The 2021-2022 term of the U.S. Supreme Court began in October and continues through the summer. The court is scheduled to consider several cases that directly affect Indian Country.

On Jan. 21 the court agreed to decide on a question that was left open by its landmark decision in 2020 – McGirt v. Oklahoma – which declared that much of eastern Oklahoma falls within an Indian reservation. While the justices are considering a question, they rejected a request to consider overruling the decision altogether.

The court ruled in McGirt v. Oklahoma that Native Americans who commit crimes on reservation land – which includes Cherokee, Chickasaw, Choctaw, Creek and Seminoles in the state – cannot be prosecuted by state or local law enforcement, but would instead face tribal or federal courts. The question the court agreed to decide is whether those same limits apply to non-Indians who commit crimes against Native Americans on reservations.

The state of Oklahoma has been trying to limit McGirt v. Oklahoma altogether, while tribes say it reaffirms tribal sovereignty and implements positive changes in its justice systems.

“The status of McGirt is up in the air,” Matthew Fletcher (Grand Traverse Band of Ottawa and Chippewa Indians) said. “It’s conceivable the Supreme Court could undo the whole thing.”

Fletcher is a foundation professor of law at Michigan State University College of Law and director of the Indigenous Law and Policy Center. He spoke about the issue on a Jan. 11 broadcast of Native America Calling.

Fletcher said Indian Country should pay close attention to what the court does, in general, and regarding McGirt v. Oklahoma, specifically, because it could affect future cases involving Indian law.

“If the Supreme Court just kind of throws up its hands and gives up and says: ‘Oklahoma we’re going to do what you
want,’ that’s a really concerning development for all of Indian Country,” he said.

Indian Child Welfare Act

The court has been petitioned, but has not yet decided whether it will hear, a challenge to the constitutionality of the
Indian Child Welfare Act (ICWA) – known as Brackeen v. Haaland in the lower courts.

Sarah L. Kastelic (Alutiiq), executive director of the National Indian Child Welfare Association (NICWA), wrote via email that she’d expected the court would make a decision on whether or not to hear the case by Jan. 24, which has passed.

“The court isn’t scheduled to conference again until February 18, so if they follow their usual process, the earliest we’d expect a decision now [to hear the case] would be February 22,” she said.

Kastelic said she expects the court will, indeed, hear the case; however it’s unknown which petitions will be granted and which questions will be reviewed.

“At this late date, if the case is accepted, it likely won’t be heard until the fall term,” she said, which wouldn’t begin until October.

Fletcher, meanwhile, said the challenge to ICWA is an existential threat to Indian Country.

“It is a generationally important case,” he said. “If the Supreme Court says ICWA is unconstitutional because it’s a form of race discrimination, then the next thing to go is probably the Major Crimes Act and statues related to criminal jurisdiction and other statutes that provide for health care and other governmental services to Indian Country.”

More to watch

There are two other cases involving Indian Country before the court that are scheduled to be argued Feb. 22.

Denezpi v. United States: It will be argued whether the Court of Indian Offenses of the Ute Mountain Ute Agency is a federal agency, such that a man’s conviction in that court barred his subsequent prosecution in a U.S. district court for a crime arising out of the same incident.

Ysleta del Sur Pueblo v. Texas: The “Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration
Act” provides the Ysleta del Sur Pueblo with sovereign authority to regulate nonprohibited gaming activities on its lands, including bingo. At issue is whether a decision by the Fifth Circuit Court of Appeals that affirmed Ysleta del Sur Pueblo v. Texas, correctly subjects the pueblo to all Texas gaming regulations.