It’s been known for some time: the fickleness of the United States Supreme Court and its impact on tribal sovereignty. Now, at the end of this year's term, a new conservative bench has renewed such reflection. In the ruling in Oklahoma v. Castro-Huerta, Justice Brett Kavanaugh, writing for a five-Justice majority, narrowed landmark sovereign rights reclaimed by Oklahoma tribes in 2020 by empowering state authorities to prosecute non-Indians who commit crimes against Indians on tribal lands. There was little suspense – the state’s Governor Kevin Stitt has routinely criticized the 2020 McGirt v. Oklahoma ruling and has sought
ways to limit or reverse it altogether. But the vote, on Wednesday, still came down as an affront to tribal sovereignty for many observers across Indian Country. Justice Neil M. Gorsuch, who wrote the majority opinion in McGirt, dissented with unbridled disappointment: “Where this court once stood firm, today it wilts.”
As expected, Justice Gorsuch declined to join his conservative colleagues’ opinion. Despite being one of three Donald Trump appointees, Gorsuch draws his informed insights into Federal Indian law from his time served with the U.S. Court of Appeals for the Tenth Circuit, a judicial
arena encompassing six Western states and 76 federally recognized tribes. His experience and opinions with Indian law cases have mostly recognized tribes as sovereign governments and have upheld rights involving everything from tribal justice matters to religious freedoms. The court may have swayed more
moderately in Castro-Huerta had Ruth Bader Ginsburg not died and been replaced by Amy Coney Barrett. Ginsburg, despite her mostly poor track record of ruling against tribes, changed her tune in her final years on the bench.
Such political dynamic of the new conservative court speaks to the differences that emerge between upholding or deteriorating tribal sovereignty – a construct originally grounded in recognition that tribal governments pre-date the formation of the United States, and within their lands
wholly free from state authority. So, it galling at times to read the Court’s mangled interpretation of Federal Indian law and history “as a matter of state sovereignty,” and its reach across tribal territories. But some would argue that these are the reasons that certain Justices were put on the
bench. As the dissent stated, in the majority's newfound constraints on tribal sovereignty, the Court “makes a mockery of all of Congress’s work from 1834 to 1968.”
Yet, while much of the country is reeling from the raw reversal of the right to abortion, such exercise of judicial power where Indigenous rights are concerned is nothing new. For Indian country, it isn’t difficult to imagine what happens when the Supreme Court takes away
long-held inherent rights. The crude reality of such political machinations has involved the deterioration of these rights for centuries beginning with one of the earliest cases decided by the Court, Johnson v. McIntosh which upheld fictions linked to the Doctrine of Discovery, justifying the seizure and settlement of
Indigenous lands by arriving Christians. But there have been significant victories upholding tribal sovereignty, even in the darkest eras of anti-Indigenous sentiment.
Outgoing Justice Stephen G. Breyer, who sent a letter to President Biden on Wednesday announcing his retirement this week, was among the first to identify the ever-shifting field of Federal Indian law in an opinion he penned in 2004. “Federal Indian policy is, to say the least, schizophrenic. And this confusion continues to infuse federal Indian law and our cases,” said Breyer. Another take – one attributed to the late Justice Antonin Scalia – suggests how the High Court views tribal matters. At a book signing for Scalia, a Native woman recalled a brief exchange with him
about a Supreme Court case involving her grandfather. “He signed my book,” she said. “And as he handed it back to me, he said something I’ll never forget: ‘You know when it comes to Indian law, most of the time we’re just making it up.’” Justice Kavanaugh’s majority opinion in Castro-Huerta seems to confirm the whimsy of one court decision over another, despite what is precedent –
what is the rule of law.
Kavanaugh worked to flex states' rights by overlooking the Court’s foundational rule that has persisted for over 200 years: that Native American tribes retain their sovereignty unless and until Congress ordains otherwise – and free from state control. That decision, Worcester v. Georgia in 1832, noted that “treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states.” But to hear Kavanaugh tell it, states are on equal or “concurrent” footing as the federal government when it comes to addressing sovereign tribes. Kavanaugh’s comments, argued Gorsuch, are simply contradictory. “Worcester
proved that, even in the ‘courts of the conqueror,’ the rule of law meant something,” he said.
There is renewed speculation in the wake of Castro-Huerta that another legal battle in which Native rights and states' rights collide will turn out sourly for Indian country. This
fall, the Court will weigh in on the constitutionality of the Indian Child Welfare Act or ICWA, which governs adoption cases of Native American children. Tribes fear that invalidating ICWA, a forty year-old law, has the potential to create a domino effect, bringing down a host of Federal statutes that uplift tribes. Such sentiments are alarmist at best considering the dramatic shifts that have shaped more than two centuries of Indigenous land and life. But there is reason to
worry. With Justice Breyer’s departure, progressive appointee, Ketanji Brown Jackson is a likely replacement to join Justices Gorsuch, Sotomayor, and Kagan to uphold tribal interests, but that's only four against the seemingly entrenched five justices who appear ready to work against them. ♠️