[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
       
       
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        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.''
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).

---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.

---------------------------------------------------------------------------
    (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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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:
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    \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\
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    \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\
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    \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.
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    \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.
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    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\
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    \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.

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    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\
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    \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.
---------------------------------------------------------------------------
    \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/.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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/.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \3\ 140 S. Ct. 2452 (2020).
    \4\ State ex rel. Matloff v. Wallace, 2021 OK CR 21, para. 15, 497 
P.3d 686, 689.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \6\ United States v. McBratney, 104 U.S. 621 (1881).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.

                                 ______
                                 
                        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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

                       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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).

---------------------------------------------------------------------------
            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.

                                 [all]