sentencing limitations that
restrict tribal nations to sentencing criminals up to three years for
certain crimes, and when stacked using the Tribal Law and Order Act,
nine years total. The following proposed amendments to 25 U.S.C.
Sec. 1302 would remove the limitations on tribal sentencing altogether:
(a) In general.--Title II of Public Law 90-284 (25 U.S.C. 1301
et seq.) (commonly known as the ``Indian Civil Rights Act of
1968'') is amended by undertaking the following:
Subparagraphs (B) through (D) of section 202(a)(7) and section
202(b) shall be eliminated in their entirety.
These amendments would delete the following subparagraphs of
Section 202(a)(7) (provided below in purple [italic in this printed
hearing]):
(B) except as provided in subparagraph (C), impose for
conviction of any 1 offense any penalty or punishment greater
than imprisonment for a term of 1 year or a fine of $5,000, or
both;
(C) subject to subsection (b), impose for conviction of any 1
offense any penalty or punishment greater than imprisonment for
a term of 3 years or a fine of $15,000, or both; or
(D) impose on a person in a criminal proceeding a total penalty
or punishment greater than imprisonment for a term of 9 years;
These amendments would also delete Section 202(b) which provides:
(b) Offenses subject to greater than 1-year imprisonment or a
fine greater than $5,000
A tribal court may subject a defendant to a term of
imprisonment greater than 1 year but not to exceed 3 years for
any 1 offense, or a fine greater than $5,000 but not to exceed
$15,000, or both, if the defendant is a person accused of a
criminal offense who--
(1) has been previously convicted of the same or a comparable
offense by any jurisdiction in the United States; or
(2) is being prosecuted for an offense comparable to an offense
that would be punishable by more than 1 year of imprisonment if
prosecuted by the United States or any of the States.
Justice Gorsuch Proposed Amendment to Pub.L. 83-280 (18 U.S.C.
Sec. 1162)
As described in Justice Gorsuch's dissent, Pub.L. 83-280 must be
amended to ensure that states, other than those six states with
mandatory criminal jurisdiction under 18 U.S.C. 1162(a), have no
criminal jurisdiction in Indian country unless they have first obtained
tribal consent to that state criminal jurisdiction and, where
necessary, have amended their state constitutions or statutes to permit
that jurisdiction, all in compliance with procedures outlined in 25
U.S.C. Sec. 1324. The following is suggested language to implement
Justice Gorsuch's proposed amendment:
Section 2 of Public Law 82-280, as amended and codified at 18
U.S.C. 1162, is hereby further amended by adding at the end
thereof the following new subsection (e):
(e) Lack of State Jurisdiction Absent Tribal Consent.
Except as provided in subsection (a) of Title 18, Section 1162,
a State lacks criminal jurisdiction over crimes by or against
Indians in Indian Country, unless the State complies with the
procedures to obtain tribal consent outlined in 25 U.S.C.
Sec. 1321, and, where necessary, amends its constitution or
statutes pursuant to 25 U.S.C. Sec. 1324.
Questions Submitted by Representative Westerman
Question 1. Lead Up: Collaboration among tribal, state, federal,
and local law enforcement and legal systems is needed to cover the
complicated jurisdictional system that exists in Indian Country.
(1a). Could you provide examples of the best collaborative
connection that your tribe has with non-tribal law enforcement, and how
that may help inform discussion about public safety in Indian Country?
Answer. The Muscogee (Creek) Nation has had cross-deputization
agreements in place since the late 1980s. These agreements imbue both
tribal and nontribal jurisdictions to both agencies in the agreement.
These agreements also enable coordination, information and asset
sharing, collaborative investigations, and more. Since the McGirt
decision, these cross-deputization agreements have been expanded to
cover over 60 state and local agencies.
Cross deputization agreements are an informative example of the
good that can come from a negotiated approach to collaboration. By
contrast, the jurisdiction granted to states under Castro-Huerta
contains no obligation or no mechanism for any such collaboration.
It is important to note that jurisdictional issues of Castro-Huerta
extend well beyond law enforcement into the jurisdiction to prosecute,
adjudicate and punish criminals. Indeed, District Attorneys are already
giving staff guidance that VAWA cases--where Congress has made clear
tribes have jurisdiction to prosecute--are to be kept with the state
without indicating that tribal governments will be informed in cases
where the state chooses not to prosecute.
It is historically proven that collaboration produces better public
safety. Rather than foster collaboration, the Castro-Huerta decision,
combined with outdated and unjustifiable restrictions on tribal
jurisdiction, create a perverse incentive for disunity and
noncooperation. This runs directly contradictory to the decade old
report by the bipartisan Tribal Law and Order Act Commission that
determined that the best path to increase public safety in Indian
Country is through empowering tribes and fostering cooperation.
The Legislative Proposal to Improve Public Safety in Indian County
seeks to empower tribes to contribute more to public safety by
restoring the process by which states exercise jurisdiction on Indian
lands to one that requires collaboration and by removing restrictions
that prevent tribes from stepping in to fill gaps between state and
federal agencies.
(1b). Could you provide information and data about how plans to
increase resources to the Muscogee Creek Nation's tribal court system
have or have not changed both pre- and post- the McGirt decision, and
also pre- and post- the Castro-Huerta decision, including staff
increases, staff position additions, funding increases, and other
similar metrics?
Answer. Ensuring public safety is the highest priority at the
Muscogee (Creek) Nation. Since the McGirt decision the Muscogee (Creek)
Nation has rapidly scaled up our operations. We multiplied our spending
by the millions to meet the requirements of public safety. We have
increased our number of prosecutors from one to now fourteen and police
personnel from about 30 to near 90. We have filed over 4,000 cases in
Muscogee (Creek) Nation courts since the McGirt decision with over
1,200 in the third quarter of FY 2022 alone. As a result of these
increases, we have also increased our budget for incarceration to over
$3.5 million annually.
Looking forward, our master plan demonstrates our continue
commitment to public safety with planned growth in our public safety
personnel and infrastructure.
Year FY 23
The Nation is in preliminary talks to acquire a medium security
facility that will in year one allow the Nation to save its entire
expense that it currently spends at Tulsa County Jail. Tulsa County
leaders are charging rates that are equal to what they charge the U.S.
Marshal Service.
The Nation is also looking at campus development on two new sites
that are adequate for new construction in areas where the need for
judicial services has been established. Estimated cost $6 million for
infrastructure.
FY 24
The Nation will determine 3 other locations that are suitable for
new construction of jail court and other ancillary government services
throughout the reservation. Estimated cost $18 million for
infrastructure.
FY 25
The Nation will determine 3 other locations that are suitable for
new construction of jail court and other ancillary government services
throughout the reservation. Estimated cost $18 million infrastructure.
Public Safety Infrastructure Investments:
Detention facilities--$80 million dollars are required for the
construction of 8 regional tribal jails on the Reservation. These
facilities are needed to incarcerate individuals at multiple locations
geographically distributed across the Reservation to ensure convenient
access for law enforcement officers and minimize the need for costly
long distance prisoner transport.
Courthouses w/Police Station--$80 million dollars are required for
the construction of 8 regional tribal courthouse facilities on the
Reservation. These would likely be geographically paired with the
regional jail facilities for efficiency and convenience.
Mental Health Facilities--$12 million dollars are required for the
construction of 2 mental health facilities for the incarceration of
individuals requiring mental health evaluation and treatment, both pre-
trial and post-conviction. These facilities would also be available to
provide training and support for our tribal police officers in violence
interruption, de-escalation, and other techniques for increasing the
likelihood of successful interactions with suspects/individuals with
mental health problems.
Juvenile Detention Facilities--$24 million dollars are required for
the construction of 4 juvenile detention facilities on the Reservation.
These facilities are absolutely necessary to separate young offenders
from older, hardcore criminals and to focus on the rehabilitation and
diversion of youthful inmates away from crime and other destructive
lifestyle choices.
Public Safety Recurring Expenses
Tribal Police Force--According to the Bureau of Indians Affairs,
Office of Justice Services (OJS) and the American Community Survey
estimates of the American Indian and Alaska Native population on the
Reservation, the Muscogee Nation must maintain a police force of 312
full time equivalents (FTEs). To achieve this level of operation, OJS
estimates that nearly $34.4 million is required on a recurring basis
for increased personnel, equipment, and other operational costs. These
expenses are for recurring costs, however, and do not represent the
one-time costs to build infrastructure or acquire existing
infrastructure to support operations. Clearly, significant investments
are necessary, because the MCN is responsible for all facets of law
enforcement within a reservation that is larger than New Jersey and
includes the second largest city in the state of Oklahoma.
Tribal Court System--Just as law enforcement needs have grown, so
too have the needs of tribal courts. Using the OJS report, the MCN
estimates that an additional $40 million is required to support
expanded responsibilities of tribal courts. Since July 2020, the MCN
has seen dockets in tribal court quadruple, without any additional
funding to support efficient and professional disposition of cases that
now must be adjudicated under tribal and Federal law.
Incarceration and Detention--We calculate that around $20.6 million
will be need to cover the costs of the personnel and systems necessary
to detain and incarcerate individuals.
Question 2. Lead Up: In Castro-Huerta, the Court held that ``Under
the Constitution, States have jurisdiction to prosecute crimes within
their territory except when preempted (and preempted in a manner
consistent with the Constitution) by Federal law or principles of
tribal self-government.
(2a). Would you propose to limit state criminal jurisdiction over
non-Indians in the absence of some measure of tribal consent be
consistent with or violative of the Court's statement of the law?
Answer. The U.S. Constitution grants Congress plenary authority to
determine policies related to tribal nations and Congress has the
opportunity and the obligation to go beyond the consent problems
created by Castro-Huerta to understand and address other problems
exacerbated by the decision. The Legislative Proposal to Improve Public
Safety in Indian Country does not seek to limit states' jurisdiction on
Indian lands. Rather, it seeks to require a collaborative approach
between tribes and states that would strengthen public safety for all.
Over a decade ago, the bipartisan Tribal Law and Order Act
Commission concluded that empowering tribes is the best and only viable
solution to improving public safety in Indian Country. Orderly
cooperation produces safer communities. The existing patchwork systems
of unilateral authority for states do not. At a time when crime is
rising, there is no justification for artificially keeping additional
police, courts, and prosecutors who meet all requirements for
Constitutional protections from contributing to the process based
solely on the fact they are ``tribal''.
Question 3. Lead Up: The Court also concluded that Oklahoma's
exercise of criminal jurisdiction over a non-Indian who victimized a
Native did not impermissibly infringe on Tribal self-government and
would not harm the Federal interest in protecting Indian victims.
(3a). Given that is what the Court has said, what is the
constitutional source of Congress's power to say otherwise?
Answer. The constitutional source of Congress's power to
legislative over Indian affairs cannot be questioned.
The Supreme Court has repeatedly, and consistently, affirmed its
``respect both for tribal sovereignty [] and for the plenary authority
of Congress'' over Indian affairs. Iowa Mut. Ins. Co. v. LaPlante, 480
U.S. 9, 18 (1987) (citations and quotations omitted); see also United
States v. Mazurie, 419 U.S. 544, 554 n.11 (1975) (referring to
``Congress' exclusive constitutional authority to deal with Indian
tribes.''). To be sure, ``[t]he plenary power of Congress to deal with
the special problems of Indians is drawn both explicitly and implicitly
from the Constitution itself.'' Morton v. Mancari, 417 U.S. 535, 551-52
(1974).
Accordingly, ``the Constitution grants Congress broad general
powers to legislate in respect to Indian tribes, powers that [this
Court has] consistently described as `plenary and exclusive.' '' United
States v. Lara, 541 U.S. 193, 200 (2004); see also Bay Mills Indian
Cmty., 572 U.S. at 788 (The Court has ``consistently described
[Congress's authority] as plenary and exclusive to legislate [with]
respect to Indian tribes.' '') (citations and quotations omitted).
Indeed, ``proper respect . . . for the plenary authority of Congress in
this area cautions that [the courts] tread lightly.'' Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 60 (1978).
Furthermore, since the inception of the United States, interactions
between the United States and tribal nations have been vested
exclusively in the federal government. Worcester v. Georgia., 31 U.S.
515, 557 (1832) (``The treaties and laws of the United States
contemplate . . . that all intercourse with [Indian tribes] shall be
carried on exclusively by the government of the union.''). Indeed, the
supremacy of congressional regulation is necessary to protect tribal
nations from states, whose actions have historically threatened tribal
self-governance and their continued existence. See United States v.
Kagama, 118 U.S. 375, 383-84 (1886) (concluding that this exclusively
federal authority ``is within the competency of congress'' in part
because Indian Tribes ``owe no allegiance to the states, and receive
from them no protection''). Consequently, ``tribal sovereignty is
dependent on, and subordinate to, only the Federal Government, not the
States.'' California v. Cabazon Band of Mission Indians, 480 U.S. 202,
207 (1987).
In addition to deriving from the text of the Constitution,
Congress's exclusive authority to regulate Indian affairs also derives,
in significant part, from the unique trust relationship between tribal
nations and the United States. See, e.g., United States v. Mitchell,
463 U.S. 206, 225 (1983) (recognizing ``a general trust relationship
between the United States and the Indian people.''). The Supreme Court
has reaffirmed that management of this trust relationship is assigned
to Congress. See United States v. Jicarilla Apache Nation, 564 U.S.
162, 175 (2011) (``Throughout the history of the Indian trust
relationship, [the Court] ha[s] recognized that the organization and
management of the trust is a sovereign function subject to the plenary
authority of Congress.''); see also Blackfeather v. United States, 190
U.S. 368, 373 (1903) (``The moral obligations of the government toward
the Indians, whatever they may be, are for Congress alone to
recognize.'').
Furthermore, the United States's trust relationship with tribal
nations has no counterpart in any relationship between tribal nations
and individual states. See Washington v. Confederated Bands & Tribes of
Yakima Indian Nation, 439 U.S. 463, 501 (1979) (``States do not enjoy
this same unique relationship with Indians . . . .''). The trust
relationship between Indian tribes and the United States, therefore, is
``an instrument of federal policy[,]'' and Congress has the authority
to ``invoke[]its trust relationship to prevent state interference with
its policy toward the Indian tribes.'' Jicarilla Apache Nation, 564
U.S. at 180 & n.8. When it comes to regulation of Indian affairs
related to tribal government, sovereignty, and safety for Native women
and children, only Congress has the necessary constitutional authority
to complete the task.
______
Ms. Leger Fernandez. Thank you very much for your
testimony.
The Chair now recognizes the Honorable Kevin Killer, who is
the President of the Oglala Sioux Tribe.
STATEMENT OF THE HONORABLE KEVIN KILLER, PRESIDENT, OGLALA
SIOUX TRIBE, PINE RIDGE, SOUTH DAKOTA
Mr. Killer. Thank you, Chairwoman.
[Speaking Native language.] That is our traditional
greeting in Lakota. I shake your hand with a warm and good
heart. My Lakota name is Close to Earth. My English name is
Kevin Killer, and I am the President of the Oglala Sioux Tribe.
Thank you for the opportunity to testify about the Supreme
Court's Castro-Huerta decision. This decision held for the
first time that states have criminal jurisdiction over crimes
committed by non-Indians against Indians in Indian Country.
This extension of state jurisdiction in Indian Country
without tribal consent is an affront to tribal sovereignty and
a violation of our treaty rights, which Congress can and should
have rectified by legislation.
With the exception of P.L. 280, the legislative and
judicial history of the United States shows the effort by both
tribal governments and the Federal Government to keep states
out of Indian Country. Indian tribes have a government-to-
government relationship with the United States.
As for my Tribe, we entered several treaties with the
United States. Our treaties have long addressed matters of
jurisdiction to resolve disputes and address those who would
encroach on the rights of the Tribe or our citizens.
In particular, our 1868 Treaty says if bad men among
whites, or subject to the authority of the United States, shall
commit a wrong on the person or property of an Indian, the
United States will proceed at once to cause the offender to be
arrested and punished in accordance with the laws of the United
States.
Our treaties do not allow the state to come on our
reservation and apprehend and take non-Indians accused of
committing crimes against a tribal member or other Indians or
another Indian on the reservation, then try that person before
a non-Indian jury. And the South Dakota Enabling Act and
Constitution says that Indian land shall remain under the
absolute jurisdiction and control of the Congress of the United
States.
The majority in the Castro-Huerta decision was solely
focused on one particular state in developing its decision. We
reiterate that the majority got it wrong, but we also make it
clear that Castro-Huerta is a violation of our treaties, which
per Constitution, are the supreme law of the land.
It also violates the tribal consent provision of the Indian
Civil Rights Act. We support Congress stepping up to rectify
this poor decision for all Tribal Nations. The Castro-Huerta
decision gives rise to major areas of practical concern in
Indian Country including: (1) a potential lack of prosecution
of non-Indians in Indian Country generally, as the state and
Federal prosecutors point the finger at each other; (2) the
potential for chaos arising from conflicting tribal, state, and
Federal laws regarding different standards when charging and
prosecuting crimes; (3) the potential application of Castro-
Huerta to civil matters and efforts to extend state
policymaking onto tribal lands; and finally, (4) unending and
costly litigation about the application and reach of the
decision. Castro-Huerta adds the maze of criminal jurisdiction
in Indian Country which complicates the prosecution of crimes
in Indian Country.
The solution to this jurisdictional maze is not to grant
unconstitutional powers to the states. Instead, it is to fix
the jurisdictional gap following the Court's decision in
Oliphant which held that tribes lacked criminal jurisdiction
over non-Indians. Any such fix must include the funding
required to carry out that authority.
With this, the Oglala Sioux Tribes ask Congress to: (1)
repeal all existing civil and criminal jurisdiction limits on
tribes and allow tribes the option of fully asserting their
inherent right for civil and criminal jurisdiction through our
territories; and (2) provide adequate appropriations to tribes
to develop our court, law enforcement, and infrastructure
throughout Indian Country.
If Congress chooses not to address the jurisdictional gaps
following the Supreme Court's decision in Oliphant at this
time, it should, at a minimum, restore the pre-Castro-Huerta
decision status quo by clarifying that states lack criminal
jurisdiction over crimes committed by non-Indians.
Thank you for holding this hearing, Madam Chair. The Oglala
Sioux Tribe stands ready to work with you to help right the
ship on this criminal jurisdiction in Indian Country. And we
will stand by for questioning. Thank you.
[The prepared statement of Mr. Killer follows:]
Prepared Statement of Kevin Killer, President, Oglala Sioux Tribe
My name is Kevin Killer, and I am the President of the Oglala Sioux
Tribe of the Pine Ridge Indian Reservation. Thank you to the
Subcommittee for this important opportunity to provide testimony
regarding the potentially devastating effects of the U.S. Supreme
Court's recent decision in Oklahoma v. Castro-Huerta.\1\ Prior to
becoming President of my Tribe, I served in state government as a South
Dakota State Representative for eight years and a South Dakota State
Senator for over two years. I am deeply familiar with the complex
jurisdictional issues that arise in Indian Country,\2\ from the
perspective of both Tribal and state governments. Communication and
coordination between separate sovereigns are key to effective
governance, but central to those efforts must be an understanding of
and respect for Tribal sovereignty.
---------------------------------------------------------------------------
\1\ 597 U.S. ___, slip op. (2022).
\2\ The definition of Indian Country in 18 U.S.C. Sec. 1151(a)
includes ``all land within the limits of any Indian reservation under
the jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation.''
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As a sovereign nation preexisting the federal and state
governments, we continue to assert our inherent right to make our own
laws and have our people and reservation lands be governed by them. The
extension of state criminal jurisdiction in Indian Country without
tribal consent in Castro-Huerta is an egregious affront to tribal
sovereignty and violation of our treaty rights, which Congress can and
should rectify by legislation.
I. Castro-Huerta Misapplies Basic Principles of Federal Indian Law
The majority in Castro-Huerta held for the first time that states
have criminal jurisdiction, concurrent with the jurisdiction of the
federal government (and in some cases involving domestic violence,
concurrent with the jurisdiction of tribal governments \3\), over
crimes committed by non-Indians against Indians in Indian Country.\4\
The majority was wrong. As the dissent pointed out, ``truly, a more
ahistorical and mistaken statement of Indian law would be hard to
fathom.'' \5\
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\3\ See 25 U.S.C. Sec. 1304 (recognizing and affirming that the
inherent powers of self-government of participating Tribes include
``the inherent power . . . to exercise special [domestic] violence
criminal jurisdiction over all persons'').
\4\ 597 U.S. at 24-25 (majority opinion).
\5\ Id. at 12 (Gorsuch, J., dissenting).
---------------------------------------------------------------------------
The majority's novel interpretation contravened centuries-old
precedent. The majority's approach was so egregious, in fact, that
Justice Gorsuch writing in dissent questioned the ability of the
present Court to carry out the duties of the United States Government.
He stated that ``[o]ne can only hope the political branches and future
courts will do their duty to honor this Nation's promises even as we
have failed today to do our own.'' \6\ I come before you today to ask
this Congress to do just that.
---------------------------------------------------------------------------
\6\ Id. at 42 (Gorsuch, J., dissenting).
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As Committee Chairman Raul Grijalva aptly summarized:
The majority decision in Castro-Huerta v. Oklahoma is outright
colonialism. It brazenly overwrites foundational Federal Indian
law that has consistently reinforced tribal governments'
inherent right to self-governance. The ruling contends that
tribes cannot be trusted to exercise their sovereign
authorities over criminal matters, an offensive argument that
reeks of paternalism.\7\
---------------------------------------------------------------------------
\7\ Press Release, Representative Raul Grijalva, Chair of the House
Natural Resource Committee, Chair Grijalva Statement on SCOTUS Decision
in Castro-Huerta v. Oklahoma (June 30, 2022).
Chairman Grijalva called on ``colleagues on both sides of the
aisle'' to ``heed Justice Gorsuch's urging to `honor this nation's
promises' to tribes.''
This decision is an alarming and unsupported expansion of state
power in Indian Country by judicial fiat.\8\ The Constitution itself--
to which the states agreed to adhere as a condition of admission to the
United States--makes clear that states have no role in Indian affairs.
Since 1790, beginning with the Trade and Intercourse Acts, Congress has
time and again reinforced these constitutional limits, shielding Tribes
from state interference. In the Cherokee cases of the 1830s, the
Supreme Court held that states have no jurisdiction in Indian
Country.\9\ In the 1886 case of United States v. Kagama, which upheld
the Major Crimes Act, the Supreme Court noted this about the states:
``Because of the local ill feeling, the people of the States where
[Indian tribes] are found are often their deadliest enemies.'' \10\
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\8\ It should be pointed out that Congress knows how to use its
constitutional authority to expand state criminal jurisdiction on
Indian reservations. See 18 U.S.C. Sec. 3243, which provides as
follows:
Jurisdiction is conferred on the State of Kansas over offenses
committed by or against Indians on Indian reservations, including trust
or restricted allotments, within the State of Kansas, to the same
extent as its courts have jurisdiction over offenses committed
elsewhere within the State in accordance with the laws of the State.
This section shall not deprive the courts of the United States
of jurisdiction over offenses defined by the laws of the United States
committed by or against Indians on Indian reservations.
The Oklahoma v. Castro-Huerta decision is a usurpation of Congress'
authority in this regard.
\9\ See, e.g., Worcester v. Georgia, 31 U.S. 515 (1832) (holding
that a Georgia criminal statute applied to non-Indians on an Indian
reservation was unconstitutional).
\10\ 118 U.S. 375, 384 (1886).
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Only during the ``termination era'' of the 1950s and the passage of
Public Law 83-280 (P.L. 280) in 1953 did Congress--for the first time--
grant special permission to a small group of states to exercise
jurisdiction in Indian Country. P.L. 280 allowed additional states the
option of assuming jurisdiction, but in 1964, the Oglala Sioux Tribe
and other tribes of the Great Sioux Nation united to defeat a South
Dakota referendum asserting state jurisdiction over our reservations
under P.L. 280 by a 3 to 1 margin.\11\ The Oglala Sioux Tribe, Rosebud
Sioux Tribe, Cheyenne River Sioux Tribe, and Standing Rock Sioux Tribe
preserved that victory in federal court when the State sought to assert
jurisdiction over state highways running through our reservations.\12\
Congress amended P.L. 280 in 1968 to prevent states from assuming
jurisdiction without tribal consent.\13\ This amendment reflected a
shift in national policy away from ``termination'' and toward policies
promoting tribal self-government and self-reliance, free from state
interference and control. Thus, with the exception of P.L. 280, the
legislative and judicial history of the United States shows a concerted
effort by both Tribal Governments and the Federal Government to keep
states out of Indian Country.
---------------------------------------------------------------------------
\11\ South Dakota Secretary of State, Ballot Question Titles and
Election Returns 1890-2020, South Dakota Political Almanac, 42, https:/
/www.sdsos.gov/elections-voting/assets/Ballot Questions.pdf (last
visited Sep. 15, 2022).
\12\ Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164 (1990),
cert. denied, 500 U.S. 915 (1991).
\13\ 25 U.S.C. Sec. 1326.
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Indian tribes are ``self-governing political communities that were
formed long before Europeans first settled in North America.'' \14\
Indian tribes retain the sovereign status of ``domestic dependent
nations,'' \15\ and continue to ``possess[] attributes of sovereignty
over both their members and their territory.'' \16\ Indian tribes have
a government-to-government relationship with the United States,\17\ but
they are in no way ``dependent on'' or ``subordinate to'' the
states.\18\
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\14\ Nat'l Farmers Union Ins. Co. v. Crow Tribe of Indians, 471
U.S. 845, 851 (1985).
\15\ Oklahoma Tax Comm'n v. Citizen Band, Potawatomi Indian Tribe,
498 U.S. 505, 509 (1991). Accord, Cherokee Nation v. Georgia, 30 U.S.
1, 17 (1831).
\16\ Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 140 (1982),
quoting United States v. Mazurie, 419 U.S. 544, 557 (1975). Accord,
Worcester v. Georgia, 31 U.S. at 557.
\17\ This relationship has been recognized in treaties, statutes,
Executive Orders, and otherwise. See, e.g., 25 U.S.C.
Sec. Sec. 3601(1), 3701(1); Executive Order 13175, 65 F.R. 67249 (Nov.
9, 2000); Executive Memorandum, 59 Fed. Reg. 22951 (April 29, 1994).
\18\ Washington v. Confederated Tribes of the Colville Indian
Reservation, 447 U.S. 134, 154 (1980).
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In McGirt v. Oklahoma,\19\ the Court did its job and got it right.
In McGirt, the Court held that the state of Oklahoma lacked criminal
jurisdiction over offenses committed by a non-Indian on the Muscogee
(Creek) Reservation.\20\ While the McGirt decision was limited to major
crimes committed in Indian Country, its reasoning was grounded in the
fact that Congress agreed to a treaty with the Muscogee (Creek) Nation
that explicitly stated that ``no portion'' of the Muscogee (Creek)
Reservation ``shall ever be embraced or included within, or annexed to,
any Territory or State.'' \21\ That language, the Court in McGirt
correctly held, was an ``assur[ance]'' that the Muscogee (Creek) Nation
has a ``right to self-government on lands that would lie outside both
the legal jurisdiction and geographic boundaries of any State.'' \22\
Ultimately, the Court in McGirt did what the Court in Castro-Huerta
failed to do: it respected its own precedent, the authority of Congress
to legislate on Indian affairs, and tribal sovereignty and self-
governance.\23\
---------------------------------------------------------------------------
\19\ 591 U.S. ___, slip op. (2022).
\20\ Id. at 36 (majority opinion).
\21\ Id. at 6 (majority opinion) (quoting art. IV, 11 Stat. [699]).
\22\ Id. at 6 (majority opinion).
\23\ Id. at 1 (majority opinion) (``Because Congress has not said
otherwise, we hold the government to its word.'')
---------------------------------------------------------------------------
The State of Oklahoma, we understand, filed more than 60 cases to
get the U.S. Supreme Court to revisit McGirt. As the dissent in Castro-
Huerta dutifully noted we are here because ``[w]here [the Court's]
predecessors refused to participate in one State's unlawful power grab
at the expense of the Cherokee, today's Court accedes to another's.''
\24\
---------------------------------------------------------------------------
\24\ 597 U.S. at 2 (Gorsuch, J., dissenting).
---------------------------------------------------------------------------
Congress must recognize the Court's failure in Castro-Huerta and
respond swiftly and conclusively--as it has the authority to safeguard
against the severe injustices and negative ramifications created by
this decision and the mountains of hardship and litigation that it will
cause.
II. Castro-Huerta Violates Our Treaties and Other Federal Law
The Oglala Sioux Tribe has an established nation-to-nation
relationship with the federal government. Our treaties have long
addressed matters of jurisdiction to resolve disputes and address those
who would encroach on the rights of our Tribe or our citizens.
Article 4 of the 1825 Treaty between the Sioune (Cuthead Yantonai)
and Oglala Bands of Sioux Indians provides in part as follows:
[T]he Sioune and Ogallala bands bind themselves to extend
protection to the persons and the property of the traders, and
the persons legally employed under them, whilst they remain
within the limits of their particular district of country. And
the said Sioune and Ogallala bands further agree, that if any
foreigner or other persons, not legally authorized by the
United States, shall come into their district of country, for
the purposes of trade or other views, they will APPREHEND such
person or persons, and deliver him or them to some United
States' superintendent, or agent of Indian affairs, or to the
commandant of the nearest military post, to be dealt with
according to law.\25\
---------------------------------------------------------------------------
\25\ 7 Stat. 252.
Other Sioux tribes also have their own 1825 treaties with identical
---------------------------------------------------------------------------
language.
Article 1 of the 1868 Fort Laramie Treaty also provides in part as
follows:
If bad men among the whites, or subject to the authority of the
United states, shall commit a wrong on the person or property
of an Indian, the United States will, upon proof being made to
the agent and forwarded to the Commissioner of Indian Affairs
at Washington City, proceed at once to cause the offender to be
arrested and punished in accordance with the laws of the United
States, and also to re-imburse the injured person for the loss
sustained.\26\
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\26\ 15 Stat. 635.
The above treaty provisions are still valid under existing law,\27\
and when read together, clearly vest authority in the Oglala Sioux
Tribe to apprehend and deliver bad white men over to the superintendent
or agent of Indian affairs. Tribes have long had our own ways of
addressing crime,\28\ and our treaties were meant to honor and protect
those ways of governing our lands.
---------------------------------------------------------------------------
\27\ See 25 U.S.C. Sec. 71 and 25 U.S.C. Sec. 5128.
\28\ See, e.g., Ex parte Crow Dog, 109 U.S. 556 (1883).
---------------------------------------------------------------------------
Our treaties do not allow the State of South Dakota to come onto
our reservation and apprehend and take non-Indians accused of
committing a crime against a tribal member or other Indian on the
reservation, then try that person before a non-Indian jury.
Under the U.S. Constitution, treaties are the supreme law of the
land, yet the Supreme Court has now purported to wash away these treaty
provisions unilaterally, undermining not only tribal sovereignty, but
the roles of both the Legislative and Executive branches of the U.S.
Government.
Further, the 1889 South Dakota Enabling Act expressly disclaims any
and all authority of the state over our Tribe. Specifically, it states:
That the people inhabiting said proposed States do agree and
declare that they forever disclaim all right and title to the
unappropriated public lands lying within the boundaries
thereof, and to all lands lying within said limits owned or
held by any Indian or Indian tribes; and that until the title
thereto shall have been extinguished by the United States, the
same shall be and remain subject to the disposition of the
United States, and said Indian lands shall remain under the
absolute jurisdiction and control of the Congress of the United
States[.] \29\
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\29\ 25 Stat. 676, Sec. 4.
There is no ambiguity here, and the State of South Dakota agreed to
this provision set forth by Congress in order to be welcomed into the
United States. Nearly identical language is included in the South
Dakota Constitution.\30\
---------------------------------------------------------------------------
\30\ S.D. Const. art. XXII.
---------------------------------------------------------------------------
Additionally, as discussed above, South Dakota was not a mandatory
P.L. 280 state,\31\ and Sioux tribes were able to organize and defeat
state jurisdiction over criminal causes of action in a state-wide
referendum vote in 1964.\32\ Moreover, under a 1968 amendment to P.L.
280 contained in the 1968 Indian Civil Rights Act, states can no longer
assume criminal jurisdiction on Indian reservations without the consent
of the affected Tribes in a referendum vote held by the Secretary of
Interior.\33\
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\31\ See 18 U.S.C. Sec. 1162(a).
\32\ South Dakota Secretary of State, Ballot Question Titles and
Election Returns 1890-2020, South Dakota Political Almanac, 42, https:/
/www.sdsos.gov/elections-voting/assets/Ballot Questions.pdf (last
visited Sep. 15, 2022).
\33\ 25 U.S.C. Sec. 1326.
We also note that in 1977, the American Indian Policy Review
Commission (AIPRC), which Congress created to examine the problem of
United States Indian policy and make recommendations for change, began
---------------------------------------------------------------------------
its report with a discussion of policy for the future, which stated:
The fundamental concepts which must guide future policy
determinations are:
That Indian tribes are sovereign political bodies, having the
power to determine their own membership and power to enact laws
and enforce them within the boundaries of their reservations .
. ..\34\
---------------------------------------------------------------------------
\34\ U.S. Congress, Final Report of the American Indian Policy
Review Commission, vol. 1, at 4 (1977).
The poorly reasoned Castro-Huerta decision flouts this wise policy
guidance, creating an urgent need for Congress to help tribes protect
their governmental authority against state encroachment.
Quite interesting is that the Majority in Castro-Huerta quickly
states that the treaties at hand in the case were supplanted by that
state's enabling act. Notably, the Majority was solely focused on one
particular state in developing its decision. We reiterate that the
Majority got it wrong, but we also make clear that nothing has
supplanted our treaties. Our treaties reign, and the Castro-Huerta
decision violates them, specifically the aforementioned extradition
provisions. Castro-Huerta also violates the tribal consent provision of
the Indian Civil Rights Act. The decision should be barred from
applying on our Reservation as the Court wholly failed to factor in our
unique scenario and relevant documents. This holds true for other Sioux
Nation tribes and we have to think for many other Tribal Nations as
well. We support Congress stepping up to rectify this poor decision for
all Tribal Nations.
III. The Consequences of the Supreme Court Legislating from the Bench
The consequences of letting Castro-Huerta stand are dire. The
Supreme Court has not only overstepped its authority by legislating
from the bench--it has done so with a very limited and narrow focus on
the particularities of Oklahoma. This has created bad policy for
Oklahoma and everywhere else.
Perhaps most significantly, states have been empowered to extend
their policymaking onto tribal lands. For example, Tribes, states, and
the federal government can have significant differences in policy
regarding what behaviors should be criminalized. Such concerns are
particularly pronounced post-Dobbs v. Jackson Women's Health
Organization,\35\ with states empowered to legislate in ever-broader
areas of American life.
---------------------------------------------------------------------------
\35\ 597 U.S. ___, slip op. (2022).
---------------------------------------------------------------------------
Additionally, since Castro-Huerta, Oklahoma tribes have been
advised that federal prosecutions are being referred to the state. We
fear the same will happen elsewhere in Indian Country. This should not
stand. To Tribes, it appears that federal prosecutors have already been
shirking their responsibilities in recent years due to the overwhelming
number of criminal cases arising in Indian Country and inadequate
funding and staffing to meet these challenges.
From the tribal point of view, the Castro-Huerta decision has
resulted in major areas of concern thus far in Indian Country at large:
1. Extension of state policymaking onto tribal lands.
2. A visible decrease in prosecutions by the federal government,
which has responsibility for the prosecution of Major
Crimes on reservations.
3. A potential lack of prosecution of non-Indians in Indian Country
generally as state and federal prosecutors point their
fingers at each other.
4. A failure to notify Tribes of domestic violence incidents where
the Tribe has concurrent jurisdiction to prosecute a non-
Indian.
5. The potential application of Castro-Huerta to civil matters,
although Castro-Huerta was only about criminal jurisdiction
over non-Indians.
Historically, tribal law and judicial services have been woefully
underfunded by Congress. Unfortunately, our Tribe suffers from an
inordinate lack of resources for law enforcement and our court system.
Federal funding and priorities for prosecutions aimed at reducing non-
Indian crime in Indian Country has been equally lacking. Now it would
appear some federal authorities serving Indian Country may begin to
defer to their state counterparts, resulting in greater danger and less
justice for our reservation communities.
The Court's holding in Castro-Huerta that states have concurrent
jurisdiction further adds to the maze of criminal jurisdiction in
Indian Country that the Court has created, complicating the prosecution
of crimes in Indian Country. We are concerned that Castro-Huerta will
result in the potential for chaos arising from conflicting tribal,
state, and federal laws regarding differing standards when charging and
prosecuting crimes. Already, the hodgepodge of criminal jurisdictional
authority has harmed, and will continue to harm, tribal communities.
According to a report by the U.S. Attorney's Office, at least [Seventy]
percent of violent crimes generally committed against AI/ANs involve an
offender of a different race. This statistic includes crimes against
children twelve years and older . . . [I]n domestic violence cases, 75
percent of the intimate victimizations and 25 percent of the family
victimizations involve an offender of a different race. Furthermore,
national studies show that men who batter their companion also abuse
their children in 49 to 70 percent of the cases.\36\
---------------------------------------------------------------------------
\36\ U.S. Attorney General's Advisory Committee on American Indian/
Alaska Native Children Exposed to Violence, Ending Violence So Children
Can Thrive, November 2014, https://www.justice.gov/sites/default/files/
defendingchildhood/pages/attachments/2015/03/23/ending_
violence_so_children_can_thrive.pdf (last visited Sep. 15, 2022).
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The solution to this jurisdictional maze is not to grant
unconstitutional power to the states. Rather, it is to fix the
jurisdictional gap following the Court's decision in Oliphant v.
Suquamish Indian Tribe,\37\ which held that tribes lacked criminal
jurisdiction over non-Indians.
---------------------------------------------------------------------------
\37\ 435 U.S. 191 (1978).
---------------------------------------------------------------------------
The jurisdictional gap following Oliphant fueled non-Indian crime
in Indian Country, which was eventually addressed in part in 2013 when
Congress reauthorized the Violence Against Women Act and included
special jurisdictional provisions for qualifying tribes to prosecute
non-Indians for certain acts of domestic or dating violence.\38\
Because the Court has once again issued a decision upending matters of
criminal jurisdiction in Indian Country, we again come to Congress
seeking a fix. Any such fix must include not only the necessary
authorities to undo the jurisdictional maze but also the funding and
resources required to carry out those authorities.
---------------------------------------------------------------------------
\38\ 127 Stat. 54, codified at 25 U.S.C. Sec. 1304.
---------------------------------------------------------------------------
Although the majority in Castro-Huerta declined to revisit its
holding in McGirt,\39\ the State of Oklahoma is nonetheless using the
Castro-Huerta decision to attempt to reverse McGirt by arguing that it
has presumptive jurisdiction in Indian Country.\40\ Without the
intervention of Congress, it is possible that the Court will entertain
this argument and unconstitutionally expand the scope of state
jurisdiction further.
---------------------------------------------------------------------------
\39\ 591 U.S. at 11 (Gorsuch, J., dissenting).
\40\ Brief of Amicus Curiae State of Oklahoma in Support of
Appellee City of Tulsa and Affirmance at 5-9, Hooper v. City of Tulsa,
No. 22-5034 (10th Cir. Aug. 8, 2022).
---------------------------------------------------------------------------
Moreover, it is conceivable that Oklahoma and other states will
continue to find new ways to weaponize the Castro-Huerta decision to
undermine tribal self-determination and the decisions and intent of
Congress. These actions will lead to intensive, drawn-out, and costly
litigation, all of which can be avoided by Congress stepping up and
telling the Court that the role of legislating is the role of Congress,
not the courts.
IV. Congress' Constitutional Obligation to Correct the Court
For all the reasons herein, I am asking Congress to fulfill its
constitutional role--as well as its federal treaty obligations and
trust responsibilities--and take swift action to address the disastrous
Castro-Huerta decision. When one branch of government oversteps its
authority in contravention of well-established law, it is incumbent on
the other branches to protect the country's constitutional balance of
power.
Specifically, the Oglala Sioux Tribe asks Congress to:
1. Repeal all existing civil and criminal jurisdictional limitations
on Indian Tribes, whether imposed by statute or common law,
and allow Tribes the option of fully asserting their
inherent civil and criminal jurisdiction throughout our
territories;
2. Pass new appropriations designated for the development and
enhancement of Tribal court and law enforcement
infrastructure throughout Indian Country (including code
development, construction, equipment, policies and program
development); detention and rehabilitation facilities;
intervention and diversion services; training; and staffing
(judges, prosecutors, public defenders, clerks, officers,
and other necessary positions); and
3. For the transition period during which Tribal governments will be
developing their infrastructures, provide Tribes and
federal prosecutors the funding and authorization necessary
to prosecute and reduce non-Indian crimes committed in
Tribal communities, fostering a stronger government-to-
government relationship between the United States and
Tribes.
The Oglala Sioux Tribe is a part of and supports the Coalition of
Large Tribes (COLT) and The Great Plains Tribal Chairmen's Association
(GPTCA) in their statements on this matter.
Should Congress choose not to address the jurisdictional gaps
following the Supreme Court's decision in Oliphant at this time, it
should at a minimum restore the pre-Castro-Huerta status quo by
clarifying that states lack criminal jurisdiction over crimes committed
by non-Indians against Indians in Indian Country.
Conclusion. The relationship between our Tribe and the federal
government is a bilateral one, and it is enshrined in our Treaties. We
urge Congress to enact an Oliphant and Castro-Huerta fix that would
restore jurisdictional authority to Tribes and jurisdictional
boundaries on states. Tribal sovereignty must include, at a minimum,
the ability to protect our own people from non-Indian predators, and it
must be shielded from an extension of state power onto our Pine Ridge
Indian Reservation.
We look forward to working with this Subcommittee and Congress
overall to address these matters and to ensure that the long-standing
nation-to-nation relationship between our governments continues.
Thank You.
______
Questions Submitted for the Record to Kevin Killer, President, Oglala
Sioux Tribe
Questions Submitted by Representative Leger Fernandez
Question 1. Does the State of South Dakota provide support or
resources to public safety services on tribal lands?
Answer. No, the State of South Dakota does not provide support or
resources to public safety services on our tribal lands unless formally
requested to do so on a particular case. Oglala Lakota and Pennington
Counties each provide one officer who address non-Indian crime only.
(1a). Since the Castro-Huerta ruling, has the State government
communicated with the Oglala Sioux Tribe about the expected impacts?
Answer. No, the State of South Dakota has not communicated with the
Oglala Sioux Tribe about the expected impacts of the Castro-Huerta
ruling.
Question 2. If you are able to, can you provide a rough comparison
of the resources available to the Oglala Sioux Tribe for public safety
services and the resources at the disposal of the State of South Dakota
for its own public safety services?
Answer. The comparison is stark. The public safety resources we
have available to our Tribe are at a level that is well below the level
of need. Our Tribe's Pine Ridge Indian Reservation is roughly 3.1
million acres, which is approximately the size of the States of Rhode
Island and Delaware combined. Our Reservation is vast, rural and
remote; it covers much of the southwest portion of the State of South
Dakota and a small piece of Nebraska. Our Tribe has more than 46,000
enrolled members overall. In excess of 40,000 people reside on or
conduct business on our Reservation, all of whom are dependent on
federally funded law enforcement officers to protect them and their on-
reservation property. Among these are Oglala Sioux Tribal Members, non-
member Indians, and non-Indians who reside on or enter our Reservation
on a regular basis or are under the criminal jurisdiction of our
officers holding Special Federal Law Enforcement Commissions. These
individuals comprise the law enforcement service population of our
Reservation.
The Department of Interior has determined that a basic law
enforcement program needs a minimum of 2.8 officers per 1,000 people,
which is the national average for rural areas in the United States with
less than 10,000 people living in a low crime rate area with clustered
communities, according to the Bureau of Indian Affairs' Office of
Justice Services' ``Report to the Congress on Spending, Staffing, and
Estimated Funding Costs for Public Safety and Justice Programs in
Indian Country'' (dated September 12, 2017; May 2, 2018; March 1, 2020;
July 2020) (OJS TLOA Reports), available at https://www.bia.gov/bia/
ojs/documents-and-forms.
Nonetheless, the Oglala Sioux Tribe is only provided enough funding
from the United States for 33 law enforcement officers and 7 criminal
investigators to cover our approximate 40,000-person law-enforcement-
service population and 52 communities. That comes out to less than one
law enforcement officer per 1000 people and less than 6 officers per
shift Reservation-wide. Our Department of Public Safety responded to
133,755 service calls on our Reservation in 2021.
In comparison, Rapid City, South Dakota (the closest urban area to
our Reservation) has a budget of $19.6 million and 176 officers.
https://www.rcgov.org/departments/police-department.html. In 2021, its
police department responded to 114,816 police calls, which is well
below the amount of calls our officers responded to despite our having
approximately nineteen percent (19%) of the total number of officers.
Additionally, Aberdeen, South Dakota has 47 officers for a
population of 28,495 per the 2020 Census. https://data.census.gov/
cedsci/profile?g=1600000US4600100; https://www.police1.com/law-
enforcement-directory/police-departments/aberdeen-police-department-
aberdeen-sd-OaFyvyRIjagW0iH7/.
Finally, the State of Connecticut, which is about the same size
geographically as the Pine Ridge Indian Reservation (as stated above)
has 6,534 municipal police officers. https://www.cga.ct.gov/2022/rpt/
pdf/2022-R-0025.pdf.
Questions Submitted by Representative Stansbury
Question 1. What can Congress do to hear from Tribal Nations in
order to find a reasonable consensus in Indian Country to respond to
Castro-Huerta?
Answer. Congress has taken the correct first step through this
Subcommittee's Oversight Hearing to hear from Tribal Nations about the
impacts of the Castro-Huerta decision and the need for Congress to
address it. At the hearing, the Subcommittee heard the overwhelming
majority of the witnesses state their disagreement with the decision
the U.S. Supreme Court made in Castro-Huerta. Only two witnesses agreed
with the decision--one Oklahoma District Attorney and one Oklahoma City
attorney that was present in his individual capacity. But, the Tribal
Leaders who testified, along with the Indian law academic witnesses,
expressed disagreement with the decision.
What Tribal Nations need is for Congress to pass legislation to fix
the jurisdictional maze of criminal jurisdiction in Indian Country,
which the Castro-Huerta decision complicated further. The Supreme Court
legislated from the bench in the Castro-Huerta decision, usurping
Congress's constitutional role. Thus, it is incumbent on Congress to
protect this country's constitutional balance of power by stepping into
its rightful role to pass legislation to address the severely
problematic Castro-Huerta decision.
It is Congress's role to act and it is our understanding that
Congress has the backing of Tribal Nations to act, but, perhaps, with
an open question about when to act. As stated in my testimony, in the
wake of Castro-Huerta, my Tribe asks Congress to act swiftly to (1)
repeal all existing civil and criminal jurisdictional limits on Tribes,
and allow Tribes the option of fully asserting their inherent civil and
criminal jurisdiction throughout our territories; and (2) provide
adequate appropriations to Tribes to develop our court and law
enforcement infrastructure throughout Indian Country. As further stated
in my written testimony, if Congress chooses not to address the
jurisdictional gaps following the Supreme Court's decision in Oliphant
at this time, it should at a minimum restore the pre-Castro-Huerta
status quo by clarifying that states lack criminal jurisdiction over
crimes committed by non-Indians against Indians in Indian Country.
While I am not convinced it is necessary, if the Subcommittee
believes it needs additional input from Tribal Nations, it could host a
roundtable specifically to discuss solutions. I have to think all
Tribal Nations would stand strong on protecting and upholding tribal
sovereignty, uncomplicating criminal jurisdiction in Indian Country,
and clarifying that states lack criminal jurisdiction over crimes
committed by non-Indians against Indians in Indian Country. If the
Subcommittee were to have such a roundtable, I strongly urge you to
hold it as soon as possible so that there would still be time in this
Congress for Congress to act to effectively address the Castro-Huerta
decision.
Questions Submitted by Representative Grijalva
Question 1. How many BIA-funded law enforcement officers is the
Oglala Sioux Tribe being provided?
Answer. Despite the fact that Department of Interior has determined
that a basic law enforcement program for a low crime rate rural area of
less than 10,000 persons needs 2.8 officers per 1,000 people as stated
in the Bureau of Indian Affairs' OJS TLOA Reports, the Oglala Sioux
Tribe is only provided enough funding from the United States for 33 law
enforcement officers and 7 criminal investigators to cover our 40,000-
person law-enforcement-service population and our approximate 3.1-
million-acre Reservation with our 52 communities. In plain numbers,
that is less than one officer for every 1000 people.
(1a). How has this impacted the delivery of public safety services
on the Tribe's lands?
Answer. The lack of BIA-funded law enforcement officers for our
Tribe to cover our vast, remote Pine Ridge Indian Reservation has been
devastating. Again, our Tribe is provided only enough funding for 33
law enforcement officers and 7 criminal investigators. This equates to
a total Reservation-wide 6-8 officers per shift to cover our
approximate 3.1-million-acre Reservation and our 40,000-person law-
enforcement-service population. It is untenable. Between July 4, 2022
and September 7th of this year, the Tribe has responded to: five
homicides, four shootings, four stabbings, three sexual assaults, and
five violent assaults alone, and this is after responding to an
additional 58 missing persons reports and 159 calls for domestic
violence in July 2022 alone.
The lack of law enforcement officers causes extraordinary danger to
the law enforcement officers who are working unreasonable amounts of
overtime, patrolling alone, and responding to dangerous calls for
service without proper backup. In 2021, our Department of Public Safety
received 133,755 E-911 calls for service on the Pine Ridge Reservation.
These 2021 calls for services included 794 calls involving an assault,
1,463 domestic violence calls, 522-gun related calls, 541 drug/narcotic
calls, and calls reporting 541 missing persons, most of which required
immediate attention to protect life, health, and safety. On-Reservation
deaths, homicides, drug sales, police-involved accidents, and overdoses
have continued to increase significantly. The volume of E-911 calls,
combined with an inadequate number of police officers, is forcing
police officers to drive from call to call at high speeds, endangering
both the officer and the public. Police officers operate alone, with
backup often being over 30 miles away, even in calls involving guns or
weapons.
Thus, police officers are often placed in unnecessary danger.
The lack of adequate law enforcement has had and is continuing to
have serious consequences for the Tribe and its citizens.
Significantly, many E-911 calls for police service are abandoned, are
not being responded to in the time required to ensure public safety, or
are not being properly investigated or prosecuted because there simply
are not enough police officers. When calls are responded to, police
response time often exceeds 30 minutes, even in cases of domestic
violence, gun activities, and other imminent threats of harm. This can
and often does add to the harm suffered by crime victims on the
Reservation.
Additionally, often due to the lack of an adequate amount of law
enforcement officers, criminal investigators, and resources, crimes are
not timely or adequately investigated, and witness statements and other
evidence are not collected promptly, thereby endangering federal and
tribal prosecutions and convictions. Sadly, our Tribal citizens are
often scared to venture out of their homes at night, especially because
gunshots are heard throughout our Reservation on a frequent and re-
occurring basis.
The Tribe is also adversely impacted by the lack of law enforcement
officers and resources in a variety of other ways. For instance, the
Tribe operates numerous tribal on-Reservation schools, health
facilities, Tribal programs, and several Tribally-owned businesses
whose safe operation is compromised by the lack of law enforcement
services. Some families no longer feel safe sending their children to
school, especially without School Resource Officers present. Some
students also feel unsafe on school grounds because of the gang
violence on our Reservation, which often involves other juveniles, and
the lack of law enforcement services to respond to threats. Tribal
health care costs have increased because of the increased number of
overdoses and injuries sustained from assaults, domestic violence, and
other crimes. Also, the Tribal economy is negatively impacted as new
businesses are not attracted to high crime areas. The businesses that
are located on our Reservation must spend additional funds to protect
their employees and property. Some have even chosen not to remain open
at night.
As described above, our lack of law enforcement officers and
resources has had a significant negative impact on our law enforcement
officers, our Tribal citizens, and our efforts toward economic
development.
Questions Submitted by Representative Westerman
Question 1. Lead Up: Collaboration among tribal, state, federal,
and local law enforcement and legal systems is needed to cover the
complicated jurisdictional system that exists in Indian Country.
(1a). Could you provide examples of the best collaborative
connection that your tribe has with non-tribal law enforcement, and how
that may help inform discussion about public safety in Indian Country?
Answer. South Dakota, like many western states with large land-
based tribes who are located in non-Public Law 83-280 jurisdictions
often consider policing on the reservation to be a federal/tribal issue
and expect the federal government to pick up the costs. This is why the
State Police does not come onto the Pine Ridge Indian Reservation
unless the Tribe specifically asks it to. My Tribe also considers
policing on our Reservation to be a federal/tribal issue per our
nation-to-nation relationship with the United States, our Treaties, and
the South Dakota Enabling Act.
The best collaborative connection that our Tribe has with non-
tribal law enforcement is with the federal government through the
Bureau of Indian Affairs and the Department of Justice. Despite our
adamant, correct position that the federal government has not and is
not living up to its treaty obligations and trust duties to ensure that
law enforcement services provided to the Tribe are adequately funded,
as a practical matter, we work with the Bureau of Indian Affairs and
Department of Justice on on-the-ground public safety issues.
As for working with other non-tribal law enforcement, the current
Bureau of Indian Affairs (BIA) Office of Justice Services (OJS) rules
currently prohibit a two-party Memorandum of Understanding (MOU), other
than an assistance agreement, when the BIA is funding the law
enforcement officers. This is the case unless the OJS's own specific
provisions are included in the MOU and unless the Department of the
Interior is a party to that MOU. These proposed federal agreements
often boil down to an issue of tort claims coverage, and liability and
insurance issues--which is an area that Congress can look into and
address. Tribes have worked out decent agreements that DOI has refused
to approve.
Additionally, state law often controls what authority a local Chief
of Police or Police Board employed by a local non-Indian government has
to enter into a policing agreement with a tribal government--some such
state statutes require state legislation in order to execute such
agreements.
(1b). Can you explain whether the Castro-Huerta decision has had
any impacts on your tribe's relationship with local, state, or federal
law enforcement and could you provide an example of how those
relationship have changed, if they have?
Answer. At present, our Tribe is continuing to carry out our law
enforcement as usual. However, as stated in my testimony, the Castro-
Huerta decision gives rise to major areas of practical concern in
Indian Country, including the following:
1. A potential lack of prosecution of non-Indians in Indian Country
generally as state and federal prosecutors point their
fingers at each other.
2. The potential for chaos arising from conflicting tribal, state,
and federal laws regarding differing standards when
charging and prosecuting crimes.
3. The potential application of Castro-Huerta to civil matters and
efforts to extend state policymaking onto tribal lands.
4. Unending and costly litigation about the application and reach of
the decision.
The Castro-Huerta decision adds to the maze of criminal
jurisdiction in Indian Country, which complicates the prosecution of
crimes in Indian Country. The solution to the jurisdictional maze is
not to grant unconstitutional power to the states. Instead, it is to
fix the jurisdictional gap following the Court's decision in Oliphant,
which held that tribes lacked criminal jurisdiction over non-Indians.
Any such fix must also include the funding required to carry out that
authority. With this, the Oglala Sioux Tribe asks Congress to:
1. Repeal all existing civil and criminal jurisdictional limits on
Tribes, and allow Tribes the option of fully asserting
their inherent civil and criminal jurisdiction throughout
our territories;
2. Provide adequate appropriations to Tribes to develop and enhance
our court and law enforcement infrastructure throughout
Indian Country.
If Congress chooses not to address the jurisdictional gaps
following the Supreme Court's decision in Oliphant at this time, it
should at a minimum restore the pre-Castro-Huerta status quo by
clarifying that states lack criminal jurisdiction over crimes committed
by non-Indians against Indians in Indian Country.
______
Ms. Leger Fernandez. Thank you very much, President Killer,
for your testimony.
The Chair now recognizes the Honorable Cheryl Andrews-
Maltais, who is the Chairwoman of the Wampanoag Tribe of Gay
Head Aquinnah. You are now recognized for 5 minutes.
STATEMENT OF THE HONORABLE CHERYL ANDREWS-MALTAIS, CHAIRWOMAN,
WAMPANOAG TRIBE OF GAY HEAD, AQUINNAH, MASSACHUSETTS
Ms. Andrews-Maltais. Thank you. And good morning, Madam
Chairwoman, and members of the Committee. Thank you for the
opportunity to testify on the impacts of the Castro-Huerta
decision.
My name is Cheryl Andrews-Maltais, and I am the Chairwoman
of the Wampanoag Tribe of Gay Head Aquinnah located on the
island of Martha's Vineyard off the coast of Massachusetts. I
am currently serving in my fourth term.
My Tribe is part of the great Wampanoag Nation known as the
People of the First Light. We have occupied our lands and our
homelands since time immemorial. Our ancestors were the
signatories to the first treaty in this hemisphere, the 1621
Treaty of Peace between the Wampanoag Nation and King James I
of England. This Treaty recognized and respected the
sovereignty of our two Nations to govern ourselves.
Like other tribes who were among the first Tribal Nations
to encounter European explorers and settlers, we endured
centuries of warfare, disease, loss of our aboriginal lands,
discrimination, and forced acculturation. However, like so many
of Indigenous Peoples of the United States, we maintain our
culture, heritage, and our tribal government.
However, four centuries later, we find ourselves still
struggling to retain and regain our rights and sovereignty,
that we freely exercised before the settlement of the
colonists, the atrocities of colonialism, and before the
establishment of the United States.
The erosion of tribal sovereignty and our rights has led to
unimaginable crimes perpetrated against us. No one was
protecting our vulnerable populations, not even us, because we
were stripped of that right. It has been a free-for-all for
non-Natives to commit crimes against us because no one would
prosecute them.
Up until the passage of the TLOA, the Tribal Law and Order
Act, in 2010, non-Native perpetrators essentially got away with
any crimes they chose to commit against our people in our
homelands. After years of fighting for inclusion, in 2013,
Indian Country was finally included in the Violence Against
Women Act, in order to have standing to begin to have criminal
jurisdiction over non-Indians who committed crimes against
Native women and children.
Think about it. We have only had the ability to actually
protect our vulnerable citizens for 9 years, less than a
decade. Do we now go back, so non-Natives can come onto our
homelands, commit horrible crimes against us, and we have no
recourse? Who, except for us, should be protecting our people?
It is tantamount to going back to the 1600s when our women
were raped and murdered, our children were stolen from us and
often sold off, in what would be now considered child
trafficking. How long do we, as Indigenous people of these
lands, have to pay while the privileged hurt our people and
take our lands, resources, and our rights away again?
If this isn't fixed, do we go back to sitting by to wait
for help, help that we don't necessarily need if we were
ensured the jurisdiction we were entitled to exercise as
sovereign nations?
We know how to protect our people. We have always had our
own traditional forms of justice. We know how to protect the
public. We have competent professionals within our tribal
governments. As in our case, with regard to public safety, we
know how to write and enforce building codes, public safety
ordinances and regulations. We have the capacity to protect our
people and others who choose to come into our homelands.
We don't need another layer of bureaucracy to add to an
already complicated system. All we need is the state and local
jurisdictions to get out of our business and out of our way.
Otherwise, where will the erosion of our tribal rights and
sovereignty end?
Like a Marshall Plan for Indian Country, the United States
owes us both the financial and human resource support for us to
rebuild our Tribal Nations. We have paid dearly. We have paid
it forward with the lives of our ancestors, our lands, and our
natural resources. We are owed the right to self-determination
and self-governance.
If you went to any other country or any sovereign lands and
committed a crime, you are subject to their laws. You are
processed through their legal system. If you engage in trade
and commerce or construction, you are subject to their laws.
Every sovereign government has the right to provide for the
safety of its people and the public who choose to enter our
lands. Are we to believe that Congress feels that we are so
much less worthy, inadequate, or incapable of performing the
governance and jurisdiction we have exercised since time
immemorial?
Without clear and unambiguous laws that articulate that
tribes are sovereign nations with the right of full
jurisdiction and governance over ourselves, our people, and
others who come to our land, there is, and will continue to be,
conflict.
These bad court decisions allow states to interpret silence
or ambiguity as a void of our rights and authority, and they
feel empowered to fill over the rights of tribes, which they do
not have. Only Congress can fill that void.
The erosion of our jurisdiction and the erosion of our
sovereignty is just another breach of the United States' trust
and treaty obligations to us. States and local municipalities
do not, and should not, have any role or oversight in
jurisdiction in Indian Country. To dilute any tribe's
sovereignty and jurisdiction is to dilute all tribes' rights
and sovereignty and jurisdiction.
We were here as thriving sovereign nations when the
Pilgrims landed. And while some on the Supreme Court may have
forgotten this important fact, as Justice Gorsuch stated, ``the
ball is back in Congress' court.'' So, we urge you to lead this
body back to the principles that respect tribal governments,
tribal rights, and tribal sovereignty, and codify them in
Federal law.
Thank you for your commitment to seeing justice in Indian
Country. And thank you for the opportunity to testify here
today. I am available to answer any questions if you have any.
Thank you.
[The prepared statement of Ms. Andrews-Maltais follows:]
Prepared Statement of Cheryl Andrews-Maltais, Chairwoman, Wampanoag
Tribe of Gay Head (Aquinnah)
Madame Chairwoman and members of the committee, thank you for the
opportunity to testify. My name is Cheryl Andrews-Maltais. I am the
Chairwoman of the Wampanoag Tribe of Gay Head Aquinnah, located on the
Island of Martha's Vineyard, seven miles off the coast of
Massachusetts. I am serving in my fourth term as Chairwoman. I also
serve on the Board of Directors of the United South and Eastern Tribes
(USET), the Eastern Region Delegate on the BIA Tribal Self-Governance
Advisory Committee, the IHS Office of Self-Governance Advisory
Committee, the Tribal-Interior Budget Council (TIBC), and the Health
and Human Services Secretary's Tribal Advisory Committee (HHS-STAC),
the Homeland Security Advisory Council (HSAC) and the Government
Accountability Office--Tribal Advisory Committee (GAO-TAC).
The Wampanoag Tribe of Gay Head Aquinnah is part of the Great
Wampanoag Tribal Nation, known as The People of the First Light. We
have occupied our homelands since time immemorial. Our ancestors were
signatories to the 1621 Treaty of Peace between the Wampanoag Nation
and King James I of England. This treaty recognized and respected the
sovereignty of the two nations. Like other New England Tribes who were
among the first Indian Nations to encounter European settlers and
explorers, we endured centuries of warfare, disease, loss of our
aboriginal lands, discrimination and forced acculturation. However,
like all Indigenous peoples of the United States, we maintained our
cultural and religious practices, language, heritage, and Tribal
government.
In the wake of the Supreme Court's decision in Oklahoma v. Castro-
Huerta, much has been said about the negative impacts that this ruling
will have. While it is true that this decision will result in some very
specific harms, it is important to note that Castro-Huerta itself is a
manifestation of a larger problem that has been ongoing for decades
across Indian Country--unjustifiable laws that prevent Tribal Nations
from exercising jurisdiction over its lands to protect all citizens and
to exercise our right of self-determination. My Tribe, the Wampanoag
Tribe of Gay Head (Aquinnah) is the poster child for what could and
does happen when state and local jurisdictions are allowed to interfere
in the decisions of the Tribe as it pertains to the exercise of our
governmental authority over our lands. My testimony will touch on both
the impacts on tribal criminal jurisdiction and tribal civil regulatory
authority.
First, current laws prevent tribal governments from prosecuting
non-Indians who commit crimes on their reservations. Other laws that
place arbitrary three-year sentencing caps on tribal governments often
prevent tribal courts from delivering the full measure of justice that
reflects the severity of the crimes committed. Such laws have left
Native communities at the mercy of overworked, underfunded and often
inattentive agencies that are not able or willing to prioritize public
safety on Indian lands. And in the worst instances, are simply
disinterested in seeing justice served for our Tribal communities.
The consequences of this system have been as terrible as they were
predictable. Today, our Native women, girls, and Two Spirit relatives
are more likely to be murdered or go missing than any other segment of
the United States population. On some reservations, Native women are
murdered at rates ten times the national homicide rate. And the
Department of Justice has reported that a majority of Native victims
have been victimized by a non-Indian perpetrator. But instead of
restoring the inherent tribal jurisdiction of Tribal Nations to
prosecute these crimes against our own citizens, the Supreme Court, in
Castro-Huerta, gave it to the States. This situation not only
undermines our sovereignty and the authority of our Tribal Courts,
perpetrators rely on the fact that most states are not readily willing
to prosecute crimes committed on Tribal Lands, which gives them license
to commit these heinous crimes.
In creating previously non-existent jurisdiction for states over
tribal lands, the Castro-Huerta decision furthers the divisive
checkerboard approach to jurisdiction and creates perverse incentives
for governments to shift desperately needed funds away from tribal
governments to other agencies.
Improving public safety in Indian Country should be a process of
addition not subtraction; a process of collaboration, not disunity.
Tribal Governments know best how to protect our own citizenry and we
know all too well the value of intergovernmental collaborations.
At a time when crime is on the rise and both states and the federal
governments are stretched to respond, we should be seeking ways to
increase the contributions of Tribal Nations, not arguing over ways to
limit them.
As such, I respectfully suggest that it would be in the interest of
public safety for Congress to act immediately to address the root
causes of Castro-Huerta. First, I would encourage Congress to protect
its Constitutionally mandated and absolute plenary authority to make
meaningful Indian policies for the United States and to move quickly to
remove unjustifiable restrictions that prevent tribal governments from
prosecuting any and all violators who commit crimes on our lands.
Second, Congress should immediately move to align tribal sentencing
authorities to mirror with those of the federal government for tribes
that meet objective public safety standards. Last, it is well-known
that cooperation and coordination among governments and agencies
produces superior public safety results. So, Congress should put into
place measures that require States seeking to exercise jurisdiction in
Indian Country to collaborate and coordinate with Tribes through a
constitutionally codified process, ensuring concurrence and not simply
``box checking''.
For decades, Tribal Nations have been treated as second class
sovereigns. Laws that arbitrarily limit the ability of our Tribal
Governments to protect the public space within our borders are not
rooted in public safety. They are rooted in ignorance and bias against
Tribal Nations. It is long past time for these laws to change. Congress
has the responsibility to correct this injustice; to affirm and ensure
the sovereignty of Tribal Nations and Governments and our rights to
protect our People. Our Women, Children and Two-Spirit citizens deserve
no less protections than any other citizens or vulnerable people. I
respectfully urge Congress to use the Castro-Huerta decision as a
catalyst to rise to this occasion, meet this moment, and address the
challenges created by decades of misguided and inadequate federal
policies.
Second, as I mentioned above, our Tribe has also been on the
receiving end of a state and local government's continued efforts to
suppress our Tribe's right to exercise authority over our lands. In
1987, after prolonged litigation, we reached a land claims settlement
agreement with the United States, the Commonwealth of Massachusetts,
and the Town of Gay Head (now Aquinnah). As part of that land
settlement agreement, under duress, we were forced to agree to comply
with the zoning regulations of the Town and to agree that we would
``not exercise any jurisdiction over any part of the settlement lands
in contravention of this Act, the civil regulatory and criminal laws of
the Commonwealth of Massachusetts, the town of Gay Head, Massachusetts,
and applicable Federal laws.'' Public Law 100-95, August 18, 1987. As a
practical matter this requirement has allowed the Town to stymie any
and all development of our settlement lands--including delaying the
building of our community center, limiting the expansion of our housing
authority, and even the siting of a small shed next to our water lab.
It was only after litigating to the Supreme Court, were we able to
clarify that the Indian Gaming Regulatory Act does apply to us.
However, even that win was challenged and today, we are required to
comply with the permitting requirements of the Town if we are to
construct a gaming facility on our tribal settlement lands. We are not
alone in this, other tribes with similar land settlement agreements
have faced similar challenges by their surrounding jurisdictions with
similar results. While the impacts of Castro-Huerta are most clearly
applicable to criminal jurisdiction, I fear that the astonishing dicta
in the majority opinion will inflame those around us who are dedicated
to suppressing the exercise of tribal governance generally. While we
agree that the sky is not yet falling, I do fear that this is a tipping
point and call upon Congress to act in its plenary authority to clarify
that states do not have jurisdiction--criminal or civil--over tribal
lands.
As Justice Gorsuch stated in his dissent, ``Tribes are not private
organizations within state boundaries . . . Tribes are sovereigns.'' We
predate the formation of the United States, we predate the
Constitution, we predate the Articles of Confederation. In fact, our
tribe, the Wampanoag people, were here as thriving as a sovereign
nation when the Pilgrims landed on this continent. While some on the
SCOTUS may have forgotten this important fact, as Justice Gorsuch also
stated, ``the ball is back in Congress' court'' and we urge you to lead
this body back to the principles that respect Tribes and tribal
sovereignty.
______
Questions Submitted for the Record to Hon. Cheryl Andrews-Maltais,
Chairwoman, Wampanoag Tribe of Gay Head (Aquinnah)
The Honorable Cheryl Andrews-Maltais did not submit responses to the
Committee by the appropriate deadline for inclusion in the printed
record.
Questions Submitted by Representative Leger Fernandez
Question 1. In your opinion, how does the Castro-Huerta ruling
create ``incentives'' for the Federal Government to move public safety
funds away from tribal governments and to other agencies?
Questions Submitted by Representative Stansbury
Question 1. What can Congress do to hear from Tribal nations in
order to find a reasonable consensus in Indian Country to respond to
Castro-Huerta?
Questions Submitted by Representative Westerman
Question 1. Lead Up: Collaboration among tribal, state, federal,
and local law enforcement and legal systems is needed to cover the
complicated jurisdictional system that exists in Indian Country.
(1a). Could you provide examples of the best collaborative
connection that your tribe has had with non-tribal law enforcement, and
how that may help inform discussion about public safety in Indian
Country?
(1b). Can you explain whether the Castro-Huerta decision has had
any impacts on your tribe's relationship with local, state, or federal
law enforcement? And could you provide an example of how those
relationship have changed, if they have?
______
Ms. Leger Fernandez. Thank you very much, Chairwoman
Maltais, for your testimony.
The Chair now recognizes the Honorable Whitney Gravelle,
who is the President of the Bay Mills Indian Community.
STATEMENT OF THE HONORABLE WHITNEY GRAVELLE, PRESIDENT, BAY
MILLS INDIAN COMMUNITY, BRIMLEY, MICHIGAN
Ms. Gravelle. Thank you, Madam Chair.
[Speaking Native language.] Aanii boozhoo. My name is the
Woman who Stands in the North. My English name is Whitney
Gravelle, and my voice first sounded at Place of the Pike, also
known as Bay Mills Indian Community, which is an Ojibwe Tribal
Nation located on Lake Superior in Michigan's Upper Peninsula.
Bay Mills Indian Community has signed multiple treaties
with the United States. And in 1936, was federally recognized
and has maintained civil and criminal jurisdiction with the
Federal Government on behalf of its citizens.
I am appearing before this Subcommittee in my capacity as
President to speak on behalf of the questions, concerns, and
issues we have already encountered due to the U.S. Supreme
Court ruling in Oklahoma v. Castro-Huerta, and to encourage the
United States to work together to resolve the issues presented
by this ruling.
As discussed by others providing testimony today, the
Supreme Court in Castro-Huerta caused reverberating shocks
throughout Indian Country as it overturned long-held legal
precedent. Without question, it is important to start with the
premise that any Tribal Nation's first duty since time
immemorial has always been to protect and safeguard our
citizens, our people.
A crime against one person is an offense against the people
and the sovereign laws of our government. Our sovereignty and
duty to protect operates in large part to safeguard the
political integrity, economic security, and the health and
welfare of our Tribal Nation.
Nothing is more important or vital to the health and
survival of our people than each Tribal Nation retains and
exercises those powers in order to enforce our internal
criminal and civil laws.
In pursuit of this, Bay Mills Indian Community has executed
Cross Deputation Agreements, such Law Enforcement Cards with
the Bureau of Indian Affairs, and executed a formal agreement
with the Chippewa County Jail nearby in order to meet the goals
on behalf of our Nation.
However, we all know that Tribal Nations, although make up
a small percentage of the population, continue to suffer
disproportional rates of crime. And this is partly due to the
fact that the history of violence against Native people is
convoluted by the complex jurisdictional scheme that exists for
Tribal Nations in the United States.
The ruling in Castro-Huerta did little to solve these
complex jurisdictional schemes and only contributes to this
problem. It also adds an additional barrier for Tribal Nations
to navigate and overcome.
More so, the implications of Castro-Huerta go much further
and now casts doubt on any Federal law that exists including
its application in Indian Country. This may include permitting
requirements and regulations, control of land or natural
resources, and most of all, our Tribal Nations will continue to
seek justice for our citizens.
This ruling subsumes us to litigation to determine what
applies and what doesn't. The concrete example that we are
concerned about in the Great Lakes that could implicate
criminal and noncriminal matters.
Concerning businesses like extractive industries, where
Tribal Nations are targeted and exploited, in the Great Lakes
region, both Bay Mills Indian Community and the Bad River Band
of Lake Superior Chippewa are involved in litigation against a
private corporation, Enbridge Energy, in which the Line 5 dual
pipelines and proposed tunnel project may impact treaty lands
and reservation lands.
Because business practices should take into consideration
the standards of Tribal Nations, without adherence to those set
standards, Tribal Nations and development projects like this
may lead to more violence and conflict and take advantage of
land held by Tribal Nations for another's profit.
What was once previously Federal or tribal standards are
now too questioned by Castro-Huerta.
There has been one solution presented in which a Tribal
Nation could look at another set of agreements with a local
county to authorize the appointment of a qualified tribal
prosecutor to assist in prosecuting state offenses committed
within that Tribal Nation's reservation.
However, that solution also raises more concerns. Because
despite these agreements, a Tribal Nation would still continue
to rely on their sovereignty for execution. And it does not
come without the questions of if a state prosecutes a crime in
Indian Country, do they too pay for the cost? Do they pay for
the jail fees? Does the tribe in seeking justice for their
Nation? How would each sovereign hold one another accountable?
Furthermore, in order to pursue such an agreement as the
one described, it would require a good working relationship
with any party which is not always determined by any set
person. For example, in the state of Michigan, local county
sheriffs and county prosecutors are carved out as an
independent state actor, and thus not subject to review or
guidance by the Governor or Attorney General.
In closing remarks, Tribal Nations have negotiated treaties
with the United States of America and not the several states.
The United States should not stay silent and let states set
domestic policy with Tribal Nations. I humbly ask that the U.S.
Congress develop a Castro-Huerta fix.
Thank you, Madam Chair and Subcommittee, for the
opportunity to speak and share these concerns with you today. I
am available for further questions.
[The prepared statement of Ms. Gravelle follows:]
Prepared Statement of the Honorable Whitney B. Gravelle, President, Bay
Mills Indian Community
Introduction
Aanii boozhoo, (hello, greetings)! My name is Whitney Gravelle, and
I currently serve as the President of Gnoozhekaaning, Place of the
Pike, or Bay Mills Indian Community, which is an Ojibwe Tribal Nation
located on Lake Superior in Michigan's Upper Peninsula. Bay Mills
Indian Community was federally recognized in 1936 and has maintained
civil and criminal jurisdiction with the federal government on behalf
of its citizens since that time.
I am appearing before the Subcommittee in my capacity as President
to speak on behalf of the questions, concerns, and issues we have
encountered due to the U.S. Supreme Court ruling in Oklahoma v. Castro-
Huerta (Castro-Huerta), and encourage the federal government to work
together to resolve the issues presented by this ruling.
Background
As discussed by others providing testimony today, the Supreme Court
in Castro-Huerta ruled that the Federal Government, Tribal Nations, and
the States have concurrent jurisdiction to prosecute crimes committed
by non-Indians against Indians in Indian Country. The Court indicated
that the opinion applies to all states, which caused reverberating
shocks throughout Indian Country, as it overturned long held legal
precedent.
Without question, it is important to start with the premise that
any Tribal Nation's first duty since time immemorial has always been to
protect and safeguard its citizenry, the people. Our sovereignty and
duty to protect operate in large part to safeguard the political
integrity, economic security, and the health and welfare of our
community.
In pursuit of this, Bay Mills Indian Community has executed Cross
Deputation Agreements with Chippewa County, obtained Special Law
Enforcement Cards with the Bureau of Indian Affairs, and executed a
formal agreement with the Chippewa County Jail in order to meet these
goals on behalf of our people and our Nation.
The facts and the landscape across Indian Country is anything but
what was described by the Court in Castro-Huerta, especially here in
the State of Michigan, and ultimately any solution will turn on
resources, communication, coordination, respect, sovereignty, and the
continued empowerment of Tribal Nations to seek justice for their
citizens, lands, and resources.
Problem
Across Indian Country, Tribal Nations make up a small percentage of
the population, yet our citizens continue to suffer disproportional
rates of crime--domestic violence, murder, stalking, rape, and sexual
assault. This is partly due to the fact that the history of violence
against native people is convoluted by the complex jurisdictional
scheme that exists for Tribal Nations in the United States. For more
than forty years, Tribal Nations have been denied the ability to
prosecute non-Indian perpetrators and a lack of resources impedes
investigation, which prevents Tribal Nations from providing our
citizens the protection and help they deserve.
Bay Mills Indian Community was one of the first Tribal Nations in
the United States to complete our Missing and Murdered Indigenous
People Tribal Community Response Plan. In preparation of that plan, we
learned important questions we had to ask ourselves as well as our
nearby law enforcement partners as well. We learned that we needed to
communicate expectations and information. We also learned it was
important we take the steps beforehand, implementing policy or
regulatory frameworks to stop the steps that lead to the final horrific
act that harms our loved ones, but this also means we must empower
Tribal Nations in resolving issues related to and within Indian
Country.
The ruling in Castro-Huerta does little to solve these complex
jurisdictional schemes contributing to this problem, but instead adds
an additional barrier for Tribal Nations to navigate and overcome.
More so, the implications of Castro-Huerta go much further beyond
criminal jurisdiction by stating instead a State's jurisdiction in
Indian Country may be preempted (1) by ``federal law under ordinary
principles of federal preemption'' in which the federal act must have
``clear statutory language'' stating so, or (2) when the exercise of
state jurisdiction would unlawfully infringe on tribal self-government.
These two requirements now cast doubt on any federal law that exists
and its application in Indian Country: permitting requirements and
regulations, control of land or natural resources, and most of all how
to seek justice for our citizens.
This could implicate criminal and non-criminal matters concerning
businesses like extractive industries where Tribal Nations are targeted
and exploited. In the Great Lakes Region, both Bay Mills Indian
Community and the Bad River Band of Lake Superior Chippewa are involved
in litigation involving Enbridge Energy, Inc.'s Line 5 dual pipelines
and proposed tunnel project. Because business practices affect almost
all human rights, including the right to a clean environment, personal
security, community security, and economic stability, governmental
officials and community members must observe the impact these practices
have within the community. Without adherence to set standards by the
impacted community or Tribal Nation, development projects will lead to
violence and conflict, and take advantage of land held by Tribal
Nations for another's gain or profit. Once previous federal or tribal
standards are now too questioned by Castro-Huerta.
Solution
One solution presented by the Pascua Yacqui Tribal Nation in the
State of Arizona is to look at another set of agreements with a local
County/Counties to authorize the appointment of a qualified tribal
prosecutor to assist in prosecuting state offenses committed within
that Tribal Nation's reservation, as well as to help coordinate and
clarify the responsibilities of the Tribal Nation and County government
for any crime committed.
This position would help address any jurisdictional uncertainty,
reduce regional crime, decrease the prevalence of violent crime, combat
sexual and domestic violence on reservation lands, and help combat
Missing and Murdered Indigenous Persons and Women.
However, these agreements rely on a Tribal Nation's sovereignty for
execution and do not come without unanswered questions and unidentified
issues as well. If a State prosecutes a crime in Indian Country do they
too pay the prosecution costs and jail fees? Does the Tribe in seeking
justice for their Nation? How would each sovereign hold one another
accountable?
Furthermore, in order to pursue an agreement such as the one
described, it would require a good working relationship with the local
County/Counties, which is not always determined by any set party or
person. For example, in the State of Michigan's Constitution local
county sheriffs and county prosecutors are carved out as an independent
state actor, and thus not subject to review or guidance by the Governor
or Attorney General.
Tribal Nations should not be left to answer to the determinations
of individuals, or the fragility of relationships that change with each
election season.
Improving safety in the day-to-day lives of the residents of Indian
Country is the responsibility of a broad range of justice institutions
both within and outside of Indian Country. Apart from the grant of
state authority to prosecute non-Indians for crimes committed against
Indians in Indian Country, the long-term impact of the decision in
Castro-Huerta is unclear at this time without any real guidance from
the federal government. We cannot wait to address the issues presented
by this ruling. Any uncoordinated exercise of state authority could
infringe on a Tribal Nation's right to self-government, could disrupt
the prosecution of non-Indian cases, could cause unclear regulatory
parameters for projects, and could cause additional jurisdictional
uncertainty.
Tribal Nations negotiated treaties with the United States of
America not the several states. The United States should not stay
silent and let states set domestic policy with Tribal Nations. I humbly
ask that the U.S. Congress develop a Castro-Huerta fix.
______
Questions Submitted for the Record to Hon. Whitney Gravelle, President,
Bay Mills Indian Community
The Honorable Whitney Gravelle did not submit responses to the
Committee by the appropriate deadline for inclusion in the printed
record.
Questions Submitted by Representative Leger Fernandez
Question 1. What are the civil jurisdictional impacts related to
the Castro-Huerta ruling?
Questions Submitted by Representative Stansbury
Question 1. What can Congress do to hear from Tribal Nations in
order to find a reasonable consensus in Indian Country to respond to
Castro-Huerta?
Questions Submitted by Representative Westerman
Question 1. Lead Up: Collaboration among tribal, state, federal,
and local law enforcement and legal systems is needed to cover the
complicated jurisdictional system that exists in Indian Country.
(1a). Could you provide examples of the best collaborative
connection that your tribe has with non-tribal law enforcement, and how
that may help inform discussion about public safety in Indian Country?
(1b). Can you explain whether the Castro-Huerta decision has had
any impacts on your tribe's relationship with local, state, or federal
law enforcement? And could you provide an example of how those
relationship have changed, if they have?
______
Ms. Leger Fernandez. Thank you very much, President
Gravelle.
The Chair now recognizes the Honorable Teri Gobin, who is
the Chair of the Tulalip Tribes.
STATEMENT OF THE HONORABLE TERI GOBIN, CHAIRWOMAN, TULALIP
TRIBES, TULALIP, WASHINGTON
Ms. Gobin. Madam Chair and members of the Committee, thank
you for the opportunity to testify on the public safety crisis
created by the Supreme Court's decision in the Castro-Huerta
case.
[Speaking Native language] is my tribal name. Teri Gobin is
my English name. And I proudly serve as the Chairwoman of
Tulalip Tribes.
As one of the very first tribes to implement tribal
jurisdiction that Congress restored to Tribal Nations in the
2013 VAWA, and as a tribe that has had to endure the harmful
consequences of P.L. 280 in the state of Washington, Tulalip
offers a unique perspective on how and why the Court's decision
will dramatically determine public safety throughout all of
Indian Country.
P.L. 280 is a law Congress enacted in 1953, during the
Termination Era of Federal Indian policy, that divested
criminal and civil jurisdiction from the tribes and allowed
states to unilaterally assume this jurisdiction, Washington
State P.L. 280, to accept jurisdiction over certain criminal
and civil matters in the late 50s and early 60s.
The Castro-Huerta case couldn't be more wrong with its
underlying assumption that states will do a better job of
protecting our children or that by adding a layer of
jurisdiction will do no harm. From a P.L. 280 tribe, with
decades of experience with the state having this jurisdiction
on our reservation, we are here to tell you that there is great
harm. It simply doesn't work.
When Tulalip began exercising jurisdiction over non-Indians
for domestic violence crimes under the VAWA tribal provision,
children were present and physically harmed in over half the
incidences we prosecuted, yet the state did not prosecute a
single case against a non-Indian for these crimes against our
children.
Aside from the chaos and confusion that occurs when a state
has jurisdiction over tribal lands, that jurisdiction is rarely
exercised. And if the state does exercise this authority, there
is often biased treatment, discrimination, and an insensitivity
toward the tribal victim and their families.
This leads to extreme distrust and no confidence in the law
and justice, making prosecution in Indian cases extremely
difficult. And crimes go unpunished. Adding a layer to the
state jurisdiction also becomes an impediment to the
fulfillment of Federal trust responsibilities.
Cases and people fall through the cracks of this
jurisdictional complexity as both state and Federal law
enforcement step back in favor of the other's jurisdiction.
This is why we work hard to secure a partial retrocession
of the jurisdiction granted to the state of Washington, but the
decision injects uncertainty into P.L. 280. Is the state
jurisdiction now resurrected or could it be? Does the state now
have jurisdiction without P.L. 280?
Ultimately, the Court's decision restricts the ability of
Tribal Nations to seek self-sufficiency and build strong
governments. And it disregards the connection between
sovereignty and safety for Native children, threatening to
obscure the critical work this Congress has done to restore our
inherent right to protect our children.
With the Supreme Court's consideration of Brackeen v.
Haaland in the upcoming term, the opportunity for
misinterpretations with regards to the inherent sovereignty of
our Tribal Nation calls for the Court's immediate correction.
We desperately need Congress to act and correct the Court's
decision.
And thank you again for taking this time to hear my
testimony.
[The prepared statement of Ms. Gobin follows:]
Prepared Statement of Teri Gobin, Chairwoman, Tulalip Tribes
Madame Chairwoman and members of the committee, thank you for the
opportunity to testify on the public safety crisis created by the
Supreme Court's decision in Castro-Huerta. My name is Teri Gobin, and I
am proud to serve as the Chairwoman for the Tulalip Tribes. The Tulalip
Indian Reservation is a 22,000 acre reservation located east of the
Interstate 5 corridor, 35 miles north of Seattle. As one of the very
first tribes to implement the tribal jurisdiction that Congress
restored to tribal nations in the 2013 reauthorization of the Violence
Against Women Act, and as a tribe that has had to endure the harmful
consequences of PL-280 in the state of Washington in the Pacific
Northwest, Tulalip offers a unique perspective on how and why the
Court's decision in Castro-Huerta will dramatically undermine public
safety throughout all of Indian Country. We urge Congress to take
action.
Public Law 280
It is important to understand the Castro-Huerta decision in the
context of Public Law 280 (18 U.S.C. Sec. 1162, 28 U.S.C. Sec. 1360).
Public Law 280 is a transfer of Indian Country jurisdiction from the
federal government to state governments. Prior to the enactment of
Public Law 280, only the federal government and the tribes had
jurisdiction to prosecute crimes committed by Indians within Indian
Country. In enacting Public Law 280, Congress gave six states
(California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska)
extensive criminal and civil jurisdiction over tribal lands within the
affected states (the so-called ``mandatory states''). Public Law 280
also permitted the other states to acquire jurisdiction at their
option. Washington assumed Public Law 280 jurisdiction by accepting
requests from Indian tribes to assume jurisdiction on the reservation.
Later, Washington enacted a law in 1963 that assumed partial Public Law
280 jurisdiction over Indian reservations without the consent of the
tribes. Wash. Rev. Code Sec. 37.12.010.
A common misconception about Public Law 280 is that it transferred
jurisdiction from tribes to state governments. Rather, it transferred
federal authority to the states to exercise jurisdiction over certain
matters within Indian Country but did not impair tribal concurrent
authority. Retrocession of Public Law 280 reduces state authority on
Indian reservations by relinquishing part or all of the state authority
obtained under Public Law 280 back to the federal government. This has
the practical effect of returning primary responsibility to the tribes
for prosecuting crimes committed by Indians on tribal lands that are
not prosecuted under federal law. In the years since Public Law 280 was
enacted, many if not most tribes in Public Law 280 states that have
developed or expanded tribal justice systems have done so as part of a
Public Law 280 retrocession process.
Washington State jurisdiction prior to retrocession--
RCW 37.12.010 and .021
Washington State's assumption of Public Law 280 jurisdiction
depended on land status and the subject matter of the criminal or civil
action. Wash. Rev. Code Sec. 37.12.010. For offenses committed by
Indians on trust land within a tribe's reservation, the State assumed
criminal and civil jurisdiction only as to eight subject matter areas:
compulsory school attendance, public assistance, domestic relations,
mental illness, juvenile delinquency, adoption proceedings, dependent
children, and operation of motor vehicles. On reservation lands held in
fee, the State assumed complete criminal and civil jurisdiction for
offenses committed by or against Indians. When considered alongside the
jurisdiction the State already had over crimes involving only non-
Indians on reservation land, Washington had the same jurisdiction on
fee lands within Indian reservations as it had anywhere else in the
State.
In addition to the assumption of jurisdiction on fee land and as to
the eight subject areas on trust land discussed above, Washington State
also established a process for Indian tribes to petition the State to
take full civil and criminal jurisdiction even on trust land within a
reservation. Tulalip petitioned the State to assume full Public Law 280
criminal and civil jurisdiction on the Reservation in 1958.
As stated above, prior to retrocession, the State had full Public
Law 280 criminal and civil jurisdiction over all lands on the Tulalip
Reservation. In 2001, Washington State retroceded its Public Law 280
jurisdiction over Tulalip trust land (except as to the eight enumerated
areas in RCW 37.12.010). The retrocession at Tulalip means the State no
longer has jurisdiction over crimes committed by Indians on trust or
restricted fee lands, regardless of the status of the victim. The State
continues to exercise civil and criminal jurisdiction on fee land
within the reservation concurrently with the Tulalip Tribes.
This checkerboard jurisdiction based on land status is one of the
reasons that Tulalip found it beneficial to enter into a mutual law
enforcement agreement with Snohomish County and obtain state general
authority peace officer certifications for tribal officers. This allows
Tribal and County law enforcement to cooperatively conduct law
enforcement duties throughout the Tulalip Reservation and later refer
matters to the appropriate jurisdiction for prosecution based on
determinations of the status of the defendant and the lands where the
crime occurred.
While some cases with Indian defendants who committed crimes on fee
land are investigated and charged in County court, the Tulalip
Prosecutor's office has always been able to transfer those cases of
which they have become aware into Tribal court with the cooperation of
County prosecutors.
Challenges to State Jurisdiction on Reservation Lands
At Tulalip, forty percent of our reservation is currently owned by
non-Indians, and we are home to a significant number of non-Indian
residents, as well as visitors from Seattle and other nearby populated
cities and regions. The large number of non-Indian residents on the
Tulalip Indian Reservation, the geographic location of the reservation,
and the economic activity of the reservation generated by the Tulalip
Tribes have all contributed to an increased number of crimes committed
against members of the Tulalip Tribes, including missing tribal members
and human trafficking. A large number of these crimes are committed by
non-Indians residents who live on or travel through our reservation.
For this reason, Tulalip took immediate action when Congress
reauthorized VAWA in 2013 and restored tribal criminal jurisdiction
over non-Indian crimes of domestic violence, dating violence, and
violations of protective orders, and became one of four pilot project
tribes to implement the restored criminal jurisdiction. From 2014
through the present day, Tulalip brought charges against 46 non-Indian
defendants. Tulalip has a victims' rights code and robust victim
services that allow us to respond quickly, effectively, and
consistently to DV victims in a way the state never has. VAWA has made
our community safer.
However, upon exercising jurisdiction under VAWA 2013 we quickly
discovered glaring jurisdiction gaps. These jurisdictional gaps were
the result of the Supreme Court's decision in Oliphant that stripped
tribal jurisdiction over many violent crimes committed against our
citizens, including child abuse, sexual assault, sex trafficking, and
all drug related crimes. At Tulalip, the most glaring jurisdictional
gap was the inability to prosecute non-Indians for crimes committed
against children. Crimes of domestic violence do not happen in a
vacuum. Children are often in the home during these incidents, and are
the first responders to a domestic violence victim, either coming to
the aid of their mother or being used as a physical pawn during a
physical altercation. In fact, from 2013-2021, over half of our
domestic violence cases also involved crimes committed against
children. Tulalip had no jurisdiction to prosecute, and although the
State of Washington could have prosecuted these crimes by non-Indians
against children, they did not, and never have during this time frame.
With competing priorities, limited resources, and inherent bias, state
prosecutions for crimes against our tribal community members don't
happen as often as they should.
The Court's decision in Castro-Huerta involved a crime of child
abuse, committed by a non-Indian against an Indian child on a
reservation. The Court's decision to grant Oklahoma jurisdiction over
crimes committed against our children on our lands has damaging
consequences for public safety across all of Indian Country. This past
March, Congress restored the inherent jurisdiction of our nation to
prosecute non-Indian crimes of violence committed against Indian
children on reservation lands under VAWA 2021. Underlying the Court's
decision in Castro-Huerta is the assumption that states will do a
better job of protecting our children than our own tribal governments.
Moreover, the Court acts like adding a layer of jurisdiction is no
big deal, and that doing so does no harm. From a PL 280 tribe with a
reservoir of experience with the state having jurisdiction on our
reservation, we are here to tell you that there is great harm. It
simply does not work. Aside from the chaos and confusion, when a state
has jurisdiction over tribal lands, that jurisdiction is rarely
exercised. And if the state does exercise this authority, there is
often bias treatment, discrimination, insensitivity toward the tribal
victim and families, and abuse. This leads to extreme distrust and
diminishment of confidence in law and justice, making prosecution in
Indian cases extremely difficult. At Tulalip victims were afraid of the
state system, and subsequently victims did not report crimes pre-
retrocession. Tulalip has often been described as a place of
lawlessness pre-retrocession. And while there have been some
improvements, distrust of outside law enforcement remains with our
tribal citizens. Adding a layer of state jurisdiction also becomes an
impediment to the fulfillment of the federal trust responsibility. From
1985 until 2001, we worked tirelessly to secure a partial retrocession
of the jurisdiction granted to the state of Washington because of these
reasons. In our experience, concurrent jurisdiction doesn't translate
to better access to justice or community safety but the opposite: cases
and people fall through the cracks of jurisdictional complexity as both
state and federal law enforcement step back in favor of the other's
jurisdiction.
The Court's decision in Castro-Huerta, injects more uncertainty for
tribes under PL 280. Before Castro-Huerta, the procedures created by
Congress to grant jurisdiction to states, as well as to retrocede it,
were clearly spelled out in PL-280. But the Castro-Huerta Court's
reading of PL-280 calls all of that into question and diminishes the
value of retrocession. Justice Kavanaugh concluded that states have
this jurisdiction over tribal lands regardless of whether a state has
followed the procedures outlined in PL-280. Does our work with
Washington to retrocede specific categories of jurisdiction meet the
specificity in the Bracker test when the Court concluded that the
actual text of PL-280 did not meet the test, according to Justice
Kavanaugh? Our goal was to remove state jurisdiction on our Indian
lands, is state jurisdiction now resurrected, or could it be? It seems
now the state may have jurisdiction without PL 280.
Ultimately, the Court's decision restricts the ability of tribal
nations to seek self-sufficiency and build strong governments, which is
an established and repeated policy goal of the federal government.
Specifically, Castro-Huerta impedes the ability of tribes to utilize
PL-280's procedures to retrocede state jurisdiction and build tribal
government capacity and self-sufficiency. In order to protect public
safety on tribal lands, our nations' ability to develop tribal
governmental institutions and economies must be preserved, not limited
by arbitrary impediments imposed by court decisions.
Castro-Huerta does nothing to increase public safety in Indian
Country. It only creates confusion. And ultimately, the Court's
disregard for the connection between sovereignty and safety for Native
children threatens to obscure the critical work this Congress has done
to restore our inherent right to protect our children. With the Supreme
Court's consideration of Brackeen v. Haaland in the upcoming term, the
opportunity for mischief and misinterpretations with regards to the
inherent sovereignty of our tribal nations calls for the Court's
immediate correction.
We urge Congress to action to correct the harm caused by the
Court's decision.
______
Questions Submitted for the Record to Hon. Teri Gobin, Chair, Tulalip
Tribes
The Honorable Teri Gobin did not submit responses to the Committee by
the appropriate deadline for inclusion in the printed record.
Questions Submitted by Representative Leger Fernandez
Question 1. The underlying presumption of the Castro-Huerta ruling
is--as you say in your testimony--that ``States will do a better job of
protecting our children than our own governments.''
(1a). Based on the Tulalip Tribes' experiences in a P.L. 280 state,
is this presumption accurate?
Questions Submitted by Representative Stansbury
Question 1. What can Congress do to hear from Tribal Nations in
order to find a reasonable consensus in Indian Country to respond to
Castro-Huerta?
Questions Submitted by Representative Westerman
Question 1. Lead Up: Collaboration among tribal, state, federal,
and local law enforcement and legal systems is needed to cover the
complicated jurisdictional system that exists in Indian Country.
(1a). Could you provide examples of the best collaborative
connection that your tribe has with non-tribal law enforcement, and how
that may help inform discussion about public safety in Indian Country?
(1b). Can you explain whether the Castro-Huerta decision has had
any impacts on your tribe's relationship with local, state, or federal
law enforcement? And could you provide an example of how those
relationship have changed, if they have?
______
Ms. Leger Fernandez. Thank you very much, Chair Gobin.
The Chair now recognizes the Honorable Sara Hill, who is
the Attorney General of the Cherokee Nation. Attorney General
Hill, the floor is yours.
STATEMENT OF THE HONORABLE SARA HILL, ATTORNEY GENERAL,
CHEROKEE NATION, TAHLEQUAH, OKLAHOMA
Ms. Hill. Chair Leger Fernandez, Ranking Member Obernolte,
and distinguished members of the Subcommittee, on behalf of the
437,000 citizens of the Cherokee Nation, I thank you for this
opportunity to speak about the Supreme Court's recent decision
in Oklahoma v. Castro-Huerta.
As you know, the Castro-Huerta case arose on the Cherokee
Nation reservation and involved a Cherokee child. The case was
one of dozens the Oklahoma Attorney General brought in front of
the high court hoping for an opportunity to overturn the
landmark ruling in McGirt v. Oklahoma.
McGirt was the result of a generational effort by tribal
advocates to displace what Justice Gorsuch referred to as the
rule of the strong with the rule of law in Oklahoma's Indian
Country. Castro-Huerta did not overturn McGirt, but it did
issue a strong signal that despite clear Federal legislation
that pre-empted state jurisdiction over crimes by non-Indians
against Indians in Indian Country, as well as decades of prior
court decisions, that we have not yet departed from an era
where the rule of the strong can prevail.
It is my belief, founded as it must be in faith in our
democracy and our justice system, that McGirt will not be the
high watermark. But the Castro-Huerta decision is certainly a
retreat from the principal decision in McGirt and that should
give people who believe in tribal sovereignty and the rule of
law some pause.
In Castro-Huerta, the Court went well out of its way to
provide jurisdiction to Oklahoma over crimes committed by non-
Indians against Indians. A new majority emerged in this case,
and it demonstrated little regard for principles of Federal
Indian law that had been in place since Chief Justice John
Marshall was on the bench.
As Justice Gorsuch said in his dissent, ``The majority
accepted the lawless disregard of the Cherokee sovereignty.''
This departure from well-established law represents a real
threat to tribal sovereignty.
The Court essentially flipped the script on state criminal
jurisdiction in Indian Country. Instead of examining Federal
law for evidence that Congress had authorized state
jurisdiction in Indian Country, the Court held that it only
needed to examine Federal legislation that might have pre-
empted state jurisdiction. But the most troubling aspect of
Castro-Huerta could be what it may portend for future cases and
legislative efforts.
I understand the desire to move forward on legislation to
address this case. However, it is important to proceed
thoughtfully and with the full understanding of any legal
challenges that such action might draw. We have seen what this
Court is willing to do and that is something everyone should be
thinking about as Indian Country and Congress decide on next
steps.
As far as the current impact of Castro-Huerta, Cherokee
Nation has been making extraordinary efforts post-McGirt to
ensure public safety and the day-to-day work of enforcing
criminal laws on the Cherokee Nation's Reservation is the same
today as it was prior to Castro-Huerta.
The costs of sustaining the large criminal justice system
needed on the Cherokee Nation's 7,000 square mile reservation
are substantial. The reservation's population is more than half
a million, many of whom are Indian, and contains several large
municipalities including a sizable chunk of the City of Tulsa.
Under the leadership of our Principal Chief, Chuck Hoskin,
Jr., and our Tribal Council, Cherokee Nation has increased its
spending on public safety by roughly $40 million. Congressional
efforts to help alleviate these costs have been slow to make
their way to the tribes most affected by McGirt. For example,
in the FY22 Omnibus, Congress appropriated $62 million for
tribes directly impacted by the McGirt decision. That bill was
enacted in March, but we are still waiting for BIA to allocate
and release that funding.
Increasing the flow of resources into the McGirt-affected
tribes would be a welcome relief to Cherokee Nation and other
tribes absorbing these costs largely on their own. I fear these
costs will only continue to grow.
Prior to McGirt, the Nation had fewer than 100 criminal
cases in any year. In the first year post-McGirt, we filed over
3,700 cases, and are on track to beat that number this year.
Our District Court, Attorney General's office, and Marshal
Service have all added significantly to their staff to meet
this need.
Additionally, with jurisdiction over non-Indians
increasing, due to recent amendments to the Violence Against
Women Act, we are preparing for another jump in our caseload.
Cherokee Nation had the highest number of charges filed under
the expanded authority granted through VAWA 2013, and we expect
a similar increase this time around.
In the wake of the Castro-Huerta decision, we call for the
governor of Oklahoma to come back to the table to end his anti-
tribal agenda and move forward as we enter this chapter of
concurrent jurisdiction.
We stand ready to grow and continue the tribal state
collaborations such as Cross Deputization Agreements that have
proven so effective on our reservation. Our many successes at
the local level highlight that tribal justice systems, far from
being anything exotic or scary, are local and familiar and
serve tribal communities with zeal and professionalism.
Given an opportunity to flourish post-McGirt and post-
Castro-Huerta, I have no doubt that tribal justice systems will
continue to be a source of innovation and public safety
throughout our Nation. Thank you.
[The prepared statement of Ms. Hill follows:]
Prepared Statement of Sara Hill, Cherokee Nation Attorney General
Chair Leger Fernandez, Ranking Member Obernolte, and members of the
Subcommittee for Indigenous Peoples of the United States:
On behalf of the more than 437,000 citizens of Cherokee Nation, I
thank you for this opportunity to offer comments regarding the U.S.
Supreme Court's recent decision in Oklahoma v. Castro-Huerta, 142 U.S.
2486 (2022).
The Castro-Huerta case arose on the Cherokee Nation Reservation,
and involved a Cherokee child. It was one of dozens of cases that the
Oklahoma Attorney General appealed hoping for an opportunity to
overturn the U.S. Supreme Court's decision in McGirt v. Oklahoma.
Fortunately, Oklahoma could not convince the Court to consider the
issues raised in McGirt.
The U.S. Supreme Court's decision in McGirt v. Oklahoma is best
seen as the result of a generational effort by advocates in Oklahoma
and across Indian Country to displace what Justice Gorsuch referred to
as `the rule of the strong' with the `rule of law.' Oklahoma state
officials illegally exerted jurisdiction over Indian Country, and the
United States illegally suppressed tribal governments in Oklahoma until
the 1970s. It was the work of tribal elected leaders, attorneys, and
advocates that turned the tide. McGirt was a critical and much-
celebrated part of this return to the rule of law in Oklahoma Indian
Country.
But is it a high-water mark? The decision in Castro-Huerta has,
unfortunately, broken in the opposite direction. Despite clear federal
legislation that preempted state jurisdiction over crimes by non-
Indians against Indians in Indian Country, as well as decades of prior
court decisions, the U.S. Supreme Court went well out of its way to
provide jurisdiction to Oklahoma over crimes committed by non-Indians
against Indians. A new majority emerged in this case, and it
demonstrated little regard for principles of federal Indian law that
had been in place since Chief Justice John Marshall was on the bench.
This departure from well-established law by the U.S. Supreme Court
represents a real threat to tribal sovereignty. The Court flipped the
script on state jurisdiction in Indian Country. No longer did states
lack jurisdiction unless Congress authorized it. Now, states have
jurisdiction unless Congress has specifically preempted it.
And the list of considerations and sources of federal law that fail
to preempt state law is extraordinarily long, according to the Castro-
Huerta majority. Nothing preempts state jurisdiction: not the clear
language from the General Crimes Act, not Public Law 280, ``no
principle of tribal self-government,'' none of the treaties between the
Cherokee Nation and the United States, and not the Oklahoma Enabling
Act.
In short, there is much that is troubling about the U.S. Supreme
Court's decision in Castro-Huerta. Before Castro-Huerta, the Cherokee
Nation, joined by the Chickasaw Nation, called for legislation that
would support tribal governments and self-determination while
protecting tribal reservations. Post Castro-Huerta, it is important to
proceed thoughtfully and with a full understanding of any legal
challenges, such legislation might draw. The long-term importance of
the Castro-Huerta decision is yet unknown. Will it grow in importance,
or become part of the U.S. Supreme Court's misfires, relegated to a
specific situation at a specific time but lacking application moving
forward?
That is not something we can yet know, but it is something that
everyone should be thinking about as Indian Country and Congress decide
on next steps.
The day-to-day work of enforcing criminal laws on the Cherokee
Nation's Reservation is the same before Castro-Huerta as it is today.
The Cherokee Nation has been making extraordinary efforts post-McGirt
to ensure public safety.
Under the leadership of our Principal Chief, Chuck Hoskin, Jr., and
our Tribal Council, the Nation has increased spending on public safety
by $40 million. With the increased jurisdiction over non-Indians
increasing due to recent amendments to the Violence Against Women Act
in 2022, we are preparing for another increase in our caseload.
Cherokee Nation had the highest number of charges filed under the
expanded authority included in VAWA 2013, and we expect a similar jump
in cases this time around.
Prior to McGirt, the Nation would have fewer than 100 criminal
cases filed in a year. In the first year post-McGirt, we filed over
3,700, and are on track to beat that number this year. Our District
Court, Attorney General's Office, and Marshal Service have all added
significantly to their staff.
The costs of sustaining the large criminal justice system needed on
the Cherokee Nation's 7,000 square-mile reservation are substantial.
The reservation's population is more than a half million, many of whom
are Indian, and contains several large municipalities, including a
sizable chunk of the city of Tulsa. Although Cherokee Nation is fully
committed to ensuring public safety, additional resources from our
federal trustee would be welcome.
Even when allocated, federal resources have been slow to make their
way to the tribes most affected by McGirt. For example, in the FY22
omnibus Congress appropriated $62 million for Tribes directly impacted
by the McGirt decision. That bill was enacted in March--we are still
waiting for BIA to allocate and release that funding. Increasing the
flow of resources into the McGirt-affected tribes would be a welcome
relief to the Nation's absorbing the cost of this rapid expansion.
Finally, I want to highlight a state-tribal collaboration that has
been so effective in the Cherokee Nation. The Cherokee Nation has
cross-deputation agreements with all law enforcement agencies that
operate within our jurisdiction. Most criminal cases prosecuted by the
Nation come from state law enforcement acting under these cross-
deputation agreements. Every day, our office fields phone calls from
local police or sheriffs asking about cases, providing updates, asking
questions, and generally working together with the Cherokee Nation.
These successes at the local level highlight that tribal justice
systems--far from being anything exotic or scary--are local and
familiar and serve tribal communities with zeal or professionalism.
______
Questions Submitted for the Record to Hon. Sara Hill, Attorney General,
Cherokee Nation
Questions Submitted by Representative Stansbury
Question 1. What can Congress do to hear from Tribal nations in
order to find a reasonable consensus in Indian Country to respond to
Castro-Huerta?
Answer. There is rarely a `one size fits all' solution among
tribes. Some tribes have hundreds of thousands of citizens on their
reservation, while others have dozens. Some reservations are developed
and urban, while others lack basic infrastructure or access to
essential services. Given this diversity, providing forums for tribal
governments to speak directly with U.S. officials and each other about
common concerns is one way to begin to identify areas where there would
be broad-based, intertribal support. In the context of Castro-Huerta,
there are many tribes that may still be unaware of the decision, or be
unaware of how it will impact them over the short and long term.
Consensus building should be viewed as a valuable process worthy of
considerable time and energy, and not rushed to justify imposing a
predetermined solution upon Indian country.
Questions Submitted by Representative Westerman
Question 1. Lead Up: Collaboration among tribal, state, federal,
and local law enforcement and legal systems is needed to cover the
complicated jurisdictional system that exists in Indian Country.
(1a). Could you provide examples of the best collaborative
connection not included in your written testimony that your tribe has
with non-tribal law enforcement, and how that may help inform
discussion about public safety in Indian Country?
Answer. Oklahoma and the tribes within its exterior boundaries
have, by and large, found ways to successfully negotiate mutually
acceptable agreements that have benefited both state and tribal
communities. Often, litigation triggered the ultimate agreement. This
was the case even post-McGirt.
Many small municipalities contacted the Cherokee Nation, concerned
that the loss of revenue from traffic tickets would gut the small town
police forces on the Cherokee Nation Reservation. The Nation's elected
leaders felt that maintaining local municipal police was a top
priority, and agreed to donate traffic ticket revenue back to the
municipality. Today, there are twenty such agreement with local
municipalities, and it has helped keep local police in place where they
are most needed. This type of cooperation with non-tribal law
enforcement has not been the exception in Oklahoma, but indeed the
rule.
(1b). Could you provide further information and data about how
plans to increase resources to the Cherokee Nation's tribal court
system have or have not changed both pre- and post-the McGirt decision,
and also pre- and post-the Castro-Huerta decision, including staff
increases, staff position additions, funding increases, and other
similar metrics?
Answer. Post-McGirt, the Cherokee Nation has made unprecedented
investments in its law enforcement and justice systems. Among other
investments, the Nation has hired additional law enforcement officers,
prosecutors, and judges to help with the additional workload. In an
average year prior to McGirt, the Cherokee Nation would file between 50
and 100 criminal cases. In comparison, from March 11, 2021, through
March 10, 2022, the Cherokee Nation's Office of the Attorney General
filed 3,700 criminal cases in our tribal court, including 533 domestic
violence cases. In 106 of those cases--roughly 20%--a non-Indian
defendant was charged under the Nation's special domestic violence
jurisdiction.
In fiscal year 2022 alone, the Cherokee Nation invested in excess
of $30 million to expand and improve the delivery of justice-related
services across our Reservation. Among other investments, this funding
was used to increase the capacity of the Cherokee Nation Office of the
Attorney General (``OAG''). Specifically, the OAG has added 7 full-time
prosecutors, and has budgeted to hire 5 more full-time prosecutors in
the next fiscal year. The OAG has also added numerous support staff,
including 8 full-time and 2 part-time staff, with additional hiring
ongoing to meet need. Additionally, the OAG has recently added 2 full-
time investigator positions, including an investigator dedicated to
domestic violence prosecutions, and 2 full-time victim witness
coordinators.
As the Cherokee Nation continues to carry out its sovereign duty to
provide public safety and justice within our Reservation, our needs and
specific priorities for investment will continue to change and evolve--
just as they have over the last few years. Flexibility in tribal
reprogramming requests will allow us to address new and evolving
challenges and priorities, as we continue to identify them.
For instance, post-McGirt expansion of our justice systems has
recently led to the creation of entirely new departments within the
Cherokee Nation that we identified as necessary. A new probation
services division was recently established, which employs 3 full-time
probation officers. A Cherokee Nation Department of Juvenile Justice
was also established to handle the increase in delinquent cases. The
Cherokee Nation's Department of Juvenile Justice employs 9 full-time
staff members, including a Director of Juvenile Justice, intake
officers, probation officers, and support staff. In July 2021, the
Cherokee Nation opened a new Juvenile Justice Center in Muskogee,
Oklahoma, to house these new staff members and provide a convenient
location to hold juvenile court.
As recently as July of this year, the Cherokee Nation committed an
additional $10 million to increase the size of the Cherokee Nation
Marshal Service. To date post-McGirt, the Cherokee Nation has added 18
officers to its Marshal Service, and we are in the process of adding 35
more officers for a target number of 102. These officers will be
stationed throughout the Cherokee Nation Reservation to improve
response times to calls for assistance. In addition to the personnel
expansion, the Cherokee Nation Marshal Service has seen an exponential
increase in its pre-trial and post-conviction detention budget.
Cherokee Nation averages 200 detainees daily. Currently, these
detainees are housed in county jails that the Nation contracts on a per
inmate daily rate. The Nation recently entered into a contract to
provide longer-term detention for inmates, but that option comes with
an increased daily rate.
With the passage of the Violence Against Women Reauthorization Act
of 2022, the Cherokee Nation's jurisdiction again increased on October
1st of this year. The Cherokee Nation is now able to assert
jurisdiction over non-Indians who perpetrate sexual assault, child
abuse, stalking, sex trafficking, or assaults on tribal law enforcement
within the Cherokee Nation Reservation. This increased jurisdiction
will create additional and new demand for certain tribal justice
services throughout our Reservation.
Accordingly, as the Cherokee Nation's needs and priorities post-
McGirt and post-Castro-Huerta are still emerging and shifting and the
Nation will continue to respond with what resources it has to address
issues of public safety.
______
Ms. Leger Fernandez. Thank you very much, Attorney General.
I thank every witness in the second panel for their passionate
testimony.
I am going to remind the Members that Committee Rule 3(d)
imposes a 5-minute limit on questions. The Chair will now
recognize Members for any questions they may wish to ask of the
second panel. I will start by recognizing myself for 5 minutes.
Honorable Chaudhuri, Honorable Ambassador, you spoke of the
issues that arise because of the fact that tribes do not have,
in essence, even when they have criminal jurisdiction, that
they don't have full criminal jurisdiction. There are
limitations on that jurisdiction, both in terms of the
sentences that may be imposed, as well as the individuals
against whom a tribe may prosecute.
Can you elaborate a bit on why that makes it difficult to
protect your people on tribal lands? And why it might be good
to address that as we address a public safety package for
Indian Country?
Mr. Chaudhuri. Absolutely. And thank you, Madam Chair. I
very much appreciate the witness testimony today, all of whom
have called for action by Congress.
Some of the limitations that I spoke of address sentencing
limitations as well as jurisdictional limitations. And one of
the main sources from it was another judicial usurpation of
congressional power back in 1978, which called into question
the capacity of Tribal Nations to prosecute properly criminal
acts in Indian Country. And that was a surprise to Nations such
as the Muscogee Creek Nation, whose roots of criminal justice
systems existed before statehood of, not just Oklahoma, but
also Alabama, and Georgia.
But that case itself restricted jurisdiction to prosecute
bad guys in Indian Country which we fought for and Indian
countries universally have fought for ever since.
But since then, in trying to restore some of that
jurisdiction, Congress has taken a very measured approach that
has resulted in a bipartisan conclusion that more restoration
of tribal authority is better.
Some part of that measured approach included slowly ramping
up sentencing authority of Tribal Nations, starting with the
limit of 1 year, then later, through the Tribal Law and Order
Act, amping it up to 3 years. All of which was coupled with
robust due process protections for any defendants within Indian
Country.
At each stage of the way throughout this trend of Congress
empowering Tribal Nations, we have heard nothing but good
results. We haven't heard the sky is falling result of bad
actions coming from tribal court prosecutions.
This is especially important to me. I had, in a previous
life, served as Chief Justice of Muskogee Creek Nation, and I
can speak to the capacity of Tribal Nations.
So, sentencing limitations need to be addressed in Indian
Country. Jurisdictional limitations, if we really want to keep
people safe, whether they are Native or non-Native in Indian
Country, we have to empower local decision makers on the ground
and the governments who have the greatest interest in
protecting people.
Ms. Leger Fernandez. Thank you.
Mr. Chaudhuri. That should appeal to both sides of the
aisle.
Ms. Leger Fernandez. Thank you very much, Ambassador. I now
wanted to turn to Chairwoman Gobin. I think your testimony
about the implications that you need to be able to protect your
children is really key. And I thought that we heard that theme
throughout the testimony today.
Can you elaborate a bit more on what it means as a tribal
leader to know that you might be restricted from being able to
respond to those cases where the child on your reservation, the
children of your community are being abused, and you cannot
protect them, you cannot prosecute those crimes?
Ms. Gobin. OK. This started out with the VAWA. When we
first started to be able to prosecute non-tribals that were
committing crimes against our women, some of the children that
were in the room that actually got hurt really bad, they got
beat during this time, there was no way to prosecute the crime
against the child.
And those children have suffered a great deal. Not only the
verbal but physical abuse that was horrific. They didn't get
justice on having their portion of the crime go through a court
system. It was devastating to the community. Some of these
children are really suffering. They have to have mental health
counseling, but it is not right that those crimes never got to
go on through the system.
Ms. Leger Fernandez. Thank you very much. I did want to
also ask Kevin Killer, the President of the Oglala Sioux Tribe,
about the comparison of the funds available at the state level
as to the tribal level, but I have run out of time.
We are going to ask the witnesses to respond to written
questions. And I will submit my written questions so that we
may move on. I now recognize Ranking Member Obernolte.
Mr. Obernolte. Thank you to all our witnesses. It has been
a very informative hearing so far.
Mr. Chaudhuri, I will start with a question for you. I want
to thank you for coming to the table with a concrete solution.
You have urged Congress to act, and I respect the position you
have taken.
Are all of the Five Tribes of Oklahoma unified in their
opinion of what Congress should do in this situation?
Mr. Chaudhuri. My guess is in any room full of tribal
leaders, there are going to be different approaches to
different problems. But when we talk about consensus, one of
the themes we have heard repeatedly today is that this is an
Indian Country issue. We are always happy to work with our
sibling Nations, and we are working toward solutions. But this
is an issue that reaches far beyond Oklahoma.
I think even our Cherokee colleague mentioned the need for
a thoughtful approach, and we respect the fact that she is
calling for action and the Cherokee Nation is calling for
action. But respectfully, one of the points that many of our
colleagues raised is that the solutions are not new. They were
vetted extensively by the Indian Law and Order Commission over
10 years ago, and the solutions are clear.
Mr. Obernolte. Right. Well, I think those are some of the
challenges that we face here, right? Because there are over 500
federally recognized tribes. There is probably going to be 500
different opinions of exactly what Congress ought to do,
including what is probably the minority viewpoint, but
including the viewpoint that P.L. 280 is not such a bad thing,
and then maybe that should be expanded, which is something I
know that you would vehemently disagree with.
So, how are we in Congress to determine what the right
solution is given the fact that we probably want to apply it
equally across the country?
Mr. Chaudhuri. Thank you, sir. Excellent question. I was
very thankful to hear the Chairwoman from Tulalip sound the
alarm as to why Tribal Nations in Public Law 280 states have a
deep interest in limiting the bad impacts of Castro-Huerta.
When you talk about consensus, consensus doesn't equal
unanimity, and it is important to hear, certainly from all of
Indian Country. But if Congress ever waited to act for every
Tribal Nation to sign on board with every proposal, Congress
would never be able to uphold its treaty and trust
responsibilities.
So, respectfully, we appreciate the dialogue from today to
show the vast majority of sentiment in Indian Country and urge
Congress to consider appropriate actions to uphold its
responsibilities.
Mr. Obernolte. Thank you for the testimony.
Mr. Chaudhuri. Thank you, sir.
Mr. Obernolte. Ms. Gobin, I would like to follow up on the
Chair's question because I am very interested in the problems
that you have illustrated with P.L. 280. The situations where
the perpetrators of crimes against Indians were not brought to
justice as a result of that. Could you talk a little bit more
about the situation you were discussing with the Chair--where
crimes were committed against children, the evidence was there,
but those crimes were not prosecuted.
Ms. Gobin. Yes. So, that was where you have the two
jurisdictions. You have the state and the feds, and neither one
would take up the cases. And we have several that were on the
books that did not get prosecuted. And we had conversations
while trying to get the state to do it, but also with the feds.
Mr. Obernolte. OK. So, why? I mean, I think opinions may
differ about who has jurisdiction and who is going to do the
prosecution, but it is hard to believe that anyone would say
crimes have been committed against children, we have the
evidence, and that is OK. So, how did these cases fall through
the cracks?
Ms. Gobin. Well, I think with the state, they may have
difficulty working with the tribes. And the feds, we would have
thought that we could have moved those cases forward but then
they sit forever. And then we have had conversations on why
aren't you taking us? So, we did have those conversations, and
we are hoping to move them forward in a faster way. But, yes,
children were hurt. And there is a bias at the state. They
don't want to take tribal cases.
Mr. Obernolte. Wow, that is stunning to hear that. I think
that no matter what your opinion of Huerta is, we should all be
unified in the desire to bring justice for the victims of these
crimes. I thank you for your testimony. I yield back, Madam
Chair.
Ms. Leger Fernandez. Thank you for your questions. The
Chair will now recognize the gentleperson from the state of New
Mexico, Representative Stansbury.
Ms. Stansbury. Thank you, Madam Chairwoman. I want to start
by saying thank you to all of our tribal leaders and welcoming
you to our Committee and to Washington, DC. It is great to see
so many old friends and wonderful to have you here. And thank
you to Chairwoman Leger Fernandez and our Ranking Member for
this important hearing.
I want to start with my position on this issue which is
that I believe that this decision by the majority of our
Supreme Court is a direct affront to tribal sovereignty and to
Tribal Nationhood, and upends, of course, generations of
settled law in the U.S. tribal relationship, hundreds of
treaties. And is an affront to our Constitution in which we
recognize tribal sovereignty as inherent to our Tribal Nations.
So, I strongly believe that we need to support the Tribal
Nations who would like to see a legislative fix to this
decision.
But my concern, and the question I want to direct to our
tribal leaders who are here today and to those who are
listening across our Tribal Nations in the United States, is
how do we build a process at the congressional level to get to
some form of consensus about the legislative path?
I know some of the previous questions have touched on this.
I served on a panel just last week with a couple of dozen
tribal leaders asking the question, what should the legislative
fix look like? And I have received at least six different
answers based on six different legal theories and bases.
I have heard more expansive responses that would like to
overhaul and fix previous case law and statutory problems with
how justice systems are supported in our Tribal Nations. I have
seen more narrow fixes.
So, my question for our panelists today is really a process
question more than a substance question. Which is, is there a
need to seek an immediate fix that reaffirms McGirt or
addresses a fatal flaw before the end of this Congress while we
engage in a much more robust consultation process with the
executive branch so that we can hear from all of our Tribal
Nations? And sort of your thoughts about how we build a
reasonable consensus on a legislative path forward.
And I think if it is OK, Madam Chair, just going in the
order of the witness' testimony, starting with our honorable
Ambassador from Muskogee Creek.
Mr. Chaudhuri. Does that work for you, Madam Chair?
If that does, thank you so much, Congresswoman Stansbury.
Always good to see you.
In the interest of time, I will say that there is no
legislative language that we put forward as a Nation. However,
there are proposals that we support that are intended to
generate meaningful discussion to have Congress signal its
intent to uphold its responsibilities in short order.
We are mindful of the potential for mischief and erroneous
misapplication of the underlying rationale of Castro-Huerta in
cases that go beyond public safety. Most importantly, and
coming around the horizon, the Supreme Court is set to hear
arguments in the Brackeen case which if the Supreme Court
wrongly extends the rationale under Castro-Huerta, it could be
devastating for Native children throughout the country. So, we
want Congress to act quickly.
In terms of legislative proposals that we would support, we
not only support clarification in the public safety context but
to be clear, we also support a robust effort collectively to go
after bad guys. And going after bad guys requires addressing
sentencing limitations, jurisdictional limitations, and so
forth.
So, we do believe action is needed now, and we support
something that addresses things collectively. We don't call it
a fix. We call it strengthening public safety issues in Indian
Country. Thank you so much for the question.
Ms. Stansbury. Thank you so much. I am mindful that I
actually have run out of time here with this. I am going to
submit this, Madam Chairwoman, as a question for the record to
all of our witnesses. And as I said, I would love to hear from
Tribal Nations. We would love to hear from Tribal Nations
across the country about how to build that consensus process.
And the question about acting expediently before the end of
this Congress, and whether it is both, doing something now, as
well as doing something more extensive.
Finally, I just want to say that we are working very hard
to get a real budget passed, and we know that there is going to
be a short-term CR. We are hearing the need to get more
resources to support tribal courts, to beef up DOJ, and BIA,
and law enforcement. And we know that this is a huge, immediate
need across Indian Country. We stand with you, and we will be
working very closely with the Tribal Nations to address this
issue. Thank you, Madam Chairwoman.
Ms. Leger Fernandez. Thank you, Representative Stansbury,
for your questions and the answers. The Chair will now
recognize the gentleperson, Representative Rosendale. Thank you
for being here.
Mr. Rosendale. Thank you, Madam Chair. Attorney General
Hill mentioned some of this in her testimony, but I would like
to hear more from you, Ambassador Chaudhuri, and AG Hill, on
the plans both your Tribal Nations have put in place to handle
an increased caseload in your tribal courts, pre- and post-
McGirt. We can start with you. You are right here.
Mr. Chaudhuri. Yes, sir. And as I said before, we have our
Attorney General Geri Wisner, who works on the day-to-day
implementation of McGirt and any specific details she can
follow up in the record with written testimony. And we are here
today if you so choose. But we have, like Cherokee Nation,
amped up our budget from day one at Muskogee Creek Nation.
Chief Hill formed a Commission to look at all aspects of
McGirt. From that Commission, we increased our social services
providers, our prosecutors, our judges. We now have doubled the
number of judges that we ever had, servicing all the caseload
that is coming through our system. We have more law enforcement
on the ground and prosecutors.
The numbers, our budget isn't as big as Cherokee Nation's,
but our ramp-up is probably proportionate, if not greater since
we were the very first nation to start implementing McGirt.
Mr. Rosendale. And AG Hill? Do you have anything further?
Ms. Hill. Yes. I think just briefly, that $40 million
represents a lot of different things. So, from having one part-
time criminal prosecutor who also handled the whole juvenile
docket which was one person could handle it, now I have seven
full-time prosecutors and that is all they do.
We opened up additional locations in Muscogee and in Jay
which are local areas and are still looking to expand our
District Court system further. We hired additional court
judges. We hired additional members of the Marshal Service.
So, basically, every part of our criminal justice system
had to expand and grow in every way. That has just been an
ongoing explosion in the criminal justice system. And one of
the huge things I think that is worth mentioning is the
detention budget.
All of these people who are receiving these sentences have
to serve that sentence somewhere, and those costs have really
been skyrocketing. I know that that, and also juvenile
detention, has been a huge issue for all of the tribes in
Oklahoma.
Mr. Rosendale. And while I have you still speaking, AG
Hill, can you also speak to how these plans have or have not
changed after Castro-Huerta was decided?
Ms. Hill. So, Castro-Huerta, the way that we looked at it,
it didn't affect tribal jurisdiction. It didn't do anything to
limit the number of cases coming directly to us. What it could
limit is the number of cases coming to us under VAWA, because
the Oklahoma Attorney General sent out a letter to some of the
prosecutors in Oklahoma saying you need to be referring these
cases to the state now.
That hasn't stopped those cases from coming to us. We are
still seeing a pretty robust number of cases coming in from
Indian Country that are non-Indian crimes against Indians. So,
we haven't really seen a real big dip yet in that caseload. We
are still proceeding with our expansion plans as if nothing had
changed with Castro-Huerta, because as a practical matter, from
our jurisdictional standpoint, the tribe's jurisdiction, it
really didn't.
Mr. Rosendale. OK. Thank you. I was traveling around
Oklahoma, it just so happens recently, and met with several law
enforcement agencies and was really pleased to hear about the
Cross Deputization and the collaboration that was taking place
between the tribal and non-tribal law enforcement agencies. It
sounded really, really positive.
But I did find it troubling to hear about the different
penalties that were imposed based upon tribal or non-tribal
status and the location of the offense. So, I don't know who is
best suited.
AG Hill, I am thinking probably you. Could you expand on
this for me and explain why that is so? And is there any plan
to rectify or reconcile this difference?
Ms. Hill. Well, I think there is some mythology that gets
mixed into all of that. I have heard on multiple occasions,
that if you get a ticket in one jurisdiction, it is one cost,
and if you get a ticket at Cherokee Nation, it is a different
one. And I will chase it down, and it is just not true.
There is a lot of local law enforcement that sort of has
this mythology that its tickets are much more expensive. And
part of this is to get Indians to say, well, just go ahead and
give me a ticket for the non-Indian court because it will be
cheaper, right, even though this tribe has jurisdiction over
them.
And for the most part, our penalties are very consistent
with what state penalties are. The only time that that is
different is where our jurisdiction or our ability to assess
that penalty is limited by Federal law. Under the Indian Civil
Rights Act, we simply cannot for any crime, for one single
crime, have a penalty longer than 3 years. And there is nothing
I can do about that from the tribal side.
Mr. Rosendale. OK. Thank you. Madam Chair, I yield back.
Ms. Leger Fernandez. Thank you very much for those
questions and pointing out that distinction that I think that
is part of the issue that we were raising earlier is the fact
that we have, in essence, hobbled the ability of tribes to
prosecute those crimes.
And as we know, when there isn't the fear of prosecution
and serious sentences, that then may lead to more reckless and
criminal behavior so thank you for----
Mr. Rosendale. Sort of like our southern border.
Ms. Leger Fernandez. We are dealing with our internal
borders of the tribes right now and we love to focus on that
exclusively in this Committee. I want to thank our witnesses
for their valuable testimony and the Members for their
questions.
Now I would like to transition to our final panel of
witnesses for the day. Once again, I am going to remind non-
Administration witnesses that they are encouraged to
participate in the witness diversity survey created by the
Congressional Office of Diversity and Inclusion.
Witnesses may refer to their hearing invitation materials
for further information. Under our Committee Rules, oral
statements are limited to 5 minutes, but you may submit a
longer statement for the record if you choose.
When you begin, the onscreen timer will begin counting
down. It will turn orange when you have 1 minute remaining. I
recommend that Members and witnesses joining remotely lock the
timer on their screen.
After your testimony is complete, please remember to mute
yourself to avoid any inadvertent background noise. I will
allow the entire panel to testify before we began the question
portion of the hearing.
Once again, we moved the hearing to 11 o'clock to see if we
could get through the testimony before votes were called. We
are hopeful we will be able to move through as much as possible
before votes are called.
The Chair will now recognize Ms. Mary Kathryn Nagle, who is
Counsel for the National Indigenous Women's Resource Center.
STATEMENT OF MARY KATHRYN NAGLE, COUNSEL, NATIONAL INDIGENOUS
WOMEN'S RESOURCE CENTER, WASHINGTON, DC
Ms. Nagle. Madam Chairwoman, members of the Subcommittee,
and Ranking Member, I am honored to serve as Counsel to the
National Indigenous Women's Resource Center, a national non-
profit, working to end domestic violence and sexual assault
against Native women and children.
Today, our Native women and children face the highest rates
of violence in the entire United States. The reasons for this
epidemic, however, are no mystery. In 1978, the U.S. Supreme
Court took away the inherent jurisdiction of our tribes to
protect our own citizens on our own lands. And 2 months ago,
the Court gave that jurisdiction to states.
The majority opinion in Castro-Huerta erroneously ignored
Congress' passage of VAWA 2022. And the Court discarded
Congress' considered judgment. The crime underlying the Court's
decision in Castro-Huerta involved non-Indian abuse against an
Indian child on tribal lands. A crime that as of October 1,
2022, Tribal Nations will once again be able to prosecute
because Congress restored this jurisdiction to Tribal Nations,
not states.
In restoring this jurisdiction, Congress recognized that no
sovereign has a greater interest in protecting Native children
than their own Tribal Nations. Indian law scholars have noted
numerous problems with the judicial underpinnings of the
opinion in Castro-Huerta. It misconstrues the plain language of
the General Crimes Act. It violates the Constitution separation
of powers and disrespects Congress' exclusive authority to
legislate over Indian Affairs.
But most concerning is the fact that it obviates the
connection between tribal sovereignty and safety for Native
women and children. The consequences of Castro-Huerta, as they
relate to safety for Native women and children, have already
proven to be bad.
Because of Castro-Huerta, our Native women and children
will now have to rely on their state and local governments to
protect them and governments that until now, have failed to do
so. The NIWRC is already receiving reports that individual U.S.
Attorney's offices are implementing policies to defer
prosecution of crimes committed against Indians on tribal lands
to state law enforcement based on a flawed reading of Castro-
Huerta.
Nothing in Castro-Huerta invites the Department of Justice
to distance itself from its treaty, trust, duty, and
responsibility to safeguard the lives of our women and
children.
But as we have witnessed with P.L. 280, the Kansas Act, and
the few other instances where Congress has granted states
jurisdiction over crimes against Native victims on tribal
lands, such a grant of jurisdiction to states inevitably
results in a decrease in Federal prosecutions, a decrease in
resources dedicated to the crime, and an increase in violent
crimes against our Native people.
For instance, after Nebraska acquired this jurisdiction
through P.L. 280, the United States Commission on Civil Rights
reported that all the Tribal Nations in Nebraska were told the
state simply, ``did not have enough funds to maintain station
deputy sheriffs on their reservations.''
I wish I could say that state and local governments have
historically prioritized the protection of our Native women and
children, but they have not.
In Big Horn County, the state county with the highest rates
of Missing and Murdered Indigenous Persons in the entire United
States, the state of Montana has done nothing to address the
fact that an entire Sheriff's County office repeatedly refuses
to investigate the innumerable homicides of Native people
within the state's jurisdiction. Kaysera Stops Pretty Places,
Allison High Wolf, Selena Not Afraid, the list goes on and on.
In North Dakota, local and state law enforcement did not
search for Savanna Greywind's body when she went missing. She
was murdered in Fargo, North Dakota, but the Fargo police
refused to look for her. It was her friends and family who
organized the search party. State law enforcement did nothing.
In Alaska, the P.L. 280 state with the highest rates of
violence against Native women, Native victims of violent crimes
who call 911 wait days and days for the arrival of a state
trooper. Oftentimes, children and family members have to guard
the crime scene until state law enforcement finally arrives.
Native children are their first responders.
In Wyoming, Native people comprise 3 percent of the entire
state's population, but they are 21 percent of the state's
homicide victims. Oklahoma, the state that asked this court for
this jurisdiction, fairs no better.
In 2017, the Urban Indian Health Institute found that
Oklahoma ranks in the top 10 of states with the highest number
of MMIWG cases. And Oklahoma City ranks in the top eight of
American cities that fail to properly record and investigate
MMIWG cases.
The decision in Castro-Huerta sadly has nothing to do with
what's best for Native victims. It is an outcome determinative
decision fueled by one governor's multi-million-dollar PR
campaign to overturn the Court's prior decision in McGirt. But
when the dust is settled and the rhetoric has calmed down, it
will be Native women and children who pay the price. We are
asking Congress to take action and address the crisis created
by Castro-Huerta. Thank you.
[The prepared statement of Ms. Nagle follows:]
Prepared Statement of Mary Kathryn Nagle, Counsel, National Indigenous
Women's Resource Center
Madame Chairwoman and members of the committee, thank you for the
opportunity to testify. I am honored to serve as counsel to the
National Indigenous Women's Resource Center, a national non-profit
whose mission is to end violence against Native women and children.
Today, Native women and children face the highest rates of violence in
the entire United States. The reasons for this epidemic of violence in
Indian Country are no mystery.
In 1978, the U.S. Supreme Court took away the inherent jurisdiction
of our Tribal Nations to prosecute crimes committed by non-Indians
against Indian victims on tribal lands. And then two months ago, the
Court gave that jurisdiction to States.
But after 1978, and before the Court's decision in Castro-Huerta,
Congress passed two pieces of legislation that restored, partially, the
jurisdiction the Court took away in Oliphant. In the last two re-
authorizations of the Violence Against Women Act, Congress, in a bi-
partisan manner, elected to restore this jurisdiction to Tribal
Nations. Not States. In fact, the crime underlying the Court's decision
in Castro-Huerta involved non-Indian abuse against an Indian child on
tribal lands-a crime that, as of October 1, Tribal Nations will once
again be able to prosecute. In restoring this jurisdiction to Tribal
Nations, Congress recognized that no sovereign has a greater interest
in protecting the safety and welfare of Native victims than their
Tribal Nations. The majority opinion in Castro-Huerta erroneously
ignored Congress' passage of VAWA 2022, and the Court ignored Congress'
considered judgment.
Indian law scholars have noted numerous problems with the judicial
underpinnings of the opinion in Castro-Huerta. It misconstrues the
plain language of the General Crimes Act. It violates the
Constitution's separation of powers and disrespects Congress' exclusive
authority to legislate over Indian affairs. But as a Native woman
dedicated to ending violence against Native women and children, the
biggest problem I see with Castro-Huerta is that the Court erroneously
concluded that state governments somehow have a greater interest in
protecting Native victims than their own Tribal Nations.
They do not. The consequences of Castro-Huerta, as they relate to
safety for Native women and children, have already proven to be dire.
According to the DOJ, 96% of Native victims have been victims of
violent crimes committed by non-Indians. Because of Oliphant, Tribal
Nations cannot prosecute the majority of violent crimes committed
against our women and children in our own homes. And because of Castro-
Huerta, our Native women and children will now have to rely on their
state and local governments to protect them, instead of the federal
government--the only government with a treaty trust duty and
responsibility to protect us. The NIWRC is already receiving reports
that individual United States Attorneys Offices are implementing
policies to defer prosecution of crimes committed by non-Indians
against Indians on tribal lands to state law enforcement, based on a
flawed reading of Castro-Huerta. Nothing in Castro-Huerta invites the
Department of Justice to distance itself from its treaty trust duty and
responsibility to safeguard the lives of our women and children. But as
we've witnessed with PL 280, the Kansas Act, and the few other
instances when Congress has grated States jurisdiction over crimes
against Native victims on tribal lands, such a grant of jurisdiction to
States inevitably results in a decrease in federal resources, a
decrease in prosecutions, and an increase in violent crimes against our
Native people. For instance, after Nebraska acquired this jurisdiction
through PL-280, the United States Commission on Civil Rights reported
in 1961 that Tribal Nations in Nebraska were told the State did ``not
have the funds to maintain station deputy sheriffs on their
reservations.'' \1\
---------------------------------------------------------------------------
\1\ 5 U.S. Comm'n on Civil Rights, Justice: 1961 Comm'n on Civil
Rights Report 148 (1961).
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I wish I could say that state and local governments have
prioritized the protection of Native women and children, but they have
not.
In Big Horn County, the state county with the highest rates of
Missing and Murdered Indigenous Persons in the United States, the State
of Montana has done nothing to address the fact that an entire
Sheriff's Office repeatedly refuses to investigate the innumerable
homicides of Native people within the state's jurisdiction. Kaysera
Stops Pretty Places, Allison High Wolf, Selena Not Afraid. The list
goes on and on.
In North Dakota, local and state law enforcement did not search for
Savanna Greywind when she went missing. She was murdered in Fargo,
North Dakota. But the Fargo police refused to look for her. It was her
family and friends who organized the search party. State law
enforcement did nothing.
In Alaska, one of the States with the highest rates of violence
against Native women, Native victims of violent crimes who call 911
wait days and days for the arrival of a State trooper. Oftentimes,
children and family members have to guard the crime scene until state
law enforcement finally arrives. Native children are the first
responders.
In Wyoming, Native people comprise 3 percent of the entire state's
population, but they are 21% of the state's homicide victims.
Oklahoma, the State that asked the Court for this jurisdiction,
fares no better. In 2017, the Urban Indian Health Institute (``UIHI'')
found that Oklahoma ranks in the top ten of States with the highest
number of MMIWG cases, and Oklahoma City ranks in the top eight of
American cities that fail to properly record and investigate MMIWG
cases.
The decision in Castro-Huerta truly has nothing to do with what's
best for Native victims. It is an outcome determinative decision fueled
by one Governor's multi-million dollar PR campaign to overturn the
Court's prior decision in McGirt. But when the dust has settled and the
rhetoric has calmed down, it will be Native women and children who pay
the price.
We are asking Congress to take action and address the crisis
created by Castro-Huerta.
______
Questions Submitted for the Record to Mary Kathryn Nagle, Counsel,
National Indigenous Women's Resource Center
Questions Submitted by Representative Leger Fernandez
Question 1. Your testimony states that, due to the Castro-Huerta
ruling, Federal authorities will begin to pull their public safety
resources out of Indian Country altogether.
(1a). Why do you think this will be the case?
Answer. The NIWRC has already received reports that individual
United States Attorney's Offices (USAOs) are implementing policies to
defer prosecution of crimes committed by non-Indians against Indian
victims on tribal lands to state law enforcement. Based on this flawed
reading of Castro-Huerta, the Department of Justice is distancing
itself from its trust responsibility to protect the lives of Native
women and children. The NIWRC has also received reports that some USAOs
see Castro-Huerta as an excuse to not refer Violence Against Women Act
(VAWA) cases to Tribal Nations, and, instead, are instructing the
referral of VAWA cases only to local county and state law enforcement.
This is a violation of the federal government's trust obligation to
uphold tribal self-determination and safety for Native women and
children. Recently, the Department of Justice (DOJ) and the Department
of the Interior (DOI) held joint-consultations with Tribal Nations on
the Supreme Court's decision in Oklahoma v. Castro-Huerta. Notably, DOI
was represented by a Senate confirmed political appointee. No political
appointee from DOJ, however, was present at the consultation. Instead,
DOJ was represented by career staff. The NIWRC does not question the
dedication or the competency of DOJ career staff personnel. However,
the failure of the DOJ to require any of its political appointees to
attend the consultations with Tribal Nations indicates, sadly, that
addressing and fully understanding the harmful effects of the Supreme
Court's decision in Castro-Huerta is not a high priority for the
Department.
Historically, insufficient federal funding for tribal government
institutions has been particularly acute on reservations under
concurrent state criminal jurisdiction. Initially this was because
Congress, intending ``to reliev[e] itself from the financial burdens of
its trust responsibility,'' \1\ did not allocate special funding for
those States when enacting Public Law 280 or the various state-specific
acts. Later, the Department of the Interior intentionally provided less
funding to reservations under concurrent state criminal jurisdiction.
See Los Coyotes Band of Cuahilla & Cupeno Indians v. Jewell, 729 F.3d
1025, 1031 (9th Cir. 2013) (``OJS must focus its limited dollars to
provide direct law enforcement services to tribes in non-Public Law 280
states because state law enforcement is not available for Indian tribes
in those states.'') (quoting the Bureau of Indian Affairs Deputy Bureau
Director of the Office of Justice Services). Indeed, one study found
that 91.8% of Tribes in mandatory Public Law 280 States and 82.8% of
Tribes in optional Public Law 280 States did not receive any BIA law
enforcement funding at all.\2\
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\1\ See, e.g., Duane Champagne and Carole Goldberg, A Second
Century of Dishonor: Federal Inequities and California Tribes, Advisory
Council on California Indian Policy, 47-59 (1996) www.aisc.ucla.edu/ca/
Tribes.htm, (``Federal funding for law enforcement in California, never
robust, disappeared almost entirely [after passage of Public Law
280].'').
\2\ Vanessa J. Jimenez and Soo C. Song, Concurrent Tribal and State
Jurisdiction under Public Law 280, 47 Am. U. L. Rev. 1627, 1661 (1998);
Carole Goldberg, Duane Champagne, and Heather Valdez Singleton, Final
Report: Law Enforcement and Criminal Justice Under Public Law 280, 340
(Washington, DC, U.S. Department of Justice, 2007), http://
www.tribalinstitute.org/download/pl280_study.pdf.
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(1b). What would be the result of a Federal withdrawal?
Answer. The result of the Supreme Court's decision to grant States
criminal jurisdiction over all ``Indian country'' lands is the reality
that crimes committed against Native women and children will be less
likely to be prosecuted by federal authorities, and consequently, they
will become more likely to occur as the absence of public safety and
justice systems in Indian country inevitably leads to an increase in
criminal activity. Historically, States with jurisdiction over Indian
country lands have elected to not dedicate sufficient resources to
protecting Native lives on Native lands. On reservations that, prior to
Castro-Huerta, fell under state jurisdiction, lack of funding for
States' assumption of Indian country criminal jurisdiction combined
with misguided ideas about the exclusivity of state jurisdiction and
the lack of accountability to reservation communities have resulted in
problems that include slow response times, irregular and/or infrequent
patrolling, poor evidence collection, mistrust in reservation
communities, baseless removals of Indian children, and infringements on
tribal sovereignty.\3\ For instance, since its inception, PL-280 has
been criticized for creating ``jurisdictional uncertainty'' between
Tribes and States, the effects of which have resulted in a lack of law
enforcement responsiveness due to States' ``inability or
unwillingness'' to perform their mandated responsibilities under the
law.\4\
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\3\ Sarah Deer, Carole Goldberg, Heather Valdez Singleton, and
Maureen White Eagle, Final Report: Focus Group on Public Law 280 and
the Sexual Assault of Native Women, Tribal Law and Policy Institute, 2,
6, 8 (2007).
\4\ Jimenez and Song, supra note 2, at 1635-37.
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Almost as soon as Congress began granting States this jurisdiction,
the affected Tribal Nations began seeking retrocession and repeal,\5\
in no small part because the laws that were ostensibly enacted to
address ``lawlessness'' on reservations in many instances increased
lawlessness and stultified the development of tribal governmental
institutions.\6\ Following PL-280s enactment, Tribal Nations located in
States exercising PL-280 jurisdiction reported decreases in law
enforcement protections and a concomitant increases in lawlessness on
their tribal lands,\7\ including specifically the Confederated Tribes
of the Umatilla Reservation in Oregon,\8\ the Tribes in Alaska,\9\ and
the Tulalip Tribes in Washington.\10\
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\5\ See, e.g., 34 Fed. Reg. 14,288 (1969) (Quinault); 35 Fed. Reg.
16,598 (1970) (Omaha).
\6\ See Carole Goldberg, Public Law 280 and the Problem of
Lawlessness in California Indian Country, 44 UCLA L. Rev. 1405, 1423
(1997) (``With the tribe, the state, and the federal government all
hobbled, at least partly, as a result of Public Law 280, the eruption
of lawlessness was predictable.'').
\7\ M. Brent Leonhard, Returning Washington P.L. 280 Jurisdiction
to Its Original Consent-Based Grounds, 47 Gonz. L. Rev. 663, 6599-700
(2011) (``Indian Country crime in some P.L. 280 states became worse
than it was under exclusive federal jurisdiction.'').
\8\ Id. at 699-700 (``This was the experience of the Confederated
Tribes of the Umatilla Reservation, and a significant reason the
Umatilla tribes sought retrocession from Oregon in the 1970s.'').
\9\ Laura S. Johnson, Frontier of Injustice: Alaska Native Victims
of Domestic Violence, 8 Mod. Am. 2, 6 (2012) (``The lack of prosecution
for serious domestic violence crimes is a source of frustration for
Native Alaskan victims and Alaska tribal governments alike.'').
\10\ Wendy Church, Resurrection of the Tulalip Tribes' Law and
Justice System and its Socio-Economic Impacts, 15 (2006) (M.A. thesis,
The Evergreen State College), https://www.tulaliptribes-nsn.gov/Base/
File/TTT-PDF-TribalCourt-TulalipHistoryOfLaw (``[L]aw enforcement prior
to retrocession [w]as ineffective and the county's lack of interest in
enforcing the law on the reservation, and also tribal people not
trusting the county. This left the Tribes in a state of lawlessness.'')
(quoting former Tulalip Chief Judge Gary Bass).
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In response to the public safety concerns expressed by Tribal
Nations, as well as the concern that States were obtaining jurisdiction
on tribal lands without the consent of Tribal Nations, in 1968,
Congress amended PL-280 such that States could no longer exercise this
concurrent jurisdiction absent a special election where the majority of
the tribal citizens living in the affected area voted in favor of state
jurisdiction. See 25 U.S.C. Sec. Sec. 1321, 1326 (defining consent as
an election where the ``enrolled Indians within the affected area . . .
accept such jurisdiction by a majority vote . . ..). Notably, since
Congress amended PL-280 in 1968, no population of tribal citizens has
voted in favor of granting a State PL-280 jurisdiction.\11\
---------------------------------------------------------------------------
\11\ Leonhard, supra n. 7, at 702.
---------------------------------------------------------------------------
For over half a century now, the States exercising PL-280
jurisdiction over crimes on tribal lands have failed to provide
sufficient funding to county and local law enforcement patrolling
tribal lands. For instance, as early as 1961, Tribal Nations in
Nebraska were being told that local governments did ``not have the
funds to maintain station deputy sheriffs on their reservations.'' \12\
Washington has likewise failed to adequately fund law enforcement on
tribal lands, and in 1988, Percy Youckron, Chairman of the Chehalis
Business Council, and Robert Joe, Sr., Chairman of the Swinomish Indian
Senate, wrote to Senator Bob McCaslin that:
---------------------------------------------------------------------------
\12\ 5 U.S. Comm'n on Civil Rights, Justice: 1961 Comm'n on Civil
Rights Report 148 (1961).
Currently, the state of Washington, through the local county is
responsible for [law enforcement services]. Historically this
arrangement has not been successful for most reservations;
partially due to . . . constrained County law enforcement
budgets.\13\
---------------------------------------------------------------------------
\13\ Letter from Percy Youckton, Chairman Chehalis Business
Council, and Robert Joe, Sr., Chairman Swinomish Indian Senate, to
Senator Bob McCaslin in support of retrocession of state criminal
jurisdiction (Feb. 1, 1988) (on file with author).
In Alaska, another PL-280 State, Alaska Natives suffer
disproportionately high rates of violence. Alaska has jurisdiction, but
Alaska has declined to dedicate sufficient resources to protect
Alaska's Native populations--something tribal leaders in Alaska have
repeatedly asked the federal government to address.\14\
---------------------------------------------------------------------------
\14\ See, e.g., U.S. Department of Justice Office on Violence
Against Women, 2022 Tribal Consulation Report 28 (2022), https://
www.justice.gov/ovw/page/file/1481661/download (testimony of Vivian
Korthuis, Chief Executive Officer of the Association of Village Council
Presidents) (``Alaska is also a PL-280 state, meaning the federal
government . . . transferred that authority to the State. However,
State law enforcement is largely absent in our villages.'').
---------------------------------------------------------------------------
Where states and local entities are hostile toward Tribal Nations,
Native victims may be used as bargaining chips to resolve disputes
because there is no trust relationship. For example, the Mille Lacs
Band of Ojibwe and Mille Lacs County in Minnesota have been involved in
an ongoing boundary dispute. In 2016, the County terminated, without
notice, its cooperative policing agreement with the Band that had been
in place for 25 years. Because of the termination, over one hundred
tribal citizens died during the two years that police calls went
unanswered.\15\
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\15\ Oklahoma v. Castro Huerta: Bad Facts Make Bad Law, Wayne
Ducheneaux, Native Governance Center (Jul. 14, 2022), https://
nativegov.org/news/castro-huerta/.
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The State of Montana, which exercises concurrent jurisdiction over
crimes committed against Indians on the Flathead Reservation, has fared
no better. Just this year, Lake County, Montana sent a demand letter to
Governor Greg Gianforte requesting that the State allocate funding to
address the ``severe impact'' concurrent state criminal jurisdiction is
having on the county budget, as the county has been unable to
adequately fund law enforcement on the Flathead Reservation.\16\
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\16\ Letter from Reep, Bell & Jasper, P.C. to Governor Greg
Gianforte (Feb. 8, 2022), https://bloximages.chicago2.vip.townnews.com/
helenair.com/content/tncms/assets/v3/editorial/d/25/d25d3df9-c757-552f-
9d9e-9e4c8cf46daa/6206fa6f2d1fa.pdf.pdf. Some of the funds that Lake
County requests are for the Lake County jail, which services the
Flathead Reservation. It is estimated that the Lake County jail
releases about 80 people per month who have been arrested on felony
warrants due to overcrowding. Seaborn Larson, Independent Record, (Feb.
13, 2022), https://helenair.com/news/state-and-regional/govt-and-
politics/lake-county-launches-new-bid-to-recover-law-enforcement-costs/
article_5e0a6fbe-c1a6-5153-9f50-9009deb0d030.html. Conditions at the
Lake County jail were the subject of litigation in the 90s and are
currently the subject of dozens of recently filed lawsuits. See Lozeau
v. Lake County, 98 F.Supp 2d 1157 (D. Montana 2000); see also Dozens of
prisoners file lawsuits for inadequate living conditions, Valley
Journal (Mar. 2, 2022), http://www.valleyjournal.net/Article/26229/
Dozens-of-prisoners-file-lawsuits-for-inadequate-living-conditions.
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There can be no question that Montana has failed to allocate
sufficient public safety resources to properly effectuate its
concurrent jurisdiction on the Flathead Reservation. Furthermore,
Montana has done nothing to recognize or address the fact that its
county, Big Horn County, has the highest rates of Missing and Murdered
Indigenous Persons cases in the United States. In fact, Montana has
repeatedly turned a blind eye to the Big Horn County Sheriff's Office,
an office that continues to refuse to investigate the innumerable
homicides of Native women and girls within its jurisdiction. Because of
its willful ignorance and failure to hold its localities accountable,
Kaysera Stops Pretty Places, Allison High Wolf, Selena Not Afraid, and
many others have yet to receive justice. But as the Supreme Court has
previously noted, Montana's failure to fund law enforcement in and
around Indian Country is not uncommon. See United States v. Bryant, 579
U.S. 140, 146 (2016) (``Even when capable of exercising jurisdiction,
however, States have not devoted their limited criminal justice
resources to crimes committed in Indian country.'').
Empirical evidence demonstrates that the Court's decision to grant
States criminal jurisdiction over crimes committed against Native
victims on tribal lands will only decrease safety for Native people
overall. Ultimately, States lack any incentive--and ultimately, any
accountability to Tribal Nations--because, in contrast to the federal
government, States do not have a trust duty to recognize and protect
Tribal Nations and their citizens. See Confederated Bands & Tribes of
Yakima Indian Nation, 439 U.S. at 501 (``States do not enjoy this same
unique relationship with Indians . . . .'').
The NIWRC stands in agreement with the Tulalip Tribes, the Muscogee
(Creek) Nation, the Bay Mills Indian Community, the Wampanoag Tribe of
Gay Head (Aquinnah), the Choctaw Nation, the Oglala Sioux Nation, and
the many other Tribal Nations that have called upon Congress to take
action and legislatively address the harms caused by the Supreme
Court's decision in Castro-Huerta. Specifically, the NWIRC supports the
Legislative Proposal to Improve Public Safety in Indian Country, as
submitted by the Muscogee (Creek) Nation. The NIWRC also supports the
Legislative Proposal put forward by the Tribes that comprise the
membership of the Coalition of Large Tribes (``COLT''), Resolution No.
04-2022 (Aug. 16, 2022).\17\ Any distinctions in the two proposals are
without significance and can easily be resolved during the legislative
process.
---------------------------------------------------------------------------
\17\ COLT's membership includes the Blackfeet Nation, the Cheyenne
River Sioux Tribe, the Crow Nation, the Eastern Shoshone Tribe, Fort
Belknap Indian Community, Mandan, Hidatsa & Arikara Nation, the Navajo
Nation, the Northern Arapahoe Tribe, the Oglala Sioux Tribe, the
Rosebud Sioux Tribe, the Sisseton Wahpeton Sioux Tribe, the Shoshone
Bannock Tribes, the Spokane Tribe, and the Ute Indian Tribe.
---------------------------------------------------------------------------
The NIWRC is hopeful that Congress will act quickly and
expeditiously. We simply cannot afford to wait to take action to
address the harmful effects of the Supreme Court's most recent decision
in Castro-Huerta. To be sure, the solutions to the crisis we now face
are not new. Over a decade ago, the Tribal Law and Order Act
Commission, created through bi-partisan legislation and composed of bi-
partisan federal Indian law experts, traveled throughout Indian country
studying the public safety crisis and reported one overarching
solution: restore tribal jurisdiction and authority. There is no need
to wait and there is nothing more to study. The more we wait to take
action, the more Native lives are lost.
______
Ms. Leger Fernandez. Thank you very much for your
testimony.
The Chair will now recognize Ms. Bethany Berger, who is the
Wallace Stevens Professor of Law at the University of
Connecticut School of Law.
STATEMENT OF BETHANY BERGER, WALLACE STEVENS PROFESSOR OF LAW,
UNIVERSITY OF CONNECTICUT SCHOOL OF LAW, HARTFORD, CONNECTICUT
Ms. Berger. Thank you, Madam Chairwoman, for the
opportunity to speak with you, and thank you for your attention
to this important issue.
My testimony will focus on how Oklahoma v. Castro-Huerta
violates both congressional original intent and 200-year
understanding and practice. Federal jurisdiction over crimes of
non-Indians against Indians was the first and most important of
Congress' Indian Country jurisdiction statutes. Congress
created that jurisdiction in 1790, but did not extend that
jurisdiction to Indian Country crimes generally until 1817.
That is because non-Indians against Indian crime threatened
the peace of the nation, treaties with Tribal Nations, and
states could not be trusted to punish the offenders.
In 1832, the Supreme Court decided Worcester v. Georgia, a
landmark decision in the battle between state, tribal, and
Federal power. The Court held that Georgia, in prosecuting two
non-Indian missionaries on Cherokee land, violated not only the
Cherokee treaties but also Congress' statutes regarding crimes
in Indian Country.
Two years later, Congress re-enacted those statutes
incorporating that understanding of state exclusion. The
language of those statutes has remained the same, the core
language from 1834 to today. Although state authority has
increased in Indian Country since 1834, states never got
jurisdiction over crimes involving Indians.
In 1886, the Supreme Court affirmed that this was because
the Federal trust responsibility prevented jurisdiction because
states were often the deadliest enemies of Indian people.
Although that case involved an Indian defendant, the Court in
1913, affirmed that this reasoning applied even more forcefully
to cases where non-Indians were committing crimes against
Indians.
In 1946, and again in 1959, the Supreme Court stated that
states lacked jurisdiction over non-Indians against Indian
crimes. Twentieth century statutes make this even clearer. In
at least nine statutes between 1940 and 1994, Congress
explicitly granted states jurisdiction over offenses by or
against Indians in Indian Country.
Oklahoma v. Castro-Huerta suggests that that language in
nine statutes over five decades was either merely Congress
spinning its wheels or acting because it was not sure of the
law, but that is not how we interpret statutes and the Supreme
Court once recognized that.
Of course, those statutes were from an earlier time when
Congress thought that state jurisdiction might improve public
safety in Indian Country.
Today, as you have heard, we know that is not true. In
fact, that is the opposite. State jurisdiction makes Native
victims less safe. And the Federal Government has recognized
that requiring tribal consent before states expand
jurisdiction, encouraging and permitting states to retrocede
the jurisdiction they already have, and expanding tribal
accountable jurisdiction in its stead.
In Oklahoma v. Castro-Huerta, the Supreme Court ignored all
of this history, all of these congressional actions, all of
these Supreme Court statements. It also ignored the accepted
rules for pre-emption in Indian Affairs, unsettling
jurisdiction in civil as well as criminal matters.
Instead, it accepted Oklahoma's invitation to make up an
interpretation on its own, forced from 200 years of history and
understanding. This is bad law, and it is bad policy. Thank you
for considering action to fix it. Thank you very much.
[The prepared statement of Ms. Berger follows:]
Prepared Statement of Professor Bethany Berger, Wallace Stevens Chair,
University of Connecticut School of Law
Oneida Indian Nation Visiting Chair, Harvard Law School
Thank you for the opportunity to submit this testimony and for your
attention to this important issue. My name is Bethany Berger, and I am
the Wallace Stevens Professor at the University of Connecticut School
of Law, and this year serve as the Oneida Indian Nation Visiting
Professor at Harvard Law School. Before entering academia, I worked for
tribal people and governments on the Navajo, Hopi, and Cheyenne River
Sioux reservations. I am co-author of a leading casebook in federal
Indian law, a co-author and editor of Cohen's Handbook of Federal
Indian Law, and co-author of amicus briefs for the National Congress of
American Indians in Oklahoma v. Castro-Huerta \1\ and McGirt v.
Oklahoma.\2\
---------------------------------------------------------------------------
\1\ Amicus Brief for National Congress of American Indians, Castro-
Huerta v. Oklahoma, 142 S. Ct. 2486 (2022), https://sct.narf.org/
documents/oklahoma_v_castro/amicus_ncai.pdf.
\2\ Amicus Brief on behalf of the National Congress of American
Indians, McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), https://
sct.narf.org/documents/mcgirt_v_ok/amicus_ncai.pdf.
---------------------------------------------------------------------------
My written testimony will focus on two things:
First, the Supreme Court's decision in Oklahoma v. Castro-Huerta
violates the historical understanding and intent of Congress from the
Founding to the present.
Jurisdiction over crimes by non-Indians against Indians
was the subject of Congress's very first Indian country
jurisdiction statute, and was always understood to be
exclusive of state authority.
Several Supreme Court cases reflect this understanding.
Multiple twentieth century statutes do as well by granting
particular states jurisdiction over ``offenses by or
against Indians'' on tribal territories.
Castro-Huerta's interpretation of federal law is unmoored
from this centuries' old consensus.
Second, the decision will hurt public safety and endanger Native
people across the United States.
Decades of evidence show that state jurisdiction harms
Native victims by decreasing reporting, accountability, and
cooperation.
Congress has responded to this evidence by increasing
tribal capacity, mandating coordination with tribal
governments, and encouraging states to retrocede existing
jurisdiction.
Oklahoma v. Castro-Huerta undermines all of these welcome
developments.
1. Oklahoma v. Castro-Huerta Violated Two Hundred Years of
Congressional Policy and Intent
Oklahoma v. Castro-Huerta ignores over two hundred years of Federal
law.
Federal jurisdiction over crimes by non-Indians against Indians was
the first and most important of Congress's Indian country jurisdiction
statutes. The very first U.S. Congress asserted federal jurisdiction
over crimes by non-Indians against Indians--and only those crimes--in
the Trade and Intercourse Act of 1790.\3\ In contrast, Congress did not
include jurisdiction over crimes between non-Indians or by Indians
against non-Indians until 1817.\4\ That was because non-Indian crimes
against Indians were the greatest threat to U.S.-tribal relations. As
President George Washington repeatedly urged Congress, such crimes
``endanger[ed] the peace of the union,'' \5\ and without effective
punishment ``all pacific plans must prove nugatory.'' \6\
---------------------------------------------------------------------------
\3\ Trade and Intercourse Act, 1 Stat. 137, 138 Sec. 5 (1790).
\4\ 3 Stat. 383 (1817), codified as amended at 18 U.S.C. Sec. 1152.
\5\ President George Washington, Third Annual Message to Congress,
Oct. 25, 1791; see also President George Washington, Proclamation
Against Crimes Against the Cherokee Nations, Dec. 12, 1792 (responding
to ``certain lawless and wicked'' Georgians who invaded a Cherokee town
and killed several Cherokees, by declaring that ``it highly becomes the
honor and good faith of the United States to pursue all legal means for
the punishment of those atrocious offenders.'').
\6\ President George Washington, Fourth Annual Message to Congress,
Nov. 6, 1792.
---------------------------------------------------------------------------
Everyone understood that the Trade and Intercourse Acts preempted
state jurisdiction over non-Indian against Indian crimes. The acts do
not state it directly, because the understanding at the time was that
``any federal regulation of a given area automatically preempted all
state regulation in the same area.'' \7\ But their language explicitly
describes Indian country as outside state jurisdiction. For example,
the statutes declare that they do not ``prevent any trade or
intercourse with Indians living on lands surrounded by settlements of
the citizens of the United States, and within the ordinary jurisdiction
of any of the individual states.'' \8\ Similarly they declare that non-
Indians who violated the acts, if found within a state or territorial
district, ``may be there apprehended and brought to trial, in the same
manner, as if such crime or offense had been committed within such
state or district.'' \9\ Crimes within Indian country, in other words,
were neither ``committed within such state'' nor ``within the ordinary
jurisdiction of any of the individual states.''
---------------------------------------------------------------------------
\7\ See Stephen A. Gardbaum, Nature of Preemption, 79 Cornell L.
Rev. 767, 786 (1994); see also Brief of Amici Curiae Federal Indian Law
Scholars and Historians in Support of Respondent, Oklahoma v. Castro-
Huerta (2022) (discussing cases finding that either the federal
government had jurisdiction, or states had jurisdiction, but concurrent
jurisdiction could not exist).
\8\ 1802 Act Sec. 19 (emphasis added).
\9\ Trade and Intercourse Act, 2 Stat. 139 Sec. 17 (emphasis
added); Trade and Intercourse Act, 1 Stat. 469 Sec. 17 (1796).
---------------------------------------------------------------------------
Where Congress intended states to have criminal jurisdiction, the
Trade and Intercourse Acts state it clearly. When, for example, the
statutes provide for compensation to citizens for crimes by Indians who
``come over or across [the Indian country] boundary line, into any
state or territory,'' they specify that ``nothing herein contained
shall prevent the legal apprehension or arresting, within the limits of
any state or district, of any Indian having so offended.'' \10\
---------------------------------------------------------------------------
\10\ 1802 & 1796 Acts Sec. 14.
---------------------------------------------------------------------------
In Worcester v. Georgia,\11\ Chief Justice Marshall agreed that the
Trade and Intercourse Acts excluded state jurisdiction. By that time,
Congress had extended general federal jurisdiction to all crimes in
Indian country (except for those between non-Indians). The Court
therefore found that Georgia's arrest of non-Indians Samuel Worcester
and Elizur Butler not only violated the treaties with the Cherokee
Nation, but were ``also a violation of the acts which authorise the
chief magistrate to exercise this authority.'' \12\
---------------------------------------------------------------------------
\11\ 31 U.S. 515 (1832).
\12\ Id. at 562; see 1802 Act Sec. 17, incorporated by reference 3
Stat. 383, Sec. 3 (1817) (authorizing federal magistrates to arrest
offenders against the trade and intercourse acts).
---------------------------------------------------------------------------
Two years after Worcester interpreted the Trade and Intercourse
acts as preempting state criminal jurisdiction, Congress reenacted
their criminal jurisdiction provisions and extended them to the Indian
Territory.\13\ The language of the General Crimes Act construed
Oklahoma v. Castro-Huerta is almost unchanged since 1817.\14\ Yet the
Court ignored both the original intent of Congress, the holding of
Worcester, and Congress's implicit ratification of that understanding
in 1834 to find the statute did not preempt state jurisdiction over
non-Indian against Indian crimes.
---------------------------------------------------------------------------
\13\ 4 Stat. 729, 733 Sec. 24-25 (1834) (``1834 Act'').
\14\ See 18 U.S.C. Sec. 1152.
---------------------------------------------------------------------------
The latter nineteenth century saw confusion and contestation over
the extent of state and federal power within state borders. This was
partly because the 1834 definition of ``Indian country'' did not fit
many western ``reservations,'' creating questions of whether the
existing statutes applied.\15\ It was also because the Supreme Court,
relying on a now discredited understanding of the equal footing
doctrine, held that the federal government could not prosecute crimes
not involving Indians on reservations.\16\
---------------------------------------------------------------------------
\15\ Compare Donnelly v. United States, 228 U.S. 243, 269 (1913)
(holding Trade and Intercourse criminal provisions covering ``Indian
country'' applied to reservations within California) with Bates v.
Clark, 95 U.S. 204, 207-09 (1877) (holding Trade and Intercourse liquor
provisions statutes applying to ``Indian country'' did not apply to
reservations in the Dakota Territory); see Bethany R. Berger, McGirt v.
Oklahoma and the Past, Present, and Future of Reservation Boundaries,
169 U. Penn. L. Rev. Online 250, 269-74 (2021) (discussing history).
\16\ See United States v. McBratney, 104 U.S. 621, 622 (1881)
(holding statehood ``necessarily repeals'' the General Crimes Act with
respect to crimes between non-Indians where it was not preserved by
state's enabling act); Draper v. United States, 164 U.S. 240 (1896)
(holding that ``[a]s equality of statehood is the rule,'' General
Crimes Act did not apply to crimes between non-Indians even when
federal jurisdiction was preserved in a state's enabling act). But see
Herrera v. Wyoming, 139 S. Ct. 1686, 1695 (2019) (recognizing
repudiation of the idea that federal protection of tribal rights was
inconsistent with the equal footing doctrine).
---------------------------------------------------------------------------
But with respect to crimes by non-Indians against Indians,
exclusive jurisdiction remained. Solemn treaties promised that the
United States itself would ``at once'' arrest and punish non-Indian
offenders against the Indians and indemnify the victims from federal
funds.\17\ State concurrent jurisdiction would interfere with both
promises. Later, in upholding federal jurisdiction over crimes between
Indians on reservations within state borders, the Supreme Court
affirmed why states should not have jurisdiction in Indian affairs.
Although the United States had a ``duty of protection'' to Native
people, they ``receive [from states] no protection'' and indeed, ``the
people of the states where they are found are often their deadliest
enemies.'' \18\ Although that case concerned a crime between tribal
citizens, the Court soon held that its reasoning applied ``perhaps a
fortiori--with respect to crimes committed by white men against the
persons or property of the Indian tribes.'' \19\ State and federal
jurisdiction, in other words, turned on whether an Indian was involved
either as victim or defendant. As the Supreme Court later explained,
state courts ``may have jurisdiction over offenses committed on this
reservation between persons who are not Indians, the laws and courts of
the United States, rather than those of [the state], have jurisdiction
over offenses committed there, as in this case, by one who is not an
Indian against one who is an Indian.'' \20\
---------------------------------------------------------------------------
\17\ See, e.g., Treaty with the Navajo, 15 Stat. 687, art. 1
(1868); Treaty with the Sioux, 15 Stat. 635, art. 1 (1868); Treaty with
the Northern Cheyenne and Northern Arapaho, 15 Stat. 655, art. 1
(1868).
\18\ United States v. Kagama, 118 U.S. 375, 384 (1886).
\19\ Donnelly v. United States, 228 U.S. 243, 272 (1913).
\20\ Williams v. Arizona, 327 U.S. 711, 714 (1946)
---------------------------------------------------------------------------
Congress repeatedly confirmed this understanding in the twentieth
century. Between 1940 and 1994, Congress enacted multiple statutes
granting particular states criminal jurisdiction on reservations.\21\
All of these statutes give the respective states jurisdiction over
``offenses committed by or against Indians.'' \22\ Strikingly, Congress
enacted three such statutes in 1948, including one on June 25, 1948,
the same day it reenacted the General Crimes Act construed in Castro-
Huerta.\23\ The Court's decision, therefore, means that in at least
nine statutes enacted over five decades, Congress was spinning its
wheels, repeatedly giving states jurisdiction that they always already
had.
---------------------------------------------------------------------------
\21\ See Pub. L. No. 83-280, 67 Stat. 588 (1953) (codified as
amended at 18 U.S.C. Sec. 1162; 25 U.S.C. Sec. Sec. 1321) (``P.L.
280''); Mohegan Nation of Connecticut Land Claims Settlement Act, 108
Stat. 3501 Sec. 6(a) (1994); Seminole Indian Land Claims Settlement
Act, 101 Stat. 1556 Sec. 6(d)(1) (1987); Florida Land Claims Settlement
Act, 96 Stat. 2012 Sec. 8(b)(2)(A) (1982); 62 Stat. 1224 (July 2, 1948)
(granting New York jurisdiction); 62 Stat. 1161 (June 30, 1948)
(granting Iowa jurisdiction over the Sac and Fox Reservation); 62 Stat.
827 (June 25, 1948) (reenacting Kansas authorization); 60 Stat. 229
(1946) (granting North Dakota jurisdiction over the Spirit Lake
Reservation); 54 Stat. 249 (1940) (granting Kansas jurisdiction).
\22\ Id. (emphasis added).
\23\ 62 Stat. 757 (June 25, 1948).
---------------------------------------------------------------------------
This conclusion makes no sense, and the Supreme Court once
recognized it. In 1959, the Court stated in Williams v. Lee that ``if
[a] crime was by or against an Indian, tribal jurisdiction or that
expressly conferred on other courts by Congress has remained
exclusive.'' \24\ Williams v. Lee even cited the congressional grants
of jurisdiction to selected states as evidence that ``when Congress has
wished the States to exercise this power it has expressly granted them
the jurisdiction which Worcester v. State of Georgia had denied.'' \25\
This understanding is doubly persuasive as it came soon after Congress
enacted its most comprehensive state jurisdiction statutes.
---------------------------------------------------------------------------
\24\ Williams v. Lee, 358 U.S. 217, 220 (1959).
\25\ Id. at 221.
---------------------------------------------------------------------------
The Castro-Huerta decision is particularly outrageous given the
test for preemption in Indian affairs. Given Congress's plenary
authority and the historic exclusion of state law from reservations,
express preemption is not required,\26\ and state law may only apply
where ``those laws are specifically authorized by acts of Congress, or
where they clearly do not interfere with federal policies concerning
the reservations.'' \27\ Although the test is complicated as to civil
matters, given the long and comprehensive history of federal laws and
treaties regarding non-Indian against Indian crime, the results in the
criminal context were clear.
---------------------------------------------------------------------------
\26\ White Mountain Apache v. Bracker, 448 U.S. 136, 143-44
(1980).(``The unique historical origins of tribal sovereignty make it
generally unhelpful to apply to federal enactments regulating Indian
tribes those standards of pre-emption that have emerged in other areas
of the law . . . We have thus rejected the proposition that in order to
find a particular state law to have been preempted by operation of
federal law, an express congressional statement to that effect is
required.'').
\27\ Warren Trading Post v. Arizona, 380 U.S. 685, 687 n.3 (1965).
---------------------------------------------------------------------------
Or rather, it was clear before Oklahoma v. Castro-Huerta. The
majority ignored all of this history, all of this congressional action,
and all of these previous Supreme Court statements. Instead, it
accepted Oklahoma's invitation to make up its own interpretation of the
General Crimes Act, rejecting the consensus of two centuries. The next
section discusses why this is not just bad law, it is bad policy.
2. Oklahoma v. Castro-Huerta Will Undermine Safety of Indigenous People
Throughout the United States
Oklahoma v. Castro-Huerta will undermine public safety and
congressional policy on reservations throughout the United States. As
Congress recognized in the 2010 Tribal Law and Order Act and the 2013
and 2022 amendments to the Violence Against Women Act, public safety in
Indian country requires enhancing the capacity of tribal institutions
and increasing state and federal coordination with them. Numerous
studies--including several commissioned by the federal government--show
that state law enforcement makes Native people less safe and stymies
development of tribal institutions. That's why the United States has
permitted and encouraged states to retrocede existing criminal
jurisdiction on reservations and increased tribal law enforcement
capacity for decades. Oklahoma v. Castro-Huerta goes directly against
this welcome trend.
I want to start with the non-jurisdictional facts of the case
against Victor Castro-Huerta, who was tried and convicted before
McGirt, because I think they are emblematic of the impact this decision
will have.\28\ This was a case of horrible child neglect tied to
poverty and disability. Aurora, the little girl in this case, had
cerebral palsy, was blind, and could not move herself. She could not
swallow and required five cans of PediaSure a day. She was one of three
children Christina Calhoun had when she married Mr. Castro-Huerta; he
brought another two children to the marriage. Mr. Castro-Huerta was
undocumented and worked two jobs. The North Carolina and Oklahoma
Departments of Social Services had previously investigated Ms. Calhoun
for neglect of her son, and he later died of natural causes in her
case. The Oklahoma Department of Human Services also received reports
of neglect of Aurora for over two years before she wound up in the
emergency room in 2015. The state did not adequately respond to the
neglect, and never notified Aurora's tribe of the reports. Christina
and Victor had a baby together in 2015, and shortly after coming home
from the hospital they took Aurora to the emergency room because she
was starving. The state responded by arresting Victor and sentencing
him to thirty-five years in prison.
---------------------------------------------------------------------------
\28\ These facts are drawn from the Transcript of Jury Trial,
Oklahoma v. Victor Manuel Castro-Huerta, Tulsa Dist. Ct. Oct. 2-6,
2017.
---------------------------------------------------------------------------
This was a unique and tragic case. But as in this case, many crimes
in Indian country arise from like family disfunction and poverty. And
as in this case, states often unable to address root causes of crime,
and the punishment is often harsh and too late for victims. Studies of
Public Law 280, which grants some states jurisdiction over crimes by or
against Indians, provide substantial evidence of this. A study
commissioned by the U.S. Department of Justice, for example, found that
while only 44% of reservation residents in Public Law 280 jurisdictions
found state/county police responded to calls in a timely manner, about
70% of residents in non-280 jurisdictions felt tribal and federal
police responded in a timely manner.\29\ Similarly, only 30% of
residents in Public Law 280 jurisdictions felt state and county policy
communicated well with reservation residents, while in non-280
jurisdictions, majorities felt both tribal police (57%) and Federal/BIA
police (54%) communicated well.\30\ Similarly, the federally mandated
Indian Law and Order Commission found that in Public Law 280
jurisdictions, ``calls for service go unanswered, victims are left
unattended, criminals are undeterred, and Tribal governments are left
stranded. . . .'' \31\
---------------------------------------------------------------------------
\29\ Carole Goldberg, Duane Champagne & Heather Singleton, Final
Report: Law Enforcement and Criminal Justice under Public Law 280 at 90
(2007), https://www.ncjrs.gov/pdffiles1/nij/grants/222585.pdf.
\30\ Id. at 148.
\31\ Indian Law & Order Comm'n, A Roadmap for Making Native America
Safer: Report to the President & Congress of the United States 69
(2013) (``Roadmap'').
---------------------------------------------------------------------------
State law enforcement also has a terrible record of brutality
against Native people. A 2020 study of seven Midwestern states found
that Native women were 38 times more likely to suffer fatal encounters
with police than White women, and Native men were 14 times more likely
than White men.\32\ These fatal encounters were overwhelmingly in areas
subject to state jurisdiction: they were more than ten times higher per
capita outside tribal statistical areas, and within tribal statistical
areas, they were 70% higher on those subject to state jurisdiction.\33\
Sociologist Barbara Perry, who conducted 274 interviews with Native
people from across the United States, found that ``a key theme running
throughout the interviews'' is that ``police appear to need little
provocation to intervene against Native Americans'' but the heightened
``surveillance is for the purpose of responding to Native American
offenders, rather than Native American victims.'' \34\
---------------------------------------------------------------------------
\32\ Matthew Harvey, Center for Indian Country Development, Fatal
Encounters Between Native Americans and the Police 2 (2020), https://
www.minneapolisfed.org/article/2020/fatal-encounters-between-native-
americans-and-the-police.
\33\ Id. at 18.
\34\ Barbara Perry, Impacts of Disparate Policing in Indian
Country, 19 Policing & Society 263, 267-68 (2009).
---------------------------------------------------------------------------
The result is that Native victims simply do not report to state
police. As one of Perry's interview subjects said, ``I don't want that
to happen to me, for them to hit me, or kick me. I won't go to the
police. I won't talk to `em, cause ya' just don't know where that's
gonna go.'' \35\ Or, as a Riverside County Lieutenant Sheriff testified
before the Indian Law and Order Commission, ``State law enforcement in
Indian country, as we learned, was viewed as an occupying force,
invaders, and the presence wasn't welcome.'' \36\ As the federally-
mandated Indian Law and Order Commission found, state authorities
``actually encourage crime,'' because ``Tribal citizens and local
groups tend to avoid the criminal justice system by nonparticipation,''
and creating ``greater and longer disruptions within the communities.''
\37\
---------------------------------------------------------------------------
\35\ Perry, supra, at 273.
\36\ Roadmap, supra, at 6.
\37\ Id. at 5.
---------------------------------------------------------------------------
Federal studies also show the solutions: increase capacity of
tribal governments, and limit jurisdiction of state governments. In one
pilot program, for example, the United States raised funding levels for
tribal law enforcement on four reservations to permit staffing
comparable to off-reservation communities.\38\ This resulted in initial
increases in offenses as local citizens ``gained the confidence to
report more crimes,'' but within two years, crime had dropped by an
astounding 35% across the four reservations.\39\ Another report
including residents of reservations where states withdrew their
jurisdiction under Public Law 280 found that crime decreased, and
policing, prosecutions, and community well-being all increased after
retrocession.\40\
---------------------------------------------------------------------------
\38\ Id. at 64.
\39\ Id. at 64-65.
\40\ Goldberg, supra, at 457-59.
---------------------------------------------------------------------------
And Congress has responded to this evidence. This began as early as
1968, when Congress amended Public Law 280 to permit states to
retrocede existing jurisdiction.\41\ Since then, there have been more
than thirty such retrocessions.\42\ More recently, in the 2010 Tribal
Law and Order Act, Congress recognized that tribal governments were
often the ``first responders'' and ``most appropriate institutions''
for maintaining law and order in Indian country.\43\ Even as Oklahoma
v. Castro-Huerta was pending, this Congress passed the Violence Against
Women Reauthorization Act to increase tribal jurisdiction victimizing
Native people, including in cases of criminal child abuse.\44\ The act
also explicitly recognizes that state jurisdiction poses obstacles to
tribal law enforcement, noting that tribes ``located in States with
concurrent authority to prosecute crimes in Indian country . . . face
unique public safety challenges.'' \45\
---------------------------------------------------------------------------
\41\ Pub. L. 90-284, Title IV, Sec. 401, Apr. 11, 1968, 82 Stat. 78
(codified at 28 U.S.C. Sec. 1321).
\42\ Cohen at Sec. 6.04[3][g] n.298 (listing 31 retrocessions).
\43\ Pub. L. 111-211, Title II, Sec. 202, July 29, 2010, 124 Stat.
2262.
\44\ Pub. L. 117-103, 136 Stat 49 (March 15, 2022).
\45\ Id. at Sec. 801(a)(14).
---------------------------------------------------------------------------
Oklahoma v. Castro-Huerta runs counter to this evidence-based
congressional policy, expanding state jurisdiction and making Native
victims less safe. I thank you for considering how to respond to the
threat the decision poses.
______
Questions Submitted for the Record to Bethany Berger, Wallace Stevens
Professor, University of Connecticut School of Law
Questions Submitted by Representative Leger Fernandez
Question 1. In your testimony, you note that the Castro-Huerta
ruling implies that Congress has been ``spinning its wheels'' for
decades in the passage of legislation that grants State jurisdiction
over certain crimes committed in Indian Country. Can you elaborate on
this idea?
Answer. Certainly, and thank you for the question. In at least nine
statutes between 1940 and 1994, Congress gave particular states
jurisdiction over ``offenses committed by or against Indians'' on
various reservations in the states.\1\ But Oklahoma v. Castro-Huerta
holds that states always already had jurisdiction over offenses
``against Indians,'' meaning that in repeatedly adding those two words
to the statute, Congress was actually doing nothing. The majority
opinion acknowledged the argument that these words were ``pointless
surplusage if States already had concurrent jurisdiction over crimes
committed by non-Indians against Indians in Indian Country,'' and that
the words suggested that ``Congress must have assumed that States did
not already have concurrent jurisdiction over those crimes.'' \2\ But
the majority declared these arguments irrelevant because ``assumptions
are not laws'' and the statutes granted states jurisdiction over other
actions in Indian Country.\3\ In other words, the majority finds that
Congress did nothing in including these two words again and again over
five decades, that doing so was based on Congress's mistaken
understanding of the law, but that's OK because those statutes did
other things which were not ``pointless surplusage.''
---------------------------------------------------------------------------
\1\ See Pub. L. No. 83-280, 67 Stat. 588 (1953) (codified as
amended at 18 U.S.C. Sec. 1162; 25 U.S.C. Sec. Sec. 1321) (``P.L.
280''); Mohegan Nation of Connecticut Land Claims Settlement Act, 108
Stat. 3501 Sec. 6(a) (1994); Seminole Indian Land Claims Settlement
Act, 101 Stat. 1556 Sec. 6(d)(1) (1987); Florida Land Claims Settlement
Act, 96 Stat. 2012 Sec. 8(b)(2)(A) (1982); 62 Stat. 1224 (July 2, 1948)
(granting New York jurisdiction); 62 Stat. 1161 (June 30, 1948)
(granting Iowa jurisdiction over the Sac and Fox Reservation); 62 Stat.
827 (June 25, 1948) (reenacting Kansas authorization); 60 Stat. 229
(1946) (granting North Dakota jurisdiction over the Spirit Lake
Reservation); 54 Stat. 249 (1940) (granting Kansas jurisdiction).
\2\ Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2500 (2022).
\3\ Id.
---------------------------------------------------------------------------
Questions Submitted by Representative Grijalva
Question 1. Your written testimony traces nearly 200 years of
Federal Indian legal precedent that existed before the Castro-Huerta
ruling. What does it mean for the U.S. Supreme Court to ignore well-
established legal history in this way?
Answer. Thank you for the question. Whenever the U.S. Supreme Court
ignores legal history in this way, it violates the legal building
blocks of the rule of law and separation of powers. This is always
dangerous, but it is particularly so for Indigenous peoples.
Tribal sovereignty is desperately vulnerable to shifting political
tides. Congress has plenary power over all aspects of tribal
sovereignty. It may break treaties, take tribal territories, and change
jurisdiction at will. Because Indigenous people make up less than 3% of
the United States population, moreover, political power is often
against them. The saving grace is that (1) only Congress has the power
to diminish tribal sovereignty, and (2) there must be clear evidence of
its intent to do so. As the Supreme Court has repeatedly recognized,
``proper respect both for tribal sovereignty itself and for the plenary
authority of Congress in this area cautions that we tread lightly in
the absence of clear indications of legislative intent.'' \4\
---------------------------------------------------------------------------
\4\ Santa Clara Pueblo v. Martinez, 436 U.S. 49, 60 (1978); see
also McGirt v. Oklahoma, 140 S.Ct. 2452, 2462 (2020) (``This Court long
ago held that the Legislature wields significant constitutional
authority when it comes to tribal relations, possessing even the
authority to breach its own promises and treaties. Lone Wolf v.
Hitchcock, 187 U.S. 553, 566-568 (1903). But that power, this Court has
cautioned, belongs to Congress alone. Nor will this Court lightly infer
such a breach . . .''); Michigan v. Bay Mills Indian Community, 572
U.S. 782, 790 (2014) (``Although Congress has plenary authority over
tribes, courts will not lightly assume that Congress in fact intends to
undermine Indian self-government.'').
---------------------------------------------------------------------------
But the Court flipped the script in Oklahoma v. Castro-Huerta. It
started from the presumption that states have plenary authority in
Indian Country, and that Congress had to act explicitly to keep state
authority out. Even worse, it held that it alone--not Congress, to
which the Constitution entrusts this authority, not the Executive
Branch, which fulfills the trust responsibility to tribal people, not
even unanimous Supreme Court opinions from 1832, 1946, and 1959--could
decide whether federal law limited state intrusions on Indian affairs.
That is ``at odds with the Constitution, which entrusts Congress with
the authority to regulate commerce with Native Americans.'' \5\ It is
also at odds with the fundamental legal doctrines that protect tribal
peoples--and treaty promises to them--from the worst excesses of
colonial domination.
---------------------------------------------------------------------------
\5\ McGirt at 2462 (citing U.S. Const., Art. I, Sec. 8).
---------------------------------------------------------------------------
Thank you again for your attention to this issue.
______
Ms. Leger Fernandez. Thank you very much for your
testimony.
The Chair will now recognize Ms. Carole Goldberg, who is
the Jonathan D. Varat Distinguished Professor of Law at the
University of California School of Law, as well as the Chief
Justice for the Court of Appeals for the Tulalip Tribe, and the
Chief Justice for the Court of Appeals for the Pachanga Band of
Indians.
STATEMENT OF CAROLE GOLDBERG, JONATHAN D. VARAT DISTINGUISHED
PROFESSOR OF LAW, UNIVERSITY OF CALIFORNIA SCHOOL OF LAW; CHIEF
JUSTICE, COURT OF APPEALS, HUALAPAI TRIBE; CHIEF JUSTICE, COURT
OF APPEALS, PECHANGA BAND OF INDIANS, LOS ANGELES, CALIFORNIA
Ms. Goldberg. Thank you very much, Madam Chairwoman,
Ranking Member, for this opportunity to testify.
My name is Carole Goldberg, and I have been researching and
writing about a Federal law known as Public Law 280 for nearly
50 years, in addition to other aspects of Federal Indian law.
And I can say, with quite an emphasis, that Castro-Huerta got
the relevant law entirely wrong.
I am going to focus my testimony on Public Law 280 because
Castro-Huerta actually made a mess and a mockery of that
statute. That statute should have precluded state jurisdiction
even if the Federal Indian Country Crimes Act, Section 1152 of
the Federal Criminal Code, did not.
Now, why should Public Law 280 have produced a different
result in Castro-Huerta? Well, as you heard from the Chairwoman
of Tulalip, this law was enacted in 1953. It gave six states
jurisdiction over crimes committed by or against Indians in
Indian Country.
It also created a very specific mechanism for any other
state to opt into the same jurisdiction. And in 1968, that same
opt-in mechanism was amended to require consent through a vote
of the affected Indians. Oklahoma was neither one of the six
states named in Public Law 280, nor has it ever invoked the
mechanism of Public Law 280 to acquire jurisdiction over crimes
committed by or against Indians.
In 1971, in a case called Kennerly v. District Court, the
U.S. Supreme Court required the state of Montana to use the
mechanism of Public Law 280 to acquire jurisdiction, even
though the affected tribe had made an agreement with the state
to allow jurisdiction.
Castro-Huerta assumes that if the tribes' interests aren't
hurt by piling state jurisdiction on top of Federal, state
jurisdiction should be fine. But if that were true, the
Kennerly decision would have come out the other way, because
the Tribe in that case had actually made an agreement.
But instead, in Kennerly, the U.S. Supreme Court insisted
on strict compliance with Public Law 280 for a variety of
reasons, including respect for Congress and for tribal
sovereignty.
I also explain in my written testimony, why Castro-Huerta's
attempt to explain away the inclusion of crimes by non-Indians
against Indians in Public Law 280, their argument doesn't hold
water.
Basically, there is no evidence whatsoever in the
legislative history of Public Law 280 that Congress ever
doubted the pre-emptive effect of Section 1152, which Professor
Berger has already explained. Congress believed that further
legislation was necessary to allow state jurisdiction over
crimes committed by non-Indians against Indians and Public Law
280, with its mechanism, was that law.
Castro-Huerta also reflects a misguided policy choice
regarding Indian Country criminal justice. My empirical
research on Public Law 280 shows that under that statute, where
state jurisdiction does apply, it has produced biased treatment
against Indian victims and witnesses in state courts, as well
as biased treatment favoring non-Indian perpetrators in state
courts.
The unanimous bipartisan 2013 report of the Indian Law and
Order Commission, on which I was privileged to serve, produced
policy recommendations pointing in the exact opposite direction
from the policy choices implicit in Castro-Huerta. We
recommended moving criminal justice authority closer to Native
nations and away from both Federal and state governments. This
was unanimous and bipartisan, Republican as well as Democratic
appointees.
And I want to stress, as have others, that tribes in
Oklahoma are not the only ones affected by Castro-Huerta.
Dozens of other states have either failed to opt into Public
Law 280, or as with Tulalip, the previously imposed Public Law
280 jurisdiction has been retroceded or returned to the Federal
Government.
Castro-Huerta would introduce state jurisdiction without
the mechanism of Public Law 280, and that is just wrong. Not a
single tribe has consented to state jurisdiction since 1968.
But if any tribe today truly wants the state jurisdiction that
Castro-Huerta spoke of, it can go ahead through the processes
established by Public Law 280.
The poor reasoning of that opinion also puts Native nations
throughout the United States at risk in a variety of realms as
among others, the representative from Bay Mills Indian
Community elaborated.
So, thank you very much for this opportunity to testify. I
look forward to answering any questions you may have.
[The prepared statement of Ms. Goldberg follows:]
Prepared Statement of Carole Goldberg, Distinguished Research
Professor, UCLA School of Law; Chief Justice, Court of Appeals,
Hualapai Tribe; Chief Justice, Court of Appeals, Pechanga Band of
Indians
My name is Carole Goldberg, and I am Distinguished Research
Professor of Law at UCLA and the Chief Justice of the Courts of Appeal
of the Hualapai Tribe and the Pechanga Band of Indians. From 2011-2013,
I served as a Presidential appointee to the bipartisan Indian Law and
Order Commission, which Congress established in the Tribal Law and
Order Act of 2010.
The U.S. Supreme Court's decision in Oklahoma v. Castro-Huerta
(June 29, 2022), allowing state criminal jurisdiction over crimes
committed by non-Indians against Indian victims within Indian country,
got the relevant law entirely wrong. It misread 18 U.S.C. section 1152,
which has long been understood to establish federal jurisdiction that
preempts state authority over such offenses. Furthermore, it made a
mess and mockery of 18 U.S.C. section 1162, commonly known as Public
Law 280, in which Congress created a very specific mechanism for states
to acquire jurisdiction over crimes committed by or against Indians in
Indian country--a mechanism that had not been invoked by the state in
Castro-Huerta.
Even if one accepts--which I do not--that 18 U.S.C. section 1152
should be read to allow state jurisdiction over crimes by non-Indians
against Indians in Indian country, Public Law 280 should have prevented
exercise of state jurisdiction in Castro-Huerta. The Supreme Court's
error in interpreting Public Law 280 is the error I want to focus on,
both because it served as a backstop to arguments that section 1152
preempted the state's jurisdiction, and because I have researched and
written about Public Law 280 for nearly 50 years.\1\ Public Law 280 was
enacted by Congress in 1953 as a component of the broader termination
policy of that era, naming six states that would acquire jurisdiction
immediately, and allowing other states to opt in through specific
processes. Responding to criticisms from a wide array of sources,
including Tribes, Congress amended Public Law 280 in 1968 to
incorporate a further process of Indian consent before state
jurisdiction could be introduced in states that wanted to opt in.
Oklahoma was not named in the initial law, and has never opted in under
the terms and processes of Public Law 280, either before or after 1968.
Indeed, since 1968, not a single Tribe anywhere in the United States
has consented to state jurisdiction through Public Law 280.
---------------------------------------------------------------------------
\1\ See, e.g., Carole Goldberg and Duane Champagne, Captured
Justice, Native Nations and Public Law 280 (Carolina Academic Press,
2010 and 2020 editions); Carole E. Goldberg, ``Public Law 280: The
Limits of State Jurisdiction over Reservation Indians,'' 22 UCLA Law
Review 535 (1975) (cited and relied upon by the U.S. Supreme Court in
Bryan v. Itasca County, 426 U.S. 373 (1976) and California v. Cabazon
Band of Mission Indians, 480 U.S. 202 (1987); Carole E. Goldberg-
Ambrose, ``Public Law 280 and the Problem of Lawlessness in California
Indian Country,'' 44 UCLA Law Review 1405 (1997). I have also drafted
sections on Public Law 280 for the leading treatise on federal Indian
law, Cohen's Handbook of Federal Indian Law (1982, 2005, and 2012
editions).
---------------------------------------------------------------------------
Ever since Public Law 280 was enacted, the U.S. Supreme Court has
insisted that the law's terms be adhered to strictly before state
jurisdiction could take effect. In 1971, in Kennerly v. District
Court,\2\ the Supreme Court disallowed state jurisdiction within a
reservation pursuant to a tribal-state agreement because the consent
provisions of Public Law 280 had not been followed. Ignoring the ruling
in the Kennerly decision, Castro-Huerta posited that state jurisdiction
should be allowed in Indian country because it would not harm tribal
interests to add state jurisdiction over non-Indian offenses against
Indian victims on top of federal jurisdiction. Assuming, for sake of
argument, the correctness of that proposition, it would seem that a
tribal-state agreement should also supersede Public Law 280's
procedural requirements. But the Supreme Court emphatically rejected
that kind of interest-based analysis in the Kennerly case, insisting
that Public Law 280 be followed. In contrast, Castro-Huerta allowed
state jurisdiction that is addressed in Public Law 280 to go forward
without the state's compliance with the processes built into that law.
---------------------------------------------------------------------------
\2\ 400 U.S. 423 (1971).
---------------------------------------------------------------------------
As someone who has studied Public Law 280 and its impact, I
emphatically reject the weak reasoning offered in Castro-Huerta for
refusing to treat Public Law 280 as the sole mechanism for establishing
state jurisdiction over the types of offenses, including crimes
committed by non-Indians against Indians, referenced in that law.
Castro-Huerta acknowledges that this mechanism is still required for
states to assume jurisdiction over offenses committed by Indians within
Indian country. So why not also require that mechanism for offenses
committed by non-Indians against Indians, which are also referenced in
Public Law 280? According to Justice Kavanaugh's opinion, Public Law
280 only referred to those non-Indian offenses at the time of the law's
enactment in 1953 because Congress was uncertain whether state
jurisdiction had already been preempted by 18 U.S.C. section 1152, not
because federal law actually had such preemptive effect. There is no
evidence whatsoever in the legislative history of Public Law 280 to
support such a claim, and Castro-Huerta supplies none. As I have shown
in scholarly research, that legislative history is rife with
Congressional concern about alleged ``lawlessness'' in Indian country.
If Congress had believed there was some basis for interpreting 18
U.S.C. section 1152 to allow state jurisdiction, it would have
mentioned the potential exercise of that jurisdiction as one possible
response to the problem. No such mention appears in the record of
hearings, testimony, reports, and floor debates. It was taken as given,
and rightly so, that without further legislation, states were precluded
from exercising jurisdiction over offenses by non-Indians against
Indians under 18 U.S.C. section 1152.
In addition to getting the law wrong, Castro-Huerta reflected a
misguided policy choice regarding Indian country criminal justice. The
federal government has long been aware that state involvement in Indian
country criminal justice can jeopardize tribal-federal relations and
interfere with the federal trust responsibility toward Tribes, through
biased treatment against Indian victims and witnesses in state courts,
as well as biased treatment favoring non-Indian perpetrators in state
proceedings. My own research in Public Law 280 states, where state
jurisdiction has applied, has documented the justifications for these
tribal and federal concerns.\3\ The potential for concurrent federal
jurisdiction over those same offenses, as allowed under Castro-Huerta,
would not erase concerns about bias and interference with the federal
trust responsibility.
---------------------------------------------------------------------------
\3\ See Carole Goldberg and Duane Champagne, Captured Justice:
Native Nations and Public Law 280 (2nd ed., Carolina Academic Press,
2020), at pp. 73-118; ``Searching for an Exit: The Indian Civil Rights
Act and Public Law 280,'' in K. Carpenter, M.L.M. Fletcher, and A.
Riley, eds. The Indian Civil Rights Act at Forty (UCLA American Indian
Studies Center, 2012) at 247-272 (documenting complaints of
discrimination and abuse by state authorities under Public Law 280).
---------------------------------------------------------------------------
A recent and thorough examination of the needs for justice and
safety in Indian country has produced unanimous, bi-partisan policy
recommendations pointing in the exact opposite direction from the
policy choices reflected in Castro-Huerta. In the 2010 Tribal Law and
Order Act, Congress launched a bi-partisan commission, the Indian Law
and Order Commission, to recommend improvements for the justice systems
serving Indian country. As a Presidential appointee to that Commission,
I participated in Indian country-wide hearings, and contributed to the
Commission's 2013 report, A Roadmap for Making Native America Safer.
This report was unanimous and bi-partisan in recommending that criminal
justice authority be brought closer to tribal communities through
enhanced tribal jurisdiction. Some members approached this conclusion
from the starting point of tribal sovereignty. Others approached it
from the starting point of local control and accountability. But
Republican and Democratic appointees alike favored situating criminal
justice within tribal authorities, keeping even federal involvement to
a minimum, through funding and oversight of individual rights
protections. The Roadmap report was also clear in supporting a tribal
option to remove existing state criminal jurisdiction in Indian country
under Public Law 280. In stark contrast, Castro-Huerta produced an
expansion of such jurisdiction.
My focus on the erroneous interpretation of Public Law 280 in
Castro-Huerta underscores that the impact and implications of that
opinion extend far beyond a single state. Oklahoma is hardly the only
state that was neither named in Public Law 280 nor covered by a
properly followed opt-in. Dozens of other states have either failed to
opt into Public Law 280, or their previously accepted Public Law 280
jurisdiction has been formally returned (retroceded) to the federal
government. The criminal jurisdiction allowed under Castro-Huerta
affects Indian country in all of them, and should never have been
allowed until those states properly follow the mechanisms established
by Congress more than fifty years ago. Furthermore, any future
retrocession of existing Public Law 280 jurisdiction will be less than
complete because of state jurisdiction allowed under Castro-Huerta.
Finally, every Tribe has to be concerned about the potential for
careless extension of the flawed rationale that underlies Castro-
Huerta.
______
Questions Submitted for the Record to Carole Goldberg, Jonathan D.
Varat Distinguished Professor of Law Emerita, UCLA
Questions Submitted by Representative Leger Fernandez
Question 1. Can you speak more on the findings and verdicts of the
Indian Law and Order Commission?
(1a). How do these bipartisan efforts compare to the Court's recent
ruling in Castro-Huerta?
Answer. In 2013, following extensive nation-wide and Indian
country-wide consultations, the bi-partisan Indian Law and Order
Commission issued its unanimously endorsed report, A Roadmap for Making
Native America Safer. Chapter One of the Commission's report was
entirely devoted to criminal jurisdiction questions, and includes a
chart (Figure 1, page 7) entitled ``General Summary of Criminal
Jurisdiction on Indian Lands.'' That chart clearly shows crimes by non-
Indian offenders against Indian victims falling within exclusive
federal jurisdiction--a widespread understanding of the law, until the
Supreme Court made its misguided ruling in Castro-Huerta allowing
concurrent state jurisdiction over such offenses.
The Commission's recommendations regarding criminal jurisdiction in
Indian country point in exactly the opposite direction from the
jurisdictional outcome established in Castro-Huerta. Castro-Huerta
allows for greater state jurisdiction in Indian country than was
previously understood to exist, including by the Commission (see
above), the United States Department of Justice (from which the
Commission took its chart), and the most respected treatise in the
field of federal Indian law, Cohen's Handbook.\1\ In stark contrast,
the recommendation of the Indian Law and Order Commission was to cut
back sharply on state criminal jurisdiction in Indian country. The
following excerpts from the Executive Summary of the Commission's
report specify how and why state jurisdiction should be reduced.
---------------------------------------------------------------------------
\1\ The most recent edition of this treatise states unequivocally:
``The Major Crimes Act and the Indian Country Crimes Act (ICCA) create
federal criminal jurisdiction that is exclusive of the states; that is,
if federal jurisdiction exists under one or both of those two statues,
the states lack concurrent criminal jurisdiction to prosecute the same
conduct.'' Nell Jessup Newton et al., Cohen's Handbook of Federal
Indian Law (2012), at 763 (citations omitted).
While problems associated with institutional legitimacy and
jurisdictional complexities occur across the board in Indian
country, the Commission found them to be especially prevalent
among Tribes subject to P.L. 83-280 or similar types of State
jurisdiction. Distrust between Tribal communities and criminal
justice authorities leads to communication failures, conflict,
---------------------------------------------------------------------------
and diminished respect. . ..
Ultimately, the imposition of non-Indian criminal justice
institutions in Indian Country extracts a terrible price:
limited law enforcement; delayed prosecutions, too few
prosecutions, and other prosecution inefficiencies; trials in
distant courthouses; justice system and players unfamiliar with
or hostile to Indians and Tribes; and the exploitation of
system failures by criminals, more criminal activity, and
further endangerment of everyone living in and near Tribal
communities. When Congress and the Administration ask why the
crime rate is so high in Indian country, they need look no
further than the archaic system in place, in which Federal and
State authority displaces Tribal authority and often makes
Tribal law enforcement meaningless.
The Commission strongly believes, as the result of listening to
Tribal communities, that for public safety to be achieved
effectively in Indian country, Tribal justice systems must be
allowed to flourish, [and] Tribal authority should be restored
to Tribal governments when they request it. . ..
Congress should clarify that any Tribe that so chooses can opt
out immediately, fully or partially, of . . . congressionally
authorized state jurisdiction . . .. (Executive Summary, p. ix)
The Commission's recommendation included a requirement that any
Tribe opting out of state jurisdiction must afford defendants all
rights protected under the United States Constitution, subject to very
limited review in a newly-constituted federal appellate court, the U.S.
Court of Indian Appeals. Furthermore, any such Tribe would no longer be
subject to sentencing limitations established in the Indian Civil
Rights Act.
The body of the Commission's report further elaborates on the
failings of existing state criminal jurisdiction in Indian Country:
Because Tribal nations and local groups are not participants in
the decision making, the resulting Federal and State decisions,
laws, rules, and regulations about criminal justice often are
considered as lacking legitimacy. As widely reported in
testimony to the Commission, nontribally administered criminal
justice programs are less likely to garner Tribal citizen
confidence and trust, resulting in diminished crime-fighting
capacities. The consequences are many: victims are dissuaded
from reporting and witnesses are reluctant to come forward to
testify . . .. Potential violators are undeterred. (p. 4)
. . . State government authority often appears even less
legitimate to Tribes than Federal government authority. The
Federal government has a trust responsibility for Tribes, many
Tribes have a treaty relationship with it, and there is an
established government-to-government relationship between
Tribes and the Federal government . . ..
. . . Tribes' widespread disenchantment with State criminal
jurisdiction stems from the fact that States often have proven
to be less cooperative and predictable than the Federal
government in their exercise of authority . . .. Memories that
States and local governments actively sought reductions of
Indian territories still engender distrust from Tribal
governments and their citizens. (p. 11)
The illegitimacy of state authority affects cases with Indian
victims as much as cases with Indian defendants, because cooperation
from victims and witnesses is necessary to achieve a successful
prosecution. Although there are individual instances of cooperative
arrangements succeeding between Tribal and local sheriffs and
prosecutors, the Commission's report properly notes that these
arrangements are highly contingent on local non-Indian politics and are
unstable over time. (p. 15) The findings and recommendations of the
Indian Law and Order Commission clearly oppose state criminal
jurisdiction in Indian Country, calling for Tribes to be able to opt
out of such jurisdiction. To the contrary, Castro-Huerta expands such
jurisdiction.\2\
---------------------------------------------------------------------------
\2\ To be clear, the Commission did not address state jurisdiction
over crimes by non-Indians against Indian victims outside of Public Law
280, because it assumed (correctly, in my view) that such state
jurisdiction did not exist.
Question 2. In your work examining Public Law 280, how will the
Castro-Huerta ruling affect the State and tribal governments that are
---------------------------------------------------------------------------
currently operating under this law?
Answer. Castro-Huerta affirms state criminal jurisdiction--crimes
by non-Indians against Indian victims in Indian country--that is
largely already allowed under Public Law 280. However, there are
limitations on the criminal jurisdiction that states acquire under
Public Law 280 that do not seem to operate on the jurisdiction
recognized in Castro-Huerta. Most significantly, Public Law 280 does
not confer jurisdiction on states to impose their ``regulatory'' laws
within Indian country, even if those laws have an associated criminal
component.\3\ Because Castro-Huerta relies on ``inherent'' state
jurisdiction rather than a particular statutory grant, it presumably
incorporates no such limitation. Thus, even for Tribes already subject
to Public Law 280, Castro-Huerta likely represents an expansion of
state jurisdiction.
---------------------------------------------------------------------------
\3\ California v. Cabazon Band of Mission Indians, 480 U.S. 202
(1987).
---------------------------------------------------------------------------
Furthermore, Castro-Huerta makes retrocession of state Public Law
280 jurisdiction (return of such jurisdiction to the federal
government) significantly less beneficial and meaningful for Tribes.
Under current law, only states, not Tribal nations, may initiate
retrocession. (The Indian Law and Order Commission's recommendations,
discussed above, would give control over retrocession to the affected
Tribes.) Nonetheless, numerous instances of retrocession--both in the
``mandatory'' states named in the statute, and in those states that
opted in--have occurred.\4\ Before Castro-Huerta, it was assumed that
retrocession would result in exclusive federal jurisdiction over crimes
committed by non-Indians against Indian victims. Since the Supreme
Court's ruling in Castro-Huerta, state jurisdiction will have a larger
role in Indian country even after retrocession, raising all the issues
of unfairness and illegitimacy discussed in the report of the Indian
Law and Order Commission (see above).
---------------------------------------------------------------------------
\4\ See Duane Champagne and Carole Goldberg, Captured Justice:
Native Nations and Public Law 280 (2nd ed., Carolina Academic Press,
2020), at 177-209.
Questions Submitted by Representative Grijalva
Question 1. As your testimony notes, State involvement in criminal
justice in Indian Country could jeopardize tribal-federal relations.
(1a). To clarify for the record, does the federal trust
responsibility apply to State governments?
Answer. With the exception of certain eastern states that signed
separate treaties with Tribal nations, states do not have a trust
responsibility to those nations. The trust responsibility has
consistently been articulated by the Supreme Court as an obligation of
the federal government associated with its constitutional authority
over Indian affairs and its government-to-government relationship with
Tribal nations.\5\ In contrast, the Supreme Court has recognized that
states often have interests antagonistic to Tribal nations. According
to United States v. Kagama, 118 U.S. 375, 383-84 (1886), ``These Indian
tribes are the wards of the nation . . .. They owe no allegiance to the
States, and receive from them no protection. Because of the local ill
feeling, the people of the States where they are found are often their
deadliest enemies.''
---------------------------------------------------------------------------
\5\ See Cohen's Handbook, supra, at pp. 412-429 and cases cited
therein.
(1b). How will this impact the delivery of public safety services
---------------------------------------------------------------------------
post-Castro-Huerta?
Answer. As I indicated in my written testimony, and as discussed
above in relation to the report of the Indian Law and Order Commission,
research supports concern that state criminal jurisdiction will result
in biased and ineffective law enforcement and criminal justice when
non-Indians commit crimes against Indians in Indian Country. Loss of
respect and cooperation from victims and witnesses because of lack of
legitimacy of state institutions can leave crime undeterred. Even if
individual localities may sometimes be more diligent and culturally
respectful, the problems of illegitimacy, discrimination, and
overlapping, confusing jurisdiction will likely be the norm. A
particular concern is when multiple jurisdictions defer to each other,
each forsaking jurisdiction and leaving crime unattended.
______
Ms. Leger Fernandez. Thank you, Professor and Associate
Justice Goldberg.
The Chair will now recognize the Honorable Matthew J.
Ballard, who is the District Attorney for Oklahoma's District
12. You are now recognized for 5 minutes.
STATEMENT OF THE HONORABLE MATTHEW BALLARD, DISTRICT ATTORNEY,
OKLAHOMA DISTRICT 12, CLAREMORE, OKLAHOMA
Mr. Ballard. Thank you, Madam Chair and Ranking Member. My
name is Matthew Ballard. It is my honor to appear before you
today as the elected District Attorney for Oklahoma District 12
and to give voice today to the Native American victims, who
have been given hope as a result of Castro-Huerta.
My purpose today is to provide real-world examples of
people, of Native American victims, who have benefited from
Castro-Huerta, who Castro-Huerta served as a beacon of hope
that they might one day get justice. These are more than
anecdotes. These are real people in my community. These are my
constituents. They are my neighbors. They are my friends. We go
to the same church. We send our kids to the same schools. The
people I am talking to you about today are from my community.
Two years ago, the law enforcement community in Oklahoma
was thrust into chaos when the Supreme Court determined that 2
million Oklahomans resided on reservations that had never been
disestablished. To give you an idea of that, there are 14
states in this nation with populations smaller than the number
of Oklahomans living on Indian reservations.
So, what did that look like in my district? In my district,
we saw hundreds of cases being dismissed. We saw dockets that
were filled of 200, 300, 400 different cases, that we knew that
we were going into court and those cases were going to be
dismissed. Those victims were never going to see justice.
I had multiple times where I walked into my victim
advocates offices. These are people who exist and do their job
every day building trust with victims, telling victims and
assuring them that we will seek justice for them, who build
relationships with victims. As a result of the phone calls they
were making, they spent hours calling victim after victim after
victim just to notify them that their case was being dismissed.
On multiple occasions, I walked in and found my victim
advocates in tears it was so overwhelming. At one point, I told
them, go home and call it a day. And they looked at me, and
they held up a list. And they said not until we go through this
list. It is on us to call every victim on this list and let
them know. They can't hear from social media. They shouldn't
hear it from the news. They need to hear it from us because
they trust us. And Native American victims were bearing the
brunt of the McGirt decision.
Only Federal jurisdiction existed where non-Native victims
were involved. In the Eastern District, the Federal U.S.
Attorney's office determined that their threshold for filing
cases with serious bodily injury. If a case didn't involve
serious bodily injury, it was a decline.
Let me tell you about some of the victims and how that
impacted them. Let me tell you about Kayla Dobbs. The day the
Cherokee Reservation was recognized by the Oklahoma Court of
Criminal Appeals as having not been disestablished, that night,
Kayla Dobbs was at the Iron Horse Saloon in rural Oologah,
Oklahoma. While she was there, she ran into an ex-boyfriend who
was there with a female acquaintance. While she was on the
phone and with her back turned, she was hit in the back of the
head, knocked to the ground, and pepper sprayed in her face.
Rogers County deputies were dispatched to the scene. They
showed up, and they had to ask the question, is anyone here
Native American, to determine whether they even had
jurisdiction to investigate? Kayla, our victim, was Native
American and her assailant was not so the deputy quickly
realized that he didn't have jurisdiction. It was solely
Federal. As a result, he called the FBI office at 1 in the
morning about a bar fight and was told the FBI wouldn't come
out. That is what we are seeing in Oklahoma.
But let me tell you now about a case involving hope. Let me
tell you about Katrina West. Katrina's son was violently
murdered along with his cousin. It was later determined that
her son and his cousin were Native American. And the case, our
state case was dismissed.
But we got to know Katrina through my office, assuring her
we were going to seek justice. We told her Federal courts did
refile, and she came to us upset that they had offered a 17-
year sentence. Mind you that the minimum sentence in Oklahoma
for a single homicide is a life sentence which is calculated at
45 years.
She came to us upset, and we explained unless Castro-Huerta
came out in our favor, her son, there is nothing we could do.
The day Castro-Huerta came out, she called me in tears. The
victim advocate came in and said she is on the phone. I took
the call. She was tearful. And she said, Matt, does this mean
what I think it means? Does it mean you can refile your case?
I told her that it did. And through her tears, she said
thank God. We have refiled that case, and we are going to seek
justice. And that is what Castro-Huerta provided to us in the
state of Oklahoma, the opportunity to go out and seek justice
for our Native American victims. Thank you to the panel.
[The prepared statement of Mr. Ballard follows:]
Prepared Statement of Matthew J. Ballard, District Attorney, Oklahoma
District 12
I serve as the elected District Attorney for Oklahoma District 12,
encompassing Rogers, Mayes and Craig Counties, an office I have held
since 2015. Suburban/rural in character, my District lies to the
northeast of Tulsa and along Interstate 44. It is located primarily
within the bounds of the Cherokee Nation, and also includes a small
portion of the Creek Nation. The District is located entirely within
Indian Country.
For 113 years, the federal government, the State of Oklahoma, and
the sovereign tribal governments with rights to lands within the
political boundaries operated in the belief that the tribal
reservations were abolished when Oklahoma was named the 46th of the
United States of America. Two years ago, one of the most consequential
Supreme Court decisions in history cast Oklahoma law enforcement into
chaos. When the Supreme Court determined the reservations within the
political boundaries of the State of Oklahoma had not been abolished,
the population of Native Americans living on reservation land in the
United States nearly tripled. Today, nearly 2 million Oklahomans live
in Indian Country. To put that into perspective, approximately 14
states have populations smaller than the population of Oklahomans
living on reservation land.
The consequences of this decision on victims of crime were
immediate. Every case involving a Native American defendant or victim
was in jeopardy of being dismissed or overturned. Thousands of pending
state cases were dismissed, never to be refiled. Those that were
refiled put victims, both Native and non-Native, in the traumatic
position of reliving previous trials and the crimes against them and
their loved ones. In my district alone, court dockets with hundreds of
cases involving defendants seeking to have their charges dismissed
consumed hours of court time. My victim advocates spent hours making
phone calls to crime victims to deliver the devastating news that their
case was dismissed. On more than one occasion, I found my team's victim
advocates in tears as the stress of making these phone calls became
overwhelming.
Meanwhile, police investigators were left with state court judges
who refused to sign arrest warrants or even search warrants for cases
involving Native Americans. Judges became concerned that acting in the
absence of jurisdiction would leave them open to personal liability and
therefore adopted an extremely conservative review of every case
involving a Native American. Officers preparing affidavits were
required to include a statement affirming that neither the suspect nor
victim was Native American, and were even required to check with
Oklahoma tribes to ensure non-membership.
The impact on day to day law enforcement was profound. Dispatchers
on 911 calls were forced to ask whether a Native American was involved,
so that the call could be properly dispatched. Although cross-
deputization agreements ameliorated some of the worst effects, these
agreements could not provide protection to the most vulnerable group
impacted: Native American victims. In cases with non-Native
perpetrators, Native American victims were left only with the hope that
the federal government and the U.S. Attorneys' offices in Oklahoma
would prosecute their cases. These agencies, however, were overwhelmed
by the tsunami of new cases (many of which had never or were rarely
prosecuted by these agencies) and the backlog of old cases that had
been dismissed. In the United States Eastern District for Oklahoma, the
U.S. Attorney's office adopted the position that the threshold for
filing charges against those that had victimized Native citizens was
serious bodily injury, as defined by federal law. If the case did not
involve serious bodily injury, it would be declined. Incredibly, this
included such cases as strangulation not resulting in death or
protracted injury. It certainly included property crimes against Native
Americans ranging from home invasion to theft, embezzlement, fraud, and
more.
On the day after the Oklahoma Court of Criminal Appeals issued its
decision finding that the Cherokee Reservation had not been
disestablished, victims of crime in Rogers, Mayes, and Craig Counties
were immediately impacted. Just after midnight that evening, Kayla
Dobbs was a patron at the Iron Horse Saloon in rural Rogers County.
While she was distracted, a female acquaintance of her ex-boyfriend
approached her, punched her in the back of the head, knocking her to
the ground, and pepper sprayed her in the face. The parties were
separated and Deputy Ronnie Roden from the Rogers County Sheriff's
office was dispatched. Upon arrival, Deputy Roden asked Ms. Dobbs if
she was Native American and she confirmed that she was, but that her
ex-boyfriend and his acquaintance were not. Because Ms. Dobbs was
Native American but her assailant was not, the case would be solely
federal. Although Deputy Roden was cross-commissioned with the Cherokee
Marshal Service, this did not provide federal credentials and no on-
duty sheriff deputy held federal credentials (because federal
credentials are more difficult to obtain, they are held primarily by
investigators). Lacking jurisdiction to conduct an investigation in his
own county or to make an arrest, Deputy Roden could only ensure the
scene was safe and then had no recourse other than to contact the FBI
field office in Tulsa (approximately 45 miles away). The FBI advised
they would not respond and that, as the assault was only a misdemeanor,
they would likely take no action on the case. Deputy Roden shared this
information with Ms. Dobbs and, with nothing further to do, departed.
Unfortunately, scenes like this played out nearly every day in my
district. What I saw in my community prior to the ruling in Castro-
Huerta, was that my office, and those of cooperating state and local
professional law enforcement agencies, stood nullified in our efforts
to ensure the safety of our communities through the enforcement of
laws, investigation of crime, and redress for victims, both Native and
non-Native, in a crippling number of cases. Without the modulating
effects of this ruling, the federal government is essentially tasked
with the heretofore novel and nontraditional role of community
policing. Current agencies lack the resources, capacity, and, frankly,
will to execute these functions within the expectations of the
populace. What was needed was essentially a federal police force. This
type of agency could certainly be created with enough time and
resources, but victimized members of the public do not expect the
government to respond to their very real crises in a number of years.
They seek immediate response and quick redress.
The possibility that victims could once again see justice after
Castro-Huerta spread almost immediately through my community. Within
hours of the decision, I received a phone call from Katrina West asking
about a case involving her son. I first came to know Ms. West in 2019,
when her son and his cousin were murdered and my office filed charges
against the individual responsible. As the case progressed, we had
multiple meetings with Ms. West and she came to trust that we would do
everything in our power to seek justice for her son. Unfortunately,
during the pendency of the case, we learned that her son, who
identified as African-American, was also a member of the Creek Nation.
As a result, the state's case against his killer was dismissed. The
U.S. Attorney's office filed two counts of Murder 1, however, in the
weeks prior to Castro-Huerta, they notified Ms. West that they had
reached a tentative plea agreement with the murderer by which he would
receive a sentence of 17 years. By comparison, the minimum sentence in
Oklahoma for a single count of Murder 1 is calculated at 45 years and
this particular defendant had violently murdered two people. Ms. West
was extremely distraught about the federal prosecution's proposed
resolution of the case and sought my advice. I explained to her that,
absent a favorable decision in Castro-Huerta, my office had no
jurisdiction and there was nothing my team could do.
Within hours of the Castro-Huerta decision, one of my victim
advocates notified me that a very emotional Ms. West was on the phone.
I accepted the call and Ms. West, through her tears, asked me if it was
true that this meant we could refile the case against her son's killer.
I told her that was exactly what it meant and that I would be proud to
seek a just sentence on his behalf. Emotional, Ms. West exclaimed that
this was the answer to her prayers.
Unfortunately, the scenario of crimes against Native Americans
going unprosecuted, played out all too often prior to Castro-Huerta.
Here are just a handful of additional examples from my district:
A Native American female was stopped at a stoplight in
front of an elementary school. Another driver, angry at a
perceived driving infraction, approached her window and
punched through the glass, breaking the window. The
incident was caught on video and disseminated widely
through social media. The other driver was not Native
American. No charges were brought for the assault.
A Native American female became involved in a road rage
incident with another driver. While her vehicle was
stopped, the male driver advised her that he was a police
officer and ordered her out of the vehicle. In fact, he was
not a police officer. When the Native American driver
stepped out of her vehicle, he held her arms, while she was
assaulted by his female passenger. This occurred in front
of the Native American female's children. The male driver
and his female passenger were not Native American. No
charges were brought.
After a fight outside of a bar, a man pulled out a gun and
fired a shot at a man fleeing on foot. The man fleeing was
Native American, so in an effort to circumvent the
jurisdictional issue, my office filed a misdemeanor
reckless conduct with a firearm charge, rather than any
charge associated with the actual victim. No federal
charges were filed.
Claremore Police found a non-Native American woman living
in a squalid hotel room with her five children (ages 4
months to 13 years) and two dogs. Covered in trash, the
room reeked of human and animal excrement. Two of the
children were completely naked. An unsecured firearm was
accessible to all children, as was a plainly visible
container of medical marijuana. The woman's children were
Native American and while they were removed from the
deplorable conditions, no charges for child neglect were
filed.
The first published case in which the Oklahoma Court of Criminal
Appeals applied Castro-Huerta was prosecuted by my team in District 12.
In that case, Deputy Keisha Oberg of the Mayes County Sheriff's office
arrested an individual near a high school football field for carrying a
firearm while intoxicated and public intoxication. After securing the
arrestee in her vehicle and while driving to the Mayes County jail, the
arrestee managed to gain leverage with his feet, elevate himself, head
butt Deputy Oberg multiple times and interfere with her driving. The
arrestee was charged with felony Assault and Battery on a Police
Officer. Deputy Oberg, however, is a Native American member of the
Cherokee Nation. As such, her case was dismissed by the state court and
my office appealed. The appeal was significant because under federal
law, the defendant could only be charged with a misdemeanor assault, as
federal law on assaults on law enforcement officers only extends to
federal officers. Applying Castro-Huerta, however, the Oklahoma
appellate court determined the state case could proceed. Absent Castro-
Huerta, this criminal and similarly situated perpetrators would merit
shorter sentences for no reason other than the fact their victim is
Native American. It was my firm belief that Deputy Oberg, as a Native
American first responder putting her life on the line, deserved the
full protection afforded to all Oklahoma citizens.
Oklahoma is not a place where societal lines are drawn between
Natives and non-Natives. When an officer responds to the scene of an
accident, they cannot determine which parties are Native or non-Native
without going through detailed questions, and those questions must be
asked of every person because, just like many of those in my own
family, tribal membership may differ within a single household, both
among tribes and a mix of native and non-native members. In my own
office, my office manager, who is Native American, made certain that
her husband, who is not Native American, was listed on her vehicle
titles to ensure that if their car was stolen or burglarized, he could
be listed as the victim and therefore allow state prosecution.
In the midst of this chaos, the Castro-Huerta decision has been a
beacon of hope for Native American victims of crime. It returned to
Oklahoma law enforcement what had been the practice for the 113 years
prior to McGirt. State and local law enforcement officers and local
prosecutors could once again prosecute cases involving Native American
victims. The impact I have witnessed is not suppositional or
theoretical. If you have read stories in publications such as the Wall
Street Journal or New York Times about what you think may be isolated
incidents I can assure you they are not. Those victims are neighbors
and members of my community. They are parents, and business owners, and
members of my church. They are my constituents. I can speak directly to
the evidence of the realities in which I work to protect ALL
individuals, families, businesses and others in the jurisdiction that
have placed their trust in my office. I cannot speak to how the current
situation could have been improved had individuals acted differently
outside my lifetime. What I can say is that in 2022 the people of
Oklahoma deserve a very real conversation about today's challenges, and
assurances that their communities remain safe places to live, worship,
raise families, and operate businesses.
I am proud to lend my voice to the Native American victims that I
was elected to represent. Castro-Huerta has given them hope. I will be
working to do all that I can to live up to this trust and to ensure
that my office seeks justice for all victims of crime.
______
Questions Submitted for the Record to Matthew J. Ballard
Questions Submitted by Representative Westerman
Question 1. Can you provide the Committee with further examples of
acts that are currently criminal under Oklahoma law that would not be
prosecutable if Castro-Huerta were not in effect?
Answer. In Oklahoma, school children are considered a vulnerable
population and state law prohibits sexual contact between a school
teacher and a secondary student, regardless of the age of consent.
Under federal law, no such prohibition exists. This means that prior to
Castro-Huerta, it was illegal for a teacher to have sexual contact with
a student, unless that student was Native American. The concern that
this could lead to Native Americans being targeted, particularly in the
realm of criminal conduct that frequently involves grooming and the
selection of particularly vulnerable students, is obvious.
Similarly, state law prohibits sexual contact between detention
officers in jails or prisons and the detainees under their supervision.
Federal law only extends to federal detention facilities and federal
detention officers, therefore providing no protection to Native
Americans in the facilities with which the tribes contract to hold
tribal citizens awaiting trial.
Under Oklahoma law, an assault and battery on a law enforcement
officer is a felony crime. Federal law, however, only extends to
federal law enforcement officers, so if an offender assaults a Native
American serving in state or tribal law enforcement, the crime is only
a misdemeanor and is no different than an assault and battery on a
civilian. In Rogers County, the sheriff is a member of the Cherokee
Nation and numerous other law enforcement officers are Native American,
making this a very real concern. In Mayes County, the first published
case establishing Castro-Huerta was a case involving an assault and
battery on a Mayes County Sheriff's deputy while she was on duty. The
case was dismissed by the trial court and the state appealed. Following
Castro-Huerta, the case was reinstated, but without Castro-Huerta, the
crime would have been only a federal misdemeanor offense.
Question 2. Have there been instances where criminals exploit the
criminal jurisdiction issues in Oklahoma that existed prior to Castro-
Huerta?
Answer. Although data is difficult to quantify, anecdotally law
enforcement has seen an increase in crimes committed against Native
Americans. I am aware that some Native Americans elected to remove
tribal tags from their vehicles out of concern that criminals would
recognize that any crime committed against a Native American was much
more likely to go un-prosecuted and would therefore target vehicles
owned by Native Americans.
This gap is exacerbated by the inability of the federal U.S.
Attorneys' offices to function as front line District Attorneys'
offices. U.S. Attorney offices in the Northern and Eastern Districts
accept only approximately 31% and 22%, respectively, of cases referred
to them. This means that the vast majority of cases referred to the
federal government for prosecution are not filed. This has been
confirmed by my own anecdotal observations. I have seen numerous cases
that we filed that the federal government declined and refused to
prosecute.
I have personally listened to jail calls between offenders and
family members where the offender is asking if they or the victim are
Native American and indicated that this would lead to more favorable
treatment in the criminal case. We have offenders who are active
members of racial gangs that persecute races including Native
Americans, who have later researched family ties to establish tribal
citizenship to avoid prosecution or obtain more favorable sentences. My
attorneys have literally been put in the position of advocating for
victims who claim they are not Native American for purposes of McGirt,
while the person who victimized them is arguing that they are in fact
Native American. Criminal defendants fully realize that it is in their
best interest to claim their victims are Native American and state
prosecutors are put in the delicate position of litigating this issue.
Prior to Castro-Huerta, it was heart wrenching to explain to victims
that if they are Native American, their case will be dismissed.
Question 3. In your experience, how has Castro-Huerta impacted the
federal law enforcement workload? Has it decreased, remained the same,
or increased?
Answer. Castro-Huerta helped to alleviate investigation of crimes
that formerly fell solely under federal jurisdiction: Non-Natives
committing crimes against Native Americans. Because these fell solely
under federal jurisdiction, both the state and tribes were limited in
their authority to respond and provide timely investigation. While both
the state and tribes have a limited number of officers with federal
credentials, these officers are very sparse in number and availability,
with the effect being crimes going without timely investigation, or
with no investigation.
Castro-Huerta enabled state prosecutors to begin tackling the
backlog of cases that have been left unprosecuted. I have maintained
open lines of communication with federal prosecutors and they have been
consistently referring cases back to my office for prosecution. We have
been addressing these cases on a consistent basis and have been able to
reach out to a number of Native American victims to tell them their
case has been refiled in state court.
This has also allowed us to tackle a particularly troubling
manifestation my office was seeing prior to Castro-Huerta. In one case
involving numerous sexual assault victims, the offender targeted
several school students. As is common throughout Oklahoma, the school
had both Native American and non-Native American students and the
offender's victims included students in both categories. Prior to
Castro-Huerta, we were not able to seek justice for the Native American
victims, and were instead limited solely to bringing charges involving
non-Native Americans, resulting in two tiers of justice for individuals
depending on their racial and political identity as defined by federal
law.
Question 4. Can you further explain your understanding of the
differences in capacity and/or focus between Oklahoma state prosecutors
and federal prosecutors for the federal districts of Oklahoma?
Answer. U.S. Attorney offices have never functioned like District
Attorneys' offices. In 2019, prior to McGirt, the 11 counties that make
up the federal Northern District of Oklahoma filed 27,726 state
criminal cases. Last year, the Northern District of Oklahoma filed 444.
Federal courts across the country are correctly focused on the
enforcement of the laws of the United States, crimes involving
interstate commerce, international criminal organizations, securing our
borders, and other federal interests. The federal system of justice is
not set up to prosecute local crime like District Attorneys' offices.
In Tulsa County District Court, state prosecutors typically conduct
approximately 20-30 murder jury trials on an annual basis. In the
entirety of the United States of America, federal prosecutors took 21
homicide cases to jury trial last year.
This is further exacerbated by the lack of local accountability. As
a local elected official, I engage with my constituents at local
sporting events, the grocery store, church, and elsewhere on a daily
basis. I am constantly receiving feedback on the performance of my
prosecutors and I am well aware that I am one election away from no
longer serving as District Attorney. On the federal level, however,
there is no such local accountability. The closest elected official to
a U.S. Attorney office is President Joe Biden.
While I have a great deal of respect for my federal law enforcement
partners, their role in the criminal justice system is different than
mine. There are a variety of reasons for this. Federal law regarding
speedy trial allows much less time for a criminal prosecution and
forces a compressed trial schedule. Department of Justice protocols
allow for less individual flexibility among prosecutors. I have always
enjoyed an excellent working relationship with federal prosecutors and
have relied on them to take on the complex, international, or other
cases that my office does not have the resources or experience to
handle. On the other hand, my office excels at handling the volume of
cases that is seen by state prosecutors across the nation. Prior to
McGirt, my office and the U.S. Attorney's office formed a cohesive law
enforcement wall against crime. While we continue to work together, the
state and federal systems of justice are different and the volume of
cases now being referred to the federal government is overwhelming a
system not set up to handle it.
Question 5. Can you further expand beyond your written testimony,
and speak to how you have seen the McGirt and Castro-Huerta decisions
play out day-to-day in Oklahoma?
Answer. The McGirt case instantly thrust Oklahoma law enforcement
into chaos and uncertainty. For 113 years, the state functioned
cohesively with Native Americans and non-Native Americans living and
working as a unified community. Now, law enforcement is thrust into a
world where jurisdiction is constantly uncertain. While the state,
tribes and federal government work together to fill the gaps, doing so
consistently and effectively is impossible. State court judges are left
without jurisdiction over persons who appear before it. If a Native
American witness commits perjury in state court, the state is left
without recourse. Courts cannot enforce their own subpoenas. Native
American jurors in state court cases swear an unenforceable oath
``under penalty of perjury under the laws of Oklahoma.'' Among our
state citizens are a number of Native American elected officials, from
our state congress to our governor, who can pass laws to which they are
not subject in half the state.
In the day-to-day world of law enforcement, the situation is
untenable. In a recent election, it was discovered that a candidate had
set up a tent within 300 feet of a polling location, a violation of
state electioneering law on election day. In that same election,
numerous state offices in my District involved Native American
candidates. This prompted a discussion about the ability of state law
enforcement to prevent Native American candidates (or Native American
supporters) from electioneering near polling locations. While the issue
was fortunately not pressed, the ultimate conclusion was that state
officers could not enforce state election law against Native Americans
in state elections.
When it comes to investigation of Native American victims, Castro-
Huerta served as a lifeline. Although law enforcement work to
investigate crimes against Native Americans, federal declination rates
that approach 70-80% are hard to ignore. Cases like one in my district
in which a two-year-old was admitted to a hospital after ingesting
drugs are being shut down with no investigation and no prosecution
(crushingly, the sheriff's investigator assigned to that particular
case and seeking justice for this tribal toddler is himself Native
American).
Question 6. How difficult is it to determine whether a victim is
Native American and is the non-prosecution of cases with Native
American victims a wide-spread issue?
Answer. Determining the Native American status of victims is an
intricate process that, prior to Castro-Huerta, was dispositive of how
a case should progress. The test for whether a victim is Native
American is complex. It requires recognition by a federally recognized
Indian tribe and a degree of Indian blood. However, if the victim is
not an enrolled member, they may still be considered Native American
depending on a variety of factors including government recognition and
the receipt of benefits reserved for Native Americans, enjoying the
benefits of tribal affiliation, and social recognition as a Native
American. These factors do not lend themselves to quick determination,
leading to confusion as to who has jurisdiction to investigate a
particular crime.
To give just one example of how this plays out in the real world,
J.S. was a five-month-old infant when he was taken to the emergency
room at a local hospital because he was writhing uncontrollably, he was
inconsolable, and he was vomiting. At the hospital, he tested positive
for amphetamines and spent days in the hospital going through
withdrawal from his exposure to methamphetamine. J.S.'s mother was not
Native American. The identity of his father, however, was unknown. It
was not until a DNA paternity test established the father's identity
that it was discovered that his father was in fact Native American,
making J.S. also Native American. By the time this was discovered,
however, months had passed. There is a reason that investigators launch
immediate investigations, before facts grow cold or evidence becomes
stale. Situations such as this force law enforcement into the difficult
decision of attempting to make a determination about a victim's
ancestry, which can be absolutely critical to the success of a criminal
case.
Further complicating this process is the realization by victims
that it is not in their best interest to cooperate. We have seen this
personally, as one case was remanded by the appellate court to
determine whether the victim, a minor child, was Native American. When
we asked the child's parents if they were Native American, they
replied, ``What if we refuse to tell you?'' This raised additional
issues, due to the fact that if the parents were in fact Native
American, state court subpoenas would not be enforceable and if they
refused to testify, a state court judge would have no jurisdiction over
them. In this same case, the state court ultimately determined that the
children, although not enrolled tribal members at the time they were
molested, were Native American for purposes of McGirt and dismissed the
case. Although charges were initially filed in federal court, federal
prosecutors ultimately decided that the children were not Native
American and dismissed the federal case. Splits of authority such as
this are unfortunately too common where the decision of Native American
status is very fact intensive and can change during the pendency of a
case.
As to the non-prosecution of cases with Native American victims, it
is an insult to law enforcement and evinces a complete lack of
understanding of the culture of Oklahoma. In my own family, three of my
nieces are Native American. The Sheriff of Rogers County is Native
American. I have prosecutors who are Native American. My office manager
is Native American. I work every day with Native American police
officers. Cherokee Nation citizens make up approximately 25% of the
population of my District. Native and non-Native Americans make up one
community. Our children attend the same schools, we worship at the same
churches, our families live in the same neighborhoods. Prior to McGirt,
we never inquired as to the racial or political identities of offenders
or victims, unless a hate crime was committed. We sought to protect
Oklahomans and those visiting our state. And my District is not alone.
Other Districts in Oklahoma actually have a higher percentage of Native
American citizens and it is my experience that every District Attorney
works to protect all of their citizens. To suggest that I would
advocate for anything but the best interest of a sizable category of my
constituents that includes my own family members is disappointing and
inaccurate.
Prior to McGirt, we would simply have no way of knowing when a
Native American was even involved in a case. It was not until such a
determination became dispositive that the inquiry into Native American
status began. Before Castro-Huerta, defense attorneys were probing the
background of victims to make the argument that state charges should be
dismissed, to the benefit of those preying on Native Americans. I am
thankful for Castro-Huerta and I am thankful that such offensive
practices have been stopped. Just like the other District Attorneys in
Eastern Oklahoma, I will continue to pursue justice for all victims and
to stand against those who would exploit the loopholes that have now
been filled by the Supreme Court.
______
Ms. Leger Fernandez. Thank you very much for your testimony
and the stories of the victims.
The Chair now recognizes Mr. Mansinghani--my apologies, Mr.
Mansinghani, who is a Partner at Lehotsky Keller, for 5
minutes. Thank you.
STATEMENT OF MITHUN MANSINGHANI, PARTNER, LEHOTSKY KELLER LLP,
OKLAHOMA CITY, OKLAHOMA
Mr. Mansinghani. Chairwoman Fernandez and Ranking Member
Obernolte, I want to start by thanking the House Subcommittee
on Indigenous Peoples for inviting me to speak.
By way of background, I am a Partner at Lehotsky Keller in
our Oklahoma City office, where one of my specialties is
Federal Indian law. Prior to returning to the private practice
earlier this year, I served for 5 years as the Solicitor
General for the state of Oklahoma, where I litigated several
important Federal Indian law cases including the case that is
the topic of today's hearing, Oklahoma v. Castro-Huerta.
My testimony today represents my own personal views and not
those of my current or former employers.
In Oklahoma v. Castro-Huerta, the Supreme Court held that
the Federal Government and the states have concurrent
jurisdiction to prosecute crimes committed by non-Natives
against tribal members in Indian Country. Those crimes are
within the Federal jurisdiction because of Federal statutes of
the General Crimes Act extended Federal law into Indian
Country.
And they are within state jurisdiction because nothing in
that Federal law said that the Federal Government's
jurisdiction was exclusive or otherwise pre-empted state
jurisdiction.
This particular case concerned the prosecution of a foreign
national, who severely neglected, to the point of torture, his
daughter, who was a member of an Indian tribe based in North
Carolina. The crime occurred in the newly recognized Cherokee
Reservation in Eastern Oklahoma.
The state intervened in this abuse to protect the Native
American child from a non-Native abuser. And that is what this
case was always about. Do states have jurisdiction within their
own borders over people who are not members of a tribe,
including those non-Natives who hurt tribal members?
Or put another way, the question is, did Congress ever pass
a law saying that states have no power to protect tribal
members within state borders when those tribal members are
abused by non-Natives within the state?
The Supreme Court, following a close reading of the laws
Congress has enacted and its past precedent, said states have
jurisdiction to punish these crimes.
I go over all of this because I think it is important to
keep in mind what this case is about and to read the Supreme
Court's decision for what it says.
So, while this hearing is about the decision's impact on
tribal sovereignty, we should remember that the decision in
Castro-Huerta is, first and foremost, a ruling about state
sovereignty. It says that state borders matter, and that state
sovereignty matters, which under our Constitution stands for
the common-sense proposition that states have jurisdiction
within their borders unless Congress validly says otherwise.
The decision, therefore, gives meaning to Congress' choice
to create states like Oklahoma, or New Mexico, or California,
and to establish their borders to include lands that are Indian
Country. And it correctly observed that Congress never has said
states lacked jurisdiction over non-Indians within their
borders when those persons commit crimes in Indian Country.
The Court's opinion, of course, was not silent on the
issues of tribal sovereignty. But what it said was that the
exercise of state jurisdiction here would not infringe on
tribal self-government. Because a state prosecution of a crime
committed by a non-Indian against an Indian would not deprive
the tribe of any of its prosecutorial authority. And I think I
just heard Attorney General Hill agree with that idea, that
this doesn't affect tribals' prosecutorial authority.
And a state prosecution of a non-Indian does not involve
the exercise of state power over any Indian or over any tribe.
The only parties to the criminal case are the state and the
non-Indian defendant. Nor was this opinion silent on the role
of the Federal Government.
The Court held that both the states and the Federal
Government can prosecute these crimes providing a dual layer of
protection. State prosecution would supplement Federal
authority, not supplant Federal authority.
But the state being forced to turn a blind eye when non-
Indians abuse Indians doesn't serve anyone's interests, not
state interests, not Federal interests, and not tribal
interests.
Some have suggested that Congress try to pass a law
overturning the result in Castro-Huerta. I think that would be
ill-advised, as the Supreme Court stated in its opinion, such a
rule would require states to treat Indian victims as second-
class citizens.
And I know from my experience in Oklahoma, in which the
vast majority of Indian Country now lives, that when states are
hobbled in their ability to protect Native victims, the
unfortunate results are all too predictable.
Thank you and I welcome any questions the Subcommittee
members may have.
[The prepared statement of Mr. Mansinghani follows:]
Prepared Statement of Mithun Mansinghani, Partner, Lehotsky Keller LLP
Chairwoman Fernandez and Ranking Member Obernolte, I want to start
by thanking the House Subcommittee on Indigenous Peoples for inviting
me to speak. By way of background, I am a partner at Lehotsky Keller in
our Oklahoma City office, where one of my specialties is federal Indian
law. Prior to returning to private practice earlier this year, I served
for five years as the Solicitor General for the State of Oklahoma,
where I litigated several important federal Indian law cases, including
the case that is the topic of today's hearing, Oklahoma v. Castro-
Huerta. My testimony today represents my own personal views, and not
those of my current or former employers.
In Oklahoma v. Castro-Huerta, the Supreme Court held that the
Federal Government and the States have concurrent jurisdiction to
prosecute crimes committed by non-Natives against tribal members in
Indian Country. Those crimes are within federal jurisdiction because a
federal statute, called the General Crimes Act, extended federal law
into Indian country. And they are within state jurisdiction, because
nothing in that federal law said that the federal government's
jurisdiction was exclusive or otherwise preempted state jurisdiction.
This particular case concerned the state prosecution of a foreign
national who severely neglected, to the point of torture, his daughter,
who was a member of an Indian tribe based in North Carolina. The crime
occurred in the newly-recognized Cherokee reservation in Eastern
Oklahoma. The state intervened in this abuse to protect the Native
American child from a non-Native abuser. That is what the case was
always about. Do states have jurisdiction within their own borders over
people who are not members of a tribe, including when those non-Natives
hurt tribal members? Or, put another way, the question is did Congress
ever pass a law saying states have no power to protect tribal members
within state borders when those tribal members are abused by non-
Natives within the state? The Supreme Court, following a close reading
of the laws Congress has enacted and its past precedent, said States
have jurisdiction to punish these crimes.
I go over all this because I think it's important to keep in mind
what this case is about and to read the Supreme Court's decision for
what it says. So while this hearing is about the decision's impact on
tribal sovereignty, we should remember that the decision in Castro-
Huerta is, first and foremost, a ruling about state sovereignty. It
says that state borders matter and that state sovereignty matters,
which under our Constitution stands for the common-sense proposition
that states have jurisdiction within their borders unless Congress
validly says otherwise. The decision therefore gives meaning to
Congress's choice to create states like Oklahoma, or New Mexico, or
California, and to establish their borders to include lands that are
Indian country. And it correctly observed that Congress never has said
states lack jurisdiction over non-Indians within their borders when
those persons commit crimes in Indian country.
The Court's opinion, of course, was not silent on the issues of
tribal sovereignty. But what it said was that ``the exercise of state
jurisdiction here would not infringe on tribal self-government''
because ``a state prosecution of a crime committed by a non-Indian
against an Indian would not deprive the tribe of any of its
prosecutorial authority.'' And ``a state prosecution of a non-Indian
does not involve the exercise of state power over any Indian or over
any tribe. The only parties to the criminal case are the State and the
non-Indian defendant.''
Nor was the opinion silent on the role of the federal government;
the Court held that both the states and the federal government can
prosecute these crimes, providing a dual layer of protection. ``State
prosecution would supplement federal authority, not supplant federal
authority.'' But the State being forced to turn a blind eye when non-
Indians abuse Indians doesn't serve anyone's interests: not state
interests, not federal interests, and not tribal interests.
Some have suggested that Congress try to pass a law overturning the
result in Castro-Huerta. I think that would be ill-advised. As the
Supreme Court stated in its opinion, such a rule would require states
``to treat Indian victims as second-class citizens.'' And I know from
my experience in Oklahoma--in which the vast majority of Indian country
now lives--that when states are hobbled in their ability to protect
Native victims, the unfortunate results are all too predictable.
Thank you, and I welcome any questions the subcommittee members may
have.
*****
Additional Written Testimony for the Record from Mithun Mansinghani,
Partner, Lehotsky Keller LLP
I also want to dispel some myths that have arisen since the Castro-
Huerta decision that might confuse or misinform those who are less
familiar with the complex field of federal Indian law.
First, some have said that the Castro-Huerta decision ignores a
constitutional rule that the federal government has the sole role in
governing ``Indian affairs,'' to the exclusion of any state government
activity. But nothing in the Constitution says that. Instead, the
Constitution gives Congress the power ``[t]o regulate Commerce . . .
with the Indian tribes.'' When a state punishes a non-Indian for
victimizing a tribal member, and such a prosecution does not violate
any federal statute, that in no way interferes with Congress's power to
regulate commerce with tribes. Indeed, the idea that states can never
interact with tribal members unless they have a congressional
permission slip is contrary to both precedent and practice. For
example, in Oklahoma, tribal members go to state schools, receive state
housing benefits, and get healthcare in state-run hospitals. Education,
housing, and healthcare of tribal members all relate to ``Indian
affairs,'' but the Constitution nowhere requires states to discriminate
against Native Americans in the provision of these services. Similarly,
Castro-Huerta holds that States can also provide criminal justice
services to tribal members by prosecuting their non-Indian victimizers.
Second, some have pointed to the Supreme Court's decision in 1832,
called Worcester v. Georgia, where John Marshall once expressed the
view that state laws have ``no force'' in Indian country. But as
Justice Thurgood Marshall put it in his decision in White Mountain
Apache Tribe v. Bracker, the Supreme Court ``long ago'' departed from
that view. Later, Justice Scalia quoted that line from the Bracker
case, adding the well-settled observation in Nevada v. Hicks that
``State sovereignty does not end at a reservation's border.'' That is
the same settled law that is embraced in the Supreme Court's Castro-
Huerta decision. And in my view, when Justices Thurgood Marshall and
Antonin Scalia agree on a rule of law, it is difficult to see that
legal rule as radical or controversial.
Third, some claim that the Castro-Huerta decision upends long-
settled understandings about state jurisdiction. I find this view a
little ironic because it is often expressed by those who support the
Supreme Court's earlier decision in McGirt v. Oklahoma, which itself
upended long-settled understandings about the state's jurisdiction. But
the view is also wrong. For most of this country's history--from the
1830s through the 1980s--courts, states, and the federal government
went back and forth about whether states can hold non-Indians
accountable when they trample on tribal members. This long-debated
question was finally and rightly decided by the Supreme Court this year
in Castro-Huerta. Congress, for the reasons I've already stated, would
be ill-advised to try to upset the rule the Supreme Court has now
established.
______
Questions Submitted for the Record to Mr. Mithun Mansinghani, Partner,
Lehotsky Keller LLP
Questions Submitted by Representative Westerman
Question 1. Lead Up: Other witness statements have stated that
Castro-Huerta was decided contrary to standing law. Your statement gave
a defense of the decision.
(1a). Could you further explain how Castro-Huerta is a continuation
of the current understanding of criminal jurisdiction in Indian Country
and not a departure from it?
Answer. Prior to the decision in Oklahoma v. Castro-Huerta, the
U.S. Supreme Court had never decided a case challenging the validity of
a state conviction of a non-Indian who had committed a crime against an
Indian in Indian country. It is thus hard to see how others claim that
the decision affirming a state's power to prosecute such crimes was
contrary to established law. Instead, that question has been a subject
of debate for much of this country's history, until the Castro-Huerta
decision settled the matter.
For example, in 1835, a federal court of appeals, writing through
Supreme Court Justice McLean, recognized state authority to punish its
own citizens who committed crimes in Indian country within state
borders, as states like New York were doing.\1\ In 1855, the U.S.
Attorney General similarly acknowledged that states have jurisdiction
over ``any controversy within state borders to which one of their
citizens is a party,'' even if the other party was a tribal member.\2\
As described further below, in 1859, the U.S. Supreme Court upheld New
York's ability to enforce its laws against non-Indians who trespass on
tribal lands.\3\
---------------------------------------------------------------------------
\1\ United States v. Cisna, 25 F. Cas. 422, 422, 425 (C.C.D. Ohio
1835).
\2\ 7 Op. Atty. Gen. 174, 178 (1855).
\3\ New York ex rel. Cuter v. Dibble, 62 U.S. (21 How.) 366 (1859).
---------------------------------------------------------------------------
These views of state authority continued into the 20th century. In
1941, the North Carolina Supreme Court upheld a state prosecution of a
non-Indian who committed a crime against an Indian.\4\ The Department
of Justice also suggested that states have concurrent authority to
prosecute such crimes in a brief to the Supreme Court in 1946.\5\ And
that remained the Department of Justice's view in 1979, when the Office
of Legal Counsel carefully considered the question and recognized the
strong arguments in favor of concurrent state jurisdiction over crimes
committed by non-Indians against Indians in Indian Country.\6\ And
while the Department of Justice had abandoned this long-held position
by the late 1980s, states had continued to press this position during
this period, albeit with little success.\7\ But even state court
decisions that questioned state authority were not without dissent,
with one judge expressing the view that tribal members ``are entitled
to the protection of our [state] laws'' as are any other state
citizen.\8\ In short, while some claim the question finally answered in
Castro-Huerta was contrary to settled law from the past 200 years, the
historical record is far more complex than those advocates would care
to admit.
---------------------------------------------------------------------------
\4\ State v. McAlhaney, 17 S.E.2d 352, 354 (N.C. 1941).
\5\ New York ex rel. Ray v. Martin, No. 45-158, U.S. Br. at 15 n.8
(1946).
\6\ 3 Op. Off. Legal Counsel 119.
\7\ See State v. Larson, 455 N.W.2d 600, 601 (S.D. 1990); Arizona
v. Flint, No. 88-603, Petition for Certiorari (U.S. 1989).
\8\ State v. Greenwalt, 663 P.2d 1178, 1183, 1184 (Mont. 1983)
(Harrison, J., dissenting).
To be sure, the U.S. Supreme Court in the context of other cases
had at times indicated that states might lack jurisdiction over non-
Indians who commit crimes against tribal members in Indian country. But
prior to Castro-Huerta, it had never squarely confronted the question,
and many of its decisions indicated the propriety of state jurisdiction
over these crimes. As the Supreme Court's opinion in Castro-Huerta
---------------------------------------------------------------------------
recounts:
In 1859, the Court stated: States retain ``the power of a
sovereign over their persons and property, so far as''
``necessary to preserve the peace of the Commonwealth.'' New
York ex rel. Cutler v. Dibble, 21 How. 366, 370, 16 L.Ed. 149
(1859).
In 1930: ``[R]eservations are part of the State within which
they lie and her laws, civil and criminal, have the same force
therein as elsewhere within her limits, save that they can have
only restricted application to the Indian wards.'' Surplus
Trading Co. v. Cook, 281 U.S. 647, 651, 50 S.Ct. 455, 74 L.Ed.
1091 (1930).
In 1946: ``[I]n the absence of a limiting treaty obligation or
congressional enactment each state ha[s] a right to exercise
jurisdiction over Indian reservations within its boundaries.''
New York ex rel. Ray v. Martin, 326 U.S. 496, 499, 66 S.Ct.
307, 90 L.Ed. 261 (1946).
In 1992: ``This Court's more recent cases have recognized the
rights of States, absent a congressional prohibition, to
exercise criminal (and, implicitly, civil) jurisdiction over
non-Indians located on reservation lands.'' County of Yakima v.
Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251,
257-258, 112 S.Ct. 683, 116 L.Ed.2d 687 (1992).
And as recently as 2001: ``State sovereignty does not end at a
reservation's border.'' Nevada v. Hicks, 533 U.S. 353, 361, 121
S.Ct. 2304, 150 L.Ed.2d 398 (2001).\9\
---------------------------------------------------------------------------
\9\ Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2493-94 (2022).
As the Supreme Court put it in 1882 when examining state
jurisdiction over a crime between two non-Indians committed on an
Indian reservation, when a state enters the Union, it ``has acquired
criminal jurisdiction over its own citizens and other [non-Indians]
throughout the whole of [its] territory.'' \10\ Reservations, as the
Supreme Court stated in 1962, are therefore ``part of the surrounding
State or Territory, and subject to its jurisdiction except as forbidden
by federal law.'' \11\
---------------------------------------------------------------------------
\10\ United States v. McBratney, 104 U.S. 621, 623-24 (1882).
\11\ Organized Vill. of Kake v. Egan, 369 U.S. 60, 73 (1962).
Much more could be said about why the decision in Castro-Huerta is
a logical continuation from prior precedent, not a radical and wholly
unreasoned departure from it. For that, I would refer the Subcommittee
to the Supreme Court's opinion in Castro-Huerta, as well as the briefs
I co-authored in the matter.\12\
---------------------------------------------------------------------------
\12\ See https://www.supremecourt.gov/DocketPDF/21/21-429/215115/
20220228123146151_21-429 _petbr.pdf.
(1b). Could you further expand beyond your written testimony, and
speak to how you have seen the McGirt and Castro-Huerta decisions play
---------------------------------------------------------------------------
out day-to-day in Oklahoma?
Answer. The unfortunate results of McGirt on criminal justice have
been all-too-real for the victims of crime. I have observed massive
decreases in state prosecutions without an equally corresponding
increase in tribal and federal prosecution. This is especially true
with respect to property crimes. For example, when I looked earlier
this year at federal prosecutions in the Eastern District of Oklahoma,
prior to the Castro-Huerta decision, I could not find a single instance
where the federal government had brought a case against a non-Indian
for automobile theft or larceny of a tribal member's property. Indeed,
essentially all prosecutions of non-Indians by the federal government
in the Eastern District involved either aggravated violence or crimes
against children. This means all other crimes against Indians by non-
Indians in that district--even violent ones--were going without
prosecution. And even for crimes that the federal government was
prosecuting, there were many instances of federal prosecutors offering
plea bargains for relatively short sentences, which is probably a
result of those prosecutors being overwhelmed with the volume of cases.
Only a few months have elapsed since Castro-Huerta was decided, and
because it only affects a subset of crimes impacted by McGirt, it will
not completely rectify the criminal justice consequences of McGirt. But
early results are promising. For example, for the third quarter of 2021
(after McGirt and the state court decisions implementing it), felony
prosecutions in Wagoner County dropped by more than 50% as compared to
the same period in 2019. But in that same period after Castro-Huerta
(the third quarter of 2022), felony prosecutions rose almost 25 percent
as compared to the same period in 2021. Put another way, about 20% of
the drop in state felony prosecutions caused by McGirt has been
restored by Castro-Huerta in that county.
______
Ms. Leger Fernandez. Thank you very much for your testimony
today. We will now go to Member questions. Reminding the
Members that Committee Rule 3(d) imposes a 5-minute limit on
questions. The Chair will now recognize Members for any
questions they may wish to ask the witness.
I will start by noting that votes have been called. Because
of the time that we have, we are hopeful that we will be able
to get through questions before we each have to go vote, but we
might do a little tag team. I will start by recognizing myself
for 5 minutes.
Ms. Nagle, you described in quite an impactful way, the
manner in which women and children and other persons have been
harmed and there haven't been prosecutions of them. We also
heard some very powerful testimony about others in Oklahoma who
might have not faced prosecution.
Can you describe how you believe coming up with a
congressional response to Castro-Huerta can address the issues
that you raised in your testimony? You're on mute. There we go.
Ms. Nagle. OK. One thing I just want to address very
quickly is that the NIWRC and Tribal Nations have been working
to protect Native victims long before July 9, 2020. Oklahoma's
profound professed commitment to safety for Native victims
really began on July 9, 2020, when they discovered that it
would serve their political interests in their attempt to
overturn McGirt to say they care about Native victims.
In the state of Oklahoma, organizations like Native
Americans Against Violence advocated for decades, begged the
state of Oklahoma to put Native women on state recognized
committees targeted to addressing domestic violence so that
they could have a say in how the state would disperse resources
or prosecute cases of violence against Native victims. And the
Attorney General and Governor for decades refused to put Native
women on those committees.
We have numerous examples in Oklahoma of Native victims not
receiving justice under state jurisdiction. And at the end of
the day, I am sure individual district attorneys can come up
with individual Native victims they have sought out and
convinced to say that they are pro-state jurisdiction and anti-
tribal jurisdiction.
But across all of Indian Country and all of the United
States, what the data shows, what we know to be true, is that
no one has a stronger interest in protecting Native victims
than Tribal Nations. And when it is left up to the state, sure,
you will find instances where one county attorney or district
attorney does prosecute that case. But by and large,
statistically, our Native victims are left without justice when
they are told go look for justice at the state. I could guess
as to the reasons, but I think at the end of the day, and I
know the Ranking Member asked a question earlier, it is hard to
fathom why a state wouldn't prosecute a crime against a Native
victim. I think it comes down to allocation of resources, and
it just hasn't been a significant priority. But it is a
priority for tribes.
And the public safety crisis post-McGirt was really the
fabrication of the failure and refusal of local county sheriffs
and attorneys to actually collaborate with attorney generals
like Geri Wisner, who is sitting here from Muskogee Creek
Nation or Sara Hill at Cherokee Nation. Our tribes stand ready
to prosecute these cases.
And one other thing I will just add, as the Supreme Court
held in the United States v. Cooley, it is a false narrative to
say that you can't investigate a crime that you see happening
because you might not have jurisdiction to prosecute.
As the Supreme Court reminded us in the United States v.
Cooley, all sovereigns have a right, if there is reasonable
suspicion that a crime is being committed, to detain. You may
not be the sovereign that can ultimately prosecute, but you can
intervene when a crime is being committed and then call the
feds, or the state, or the tribe, or whoever needs to be called
to address that crime.
So, a lot of the public safety crises that we are hearing
about are really just designed to serve a particular political
purpose.
Ms. Leger Fernandez. Thank you very much. I also wanted to
have a bit more testimony with regards to the concerns with how
this might overflow into civil jurisdiction. I believe I am
going to ask that of Ms. Bethany Berger. Can you discuss a bit
more about your concerns about whether even though this began--
and I think that this is the issue--this began in one
jurisdiction, but its implications across the country, across
all the many tribes in all of our states, is broader, so that
is what we are looking at. Ms. Berger, can you address why you
are concerned about that?
Ms. Berger. Sure. It has always been the understanding that
when the Federal Government comes in and asserts jurisdiction
to itself, that pre-empts state jurisdiction. In fact, that
understanding has been even broader that when the Federal
Government doesn't directly impose jurisdiction but acts in
appeal, that pre-empts state jurisdiction. That comes from that
old deadly enemy's relationship.
And what McGirt did is it said, contrary to what the
Supreme Court has always said, you have to expressly pre-empt
state jurisdiction. So, this allows, potentially--I hope not--
allows state jurisdiction over family law, over tax law, over
numerous fields, that has never been allowed.
Ms. Leger Fernandez. Thank you very much. Finally, I wanted
to also get more from Ms. Carole Goldberg about the Law and
Order Commission that you spoke much about, why you believe the
decision was wrong. But also you quickly touched on the fact
that your work on the Indian Law and Order Commission in some
ways sets the path to where we need to be headed.
I will leave that for answer to a written question and will
now recognize the Ranking Member for questions.
Mr. Obernolte. Thank you to all of our witnesses. It has
been a very interesting panel. Mr. Ballard, I am sure you were
listening during the previous panel. There were some pretty
emotional testimonies about cases where a declination of
prosecution had occurred in Indian Country and resulted in
denial of justice to victims.
Do you believe that non-prosecution of cases with Native
American victims is a widespread issue?
Mr. Ballard. I can speak to my district, and I can tell you
that prosecution of cases and standing up for victims is
something that I feel very passionately about. These are our
Native American victims. They are members of my community. I
have three nieces who are Native American. We live together. We
work together. We worship together. And at the end of the day,
I feel very passionately that we seek justice for every victim.
And, no, I don't believe that it is widespread. I believe
that in my office, we absolutely seek justice for every victim.
I can tell you it was devastating to my staff to be told that
we couldn't prosecute cases. And the cases that we believed in,
that we had built relationships with victims, that we had
persuaded victims to trust us, to come forward with horrible
stories, and place that trust in us, it was so very difficult
to see those cases dismissed.
Mr. Obernolte. Well, thank you very much for your passion.
Mr. Mansinghani, something that you said in your oral testimony
really stuck out to me. You were talking about how allowing
states' jurisdiction to prosecute crimes committed in Indian
Country provided, I think your exact words were, a dual layer
of protection for victims.
But there were multiple members of the previous panel who
had exactly the opposite opinion that said that, with so many
different agencies having jurisdiction, that crimes could fall
through the cracks.
So, I wanted to give you an opportunity to expand on your
opinion that the dual layer of protection idea is the correct
one.
Mr. Mansinghani. Sure. And I think we heard from the
Department of the Interior Representative that the Federal
Government will, in fact, not be pulling back resources. So, I
think we can be confident in that dual layer of protection.
And to the extent that there are states out there that
don't want to exercise this authority, then nothing changes.
Because the Federal Government continues to have jurisdiction
under Castro-Huerta, and this wouldn't increase any public
safety problems.
I think the idea that if there is another sovereign that
can prosecute, that only complicates and makes things worse, is
not the right one. And we know that including from the tribal
perspective. When the tribal governments were given
jurisdiction under the Violence Against Women Act statutes,
they were given it concurrently with the Federal Government.
But nobody was arguing that that would make Indian victims
less safe because now there is a second sovereign that can
prosecute. It was always argued that it would make Indian
victims more safe. So, I think that belies the assertion that
whenever you add another sovereign, it just makes things worse,
not better.
Mr. Obernolte. All right. Thank you. Well, I want to thank
all of our witnesses. This has been an incredibly informative
hearing. Hopefully, this is the first of several hearings that
we will conduct as we try to craft a solution to this issue.
But I want to thank everyone for focusing on the need to
provide this justice and the need to provide resolution to
victims and their families. I think that that should be our
guiding principle. Thank you, Madam Chair. I yield back.
Ms. Leger Fernandez. Thank you, Ranking Member. The Chair
will now recognize the gentleperson from Guam, Representative
San Nicolas.
Mr. San Nicolas. Thank you so much, Madam Chair. I
apologize for my tardy presence in the hearing. I had the
original scheduling for 1 p.m. on my calendar. I didn't realize
that it was moved to 11 a.m. I will definitely be catching up
on the transcriptions of the previous testimony.
But I was able to dial in just in time to listen to Mr.
Mansinghani and the case he was making for somehow dual
sovereignty in a judicial system being a good thing.
I really can't see how that makes much sense. It is like
saying that having a plethora of authority to be able to
determine a judicial process is somehow something that is going
to be better for the process.
And, really, when you are talking about due process, and
when you are talking about the sovereignty of the Tribal
Nations, you really cannot serve two masters, and you cannot
have two systems that claim to be espousing one form of
justice.
We need to, in my opinion, Madam Chair, respect the
history, respect the trajectory, and respect the sovereignty of
the Tribal Nations and what we have extended to them over the
years.
I believe that the ruling of the Supreme Court to allow for
states to also be able to interject into the need for judicial
proceedings in the face of tribal sovereignty, I think is just
something that is incompatible with the word sovereignty.
So, I would very much like to familiarize myself more with
the testimony that I was unfortunately unable to capture
earlier. But I will go ahead and yield my time back to you,
Madam Chair, if there was anything you wanted to elaborate,
based on any of the sentiments I have shared.
Ms. Leger Fernandez. Thank you very much for your comments
and your apt description of multiple masters. I am concerned
about issues where you have overlapping jurisdiction. We are
all, I think, very comfortable with the Federal-state or
Federal-tribal relations.
I will say I have worked in tribal-state relations for 30
years. And whenever you have dual taxation, it is an area that
we worked in a lot. Because it doesn't work when you have
overlapping jurisdictions that are not Federal, at the Federal
level, Federal-tribal. So, I think that that is one of the
concerns that we will be addressing.
We also, I think, statistically, know that the issue of
Murdered and Missing Indigenous Women and People is precisely
because of the fact that there hasn't been clear jurisdiction
and the ability of the tribes to prosecute, so these are
issues.
I really do want to thank our two witnesses for the
perspective that they gave which was important for us to hear.
I thank you very much for that. I thank you for your commitment
to the victims of crime in your jurisdiction and your
dedication to them.
With that, we are at the end of our hearing. Are there any
other--OK, great. Not great, because we have to go vote, but
that we actually were able to do this. We thought it was
important that we have our hearing on this decision. That we
move forward because it does have such great implications. And
we have a very long series of votes this afternoon.
As I stated before, the members of the Committee may have
some additional questions for the witnesses, and we will ask
you to respond to those in writing. Under Committee Rule 3(o),
members of the Committee must submit witness questions within 3
business days following the hearing, and the hearing record
will be held open for 10 business days for these responses.
If there is no further business, without objection, the
Subcommittee stands adjourned.
[Whereupon, at 1:18 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Prepared Statement of the Hon. Raul M. Grijalva, Chair, Committee on
Natural Resources
Good afternoon. I would like to thank the witnesses and the
Assistant Secretary for being here. I think this is an important issue
that we will be discussing today and I thank the Chair for holding this
timely and important hearing.
Protecting and upholding tribal sovereignty has always been the
policy of this Committee, and like most I am concerned about the legal
reasoning and disregard of legal precedent behind the Castro-Huerta
ruling and its implications for Indian Country.
As many of you know, tribal criminal jurisdictions were initially
diminished decades ago under the Court's Oliphant ruling--when the
Court found that tribes do not have inherent criminal jurisdiction over
non-Indians.
The Oliphant ruling led to fearmongering that framed tribal lands
as lawless zones where only the Federal Government could maintain
order. This ruling also diminished tribal sovereignty.
Since the Oliphant ruling, the Federal Government has consistently
failed to provide adequate public safety resources and funding to
tribal communities. Further, the Federal Government has consistently
failed to prosecute offenses committed against Native victims.
The Federal Government's failure to prosecute has resulted in mass
public safety crises like the Murdered and Missing Indigenous Peoples
(MMIP).
One thing's clear: tribes care most about the safety and well-being
of their communities. Therefore, tribal governments should have the
complete authority to investigate and prosecute crimes committed
against their citizens.
In the last two reauthorizations of the Violence Against Women Act
(VAWA) this intent was embedded with the inclusion of tribal elders and
children. The passage of the 2016 VAWA and 2022 VAWA clarified some
aspects of the Oliphant ruling and it also gave tribal governments the
authority to better respond to domestic violence incidents.
The Castro-Huerta ruling ignores the intent of tribal sovereignty,
as well as centuries of legal precedent, by determining that State
authorities hold concurrent jurisdiction over major crimes committed in
Indian Country.
This ruling's impact will impact all 574 tribes and states, so I
think it's important that we hear from everyone today about what those
impacts might look like for all individual tribal governments.
Since the Administration is here, I also hope to hear what plans
are in place for coordination between the Departments of the Interior
and the Department of Justice, who have the most influence over these
topics in Indian Country.
I also want to note that the Supreme Court's ignorance of the legal
precedent, established at the founding of this country, related to
Federal Indian law is troublesome and I hope that we can hear from
everyone today about the vast impact of that ignorance.
Thank you again to our witnesses, I look forward to today's
discussion.
______
Statement for the Record
Chickasaw Nation
[Senior Counsel Stephen Greetham]
Chairwoman Leger Fernandez, Vice Ranking Member Obernolte, and
honorable members of the Subcommittee, on behalf of the Chickasaw
Nation, thank you for this opportunity to offer comments for the record
in the Subcommittee's September 20, 2022, hearing on the U.S. Supreme
Court's decision in Oklahoma v. Castro-Huerta.\1\ The Chickasaw Nation
does not support calls for rushed legislative action at this time and
instead suggests a more deliberative approach.
---------------------------------------------------------------------------
\1\ 142 U.S. 2486 (2022).
---------------------------------------------------------------------------
The Chickasaw Nation is one of six Native nations in Oklahoma whose
treaty territories have been judicially affirmed as reservations
following the Court's ruling in McGirt v. Oklahoma.\2\ While we view
the McGirt ruling itself as representing the Court's unremarkable
adherence to precedent and doctrine,\3\ its impact has been nonetheless
remarkable: To put it in the most easily quantifiable terms, our
criminal justice duties expanded from approximately 3% of our land base
to 100%, which presented understandable challenges. We have responded
by growing our policing, prosecuting, and court infrastructure and
enhancing our victim services programming, which has enabled our system
to expand from previously handling only seventy-five criminal cases
annually to now take care of more than 2,500 each year. We are proud of
our work, all of which we have so far accomplished without yet
receiving additional federal funding--though we look forward to the
Administration's distribution of Congress's recent McGirt-related
appropriations.
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\2\ 140 S. Ct. 2452 (2020).
\3\ E.g., Prof. Greg Ablavsky, McGirt: Gorsuch Affirms ``Rule of
Law,'' Not ``Rule of the Strong,'' In Key Federal Indian Law Decision
(Jul. 10, 2020), https://law.stanford.edu/2020/07/10/mcgirt-gorsuch-
affirms-rule-of-law-not-rule-of-the-strong-in-key-federal-indian-law-
decision/.
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To be clear, though: We do not do our work alone. We have built a
broad network of more than seventy cross-deputation and similar
agreements with non-Tribal agencies, partners with whom we work every
day. Along with our regular cross-jurisdictional outreach, the Eastern
and Western District U.S. Attorneys recently joined us to co-host a
plenary public safety summit, which brought together nearly 100 tribal,
state, and federal police, prosecutors, and other officials under the
aegis of our shared mission.\4\ Contrary to stories some have told to
allege jurisdictional chaos, this collaborative work has a real and
positive impact on the public's safety. For example, more than two-
thirds of the criminal cases prosecuted by the Chickasaw Nation Office
of Tribal Justice Administration are referred to us by non-Chickasaw
law enforcement departments. Likewise, approximately two-thirds of the
charges developed by Chickasaw Nation Lighthorse Police are referred to
non-Chickasaw prosecution agencies. While not everyone yet cooperates
fully, the overwhelming and growing majority do, which is where we
concentrate our attentions, efforts, and resources. This is how things
should work, even when the unexpected arises.
---------------------------------------------------------------------------
\4\ U.S. Dep't of Justice, Chickasaw Nation and United States
Attorneys for the Western and Eastern Districts of Oklahoma Co-Host
Public Safety Summit (September 8, 2022), https://www.justice.gov/usao-
wdok/pr/chickasaw-nation-and-united-states-attorneys-western-and-
eastern-districts-oklahoma-co.
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Our latest unexpected development came on June 29, 2022, when the
U.S. Supreme Court decided Castro-Huerta and held Oklahoma has
jurisdiction over non-Indians accused of committing state law crimes
against Indians in the Cherokee Nation. Working with a spirit of
progressive self-reliance and cooperation (on which the McGirt Court
had earlier remarked \5\) the Chickasaw Nation previously called for
federal law reforms to empower our negotiation of intergovernmental
criminal jurisdiction agreements.\6\ Had Congress advanced that
measure, we could today be implementing systems of comparable practical
affect (e.g., increasing Oklahoma's role in on-reservation law
enforcement) through the more appropriate and nuanced tool of exercised
Tribal self-determination and collaboration. Had Congress acted on that
measure we may even have avoided the Court's taking up Castro-Huerta in
the first instance--a case arising within the Cherokee Nation, a Native
sovereign who also supported H.R. 3091.\7\ Instead, the Court took
charge and broke with a long line of prior congressional action,
judicial analyses, and law enforcement practice to flip basic
principles of federal Indian law on their head. In doing so, the Court
produced a ruling that, regardless of its holding, pioneers a novel and
disruptive approach to Indian law that disregards the criticality of
Native sovereignty and Congress's established role in Tribal affairs.
If left to lay as a radical pathmarker in this area of the law, the
Castro-Huerta decision poses real risks to federal interests and Native
sovereignty by upending established and nationally applicable
understandings of the law and replacing them with new doctrinal
uncertainties. This is not how things should work.
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\5\ 140 S. Ct. at 2481 (``With the passage of time, Oklahoma and
its Tribes have proven they can work successfully together as
partners.'').
\6\ See H.R. 3901, Cherokee Nation and Chickasaw Nation Criminal
Justice Compacting Act of 2021, 117th Cong., https://www.Congress.gov/
bill/117th-congress/house-bill/3091. E.g., Chris Casteel, Cherokee,
Chickasaw Leaders Endorse Criminal Jurisdiction Bill in Congress (May
10, 2021), https://www.oklahoman.com/story/news/2021/05/10/chickasaw-
cherokee-nation-leaders-endorse-criminal-jurisdiction-bill-congress-
mcgirt/5023678001/.
\7\ See supra at n.6.
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Aspects of the Court's ruling are of course self-limiting. For
example, the Court did not disturb existing federal or tribal
jurisdiction, and it disclaimed impact on tribal rights to self-
government. Likewise, the ruling emphasizes the Court's belief that the
McGirt ruling had destabilized reservation criminal justice in eastern
Oklahoma, which highlights alleged factual grounds that should limit
the ruling's application--particularly since those grounds are directly
challenged as unfounded.\8\ Encouragingly and with a truer adherence to
established law, federal courts are limiting the decision's fallout,\9\
and for our part, the Chickasaw Nation is committed to advocacy aimed
at further constraining and mitigating its reach, even revisiting our
own prior legislative proposal in light of this Court's new legal
analysis.
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\8\ E.g., Rebecca Nagle & Allison Herrera, Where is Oklahoma
Getting its Numbers in its Supreme Court Case? (April 26, 2022),
https://www.theatlantic.com/ideas/archive/2022/04/scotus-oklahoma-
castro-huerta-inaccurate-prosecution-data/629674/).
\9\ E.g., Lac Courte Oreilles Band of Lake Superior Chippewa
Indians, et al. v. Evers, at al., No. 21-1817 (7th Cir. Aug. 15, 2022)
(rejecting Castro-Huerta in federal Indian tax law dispute).
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Others have called for more and insisted Congress must act now to
enact policies recommended in the 2013 report of the Tribal Law and
Order Commission.\10\ We have listened closely to those calls and
engaged with several of the advocates for immediate action. However, we
cannot join those calls at this time. While we believe lifting Tribal
court sentencing limitations or implementing Tribal self-determination
policies akin to what we called for in H.R. 3091 are appropriate and
necessary, we believe a rush to act without a proper understanding of
how an enactment might be construed by this Court would only risk
elevating new constitutional conflicts for this Court to control.
Respectfully, such action would be unwise, if not downright reckless.
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\10\ Indian Law & Order Comm'n, A Roadmap for Making Native America
Safer: Report to the President & Congress of the United States
(November 2013), https://www.aisc.ucla.edu/iloc/report/files/
A_Roadmap_For_Making_Native_America_Safer-Full.pdf.
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In considering what policy actions to take, Congress must now
wrestle with questions the Tribal Law and Order Commission did not need
to address a decade ago. For example, Congress must now consider how
legislation it enacts will be affected by this Court's apparent view
that states possess an inherent, robust, and constitutionally based
jurisdiction in Indian country.\11\ Likewise, Congress must now address
the Court's conclusion that a state's exercise of on-reservation
jurisdiction over non-Native persons victimizing Natives does not
implicate Tribal rights to self-government or federal interests \12\--
an incredible proposition given the scourge such violence poses for
Indigenous communities and Congress's already extensive legislation on
the subject. On these points and others, the Castro-Huerta majority
broke with established understandings of the law and burdened any work
Congress may now take up. To renew calls for rushing enactment of the
Tribal Law and Order Commission's recommendations in the wake of this
ruling without further consideration of the ruling's implications for
those recommendations is to confuse a goal with the means for achieving
it. We cannot support such an effort.
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\11\ E.g., 142 S. Ct. at 2502 (``Under the Constitution, States
have jurisdiction to prosecute crimes within their territory except
when preempted (in a manner consistent with the Constitution) by
federal law or by principles of tribal self-government.'')
\12\ E.g., 142 S. Ct. at 2501.
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Additionally, while we appreciate the dissent's robust advocacy for
Tribal self-determination, we cannot support its call to amend Public
Law 280.\13\ To be clear: That statute merely continues a Termination
Era undermining of Tribal sovereignty that explicitly bypasses the very
mechanisms of self-government Native peoples have worked for
generations to rebuild.\14\ Public Law 280's provision for Native
approval does not provide for real ``consent'' but is, instead, an
example of the sort of federal paternalism in Tribal affairs that
should be rejected in favor of actual government-to-government
engagements. The Chickasaw Nation has built and operates its own
institutions of government in accord with a constitution its people
first formed in 1850 and then substantially reformed and revised in
1983 after intense internal deliberation. Our criticism and rejection
of Public Law 280's archaic approach to Indigenous consent arises from
our commitment to the Chickasaw Nation's sovereignty and systems of
self-determination. This commitment shaped our call for the approach
taken in H.R. 3091, and it has not changed, notwithstanding the Castro-
Huerta dissenters' endorsement of using Public Law 280 as a legislative
vehicle. What is more, even if H.R. 3091--our own policy proposal--were
suggested for action at this time, we would still call for its careful
evaluation with regard for the Castro-Huerta Court's statements on
state and congressional Indian country authorities.
---------------------------------------------------------------------------
\13\ Castro-Huerta, 142 S. Ct. at 2527 (Gorsuch, J., dissenting)
(``Nor must Congress stand by as this Court sows needless confusion
across the country. Even the Court acknowledges that Congress can undo
its decision and preempt state authority at any time. And Congress
could do exactly that with a simple amendment to Public Law 280.''
(Internal cross-reference omitted.)).
\14\ 25 U.S.C. Sec. 1326 (providing for measuring Tribal consent
through Dep't of the Interior administered vote of the community's
members or citizens, rather than through the communities own mechanisms
for decision making). E.g., Carole Goldberg, The Perils and
Possibilities of Employing Public Law 280 in Oklahoma 15 (2020)
(``Native Nations in Oklahoma should approach Public Law 280 with great
caution. The consent feature bypasses tribal governments in favor of
direct vote by the tribal electorate, which could be viewed as a
challenge to tribal sovereignty.''), https://drive.google.com/file/d/
13qLPPmKpiLL6SMwxBmXPB6RDXr7kJd7E/view. See also Stephen H. Greetham,
Lessons Learned, Lessons Forgotten: A Tribal Practitioner's Reading of
McGirt and Thoughts on the Road Ahead, 57 Tulsa L. Rev. 613, 658-69
(2022), https://digitalcommons.law.utulsa.edu/tlr/vol57/iss3/7/.
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Indian country deserves Congress's attention and supportive action,
but it deserves supportive action designed to last. We believe Congress
should act, one, with the assumption its enactments will produce
litigation that will end up before this Court and, two, in a manner
engineered to give its enactments the best chance to be affirmed. In
that spirit, we call on our trustee to abide its fiduciary duties and
work closely with us to protect our sovereignty but to do so by: first,
more adequately funding its Indian country law enforcement obligations,
including support for Tribal criminal justice systems; second, working
with us to limit this aberrational decision's fallout in the lower
courts and to build a legal test case and/or legislation that will
serve Indian country's needs; and finally, acting with circumspection
and a commitment to avoid putting those needs in further jeopardy. We
would welcome the opportunity to work with you to such end.
Castro-Huerta is an unfortunate ruling. It nonetheless represents
this new and relatively young Supreme Court majority's current approach
on matters of Indian law, sovereignty, and the U.S. Constitution. As
such, it must be taken seriously. It must be studied and acted upon
deliberately and in a manner designed to contain it before it more
broadly destabilizes federal interests and inherent Tribal rights. We
believe this goal would not be achieved by a rush to enact the general
policies so far proposed.
______
Choctaw Nation of Oklahoma
Durant, OK
September 22, 2022
Hon. Teresa Leger-Fernandez, Chairwoman
Hon. Jay Obernolte, Ranking Member
Natural Resources Committee
U.S. House of Representatives
Washington, DC 20515
Re: Comment for the Record of September 20, 2022, Castro-Huerta
Oversight Hearing
Dear Chairwoman Leger-Fernandez and Ranking Member Obernolte:
On behalf of the Choctaw Nation of Oklahoma (the ``Nation'') and
the people of our Reservation, I want to thank you for holding such an
important hearing. Unfortunately, I write to you today to express
concern regarding comments made by some witnesses during the September
20, 2022, oversight hearing titled, ``Examining Oklahoma v. Castro-
Huerta: The Implications of the Supreme Court's Ruling on Tribal
Sovereignty.'' While such hearings often elicit diverse viewpoints, I
believe it is prudent to respond when some statements on the record
perpetuate half-truths and misstatements of law and fact.
Some witnesses alluded to reports of public safety chaos in
Oklahoma following the Supreme Court decision in McGirt v. Oklahoma and
subsequent court cases reaffirming the reservations of each of the Five
Tribes and the Quapaw Nation. These reports were and are false. The day
the Oklahoma Court of Criminal Appeals agreed that the Reservation of
the Choctaw Nation had never been disestablished by Congress, the
Choctaw Nation was prepared to file and did file, every case that was
eligible for prosecution under the laws of the Choctaw Nation. In fact,
not one single inmate for a crime arising within the Choctaw
Reservation left custody. The Nation did and is still doing everything
in its power to provide adequate public safety for not only our tribal
members but for all those who live within our Reservation.
The Choctaw Nation cannot control what the U.S. DOJ does, nor could
we control how it responded after the McGirt decision. The U.S. DOJ is
understaffed and underfunded to perform the job necessary. Even still,
we refuse to allow the U.S. DOJ to shirk its federal responsibility,
and we are actively working to hold them accountable. This is yet
another reason why Congress should empower tribal governments on the
ground and restore federal recognition of tribal public safety
jurisdiction on tribal reservations.
During the hearing, Matthew Ballard, District Attorney for Oklahoma
District 12, made the claimed that prior to Castro-Huerta, Native
victims were not receiving proper justice in Oklahoma, because the
State could not prosecute their perpetrators. He also said that cross-
deputized officials could not investigate crime scenes when they
arrived. Regarding the first claim, we agree that in some cases, Native
victims do not receive justice. Unfortunately, while this has been an
issue for decades, it is due to no fault of the tribes. By and large,
repairing the perceived inability of Tribal Nations to effectively
pursue and punish those--Native and non-Native alike--who seek to harm
tribal members within their reservation boundaries lies at the feet of
Congress.
The second point made by Mr. Ballard is false. If the State truly
cared about victims, it would investigate the situation first and then
sort out questions of prosecutorial jurisdiction later. That is exactly
how the process works in many other states. Federal courts have held,
including the recent decision by the U.S. Supreme Court in United
States v. Cooley, that responding agencies can temporarily detain
suspects, investigate, and collect evidence of crimes, regardless of
whether they end up concluding they have authority to prosecute the
perpetrator. The incident cited by Mr. Ballard is disingenuous because
he failed to mention the most crucial fact--federal courts had already
ruled on the matter. Does this Subcommittee truly believe the Cherokee
Nation--a Nation with a large and capable police force--would
purposefully refuse to support county officers investigating an assault
on a tribal member? The answer is simple and spinning up a narrative to
the contrary is deceitful. Both before and after Castro-Huerta, the
Choctaw Nation, and other tribal governments have worked effectively
with the State through the utilization of cross-deputization
agreements. Certain State official's continued narrative of division,
chaos; and uncertainty in Eastern Oklahoma only pumps oxygen into the
flame of anti-tribal sovereignty sentiment. This is something we cannot
accept. Fortunately, Indian Country knows the solution, and we will
continue to urge Members of Congress to clarify federal law before the
State of Oklahoma succeeds in completely obliterating tribal
sovereignty through false fear-mongering.
To that point, many tribes retain treaty rights which the U.S.
Constitution requires be honored as the supreme law of the land. During
the hearing, Kevin Killer, President of the Oglala Sioux Tribe,
mentioned its treaties with language providing for their exercise of
criminal jurisdiction over non-Indians. Likewise, the Choctaw Nation
has similar treaty provisions. The most recent treaty the Choctaw
Nation signed with the United States reads as follows:
Every white person who is married a Choctaw or Chickasaw,
resides in the Choctaw or Chickasaw Nation, or has been adopted
by the legislative authorities of either nation, is subject to
the laws of the Choctaw and Chickasaw Nations and may be
prosecuted, tried, and punished as though he were a native
Choctaw or Chickasaw.
In the 5-4 Castro-Huerta decision, the Supreme Court not only
erroneously interpreted numerous statutes crucial to criminal
jurisdiction within Indian Country, but it also committed an egregious
overreach when it decided to legislate tribal affairs from the bench.
Congress must reclaim its constitutional plenary power over tribal
affairs and legislate a correction right away. The complete
jurisdiction of tribal governments must be restored to ensure we can
prosecute all persons committing crimes on our Reservation, thus
bringing an end to this ridiculous and unprecedented checkerboard
jurisdictional scheme patched together by the 5-4 Castro-Huerta
majority. Tribal governments are not asking for anything new, nor are
we asking for an expansion of tribal sovereignty or authority. We are
simply asking Congress to clarify federal law so that tribal authority
is recognized in federal law as being restored. In other words, we are
asking for the United States to honor and uphold its trust and treaty
obligation to Tribal Nations.
During times such as these, I am reminded of the verse in 2nd
Timothy 1:7, ``for God has not given us a spirit of fear, but of power
and of love and of a sound mind.'' While my strong faith tells me not
to entertain a spirit of fear, it is difficult to ignore the adverse
and consequential fates that will befall Tribal Nations if Congress
fails to act to correct the misguided and unprecedented 5-4 majority
opinion in Castro-Huerta. It is my sincere hope that Congress will live
up to its constitutional responsibilities, under the watchful eye of
history, and fortify the recognition in federal law of tribal
sovereignty, self-governance, and self-determination, all of which are
at risk of being dismantled following this erroneous ruling in Castro-
Huerta. Please, heed the advice of Justice Gorsuch in his dissent in
Castro-Huerta, and do the right thing by moving swiftly to protect the
Choctaw Nation and all other Tribal Nations.
Sincerely,
Gary Batton,
Chief
______
Statement for the Record
Department of Justice
Thank you for the opportunity to submit this Statement for the
Record in support of the September 20, 2022 oversight hearing entitled
``Examining Oklahoma v. Castro-Huerta: The Implications of the Supreme
Court's Ruling on Tribal Sovereignty.''
BACKGROUND
As stated in President Biden's January 2021 Memorandum on Tribal
Consultation and Strengthening Nation-to-Nation Relationships,\1\
``American Indian and Alaska Native Tribal Nations are sovereign
governments recognized under the Constitution of the United States,
treaties, statutes, Executive Orders, and court decisions. It is a
priority of my Administration to make respect for Tribal sovereignty
and self-governance, [and] commitment to fulfilling Federal trust and
treaty responsibilities to Tribal Nations . . . cornerstones of Federal
Indian policy.'' These are precisely the foundational principles that
have long guided the Department of Justice's efforts to promote public
safety in Tribal communities. The Department remains steadfastly
committed to furthering our government-to-government relationship with
each Tribe and to respecting and supporting Tribes' authority to
exercise their inherent sovereign powers, including powers over both
their citizens and their territory.\2\
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\1\ https://www.whitehouse.gov/briefing-room/presidential-actions/
2021/01/26/memorandum-on-tribal-consultation-and-strengthening-nation-
to-nation-relationships/.
\2\ https://www.govinfo.gov/content/pkg/FR-2014-12-12/pdf/2014-
28903.pdf.
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The Supreme Court ruling in Oklahoma v. Castro-Huerta that the
States have jurisdiction over crimes by non-Indians against Indians
without express Congressional authority corrodes the fundamental
sovereign right of Tribes to determine the appropriate means for
securing the public safety for their people and to govern their lands.
It may also confuse an already complex jurisdictional scheme and
significantly increase the potential for conflict between sovereigns,
which could render more complicated each sovereigns' ability to keep
the peace and protect the inhabitants of Indian country.
SUPREME COURT DECISION IN OKLAHOMA V. CASTRO-HUERTA
The State of Oklahoma charged Victor Manuel Castro-Huerta, a non-
Indian living on the Cherokee Nation reservation in Oklahoma with
criminal child neglect. The victim was a member of the Eastern Band of
Cherokee Indians. After his conviction in state court, Castro-Huerta
appealed the decision, and while his appeal was pending the Supreme
Court decided McGirt v. Oklahoma.\3\ In McGirt, the Supreme Court held
that Congress did not disestablish the Muscogee Creek Nation
reservation in eastern Oklahoma when Oklahoma became a State. As a
result, the Muscogee Creek Nation reservation remained Indian country,
and the United States had jurisdiction over crimes committed there by
Indians under the Major Crimes Act, 18 U.S.C. Sec. 1153, even on non-
Indian lands. Based on the McGirt decision, the Oklahoma Court of
Criminal Appeals (``OCCA'') later concluded that due to its similar
history the Cherokee Nation reservation also remained intact.\4\
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\3\ 140 S. Ct. 2452 (2020).
\4\ State ex rel. Matloff v. Wallace, 2021 OK CR 21, para. 15, 497
P.3d 686, 689.
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In the wake of McGirt, Castro-Huerta challenged his state
conviction asserting that the State of Oklahoma lacked criminal
jurisdiction to prosecute him. The OCCA agreed.\5\ The state sought
certiorari arguing that it had inherent jurisdiction to prosecute non-
Indians who commit crimes against Indians in Indian country.
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\5\ Castro-Huerta v. State, No. F-2017-1203 (Apr. 29, 2021).
---------------------------------------------------------------------------
The Supreme Court granted certiorari. The United States filed an
amicus brief in support of Castro-Huerta and participated at oral
argument. The United States, as well as Castro-Huerta, argued that
under the General Crimes Act, 18 U.S.C. 1151, the historical context of
its enactment, and numerous Supreme Court decisions construing that
provision, federal jurisdiction is exclusive of state jurisdiction in
Indian country over crimes committed against Indians unless Congress
has granted the State such jurisdiction by statute. This argument
followed the principle that absent authority conferred by Congress,
States only have criminal jurisdiction over crimes committed by non-
Indians against non-Indians or victimless crimes committed by non-
Indians in Indian country.\6\
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\6\ United States v. McBratney, 104 U.S. 621 (1881).
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The Supreme Court held in Oklahoma's favor that States have certain
inherent authority over the Indian country within their borders and
that the General Crimes Act does not preempt state authority to
prosecute non-Indians who commit crimes against Indians in Indian
country. As a result, the decision has upended the settled
understanding that states lacked such criminal prosecutorial authority
in Indian country.\7\ Under this ruling, States now possess criminal
authority in Indian country when the perpetrator is non-Indian.
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\7\ Worcester v. Georgia, 31 U.S. 515 (1832).
---------------------------------------------------------------------------
The Castro-Huerta decision is already the subject of public
criticism by both Tribal government leaders and by legal scholars.\8\
While Castro-Huerta is a criminal case involving a non-Indian
defendant, States may argue that it has broader implications.
---------------------------------------------------------------------------
\8\ The Supreme Court previously held that state criminal law does
not apply in Indian country, Worcester v. Georgia, 31 US 515 (1832).
However, Congress, exercising its plenary power over Indian affairs,
can confer criminal jurisdiction on states and on occasion has done so
via legislative enactment. The Supreme Court has held that states have
criminal jurisdiction over crimes committed by non-Indians against non-
Indian victims in Indian country; US v. McBratney, 104 US 621 (1881);
Draper v. US, 164 US 240 (1896). Crimes by or against Indians are
subject to federal and/or tribal jurisdiction. Prior to the Castro-
Huerta decision, the presumption was that states possessed no criminal
jurisdiction over crimes committed by or against Indians unless
Congress conferred such authority upon a state. In Castro-Huerta, the
Supreme Court changed that analysis with respect to crimes committed by
non-Indians against Indians.
---------------------------------------------------------------------------
TRIBAL RESPONSE
The Departments of Justice and the Interior held joint listening
sessions on September 26-27, 2022, to discuss with Tribal
representatives the implications of this decision and the impact on
Tribal communities. More than 500 people participated in these
discussions, the majority of whom participated on behalf of a Tribe.
The Departments are still receiving written comments and processing
feedback received during these listening sessions.
Several clear themes have emerged from our discussions and in
analyzing written comments received thus far:
1. This decision was characterized as an attack on Tribal
sovereignty by Tribes and Tribal advocates that
participated in the discussions or submitted written
comments.
2. Participating Tribes and Tribal advocates expressed immediate
concerns about the confusion that this decision injects
into an already complex jurisdictional and operational
landscape.
3. Participating Tribes and Tribal advocates also expressed
significant concerns about the long-term implications of
this decision, and have already seen signs that some States
will rely on this decision to interfere in Tribal
operations and functions outside of criminal jurisdiction.
4. Although there appears to be some difference in opinion on ideal
timing and scope, the participating Tribes and Tribal
advocates called for a legislative fix.
5. Participating Tribes and Tribal advocates also called for
guidance from federal agencies clarifying relevant
processes and protocols post-Castro Huerta.
NEXT STEPS
The Departments of Justice and the Interior will continue to
coordinate as we receive written comments and evaluate the need to
clarify or adjust our respective agencies' policies or operations. The
Department of Justice will continue to seek formal and informal input
from Tribes as we strive to meet the public safety needs of our Tribal
partners and honor our treaty and trust responsibilities.
CONCLUSION
The Supreme Court decision in Oklahoma v. Castro-Huerta upends
important consistent jurisdictional understandings and the operational
status quo across Indian country. Some of the most vulnerable and
historically underserved citizens of this country may be impacted while
law enforcement and justice systems adjust to align with the new
jurisdictional reality imposed by the Supreme Court.
This decision, however, does not erode the Department of Justice's
commitment to our mission to uphold the rule of law, keep our country
safe, and to protect civil rights. Nor does this decision erode our
commitment to honor our treaty and trust responsibilities, to promote
public safety in Native communities, and to respect and support Tribes'
authority to exercise their inherent sovereign powers.
______
Statement for the Record
United Keetoowah Band of Cherokee Indians in Oklahoma
By Chief Joe Bunch
Chairwoman Leger Fernandez, Ranking Member Obernolte, and honorable
members of the Subcommittee, on behalf of the United Keetoowah Band of
Cherokee Indians in Oklahoma, I thank you for this opportunity to
submit this statement for the record in the Subcommittee's September
20, 2022 hearing regarding the recent Supreme Court decision in
Oklahoma v. Castro-Huerta.1
The United Keetoowah Band of Cherokee Indians in Oklahoma, a
federally recognized Tribe located on the Cherokee Reservation in
Oklahoma, is a successor-in-interest to the historic Cherokee Nation,
the body politic who entered into the treaties establishing the
Oklahoma Cherokee Reservation and accordingly, possesses jurisdiction
on the Cherokee Reservation in Oklahoma. While the Subcommittee
received testimony from Sara Hill, Attorney General of the Cherokee
Nation of Oklahoma, regarding the impacts of McGirt v.
Oklahoma,2 the Subcommittee must be aware that the Cherokee
Reservation in Oklahoma belongs not only to the Cherokee Nation of
Oklahoma but also equally to the United Keetoowah Band of Cherokee
Indians in Oklahoma. While we do not disagree with Ms. Hill's testimony
regarding the plight of tribal law enforcement and judicial programs on
the Cherokee Reservation resulting from McGirt and Castro-Huerta and
while we do not disagree that legislation is necessary to restore and
protect tribal sovereignty of all Tribes, we assert that any
legislation must be deliberate and recognize and respect the tribal
sovereignty of the United Keetoowah Band of Cherokee Indians in
Oklahoma and must not diminish or impair our inherent authority on the
Cherokee Reservation in Oklahoma.
Additionally, as a Tribe who is affected and impacted by the McGirt
and Castro-Huerta decisions, it is imperative that the United Keetoowah
Band of Cherokee Indians in Oklahoma be adequately included in the
Bureau of Indian Affairs' distribution of the $62m enacted funding for
such affected and impacted Tribes.
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Statement for the Record
Ute Indian Tribe of the Uintah and Ouray Reservation
Chair Leger Fernandez, Acting Ranking Member Obernolte and Members
of the Subcommittee, the Ute Indian Tribe of the Uintah and Ouray
Reservation appreciates the opportunity to provide this testimony on
``Examining Oklahoma v. Castro-Huerta: The Implications of the Supreme
Court's Ruling on Tribal Sovereignty.'' The decision is a clear attempt
by an activist Court to rewrite the Constitution and hundreds of years
of Congressional acts and Court precedent. The Court's decision flips
this history, laws, and the United States relationship to Indian tribes
on its head.
Congress must quickly act to correct this deeply flawed decision
that impacts every tribe in the United States. Justice Gorsuch laid out
a road map for Congress to take this action in his strongly worded
dissenting opinion. All Congress needs to do is amend 25 U.S.C.
Sec. 1152 to clarify that state authority is preempted. This will close
the door to Justice Kavanaugh and the Court's attempt to create new
authority for states over Indian tribes and Indian country.
Introduction and Action Needed
On June 29, 2022, Justice Brent Kavanaugh issued a decision in the
Supreme Court case Oklahoma v. Castro-Huerta that usurps Congress's
plenary authority over Indian tribes and attempts to legislate from the
bench. The decision conflicts with the Constitution, laws passed by
Congress, and more than 200 years of long settled federal Indian law.
Instead, Justice Kavanaugh and the Court created new authority for
states to have concurrent jurisdiction to prosecute non-Indians for
crimes committed against Indians in Indian country.
The decision also creates an unfunded mandate for states to provide
law enforcement and criminal prosecutions across more than 56 million
acres in 35 different states. Prior to this decision these crimes were
prosecuted by federal and tribal law enforcement based on long settled
law, as well as new authorities and resources provided by Congress in
the recently passed Tribal Law and Order Act (TLOA) and Violence
Against Women Act (VAWA). The decision will increase crime in Indian
country and conflicts with the efforts in Congress to affirm the
criminal jurisdiction of tribes and ensuring a tribal role in
protecting their members and culture.
The decision conflicts with the clear direction of Congress to
support federal and tribal law enforcement. It also immediately sets
the states and tribes at odds, as tribes have a direct interest in
providing safety and security for Indians. Many tribes have already
been moving to accept Congress's expanded jurisdiction over crimes in
Indian country and have their law enforcement recognize federal law
enforcement as well.
The decision also runs counter to the government-to-government and
trust relationship between tribes and the Federal government. The
decision attempts to view tribes as a racial group as opposed to
independent political sovereigns. The decision attempts to erase the
sovereignty of tribal governments which existed long before the United
States was founded. Instead, Justice Kavanaugh and the Court are
seeking a return to outdated federal policies that attempted to
terminate tribal governments or ``solve'' the so-called Indian problem.
Congress must take action to correct the Court's egregious error
which overstepped its authority. Before the impacts of this decision
reach too far, Congress should simply clarify 18 U.S.C. Sec. 1152 which
was first passed by Congress in 1817. As further set out below,
Congress only needs to add the phrase, ``and shall apply to preempt the
application of State law and prosecutorial jurisdiction,'' to the
statute. This clarification would affirm that the federal government
and Indian tribes have exclusive jurisdiction over crimes in Indian
country where the victim was Indian.
In his strongly worded dissenting opinion, Justice Neil Gorsuch
expressed shock and the Court's unfounded arguments and laid out a road
map for Congress to enact legislation to fix the Court's decision.
Congress should follow his lead and take action that will close the
door to Justice Kavanaugh and the Court's attempt to create new
authority for states over Indian tribes and Indian country.
Analysis of U.S. Supreme Court Decision Castro-Huerta
In its recent Oklahoma v. Castro-Huerta decision, the Supreme Court
made an erroneous and egregious departure from over 200 years of
settled law. In Justice Kavanaugh's opinion, the Court departed from
the long-standing and foundational rule that states do not generally
have jurisdiction to prosecute crimes against Indians in Indian
country. The decision upset significant cornerstones of the
jurisdictional relationship between Indian tribes and states by holding
that states have concurrent jurisdiction over such crimes in Indian
country. This decision set tribes and states at immediate odds, as
tribes have a direct interest in protecting their members and providing
security on Indian reservations. As Justice Gorsuch stated in his well-
reasoned dissent, it would be hard to fathom ``a more ahistorical and
mistaken statement of Indian law . . .'' Oklahoma v. Castro-Huerta, 597
U.S. (2022) (J. Gorsuch dissenting).
The Court's suggestion that criminals will ``go free'' if states
are not able to exercise criminal jurisdiction in Indian country is
wrong and is the result of a political campaign by the State of
Oklahoma. This has never been the case in Indian country as Congress
clearly specified that federal and tribal governments have jurisdiction
over these kinds of cases. In addition, the decision is contrary to
significant steps taken by Congress in recent decades, through the
passage of TLOA and tribal provisions in VAWA, to increase and improve
federal and tribal law enforcement.
Justice Kavanaugh's decision to legislate from the bench is having
an immense impact on state and tribal government operations across the
country while providing no funding to states to fulfill new
responsibilities required under the Court's decision. As suggested by
Justice Gorsuch in his dissent, Congress must not ``stand by as this
Court sows needless confusion across the country.'' Id. at 41. A
legislative fix to the Castro-Huerta decision is needed to uphold the
United States' constitutional, treaty, and trust responsibilities to
Indian tribes.
Federal Constitutional, Treaty, and Trust Responsibilities
The Constitution recognizes the distinct sovereign authorities of
the Federal government, tribal governments, and state governments. Over
more than 200 years of treaty making, acts of Congress, and judicial
decisions, the United States has exercised and affirmed a treaty and
trust responsibility and government-to-government relationship with
Indian tribes. This relationship does not include state governments
unless specifically authorized by Congress.
In recent decades, Congress worked hard to further secure and
support federal and tribal law enforcement responsibilities in Indian
country. As noted in support of the Tribal Law and Order Act, ``[Y]ears
of court decisions and stop-gap legislation have created a
jurisdictional mess . . . The losers are the people of Indian country.
The result of these federal laws and Court decisions is that along with
the authority that the United States imposed over Indian tribes, it
incurred significant legal and moral obligations to provide for public
safety on Indian lands.'' Senate Report No. 111-93 (2009) pg. 4, Tribal
Law and Order Act of 2009 (Internal citations omitted). The United
States and the Federal government must live up to these
responsibilities and not let the Supreme Court rewrite history to force
state authorities on tribal members.
The Court's decision giving the states concurrent jurisdiction will
result in a decrease in federal prosecutions in Indian country and
conflict with Congress's intent in passing TLOA and tribal provisions
in VAWA. This will lead to an increase of crime in Indian country and
displace the United States' legal and trust responsibilities to provide
law enforcement in Indian country. Instead, the Court is creating a
role for the states that defies settled, long-standing, and recent
laws.
Despite the Court's decision, Indian tribes do not have a treaty
and trust relationship with the states, and states are not prepared for
the new law enforcement challenges, budget impacts, and legal jeopardy
that will come with fulfilling federal responsibilities under the
Court's decision.
Court Imposed Costs on the States
As a part of the confusion caused by the Court's decision, state
governments lack the budgets and resources to take on new law
enforcement responsibilities in Indian country which covers more than
56 million acres in 35 states. Most states are already suffering from
short falls in their law enforcement budgets. The Court imposed an
unfunded mandate on states to enforce federal and tribal
responsibilities in Indian country.
In 2021, the Bureau of Justice Statistics issued a report providing
data on state government law enforcement expenses. In 2017:
County and municipal governments spent nearly $130 billion
on police and corrections.
In the 20 years from 1997 to 2017, justice system
expenditures increased from $188 billion to $305 billion.
States had nearly $50 billion in direct expenditures for
corrections activities, and of this amount, 88% was for
correctional institutions.\1\
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\1\ Emily D. Buehler, Ph.D., BJS Statistician, Justice Expenditures
and Employment in the United States, 2017, Bureau of Justice
Statistics, (Published July 2021) https://bjs.ojp.gov/library/
publications/justice-expenditures-and-employment-united-states-2017,
NCJ Number 256093, Publication Series Justice Expenditure and
Employment.
In addition, the Vera Institute of Justice reported that in 2015
the total cost to house an inmate in state facilities averaged
$33,274.00 a year. Overall, the amounts ranged from a low of $14,780.00
in Alabama to a high of $69,355.00 in New York.\2\ This unfunded
mandate will severely burden the states with increased incarceration
and enforcement costs, forcing the states to choose between scrambling
for funds, personnel, and infrastructure or hoping the federal
government will not decline enforcement. The states interest is
overridden by the combined weight of the tribes and federal governments
interest in protecting all the citizenry and upholding its legal,
treaty and trust relationships with the tribes.
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\2\ Chris Mai and Ram Subramanian, The Price of Prisons: Prison
Spending in 2015, Vera Institute of Justice, https://www.vera.org/
publications/price-of-prisons-2015-state-spending-trends/price-of-
prisons-2015-state-spending-trends/price-of-prisons-2015-state-
spending-trends-prison-spending.
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Impacts on Indian Country
The Court's decision to legislate from the bench and upset the
long-standing relationship between the federal government and tribal
governments, it is having a direct impact on the people of Indian
country. There are more than 570 federally recognized tribes, more than
2.6 million Native Americans, and more than 300 reservations in the
United States. Since Congress granted the tribes expanded jurisdiction
with the TLOA, VAWA, and other legislation Indian country crime has
decreased. In 2010 there were 40,666 offenses known to tribal law
enforcement, and that number had dropped to 27,119 in 2020.\3\ There
are multiple examples of the tribes and states having agreements to
assist each other in enforcing law and order because of these efforts,
but this has now needlessly been thrown into
confusion.\4\,\5\
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\3\ Crime in the United States, Table 11: Offenses Known to Law
Enforcement, (2010 and 2020) Tribal Crime, Bureau of Justice
Statistics, https://bjs.ojp.gov/tribal-crime.
\4\ ``TLOA's amendment of 25 U.S.C. Sec. 2809(a)(3), the Indian Law
Enforcement Reform Act. It also confirms the [DOJ]'s January 2010
directive that `tribal governments have the ability to create and
institute successful programs when provided with the resources to
develop solutions that work best for their communities.' . . . [T]he
passage of TLOA with its provision of enhanced sentencing authority for
qualifying Tribal courts means that more cases will be referred to
Tribal courts for prosecution.'' Id.
\5\ Special Domestic Violence Criminal Jurisdiction Pilot Project
Report, National Congress of American Indians, October 29, 2015.
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The federal government has moral and legal obligations to provide
for public safety in Indian Country. The tribes have a direct interest
in ensuring the safety and protection of its people. The federal
government has long exercised exclusive jurisdiction over crimes in
Indian country by non-Indians against Indians. However, the Court's
decision will lead to the federal government decline in enforcement in
Indian Country, referring this to states to exercise jurisdiction, even
when the state is not interested in exercising that jurisdiction.\6\
The states that have no trust relationship with the tribes. States that
have had a historic record of taking advantage of tribes. In the case
of Oklahoma's current political maneuvering, states attempt to show
that without the states enforcement only lawlessness exists in Indian
country. Lawlessness has never been the case in Indian country.
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\6\ In 2018, approximately 18 percent (179 out of 999) of Indian
country declinations were referred to a different jurisdiction. Indian
Country Investigations and Prosecutions 2018, U.S. Dept. of Justice.
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Tribes have always been sovereigns, with the ability to assert
standards of conduct for their societies. This was recognized before
the founding of the United States and again in both the Reorganization
and Self-determination Eras. The sovereignty of tribes was recognized
in Court decisions even in the early 1800s.\7\
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\7\ Johnson v. McIntosh, 21 U.S. 543 (1823); Cherokee v. Georgia,
30 U.S. 1 (1831); Worcester v. Georgia, 31 U.S. 515 (1832).
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This decision throws federal, tribal, and state government
relations back to the era where it was acceptable to solve the ``Indian
problem'' by attempting to assimilate tribes, terminate tribal
governments, and attempting to force tribes to accept states authority
that was clearly refuted in the Constitution and centuries of decisions
and legislation. This decision appears to stem from the Court's new
attempts to treat tribes as a racial group rather than affirming the
political status of tribal governments.
Congress has recognized the direct interest of tribal governments
in the public safety of Indians and has in recent decades made a point
of ensuring Indian tribes could start exercising criminal jurisdiction
over non-Indian offenders where the victim was Indian.\8\ ``Tribal
governments have an inherent right to protect their people . . .,''
stated President Obama.\9\ A legislative fix to address the Court's
decision would affirm and protect Congress's commitment to tribal
governments and support tribal law enforcement.
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\8\ VAWA, VAWA Reauthorization 2022 and Tribal Law and Order Act.
\9\ Barack Obama, President of the United States, President Signs
2013 VAWA--Empowering Tribes to Protect Native Women, (March 7, 2013).
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Congressional Action and Legislative Fix Needed
Indian country needs a direct and meaningful fix that addresses the
very core of what Justice Kavanaugh got wrong in the Castro-Huerta
decision. This should be a simple amendment that leaves no doubt as to
the jurisdiction of the federal government under 18 U.S.C. Sec. 1152
and the lack of state authority. As shown in italics below, 18 U.S.C.
Sec. 1152 should be amended to provide:
Except as otherwise expressly provided by law, the general laws
of the United States as to the punishment of offenses committed
in any place within the sole and exclusive jurisdiction of the
United States, except the District of Columbia, shall extend to
Indian country and shall apply to preempt the application of
State law and prosecutorial jurisdiction. This section shall
not extend to offenses committed by one Indian against the
person or property of another Indian, nor to any Indian
committing any offense in the Indian country who has been
punished by the local law of the Tribe, or to any case where,
by treaty stipulations, the exclusive jurisdiction over such
offenses is or may be secured to the Indian Tribes
respectively.
This simple clarification will restore the balance in Indian
country, affirm over 200 years of precedent, and ensure that Indian
tribes and the federal government are responsible for prosecuting
crimes in Indian country involving Indians. This amendment would also
relieve the states of new law enforcement burdens imposed by the
Court's decision.
The Tribe does not believe that Congress should attempt a more
complicated amendment or one that would also address 18 U.S.C.
Sec. 1162 also known as Public Law 280. First, Justice Kavanaugh's
decision needs a quick and decisive response. Congress should directly
address the flawed logic that forms the basis for his decision.
Second, it is not possible to improve on Public Law 280 with an
amendment. Genocidal laws like Public Law 280, that was enacted as a
part of the Federal government's policy of terminating Indian tribes,
should be left in the past. Attempting to resurrect Public Law 280 with
an amendment is not needed and will only modernize policies that should
not have been enacted in the first place. As an example, no one is
trying to improve on the General Allotment Act and its genocidal
dispossession of millions of acres of tribal lands. The same is true of
Public Law 280.
As Justice Gorsuch stated in his dissent, due to the Court's
``egregious misappropriation of legislative authority `the ball is back
in Congress' court.' '' Id. (quoting Ledbetter v. Goodyear Tire &
Rubber Co., 550 U.S. 618, 661 (2007)). We agree. Congress must act
quickly to correct the Court's error and restore the federal, tribal,
and state relationships set out in the Constitution and enshrined in
over 200 years of treaties, Congressional enactments, and judicial
decisions. Tribal sovereignty and self-determination are under attack
by the Supreme Court and only Congress can address this wrong and
ensure that the Supreme Court does not legislate from the bench.
Conclusion
The Ute Indian Tribe asks that the Subcommittee, the Committee, and
Congress take action to correct this error and overreach by the Supreme
Court of the United States. Congress must defend the actions taken in
passing TLOA and VAWA. The resources and jurisdiction in those laws
have helped to stabilize relationships between Indian tribes, the
Federal government, States. The Castro-Huerta decision is a step
backward and an attempt to undermine the direction of Congress.
The simple fix proposed in the Tribe's testimony would allow the
United States to meet its treaty and trust obligations and avoid
imposing a new burden on states that cannot increase law enforcement
budgets. This action is needed to correct the Court and remind the
Court that the United States current and most successful federal Indian
policies rely on promoting tribal sovereignty and self-determination.
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