Kristen A. Carpenter is Council Tree Professor of Law.
The U.S. government officially recognizes 574 Indian tribes across 49 states (Native Hawaiians are considered separately).
In June, the U.S. Supreme Court issued a 5-4 decision that states and the federal government have concurrent jurisdiction over crimes committed by non-tribal members against tribal members on tribal lands unless congress states otherwise. This contradicts a long-standing position that states lack jurisdiction.
Oklahoma v. Castro-Huerta
In this matter, the state of Oklahoma sought to have concurrent jurisdiction with the federal government in the case of a non-Native American man, Victor Manuel Castro-Huerta, who was accused of neglecting his Native American stepdaughter within Cherokee Nation. Justice Brett Kavanaugh wrote, “As a matter of state sovereignty, a State has jurisdiction over all its territory, including Indian country.”
In his dissenting opinion, Justice Neil Gorsuch wrote, “Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.” Gorsuch was the lone dissenter appointed by a Republican president, but his dissent did not surprise Kristen A. Carpenter, Council Tree Professor of Law, and director of the American Indian Law Program at the University of Colorado Law School.
“Justice Gorsuch understands treaty rights and federal Indian common law in a way that unfortunately Justice Kavanaugh appears not to,” says Carpenter, who was surprised to see the Supreme Court make such a sharp departure from the established baseline of federal Indian law.
