In March 2022, a bipartisan Congress passed and the President signed a restoration of tribal criminal jurisdiction over certain crimes committed by non-Indians against Indian victims on Indian land. Only because of decades of hard work from tribal advocates and allies, strong tribal leadership, and the painstaking efforts of the VAWA 2013 implementing tribes, was this possible.

Last week, in Oklahoma v. Castro-Huerta, the State of Oklahoma achieved the same results after a couple years of crying “the sky is falling” and complaining to the American people, Congress, the Administration, and the U.S. Supreme Court, about the Court’s decision in McGirt v. Oklahoma –- the 2020 decision that confirmed that a large portion of eastern Oklahoma is “Indian Country” under federal law.

In fact, TMZ reported that just before authoring the majority opinion in Oklahoma v. Castro-Huerta, Brett Kavanaugh said, “hold my beer and watch me Andrew Jackson these sovereignty hobbyists.” Well not really, but reading through the Court’s highly anticipated decision felt a lot like reading a termination bill in 2022.

While some will argue that the Court’s holding — that states share concurrent jurisdiction with the federal government in prosecuting crimes committed by non-Indians against Indians in Indian Country — may improve law enforcement services in Indian Country via more boots on the ground, the meandering frolic and detour the majority took to arrive at that holding was nothing less than a full frontal assault on the sovereign prerogatives of Indian tribes.

Through this opinion, Kavanaugh rallied his cavalry of 5 to perform the modern version of slashing and burning peaceful Native communities and their resources and provisions to the ground. Make no mistake, this decision was woefully ignorant at best, and intended to severely undercut the political autonomy of our Indian Nations.

Justice Kavanaugh disregarded centuries of statutes, precedent, and fundamental legal principles to announce boldly that “[t]he default is that States have criminal jurisdiction in Indian country unless that jurisdiction is preempted.”

Prior to this, perhaps one of the most profound legal minds steeped in federal Indian law, Judge William Canby of the Ninth Circuit, stated clearly in his ‘American Indian Law in a Nut Shell’ publication that “States traditionally have no criminal jurisdiction in Indian Country over crimes committed by . . . non-Indians against Indians . . .and crimes by non-Indians against Indians are punishable exclusively by the federal government.”

Felix Cohen, who many consider the Godfather of federal Indian law, wrote in his treatise on federal Indian law, “[a]s a general rule, states lack jurisdiction in Indian Country absent a special grant of jurisdiction”, and even George Washington himself believed that Indian nations should be considered as foreign nations, “not as subjects of the states.” Calloway, The Indian World of George Washington 331 (2018).

But I can grudgingly forgive a Supreme Court justice for botching foundational principles of federal Indian law — tt happens, but it was the majority’s self-serving and short shrift read of the Constitution that left me very concerned about the current Court’s ability to understand the foundational organic document of the United States.

You see, Kavanaugh cites the 10th Amendment of the Constitution to support his blanket jurisdictional statement, which reads “the powers not delegated to the United States by the Constitution . . . are reserved to the State respectively.” The problem with Kavanaugh’s entire opinion then is that another clause, the Property or Territory Clause, delegates to Congress—not the states nor the Court—the exclusive authority to “make all needful Rules and Regulations respecting . . . Property belonging to the United States.” Yup, Kavanaugh’s 10th Amendment rationale fails when a more specific clause delegates exclusive regulatory authority to Congress over federal property, like Indian trust lands.

My colleagues Sam Hirsch, Leonard Powell, Jacob Schellinger and I once filed a brief in a California tax case describing the relationship between Indian trust lands and the Territory Clause, but the basic premise is the United States holds title to Indian lands, and by operation of law and through congressional enactments Indian trust lands are necessarily insulated from state regulatory authority. In fact, one of the main questions asked when the federal government takes land into trust is what effect the removal of the lands from the state’s tax roles will have on the state and local governments.

All this to say, an objective reading of the Constitution and a true understanding of how our Indian Nations fit into the founders’ thinking is needed now more than ever. And yes, absolutely — the decision in Castro-Huerta is difficult to swallow and will present some immediate legal challenges.

But I’m comforted in the strong legal minds and the rich history of law we have on our side. I am encouraged too by the youth and their understandings of federal Indian law and policy. And I am reminded that there were similar challenges faced during the Rehnquist Court as well, so perhaps this is ebb and flow. Thus, onward to pursue the recognition of inherent jurisdictional sovereignty.

Also last week, Justice Ketanji Brown Jackson was sworn in as the first Black woman to serve on the U.S. Supreme Court. Many congratulations and blessings to her and her community for this historic appointment which is an important step toward restoring the balance and integrity of the Court.

In April, when the White House announced her nomination, Jackson said, “it has taken 132 years and 115 prior appointments for a Black woman to be selected to serve on the Supreme Court of the United States . . but we’ve made it.” “[W]e’ve made it,” she said, embracing the idea that when one member of a historically disenfranchised community achieves success, they bring along with them the hopes and dreams of their own community. 

Perhaps one day, Indian Country will experience its own version of Justice Ketanji Brown Jackson’s swearing in ceremony. I imagine she will be sworn in wearing full regalia or adorned with hints of cultural bling aplenty. And perhaps we’ll one day see a Court that fully acknowledges our pre-constitutional sovereignty as an initial presumption. Wouldn’t that be beautiful?

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Derrick Beetso is a citizen of the Navajo Nation and currently serves as the Director of the Indian Gaming and Tribal Self-Governance Programs at the Sandra Day O’Connor College of Law at Arizona State University. He is the former general counsel of the National Congress of American Indians and the former Co-Director of the Tribal Supreme Court Project. Derrick is submitting this in his personal capacity.

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Syllabus | Opinion [Kavanaugh] | Dissent [Gorsuch] | Complete Document

Questions Presented | Docket Sheet: No. 21-429 | Oral Argument Transcript | Day Call

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