Abstract

Excerpted From: Meg A. Bloom, The Split from Precedent: An Analysis of the Negative Impact Oklahoma v. Castro-Huerta Will Have in Indian Country, 48 American Indian Law Review 1 (2023-2024) (309 Footnotes) (Full Document)

For many years, the American Indian population has led the charts in rates of substance use disorders compared to other racial and ethnic groups. Combined data from 2003 to 2011 “indicate that American Indians or Alaska Natives were more likely than persons from other racial/ethnic groups to have needed treatment for substance use.” Similarly, a study of substance use from 2015 to 2019 revealed that estimates of “illicit drug use among people aged 12 or older were highest for people reporting two or more races and for American Indian or Alaska Native people.” Although the 2010 Census found that the American Indian and Alaskan Native population account for only 1.7% of the United States population, the groups continue to have higher numbers of substance use than any other racial or ethnic group that make up larger percentages of the country's population.

The American Indian population additionally has among the highest rates of domestic violence (DV), following only behind those who identify as multiracial. An estimated 51.7% of American Indian women and 43.0% of American Indian men experience DV during their lifetimes. These high rates of interrelationship violence among the American Indian population are contributed to by child abuse, violence against women, and elder abuse.

Further, “[p]opulation and clinical studies document an association between intimate partner violence (IPV) and substance use problems.” Studies have shown that when seeking help for these issues, cultural identity and spirituality can be important attributions in achieving a providential result. Additionally, incorporating traditional healing approaches into treatment programs can lead to better outcomes for this specific population. These favorable results, occurring when cultural identity and traditional approaches to solutions are incorporated into the healing process, are a prime example of why tribal sovereignty is important to managing the issues of DV and substance use disorders plaguing the Native American population. Tribal sovereignty allows tribes to create programs that are meant to enrich and encourage traditional practices within communities and allows tribes to preserve their culture and traditions in order to enhance public health and safety of tribal citizens in Indian Country. Interferences with tribal sovereignty, such as state imposition, can have the effect of slowing, or even stopping, the betterment of tribal members' quality of life or a tribe's preventative measures for substance use and abuse and domestic violence. It is for these reasons why the Oklahoma v. Castro-Huerta decision can be expected to have a negative effect on public health and safety related to substance use disorders and DV on tribal lands within the State of Oklahoma.

This Comment examines the adjudication of crimes on tribal land and the effects that will be inflicted on tribal members when a state is permitted to impose its laws upon sovereign nations, as the recent Castro-Huerta ruling allows. Part II analyzes laws preceding and leading up to the Supreme Court's Castro-Huerta decision. Part III discusses Castro-Huerta and its ruling. Part IV considers early predictions of the negative side effects this type of ruling can have on tribal members and Part V evaluates the truth behind those early predictions. Part VI will assess the possible impact the ruling in Castro-Huerta will have on substance use and domestic violence related crimes among tribal members and on tribal land.

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It has long been understood that absent a congressional action, states lack jurisdiction over crimes in Indian Country. As early as 1823, the law of the land was that tribal nations retain the right to their land subject only to the federal government. Not only was it known that tribes reserve the right to occupy and use their land, but it was additionally declared early in U.S. history that tribes maintain inherent sovereignty over their land and only the federal government could limit that power. Further, it has been recognized for centuries that it is the federal government, not the states, that has a duty to protect tribal nations and their citizens. Accordingly, for 200 years the law has held that it is only Congress or an act of Congress that can limit a tribe's power over its land and citizens.

Similarly, early in U.S. history, laws were created that extended federal criminal law and jurisdiction to Indian Country. Even though these acts extended federal law and jurisdiction to Indian Country, limits were set so that tribal power was not completely limited in regard to criminal acts occurring on a tribe's reservation. For example, three exceptions to the extension of federal law to Indian Country exist in the General Crimes Act, and the Major Crimes Act only applies to the crimes enumerated within the Act. This understanding of exclusive federal and tribal jurisdiction in relation to crimes in Indian Country was first congressionally hindered in 1953. Public Law 280 permitted states to extend their criminal jurisdiction to Indian Country despite the lack of a trust relationship to protect tribes and their members.

Despite having seventy years to do so, the State of Oklahoma has failed to comply with and receive jurisdiction through Public Law 280. Although the state is not a Public Law 280 state, Oklahoma extended its jurisdiction into and prosecuted crimes arising in Indian Country for many years. The State argued not once, but twice, that tribal land in Oklahoma had been disestablished by Congress in attempt to justify its improper prosecutions in Indian Country. However, both the Tenth Circuit and the Supreme Court remained true to foundational beliefs that congressional intent is needed to disestablish a reservation and have found that no intent existed. Since this ruling, tribal nations in Oklahoma have been progressive in implementing adjustments and dedicating resources needed to respond to and protect tribal members from crime within Indian Country. By deciding in Castro-Huerta that the State can again stretch its jurisdiction into Indian Country, the Supreme Court turned its back on the long-standing promise that “States could play no role in the prosecution of crimes by or against Native Americans on tribal lands.”

Allowing Oklahoma to use the Castro-Huerta analysis in Indian Country after tribes have been working to develop their self-sufficiency in response to the McGirt ruling will disrupt the development and progress that has been made. This is something that has been warned against by the executive branch in response to previous congressional attempts. These attacks on tribal sovereignty, self-governance, and self-sufficiency unfortunately are a reoccurrence throughout the history of the relationship between the United States and tribal nations. The reverberations of these attacks are visible in the public health and safety issues that have resulted after centuries-worth of mistreatment and the historical trauma that still exists in many tribal communities.

As individuals grow and travel through life, different virtues are learned that influence how one functions. Disruptions within one's life can lead to incomplete development of these psychosocial stages. It then follows that constant and colossal disruptions within a community will cause a multitude of the community members to experience poor or incomplete psychosocial development. Two common issues that have resulted from stunted psychosocial development influenced by the historical trauma experienced by tribal communities include substance use disorders and domestic violence. As mentioned in part V(a), “[h]istorical experiences of dispossession and subjugation and ongoing discrimination have been associated with increased risk symptom onset” in relation to certain substance use disorders. Not only is historical trauma commonly manifested through substance use, but also through violent behavior.

For years studies have shown that Native Americans suffer from substance use disorders and domestic violence at higher rates than other racial and ethnic groups. Experts in areas for both substance use disorders and domestic violence agree that the prevalence of these issues in Indian Country are the result of the historical trauma that tribal members experience. While the state and federal governments typically seek to punish individuals who commit drug and violence related crimes that result from these issues, tribal governments focus on healing the individual and the community members effected.

The holistic practice of justice through healing derives from early practices and beliefs in the Native American culture. These traditions are now practiced in tribal courts, family and community forums, peacemaking or sentencing circles, or traditional mediation in tribal communities. Studies have shown that for tribal members, incorporating traditional healing approaches into treatment programs leads to better outcomes. Thus, to see a larger change and an improvement within tribal communities in relation to these issues, tribal nations must be given the opportunity to make these options available to Native American offenders and victims. This cannot be done if states are permitted to step into Indian Country and punish an offender despite a tribe's ability to take action in the way its leaders deem fit for the offense. The permission that Castro-Huerta gives Oklahoma to prosecute crimes within Indian Country will act to slow the healing of the affected tribal nations.

As sovereigns, tribal nations have a profound interest in and a responsibility to protect their reservation, their relationships with non-Indians within their reservation, and their members from crime occurring on their reservation. Evidence shows that Oklahoma's prosecution of crime in Indian Country pre-McGirt did everything but protect Native Americans from crime. The State failed to punish offenders in Indian Country at high rates, and its prosecution of crimes, despite having improper jurisdiction, acts as an example of “contemporary justice initiatives directed at Indians.” As has been recognized for centuries, tribes are sovereign nations with inherent self-regulatory and self-governing powers. With their distinct and unique histories, tribes have the best understanding of their government systems, programs, and treatment practices that will help to heal their community and community members. It is in the tribal nations' best interest that their members are protected from crime and are given the opportunity to heal. These are two things that Oklahoma has historically not offered to tribal nations. As the Supreme Court has recognized, “The 'complex patchwork of federal, state, and tribal law’ governing Indian country has made it difficult to stem the tide” of certain issues, such as these, that are experienced by tribal members. Thus, the interference that will result from concurrent state jurisdiction, as permitted from the Castro-Huerta ruling, will predictably have a negative effect on tribal communities and will prevent the betterment of public health and safety issues such as substance use disorder and domestic violence.

Native Americans lead the charts for rates of substance use disorders and domestic violence; this can be correlated back to years' worth of generational trauma. There is an imbalance in the tribal community that desperately needs to be given the opportunity to heal. Tribal nations have the ability to and are the only sovereign that can restore the peace and equilibrium within their communities through traditional beliefs and practices. Castro-Huerta will only act to slow the healing process of tribal communities. While the Court was once thankful to “wash [its] hands clean of the iniquity of oppressing the Indians and disregarding their rights,” it can no longer say that its hands are clean.

Third-year student, University of Oklahoma College of Law.