The panel consisted of:
- Hon. Stacy L. Leeds, Foundation Professor of Law and Leadership at ASU, a citizen of the Cherokee Nation, the first Indigenous woman to lead a law school (Dean of the University of Arkansas law school), and a former Cherokee Nation Supreme Court Justice;
- Hon. Robert J. Miller, a law professor at ASU, a citizen of the Eastern Shawnee Tribe, the Chief Justice for the Pascua Yaqui Tribe Court of Appeals, and an appellate judge for other tribal courts; and
- Hon. J. Matthew Martin, an Administrative Law Judge with the Social Security Administration, the first American Bar Association Tribal Courts Fellow, and a former Associate Judge of the Cherokee Court, the Tribal Court for the Eastern Band of Cherokee Indians.
The panel was moderated by Hon. Jan W. Morris, a law professor at ASU and Director of the National Tribal Judicial Center at the National Judicial College in Reno, Nevada, a former judge on various trial and appellate benches for more than 20 years, and a citizen of the Choctaw Nation of Oklahoma.
Professor Miller began by introducing Indian law and its basis in the Constitution. In addition to giving Congress power to regulate interstate and foreign commerce, the Commerce Clause in Article I, § 8 of the Constitution also gives Congress power to regulate commerce with the Indian tribes. This was designed to allow the Government to deal with tribes as it would foreign countries, through treaties and contracts. This was the source of the presentation’s title, the “Three Sovereigns,” because under the Constitution there are three sovereigns: the United States (i.e., the federal government), the individual states, and the Indian tribes. This is further implicit in Article VI of the Constitution, which makes treaties part of the supreme law of the land, which included treaties with Indian tribes, and the Fourteenth Amendment, which excludes Indians from being included in the population from whom the House of Representatives is apportioned.
Professor Miller then went over statutes defining “Indian Country” and outlining where federal jurisdiction applies there. This includes the “Major Crimes Act,” 18 U.S.C. § 1153, which establishes exclusive federal jurisdiction over certain enumerated offenses by an Indian against another person within Indian Country. This is the source of the jurisdictional conflict the panel then discussed.
As Professor Miller explained, in McGirt, a citizen of the Muscogee Creek tribe in Oklahoma was convicted in Oklahoma state court of a crime that would give the federal government exclusive jurisdiction under the Major Crimes Act if the offense occurred in Indian Country. The defendant argued that the offense did occur within Indian Country per 1866 treaty boundaries, even though Oklahoma did not recognize that. Oklahoma argued that while the area previously had been Indian Country, over time it had been “diminished” to only 135,000 acres. Professor Miller explained that “diminishment” is a legal doctrine with a three-part test from a 1984 Supreme Court decision: (1) What did Congress say about the issue?; (2) What was the legislative history at the time?; and (3) Who lives there presently?
In a 5-4 opinion with the majority written by Justice Neil Gorsuch, the Supreme Court held there had been no diminishment of the 1866 treaty boundaries, principally because Oklahoma could not meet the first prong of the test – what did Congress say. Congress never passed any law diminishing or disestablishing the Muscogee Creek reservation. So, rather than the 135,000 acres for which Oklahoma argued, the actual reservation was the 3.5 million acres described in the 1866 treaty, covering a large portion of eastern Oklahoma including most of metropolitan Tulsa. Therefore, under the Major Crimes Act, Oklahoma had no jurisdiction over the defendant.
Professor Miller recounted opening the decision and reading the beginning, “At the end of the Trail of Tears was a promise,” and not being able to believe it. He called it a monumental watershed in Indian law, with consequences in tax, criminal, family, and civil law. The Oklahoma Tax Commission estimated this would cost the state $300 million in tax revenues alone. This has caused somewhat of a panic in Oklahoma law and government, with impacts on the state, the federal government (now with more criminal cases to prosecute), and the tribes (which suddenly had a larger governing jurisdiction than they did before).
Judge Martin picked up where Professor Miller left off, noting McGirt was the last decision in which Justice Ruth Bader Ginsburg participated. He suggested the change in the Court’s composition from Justice Ginsburg to Justice Amy Coney Barrett would change Indian law with it, undermining McGirt.
Judge Martin relayed the Supreme Court’s 2021 decision in United States v. Cooley, unanimously holding tribal courts do not have criminal jurisdiction over non-Indians and applying this to tribal policing, too. There, a tribal officer stopped a car driving through a reservation for a welfare check and discovered the driver was intoxicated and had a child in the car. The driver, Mr. Cooley, was a non-Indian. The officer called for backup, detained Mr. Cooley, and searched the car, finding illegal firearms and methamphetamine. Because this occurred on a reservation, the case was heard in federal district court. Mr. Cooley argued the tribal officer had no power to stop him, therefore, the evidence had to be excluded.
The Supreme Court held tribal officers can act with authority until they discover the detained individual’s status: i.e., whether the person is a tribal citizen subject to prosecution in a tribal court, or a non-Indian whose must be charged elsewhere. Under this standard, once the tribal officer learned that Mr. Cooley was a non-Indian, the officer lost legal authority, making the search invalid. Professor Martin suggested Cooley might be viewed as an extension of McGirt, as it delineated the boundaries of tribal jurisdiction on a non-Indian, just as McGirt had for a tribal citizen.
Professor Leeds then offered a contrary view, suggesting McGirt had not really been a bombshell, partly because the defendant in McGirt had been sentenced to death in Oklahoma and so had nothing to lose in making the argument he did. Rather, she viewed the bombshell as being that the Supreme Court put Oklahoma in its place and required it to obey the law applicable to everyone. Professor Leeds pointed out that Oklahoma – a Choctaw word meaning “red man” – had 39 tribes in the 1866 treaty land, which had been terrified to bring up the issue in McGirt and “did a dance for 40-plus years” of extradition, deputization, and tax agreements so as to not have the issue in McGirt squarely heard in courts.
But Professor Leeds agreed with Professor Martin that the change in the Supreme Court’s composition may well imperil McGirt and its clarifications. To that end, she relayed the Supreme Court’s 2022 decision in Oklahoma v. Castro-Huerta. After McGirt, there had been a large number of remands in Oklahoma state court for Native defendants convicted of offenses on what the Court in McGirt held to be Native land. Conversely, Castro-Huerta concerned a non-Indian defendant accused of committing crimes on what the Court in McGirt held to be Indian land against an Indian on that same land. The issue was whether the case had to go to federal district court or could the state exercise concurrent jurisdiction. The Oklahoma Court of Criminal Appeals held the state lacked jurisdiction in the McGirt-confirmed Indian Country over non-Indian defendants committing covered offenses there, too.
In a 5-4 decision, though with Justice Gorsuch now in the minority and Justice Coney Barrett in the majority, the Court held both federal district courts and Oklahoma state courts had concurrent jurisdiction to prosecute non-Indians for crimes on the land that McGirt confirmed was Indian Country. The Court held Indian land within a state is part of the state, too, making for concurrent jurisdiction. Professor Leeds said this was a change from existing precedent that had sought to make more of a balance between state and tribal power. And as Professor Leeds also explained, this raised a new issue whether this holding applied just to non-Indian defendants, or might Oklahoma state courts also have concurrent jurisdiction over Indian defendants accused of covered crimes in Indian Country, too. If so, that would undo McGirt. The Court in Castro-Huerta did not decide that issue, but Professor Leeds explained it remains a current issue.
Professor Leeds also brought up Congress’s reauthorization of the Violence Against Women Act in 2022, which expanded the covered crimes in the Major Crimes Act to include sex crimes. It also provided that tribes may prosecute non-Indians for these offenses. But Congress started with the premise that states are not part of the equation for offenses on Indian land. So, did Castro-Huerta change that? Is it possible for all three sovereigns to prosecute non-Indians under this new law?
Professor Miller and Judge Martin then illustrated several ways in which this new environment is especially confusing. In 2022’s Denezpi v. United States, which Justice Coney Barrett wrote for a six-justice majority and in which Justice Gorsuch dissented, the Supreme Court departed from existing precedent, principally United States v. Wheeler, decided in 1978, and addressed the contours of double jeopardy between the three sovereigns. The Court held an Indian prosecuted by the federal government (because the tribe at issue had no court system) could again face prosecution in federal district court, because the first prosecution was only the federal government “standing in” for the Indian sovereign and was not an exercise of its own sovereign authority.
The bottom line: this all makes for a jurisdictional maze. Who can exercise police power or jurisdiction, and over whom? Judge Martin pointed out that Amnesty International had called this a “maze of injustice,” noting a lack of adequate structures to guard against rampant lawlessness on Indian land. All panelists concurred that the real issue at hand is how tribes fit into the structure of federal and state sovereignty in the 21st century.
This presentation was extremely informative and thought provoking and bore on some of the most fundamental questions of sovereignty, power-sharing, and the purposes of government in the first place. It also led me to follow this area of law more closely. We were fortunate to have such a great panel at AJEI in Scottsdale.