The Oklahoma v. Castro-Huerta decision handed down in late June by the U.S. Supreme Court has caused unease among many in Indian Country. The decision expands the states’ authority over Native lands.

The conservative court ruled in a 5-4 decision that state governments have the right to prosecute non-Natives for crimes committed against tribal members on reservations. Typically, federal authorities have jurisdiction to investigate serious, violent crime on reservations when the suspect or victim is Native American. But the Castro-Huerta decision means states will share in that authority when the suspect is not Native American and the victim is.

Castro-Huerta also weakens the effect of the court’s McGirt v. Oklahoma decision in 2020, which found that most of eastern Oklahoma was still legally Indian Country, where many crimes were beyond the purview of state law. But the Castro-Huerta decision has an effect beyond Oklahoma.

Justice Neil Gorsuch, who wrote the court’s dissent, said the ruling was “…an embarrassing new entry into the anti-canon of Indian law … Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.”

Justice Brett Kavanaugh disagreed in the court’s majority opinion.

“The Court today holds that Indian country within a State’s territory is part of a State, not separate from a State,” he wrote. “As a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.”

Officials at the National Congress of American Indians, the Native American Rights Fund, and other stakeholders, still aren’t sure exactly how the decision will effect how crimes will be prosecuted and by whom. But most agree that the decision has potentially larger implications for the future of Indigenous sovereignty.

Indian Child Welfare Act

One worry is that the decision is a foreboding sign for the court’s next term, which begins in October, when it will hear the constitutionality of the Indian Child Welfare Act (ICWA) in the case now known as Brackeen v. Haaland. The court could decide that the 44-year-old law is unconstitutional based on claims by some plaintiffs, which want to adopt Native children, that ICWA is race-based and in violation of equal protection. If the court found that ICWA was racially motivated, it could overrule existing state statutes. The plaintiffs have other objections to ICWA as well.

The main plaintiffs in the case are Chad and Jennifer Brackeen of Texas, who initially fostered a boy without realizing the Navajo Nation would not allow an adoption.

ICWA became federal law in 1978 to prevent Native children from being raised outside of their tribes. It was enacted because Native children were being taken out of their communities at alarming rates.

Sarah Kastelic, (Alutiiq), the executive director of the National Indian Child Welfare Association, told the Tribune earlier this year that Indian Country is rightly concerned.

“Despite what ICWA opponents say, they do not have the best interests of Indian children at heart,” she said. “Opponents of ICWA do not know what’s best for Native kids. Their motives are to overturn tribal rights for profit, to access tribal land and natural resources and ultimately to dismantle tribal sovereignty.”

More information is at nicwa.org.