Grant Christensen on Using Consent to Expand Tribal Criminal Jurisdiction

Grand Christensen has posted “Using Consent to Expand Tribal Court Criminal Jurisdiction,” forthcoming in the California Law Review, on SSRN.

Navajo police officer photographed by Edward Curtis

Here is the abstract:

In June of 2022 the Supreme Court reversed two-hundred years of precedent and held in a 5-4 opinion that states have concurrent criminal jurisdiction over crimes committed by non-Indians against Indians in Indian country. Oklahoma v. Castro-Huerta. In conducting the preemption analysis Justice Kavanaugh’s majority opinion reasoned that while states have a strong interest in prosecuting crimes in Indian country in order to keep the community safe, tribes had functionally no interest because they generally lack criminal jurisdiction over non-Indians. The court then reasoned that the lack of a tribal interest could not preempt the state interest. This article suggests, despite the general prohibition on tribes asserting criminal jurisdiction over non-Indians that was discovered by the Supreme Court in 1978’s Oliphant opinion, tribes can assert criminal jurisdiction over non-Indians who consent to the jurisdiction in tribal court. The argument extends to both affirmative and implied consent and draws its authority from both pre-Oliphant scholarship and precedent as well as from recent development by the Court, Congress, and dicta from the Ninth Circuit. If tribes are able to regularly assert some criminal jurisdiction over non-Indians, then when lower courts apply Castro-Huerta in the future there will be a strong tribal interest to preempt state criminal jurisdiction in Indian country.

Highly recommended.

Dylan Hedden-Nicely on Castro-Huerta

Dylan Hedden-Nicely has posted “The Terms of their Deal: Revitalizing the Treaty Right to Limit State Jurisdiction in Indian Country” on SSRN.

The abstract:

For over two hundred years the “whole course of judicial decision” in the United States has recognized that American Indian tribes possess inherent sovereignty to govern their lands and people. Federal recognition of that sovereignty was memorialized in countless treaties, congressionally ratified agreements, and executive orders setting aside reservations throughout the United States. Throughout that same period, and with only minimal exception, the judiciary faithfully applied those treaties to protect tribal property rights, recognize tribal sovereignty, and to bar states from imposing jurisdiction within Indian Country.

The jurisprudence in this arena has shifted, however, over the past few decades. Although the Supreme Court continues to faithfully apply its longstanding treaty analysis to protect tribal property rights, it has moved away from using that same analysis when evaluating tribal sovereignty and the scope of state jurisdiction in Indian Country. Instead, as demonstrated by its recent decision in Oklahoma v. Castro-Huerta, the Court has articulated a preemption test that is determined by judicial balancing of the tribal, federal, and state interests in the subject matter the state seeks to regulate. The approach has long been criticized for allowing courts to usurp the legislative power of Congress to make policy in federal Indian law in order to “reach outcomes consistent with their own notions of how much tribal autonomy there ought to be.” The purpose of this article is to establish that this so-called balancing test has no basis in the foundational principles of federal Indian law. Instead, the broad sweep of the field demonstrates that tribal freedom from state jurisdiction within Indian Country should proceed as a treaty right analysis.

That analysis requires courts to determine whether the treaty at issue preempts state law within the reservation. In making that determination, courts must interpret the treaty consistent with background principles of tribal sovereignty, which necessitates that ambiguities be resolved in favor of the tribe and that any sovereignty not expressly ceded has been retained. Applying these principles, the Supreme Court has repeatedly found that the treaty right to a “permanent home” implicitly included the right for tribes to “govern themselves, free from state interference.” Once established, a treaty right may only be taken away by Congress. Once again, however, there remains a strong presumption against the abrogation of tribal sovereignty. Thus, the Court has consistently required there be “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.”

This article seeks to demonstrate that the Court’s treaty-based analysis of tribal sovereignty should be applied by the judiciary moving forward. It is preferable not only because it is more consistent with foundation principles of federal Indian law but also bedrock constitutional principles as well as basic twenty-first century domestic and international norms related to the treatment of indigenous peoples and self-determination.

Highly recommended!

Talton was probably a white guy.

SCOTUSBlog Recap of Castro-Huerta Oral Argument

Here is “With historical promises in mind, justices weigh state criminal jurisdiction in Indian country.”

Previews of the case are here.

Background materials are here.

Preview of Tomorrow’s Argument in Oklahoma v. Castro-Huerta

Background materials on the case here.

SCOTUSBlog preview (by Fletcher): “In sequel to McGirt, justices will again review scope of state prosecutorial power in Indian country

Atlantic (by Rebecca Nagle and Allison Herrera): “Where Is Oklahoma Getting Its Numbers From in Its Supreme Court Case?

NonDoc: “SCOTUS to hear state’s McGirt challenge in Oklahoma v. Castro-Huerta

Boston Review (by Mary Kathryn Nagle and Emma Lower): “What Will It Take to End Violence Against Native Women?

Yes, Spirit is set to argue for the defense. . . .