By Jazzmen Fobbs- JD/MA Candidate, American University Washington College of Law ’25
I. Introduction
Article 7 of the United Nations Declaration on the Rights of Indigenous Peoples provides that “[i]ndigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.”[1] Native American women and girls in the United States face a wide range of persistent threats to their human rights, including heightened levels of gender-based violence such as sexual assault, rape, disappearances, and killings.[2] Several factors exacerbate the violation of these rights, including the United States’ insufficient data collection, jurisdictional complications, and faulty coordination between the federal government and tribal authorities.[3]
The ongoing human rights crisis impacting Native American women has been fueled by a series of recent decisions that hinder their access to justice. Certain decisions that blur the lines between jurisdictional powers risk complicating future proceedings, particularly in cases of domestic violence and sexual assault. By letting states maintain jurisdictional power over non-Native Americans who commit crimes on tribal lands, Oklahoma v. Castro-Huerta[4]undermines the objectives of the Violence Against Women Act (VAWA), thus being inconsistent with U.S. statutory law. In this article, I will delve into the legal and social ramifications of the Castro-Huerta ruling, its potential to worsen the plight of Native American women, and the need for legal reforms to address this issue.
II. Background
Native American women in the United States are murdered at a rate ten times higher than the national average.[5] On top of this, U.S. law has deprived Native American communities of criminal authority over non-Native Americans for more than thirty-five years.[6] The federal government has held jurisdiction over violent crimes that take place on tribal lands for several years, resulting in federal prosecutors declining to pursue almost half of all violent cases involving Native Americans.[7] Lack of prosecution provides a blanket protection for offenders, including non-Native Americans married to Native American women whom the government cannot prosecute.[8] As a result, many Native American women struggle to bring their abusers to court.[9]
In June 2022, the U.S. Supreme Court granted state governments the authority to prosecute certain cases on tribal lands, challenging centuries of legal precedent and diminishing tribal sovereignty.[10] In Castro-Huerta, the Court addressed the question of whether state governments have concurrent jurisdiction with the federal government when prosecuting crimes committed by non-Native Americans against Native Americans on tribal lands.[11] The case stemmed from a conviction, in which a non-Native American father (Castro-Huerta) was found guilty of neglecting his Native American stepdaughter.[12] In response to Castro-Huerta’s challenging argument that only federal authorities had jurisdiction over such crimes on tribal lands, the Court ultimately ruled that both the federal government and the state of Oklahoma had jurisdiction.[13]
Simultaneously, legislatures have worked to fill the large gaps in legal protections available for Native American women. The Violence Against Women Act, for example, extends to Native American women.[14] Specifically, VAWA expands tribal jurisdiction over crimes committed on tribal lands, particularly those involving violnce against Native American women.[15] VAWA also applies to non-Native American offenders and added the following offenses to tribal criminal jurisdiction over non-Native American offenders: assault of tribal justice personnel, child violence, obstruction of justice, and sex trafficking.[16] VAWA’s recent reauthorization under President Joe Biden’s administration is one crucial step in addressing gender-based violence in the United States.[17] However, the Castro-Huerta ruling creates a significant amount of tension by limiting tribal authority to address violent crimes committed against Native American women on tribal lands and undermining efforts to expand tribal jurisdiction over such crimes.
III.Analysis
The Castro-Huerta ruling in effect contradicts legislative efforts to provide access to justice for Native American women experiencing gender-based violence. By allowing concurrent jurisdictional powers between state governments and the federal government, Castro-Huerta blurs the line between authorities when it comes to jurisdictional powers. This uncertainty creates confusion in a way that complicates efforts to protect women from gender-based violence, especially Native American women. Ultimately, this ruling limits their access to justice, leaving women dependent on state authorities to prosecute their non-Native American abusers who commit crimes against them on tribal lands.[18]
Contrarily, VAWA has aimed to provide tribal courts with jurisdiction over non-Native Americans’ crimes against Native Americans for many years. VAWA aims to enhance protections for women throughout the United States and improve access to justice for survivors of violence by expanding legal protections, supporting increased tribal jurisdiction powers, and improving survivor access to resources.[19] Castro-Huerta presents a significant challenge to the primary objectives of VAWA. It gives states the power to determine whether they will exercise jurisdiction over these crimes, which undermines the tribal sovereignty that VAWA seeks to enhance.[20]
In Castro-Huerta, the Court also found that federal law does not preempt state jurisdiction over these crimes.[21] It held that principles of tribal self-government did not preempt state prosecution, as prosecution of such crimes committed by non-Native Americans against Native Americans would not deprive a tribe of prosecutorial authority.[22] While the Court’s decision allowed the state to retain its prosecutorial authority, it did so by limiting tribal authority.
Castro-Huerta may undermine the authority of tribal governments and create an excess of authoritative conflicts that further hinders the redress of victims of gender-based violence.[23] Over time, various legal rulings have eroded tribal sovereignty, impacting tribes’ ability to govern effectively on their land. By broadening the jurisdictional overlap between tribes and states, Castro-Huerta appears as a significant threat to overall tribal sovereignty, even if its immediate impact appears limited.[24] Essentially, this decision weakens tribes’ ability to independently address crimes on their land. Not only can this create more confusion, but it risks creating procedural delays, deterring women from coming forward, and further impedes the redress of victims of gender-based violence.
This danger is precisely the concern that has long troubled many individuals—the dominance of one governing body over another.[25] Castro-Huerta gave the courts a chance to modify the existing complications presented by earlier decisions like Oliphant v. Suquamish Indian Tribe.[26] Yet, instead of restoring the tribal jurisdiction that the Court removed in 1978 with Oliphant, it used Castro-Huerta to shift that authority to the states instead.[27]
It is evident that addressing this crisis is essential to protect human rights and, more specifically, women’s rights. Potential remedies include amending Public Law 280, which allows states to assume jurisdiction over criminal matters on tribal lands under specific circumstances.[28] An amendment could grant tribal courts power to adjudicate specific cases involving violent crimes against women. It could include provisions that require periodic review of the law to ensure that it remains effective in protecting women in tribal communities. In general, ideal remedies would encompass measures focusing on enhancing law enforcement efforts, collaboration between authorities, and review of relevant laws.
IV. Conclusion
The crisis of gender-based violence against Native American women in the United States represents a profound human rights concern. The Castro-Huerta decision poses a significant threat to the effectiveness of legislation attempting to counter this issue and amplifies the challenges faced by women in these communities. The obstruction of tribal sovereignty, compounded by legal conflicts and jurisdictional challenges, threatens their access to justice, thus threatening their overall human rights. To address this crisis, it is imperative that Congress takes action to ensure the well-being and security of Native American women, such as by amending Public Law 280. It is our shared duty to safeguard women’s human rights.
FOOTNOTES:
[1] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, Agenda Item 68, UN Doc A/RES/61/295 (2007) (stating that such individuals “shall not be subjected to any act of genocide or any other act of violence”).
[2] Elaina Erola, Legal Obstacles in the Epidemic of Missing and Murdered Indigenous Women in the United States, 54 Tex. Tech L. Rev. 165 (2022); See Rape of Native Women, Amnesty Int’l (2023), https://bidenhumanrightspriorities.amnestyusa.org/rape-of-native-women (reporting over 500 cases of missing and murdered American Indian and Alaska Native women).
[3] World Health Organization, Global and Regional Estimates of Violence Against Women (2013), https://www.who.int/publications/i/item/9789241564625.
[4] 597 U.S. 629 (2022).
[5] Erola, supra note 2, at 165.
[6] See, Ending Violence Against Native Women, Indian L. Res. Ctr., https://indianlaw.org/issue/ending-violence-against-native-women#:~:text=Native%20women%20are%20murdered%20at,out%20of%205%20physically%20assaulted (reporting that non-Native Americans commit the vast majority of sexual violence against Native American women and now comprise 76% of tribal land population).
[7] Graham Lee Brewer, The Supreme Court Gave States More Power Over Tribal Land. Tribes Say That Undermines Their Autonomy, NBC News (June 30, 2022, 12:52 PM), https://www.nbcnews.com/news/us-news/supreme-court-oklahoma-castro-huerta-decision-tribal-sovereignty-rcna35872.
[8] See Ending Violence Against Native Women, supra note 6.
[9] See id. (“Predators exploited the low prosecution rate . . . turning tribal lands into targets and contributing to the epidemic of missing and murdered Indigenous women.”).
[10] Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022).
[11] Id. at 632.
[12] Id. at 632–34.
[13] Id. at 656.
[14] Violence Against Women Act Reauthorization Act of 2022, 117 S. 3623 [hereinafter Violence Against Women Act].
[15] Id.
[16] See id. (explaining further that 96% of Native American and Alaska Native women who are victims of violence have experienced sexual violence by a non-Native American offender at least once in their life).
[17] Id.
[18] Brewer, supra note 7.
[19] Violence Against Women Act, supra note 14.
[20] Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022).
[21] Id. at 637.
[22] Id. at 650.
[23] Michael D. O. Rusco, Oklahoma v. Castro-Huerta, Jurisdictional Overlap, Competitive Sovereign Erosion, and the Fundamental Freedom of Native Nations, 106 Marq. L. Rev. 889, 921 (2023).
[24] Id. at 912–13; see also Castro-Huerta, 597 U.S. at 684 (Gorsuch, J., dissenting) (“[B]efore us is a mountain of statutes and precedents making plain that Oklahoma possesses no authority to prosecute crimes against tribal members on tribal reservations until it amends its laws and wins tribal consent. . . . [this] marks an embarrassing new entry into the anticanon of Indian law.”).
[25] Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (restricting tribal nations’ jurisdiction over non-Native Americans without explicit authorization from Congress).
[26] Id.
[27] Mary Kathryn Nagle, Despite Victory in the Supreme Court, a Dark Ruling Hangs Over Tribal Nations, Wash. Monthly (July 21, 2023), https://washingtonmonthly.com/2023/07/21/despite-victory-in-the-supreme-court-a-dark-ruling-hangs-over-tribal-nations.
[28] See 18 U.S.C.S. § 1152.