This is a transcript of a discussion hosted by the Indian Legal Program, and the Indian Gaming and Tribal Self-Governance Programs, at the Sandra Day O'Connor College of Law, Arizona State University, held on July 7, 2022. (1) It is lightly edited for brevity and clarity.

DERRICK BEETSO: Good afternoon and welcome to today's presentation Oklahoma v. Castro-Huerta (2)--Rebalancing Federal-State-Tribal Power.

Let me take a brief moment to help set the stage for today's discussion.

In 2020, the U.S. Supreme Court in an opinion authored by the relatively newly minted Justice Neil Gorsuch determined that the Muskogee (Creek) Reservation, as established by the Tribe's treaties with the United States, was never disestablished despite over a century's worth of actions by the state of Oklahoma to the contrary. (3)

The case was McGirt v. Oklahoma. (4) Now the legal effect of the McGirt case is that a large portion of Eastern Oklahoma is now confirmed as "Indian country" (5) under federal law.

Since then, the state of Oklahoma has sought additional review before the Supreme Court of the McGirt decision, has sought legislation to address jurisdictional issues the state has with the McGirt ruling, and has engaged in a very public campaign against the McGirt decision itself.

Oklahoma v. Castro-Huerta (6) is the result of these efforts by the state of Oklahoma. The facts of the case are as follows.

In 2015, Victor Manuel Castro-Huerta, a non-Indian, (7) was prosecuted and convicted of child neglect in Oklahoma State Court in a case involving his stepdaughter, an enrolled citizen of the Cherokee Nation, as the victim. (8)

After the McGirt decision, Castro-Huerta argued in appealing his conviction that the state of Oklahoma lacked jurisdiction to convict him since McGirt held that his criminal actions occurred within Indian country and the federal government instead had exclusive jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. (9)

The Oklahoma Court of Criminal Appeals agreed with Castro-Huerta (10) and the state of Oklahoma swiftly sought review of that decision before the U.S. Supreme Court. (11)

The Supreme Court granted the state's petition for review in January 2022, and oral arguments were held in late April 2022. (12)

In a blistering majority opinion drafted by Justice Brett Kavanaugh and joined by Justices Thomas, Alito, Roberts, and Coney Barrett, the Court held that State law enforcement officers share concurrent criminal jurisdiction with the federal government over crimes committed by non-Indians against Indians in Indian country. (13)

In doing so, the majority wildly departed from centuries of federal Indian law principles in case law and thus we're here today to discuss this recent opinion.

I won't ask each of you what the effect of Castro-Huerta (14) will be on federal Indian law, because I know that's hard to see from here.

But what I do want to ask is how it felt to read the Castro-Huerta decision, two weeks ago, or last week, rather. For me, it felt like reading a termination bill. And it seemed like every line represented some erasure of substantive law in the field that we each have dedicated our careers to.

Maybe we can begin by each sharing some initial feelings and thoughts we had when reading the decision.

KEVIN WASHBURN: Thank you, Derrick. I will say it was not like reading McGirt (15) for the first time. I read the McGirt decision, sitting in my basement back in 2020, during the pandemic, when we were all stuck in our in our homes.

I read that first line--"On the far end of the Trail of Tears was a promise" (16)--and I got a lump in my throat. It was moving; it was such a surprise. And that was what was refreshing about McGirt--the idea that the rule of law would be followed by the courts, even in Indian law cases, which can be kind of unusual.

Castro-Huerta did not give me the same good vibes. It made me feel like we are back in the old days. The majority opinion has a lot of troubling rhetoric which we will talk about. But we've seen it all before.

I teach a really awful course in law school called Federal Indian Law. And I will teach it again this fall. And I say it's really awful because, it has a few good moments, but, mostly, the course is 14 weeks of how the law has failed my people. And, for someone who loves the law, the course of Indian law cases can be pretty depressing. And so, for my own sanity I have learned to read past a lot of the bad editorializing in Supreme Court opinions. And the majority opinion in Castro-Huerta has a lot of rhetoric that it's best just to sort of read past.

The reasoning in Castro-Huerta is frustrating in much the same way that Oliphant v. Suquamish Indian Tribe (17) is frustrating. Oliphant, as most of you will recall, is the 1978 decision that suddenly held for the first time in 200 years of American history that tribes lack criminal jurisdiction over non-Indians. But it didn't explain the law, or the treaty, or the case, that made that so. It lacked any legitimate basis in law, and that's the same feeling that I had from reading the majority in Castro-Huerta.

Justice Kavanaugh's majority opinion says that Worcester v. Georgia (18) has effectively been overruled, but does not say when it was overruled, and does not say how it was overruled, and does not say who overruled it. (19) It points to no congressional actions. And that's frustrating in a country that claims to be governed by the rule of law. Show your work, Supreme Court. I just want to see you show your work.

And we know that Worcester certainly represented the understanding of the law when the Trade and Intercourse Acts and the General Crimes Act were passed by Congress. (20) And Worcester says that state law does not apply in Indian country--it says that clearly. (21) And so that should be the end of the question, at least for an originalist, one would think. And thus these so-called originalists are not adhering to their stated method of resolving cases. Is that hypocrisy frustrating to anybody else, or is it just to me? That's the kind of thing that drives Indian law professors nuts.

To the originalist, the history is absolutely paramount, except when it doesn't align with the preferred outcome.

I once met Justice Scalia in person. A lot of people place him up on the pedestal as the "original" originalist. The professor who introduced me to Scalia said, "This is Kevin Washburn. He teaches federal Indian law." And Scalia, he could be very charming. He looked at me, and he said, "Really? Do you understand that stuff? We just make it up as we go along."

Truer words were never spoken by a Supreme Court Justice.

So there's a lot of rhetoric in Castro-Huerta that is really troubling and things we can be wringing our hands about, but honestly I got past those thoughts pretty quickly because again I've learned to read past that stuff. So let me tell you the more positive side that I see from this. Castro-Huerta may be a net benefit.

We don't necessarily want Indian reservations to be places where non-Indians can hide from state authorities, because that can make reservations lawless in some ways. And that puts a lot of responsibility on federal officials and federal public servants who are not really up to the task for this kind of work. That's what our Indian country criminal justice system looks like. It's the feds that must prosecute the major crimes and the felonies.

And that's now what we have in eastern Oklahoma. And, if you want more on that, about the institutional incompetence of the federal government to do this kind of work, just read my Michigan Law Review article from about 2006. (22)

I don't think that the U.S. Attorney's offices are particularly well suited to this kind of work. The U.S. Department of Justice is the gold standard as far as quality of prosecution, but they can use some help in Indian country. Someone once laughed and told me that an FBI agent "can't find his butt with both hands in Indian country unless a tribal police officer helps him." And that's true with the prosecutors to some degree, too, and I was one of those prosecutors.

Oklahoma tribes have been great partners with Oklahoma state prosecutors for many years. Moreover, not a single Native American will ever be prosecuted under the decision in Castro-Huerta. This case makes new law, but it does not give states authority to prosecute Native Americans. This is not a Public Law 280 adoption. (23)

And, secondly, Castro-Huerta doubles the number of governments that can prosecute non-Indians for committing crimes against Indians. And tribes can make that "triple" if they adopt the VAWA-enhanced jurisdiction provisions, (24) and so that's a good thing.

The last thing I thought about when I read it is, I think this opinion may relieve the pressure that we were seeing from McGirt. How many cert petitions did Oklahoma file to challenge McGirt? It was dozens. (25)

None of them were granted. But they were continuing to come, and this case takes a lot of the pressure off the perceived need to revisit McGirt or overrule it.

The Wall Street Journal has written several opinion page editorials (26) complaining about McGirt, and the WSJ opinion writers can now move on and get on with their lives.

So when I first read Castro-Huerta, I was relieved in some ways that tribes are not losing any authority, and we aren't losing McGirt and that case remains good law. I think that there's some good here.

And one other thing I think we can be happy about is that Justice Gorsuch is sticking to his guns as the defender of tribal sovereignty. That's a very good thing. He's not dialing it back at all. I'm told that he's not always the most charming person on the Court among his peers. On the other hand, we have seen the atmospherics for Kavanaugh and Amy Coney Barrett and they are bad. Some of these Justices are starting to stake out their positions, and that's not a good thing. So...

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