Demonstrators stand outside of the U.S. Supreme Court, as the court hears arguments over the Indian Child Welfare Act on Nov. 9, 2022, in Washington. The Supreme Court has preserved the system that gives preference to Native American families in foster care and adoption proceedings of Native children. The court left in place the 1978 Indian Child Welfare Act, which was enacted to address concerns that Native children were being separated from their families and, too frequently, placed in non-Native homes. (AP Photo/Mariam Zuhaib, File)

The Supreme Court’s decision in Haaland v. Brackeen is an incredible victory for Indian children and the Tribal Nations, who, since time immemorial, have sought to protect them. In a resounding victory for Native children, Native families, and Native Nations, the Court rejected the argument of Texas and three non-Native adoptive couples that the 1978 Indian Child Welfare Act (ICWA) violated the Constitution. Thanks to Justice Amy Coney Barrett’s majority opinion issued last month, the act will live to see another day, and our Nations and child welfare advocates can continue to ensure our children are safe and our families are not torn apart by prejudice. 

While we celebrate this historic victory, we must not forget the work left to do with regard to Oklahoma v. Castro-Huerta, the 2022 Supreme Court ruling that granted states criminal jurisdiction over tribal lands—despite the fact that Congress had declined to do so. If left unaddressed, Castro-Huerta will render Indian Country’s victory in Brackeen void and meaningless. 

Castro-Huerta is not an application of the law. It is an outcome-determinative decision that reads as if it were designed to satisfy the Oklahoma governor’s $100 million media-and-litigation campaign to undermine the Court’s McGirt decision from two years earlier when the Court rejected the State of Oklahoma’s request that the Court judicially extinguish the Muscogee (Creek) Nation’s Reservation. The 5-4 majority opinion in Castro-Huerta, authored by Justice Brett Kavanaugh, concludes that states, such as Oklahoma, have criminal jurisdiction over the lands of Tribal Nations until or unless Congress limits that jurisdiction. This, as many Indian law scholars have pointed out, defies the plain language in the Constitution and flips federal Indian law on its head. 

The Supreme Court’s complete disregard for Congress’s plenary power and exclusive role in legislating over Indian affairs was concerning for many reasons. To reach the decision that states exercise criminal jurisdiction over tribal lands, Justice Kavanaugh attempted to eviscerate the victory my Nation (the Cherokee Nation) won in the Court just less than two hundred years ago, claiming that “Worcester [v. Georgia] rested on a mistaken understanding of the relationship between Indian country and the States.” 

Nothing in Marshall’s decision was mistaken. When the Court handed down Worcester v. Georgia almost two centuries ago, the question of which sovereign exercised criminal jurisdiction on tribal lands had life-and-death implications for Native women. In 1825, the governor of Georgia instructed the state’s militia to rape Cherokee women, believing that if it raped enough of us, we would voluntarily leave our homes and move west of the Mississippi. His plan did not work. My great-great-great-great grandfather, Major Ridge, was the speaker of the Cherokee Nation’s Tribal Council at that time, and in response, he worked with our council to make it a crime to rape a woman on Cherokee lands. Long before many states criminalized rape, the Cherokee Nation prosecuted anyone, Indian or non-Indian, who committed this heinous act on Cherokee Nation lands. 

That’s until 1978 when the Supreme Court concluded, in Oliphant v. Suquamish Indian Tribe, that Tribal Nations could no longer exercise jurisdiction over non-Indians who come onto tribal lands and commit crimes. As a result, today, Native women and children are more likely to be raped, assaulted, and murdered than any other population in the United States. The Department of Justice reports that most of these crimes are committed by non-Indians. Because of Oliphant, our Nations can no longer protect our women and children in their own homes. 

As Native women, we know there is a connection between the sovereignty of our nations and the safety of our bodies. There always has been. That is why the governor of Georgia instructed his militia to rape us. That is why soldiers raped Cherokee women on the Trail of Tears. And it is why, as a lawyer today, I fight to restore the sovereignty the Supreme Court took away. 

The Court had the opportunity in Castro-Huerta to right a wrong. But instead of restoring the tribal jurisdiction it took away in Oliphant, the Court gave it to the states. Instead of upholding the Chief Justice’s 1832 decision in Worcester, Kavanaugh injudiciously tried to undermine it. 

The Court’s decision in Castro-Huerta comes with grave consequences. Consequences, that if ignored, will all but erase our victory in Brackeen. In less than a year, courts have already cited Castro-Huerta to conclude that states may exercise jurisdiction on tribal lands—even where Congress has passed a statute explicitly saying they may not. And although the Supreme Court’s decision in Castro-Huerta was limited to criminal law, courts are extending Castro-Huerta to expand state jurisdiction on tribal lands beyond criminal law—including, most recently, to displace tribal jurisdiction over adoption proceedings concerning Indian children on reservation lands. 

Most recently, the Oklahoma Supreme Court applied Castro-Huerta to override and nullify the express language Congress used in ICWA to ensure Tribes exercise exclusive jurisdiction over adoptive placements concerning Indian children domiciled on reservation lands. In passing ICWA, Congress could not have been clearer: 

An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. 

Before Castro-Huerta, an express statement from Congress would have ended any court’s analysis. But Oklahoma’s high court reasoned that, because of Castro-Huerta, Congress’s express language in ICWA no longer controls. Instead, it determined that: 

When determining jurisdictional disputes for cases arising within the external boundaries of a reservation, we must remember that Oklahoma’s sovereignty does not stop at reservation borders. The U.S. Constitution authorizes Oklahoma district courts to exercise jurisdiction in Indian country—Oklahoma’s territory includes “Indian country.” (Emphasis added.) 

The Oklahoma Supreme Court then went even further, quoting the most problematic passage in Castro-Huerta

Indian country is part of the State, not separate from the State. To be sure, under [the United States Supreme Court’s] precedents, federal law may preempt that state jurisdiction in certain circumstances. But otherwise, as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country. 

Ultimately, a majority of Oklahoma’s justices held that, because of Castro-Huerta, the language Congress used in ICWA to grant Tribal Nations jurisdiction over adoptive placements of Indian children on reservation lands is irrelevant and inapplicable. The Oklahoma Supreme Court applied Castro-Huerta to override and circumvent a federal statute Congress passed pursuant to its plenary power over Indian affairs. 

This application of Castro-Huerta is extremely concerning but not surprising. In fact, this is precisely the outcome Indian Country sought to prevent when Tribal Nations coalesced and passed Resolution No. 43 in the November 2022 convening of the National Congress of American Indians (“NCAI”). 

We won Brackeen in the Supreme Court, but until Congress acts to correct the Court’s decision in Castro-Huerta, we remain vulnerable to losing the critical protections Congress provided for in ICWA. This is because, in Castro-Huerta, the Supreme Court granted other courts permission to legislate from the bench, and grant states jurisdiction over anything and everything on tribal lands, regardless of any law passed by Congress. 

If left unaddressed, Castro-Huerta gives every court in this country unfettered discretion to disregard the plain text of ICWA and substitute state for tribal jurisdiction. And nothing will limit this to ICWA. Castro-Huerta’s instruction to circumvent statutes passed by Congress threatens all of the most critical federal laws that uphold and affirm tribal sovereignty, including the Violence Against Women Act, the Indian Gaming Regulatory Act, the Native American Graves Protection and Repatriation Act, and much more. 

Kavanaugh wrote that if the Court’s decision “somehow poses a problem, Congress can seek to alter it.” If Congress does nothing, then the Supreme Court and lower courts may assume that Castro-Huerta does not pose a problem. It is critical that Congress act now to signal to the Court that Castro-Huerta does pose a problem and to ensure that Congress—not the courts—exercises legislative authority over Indian affairs. 

Mary Kathryn Nagle is a citizen of the Cherokee Nation and a lawyer that works to protect tribal sovereignty and restore safety for Native women and children. Twitter: @MKNagle 

Our ideas can save democracy... But we need your help! Donate Now!

Mary Kathryn Nagle is a citizen of the Cherokee Nation and a lawyer that works to protect tribal sovereignty and restore safety for Native women and children. Twitter: @MKNagle.