Last June, people across the United States bore witness to the horrific and democracy-shaking decisions of the Roberts Court. Virtually everyone in the States and many beyond the nation's borders are familiar with the Dobbs v. Jackson Women’s Health Organization decision that explicitly overturned Roe v. Wade and opened the door to future attacks on same-sex marriage, access to contraceptives, and interracial marriage. Many of us are also familiar with NYSRPA v. Bruen, which curbed efforts by states to control firearm possession, and West Virginia v. EPA, which seriously hampers America’s efforts to meet Biden’s already-weak climate goals. There has been enough news coverage of the Supreme Court and its impacts to make one’s head spin.
However, there is one case that, despite having far-reaching consequences for millions of American citizens and tens of thousands of square miles of land, has received relatively little attention in comparison to other big-name cases, especially among those whom the case does not affect directly. That case is Oklahoma v. Castro-Huerta.
Oklahoma v. Castro-Huerta is the latest addition to the centuries-old body of law known as federal Indian policy. Federal relations with the hundreds of Indigenous groups within American territory have been, with few exceptions, antagonistic. From President Jackson’s Removal policy to 20th-century boarding schools that left thousands of Native children dead and thousands more Americanized, most Americans have at least a vague sense that the official stance of the federal government towards American Indians was to destroy them and forget they ever existed.
Some gains of questionable force did come in the late 20th and early 21st centuries. Federal and popular sentiment toward Native Americans took a less hostile tone, and tribes made important gains in restoring and exercising their sovereignty. Congress passed such milestone bills as the Indian Civil Rights Act, the Indian Child Welfare Act, the Indian Gaming Regulatory Act, and the Native American Languages Act. To some, tribal jurisdiction seemed to be experiencing a resurgence, a resurgence that the federal government appeared willing to let stand for the time being. These legislative gains were paralleled by a similar revitalization of Native culture, with many Natives expressing dissatisfaction at their communities’ level of assimilation into Euro-American culture.
Warmer federal-Indian relations continued into this decade. The landmark McGirt v. Oklahoma (2020) decision was, one could say, the closest that tribes had gotten to true sovereignty in recent memory. For decades, the greatest enemies of tribal sovereignty have been the states in which the tribes reside, fearing that their “right” to administer state laws on “state territory” would suffer with increased tribal sovereignty. The McGirt v. Oklahoma decision pulled from an 1860s treaty that held that the Muscogee Nation, a tribe with a reservation in eastern Oklahoma, still existed per the treaty’s language. This is significant because it used a federal-Indian treaty as the basis of a modern decision, giving legal force to a type of treaty that had long been ignored in the pursuit of American domestic imperialism. It also confirmed the existence of a reservation in a state in which tribal governments claim over 40% of the territory. State courts in Oklahoma have since used that logic to confirm the continued existence of multiple other reservations in Oklahoma, giving them more legal authority in the face of a state government that is concerned with its diminishing power in those regions.
This decision was hailed by tribes as an important step toward true sovereignty. Importantly, it gave tribal legal systems authority over crimes committed against Indians by non-Indians on tribal land, an area of criminal law that was previously claimed by Oklahoma. At the same time, what some have called an “epidemic” of violence against Natives was and still is occurring. A movement has coalesced in Indian Country under variations of the hashtag #MMIW (Missing and Murdered Indigenous Women), which aims to bring awareness to remarkable rates of violence committed against Indigenous women, girls, two-spirit individuals, and other female-presenting people. Statistics say that 80% of all Native women will experience violence of some kind during their lives and that the murder rate for Indigenous women in the United States is 10 times the national average, causing homicide to be the third most common cause of death for young Indigenous women. It was in that context that tribes were suddenly given the right to prosecute crimes against Natives by non-Natives on their land. Finally, a way to possibly mitigate the MMIW crisis was within tribal grasp.
However, Kevin Stitt, the Governor of Oklahoma (and, ironically, a member of the Cherokee Nation of Oklahoma), took issue with this. He mounted a campaign to paint tribal lands as “lawless” and paint the McGirt decision as one that threatened law and order. The decision, claimed Governor Stitt, would overturn hundreds of criminal convictions handed down by Oklahoma over the years, allowing criminals to roam Oklahoma in the name of tribal sovereignty. Furthermore, he claimed that tribes were incompetent and thus unable to handle the volume of incoming criminal cases. All told, his portrait of Indian Country was of a land that needed state authority to prevent anarchy.
Governor Stitt’s efforts to influence the conversation on tribal sovereignty appear to have worked. The Supreme Court sided with Oklahoma in Oklahoma v. Castro-Huerta, giving the state the authority to prosecute non-Indians for crimes committed against Natives in Indian Country. Merely two years after it was decided, tribes lost much of the headway made in McGirt and with it their best weapon against the MMIW crisis.
But what does the Castro-Huerta decision really mean? For one, it perpetuates the management of Native affairs by non-Natives - a topic that merits an article of its own. Much of what tribes do is controlled by the federal government via the Department of the Interior. Until 1924, it was not guaranteed that American Indians were citizens of the United States. Until the 1960s, it was not guaranteed that individual tribes would not be outright “terminated,” or erased as legal and independent polities, at Congressional whim. Until 1968, the basic rights of free speech and due process were not guaranteed in Indian Country. Until the 1970s, it was not guaranteed that Native children would not be forcefully assimilated in government schools or ripped from their families and raised by white Americans. All of these policy routes and many others were pursued by federal politicians, the vast majority of whom were not Native. Native fates were in non-Native hands. As a case in point, no other racial or ethnic group in the United States has a section of the Code of Federal Regulations dedicated to them and their affairs. In fact, because Native rights can still be undone — as in Castro-Huerta — Native fates remain in non-Native hands.
The situation in Indian Country post-Castro-Huerta is also emblematic of American colonialism. Over the centuries, tribes have been beaten and their members’ spirits broken. From Removal to economic despair to Relocation to the MMIW crisis, the air surrounding Indian Country reeks of hostility. The United States creates social, political, and economic conditions on reservations that make young Indians want to leave their communities, causing them to eventually assimilate. Today, only 15% of American Indians report speaking a Native language at home. Nearly a quarter of all American Indians live in poverty, and less than half of them have graduated high school. These conditions are so dismal that one must entertain the thought that they are deliberate. The federal government does not care about the experiences of American Indians. It has little incentive to do so, considering that they make up 2% of the population and are rarely a swing constituency in federal elections. Even the general public knows startlingly little about American Indians, to say nothing of if they personally know any Indians.
I write this to bring to light an action of the Supreme Court that was overshadowed by its other decisions this term. I also want to bring awareness to an often-forgotten segment of Americans and connect their circumstances to ongoing interior colonialism. Peoples with the ancestral right to govern themselves must constantly go toe-to-toe with the federal government to protect their right to exist. Castro-Huerta is the latest of those battles, a battle that the American Indians have lost. Though there is always an opportunity to fight again in the future, the future does not look bright. The Supreme Court recently decided to review the Indian Child Welfare Act, which prevents Native children from being raised in non-Native foster homes - a practice that was formerly used and which constitutes genocide according to the United Nations. Given this court’s track record, the ICWA’s fate is uncertain.
Natives’ contentious relationship with the federal government is unique among all groups in America and necessitates special attention and knowledge. It may be tempting to shift resources away from Indigenous empowerment in favor of causes that seemingly have more beneficiaries, but the size of the Indian community does not diminish the size of the injustices committed against it. There are Indigenous people everywhere, including thousands who reside in the DMV. Those of us who have tribal citizenship often wonder if the federal government will unilaterally decide to undo any number of our rights and privileges as members of ancient sovereign polities, requiring constant vigilance on our part. In our fight as socialists for equality, let us not forget our Indigenous siblings.
