Supreme Court ruling creates uncertainty for companies operating in Indian country

US courts have long recognized tribes as sovereign nations entirely separate from the states with which they share borders – until last week when the Supreme Court overturned that precedent.

In a blow to tribal sovereignty, the court’s 5-4 decision in Oklahoma v. Castro-Huerta gives states the power to prosecute certain crimes allegedly committed by non-natives on tribal lands. It is also a major change for non-Natives operating businesses on reservations, which in the past were subject to federal and tribal laws, cops and courts.

“It takes the fundamental premise of the whole field [of federal Indian law] and turns it 180,” said Stacy Leeds, a law professor at Arizona State University and a citizen of the Cherokee Nation. “It says bluntly in the majority opinion that Indian Country is part of the state.”

“If you have a non-Indian doing business on a reservation, it appears state law would follow that person wherever they go in that state, including an Indian reservation,” Leeds added. “So [the decision] really throws into chaos the understanding of who regulates the conduct of business when non-Indians are involved.

The ruling also signals that the High Court may be willing to extend states’ civil jurisdiction to Indian Country, according to Maggie Blackhawk, a New York University Law School professor and a citizen of Lake Superior’s Fond du Lac Band. Ojibwe. She suspects that’s what the State of Oklahoma, which brought the case, is looking for.

“What he really wants is to have clear civil jurisdiction over tax revenues and mining rights,” Blackhawk said. “It will move the conversation forward where Oklahoma can try to negotiate more concessions from tribal governments around civil jurisdiction and corporate regulation.”

Blackhawk said uncertainty is not good for trading on tribal lands.

The Supreme Court has indicated that it is “willing to destabilize the entire Indian legal framework that now governs economic development within Indian Country,” Blackhawk said. “That’s not where businesses thrive, in unstable legal frameworks.”

Blackhawk said that the legislature could restore some of that stability. In a scathing dissent, Justice Neil Gorsuch, who has the most judicial experience in federal Indian law among current justices, called on Congress to avoid “unnecessary confusion across the country” by requiring states to obtain tribal consent before exercising jurisdiction over tribal lands.

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