Abstract

Excerpted From: Abby Edelberg Popenoe, Healing from Oklahoma v. Castro-Huerta: Looking to the Future of Indian Country Criminal Jurisdiction Through Healing to Wellness Courts and Public Law 280, 57 U.C. Davis Law Review Online 119 (May, 2024) (114 Footnotes) (Full Document)

To say that Federal Indian law is increasingly uncertain, particularly when it comes to criminal jurisdiction, is a generous overstatement. At the same time, the imposition of Western criminal justice policy and practices has been a destructive tool of colonization and genocide of Indigenous people since white settlers first arrived on the land now known as the United States. Since first contact, Indigenous nations have been resisting settler colonialism and asserting sovereignty by using traditional healing practices to address conflict and harm. Today these practices are often manifested in Healing to Wellness Courts operated by tribes.

The Supreme Court's 2022 decision in Oklahoma v. Castro-Huerta threatens not only continued uncertainty for Indian Country criminal jurisdiction but also a coming attack on all aspects of tribal sovereignty, thus making tools for implementing traditional practices that offer alternatives to Western carceral systems while facilitating assertions of tribal sovereignty more needed than ever. Decades ago, some tribes suffered great affronts to their sovereignty when the passage of Public Law 280 (“PL 280”) allowed certain enumerated states to assume criminal jurisdiction on tribal land. Many of these tribes are now leading the way in their implementation of Healing to Wellness Courts despite the additional barriers they face due to Public Law 280. As tribal nations look to the threats forewarned by Castro-Huerta, understanding the effects of Public Law 280 on the challenges tribes face in implementing traditional justice practices provides considerations for asserting sovereignty through criminal justice in an era of increasing jurisdictional uncertainty.

Part I of this Essay provides an overview of criminal jurisdiction in Indian Country, Public Law 280, and the immediate changes and future threats brought by Castro-Huerta. Part II discusses Healing to Wellness Courts generally. Part III analyzes three barriers tribes face when creating and sustaining Healing to Wellness Courts, and examines how each barrier can be affected by a tribe's PL 280 status. Part IV looks at the Yurok Wellness Court as a case study of a successful Healing to Wellness Court operating under PL 280 jurisdiction. Part V synthesizes the differing challenges and successes faced by the Yurok Wellness Court due to PL 280 status and considers how the accomplishments of Healing to Wellness Courts under PL 280 jurisdiction can offer guidance for all tribes seeking to assert sovereignty in the face of Castro-Huerta's threats.

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The PL 280 Wellness Court's Lessons for a Castro-Huerta Future

The implications of Castro-Huerta's dicta suggest that the story of state criminal jurisdiction encroaching onto Indian Country is not over. Castro-Huerta also highlights how assertions of tribal sovereignty are needed now more than ever. Healing to Wellness Courts directly promote tribal sovereignty by replacing American criminal punishment with traditional justice practices and increasing the authority and perceived legitimacy of tribal courts. At the same time, Healing to Wellness Courts often demonstrate effective cooperation between tribes and states and can provide models for successful state-tribal collaboration that furthers tribal sovereignty.

The Yurok Wellness Court shows us that PL 280 status can create additional barriers to implementing traditional justice practices, namely funding challenges. Yet we also see that PL 280's effects on funding and court infrastructure do not foreclose tribes from establishing and sustaining successful Healing to Wellness Courts. Individual relationship building between tribal and state officials and savvy capacity building that demonstrates court legitimacy without compromising tribal values are tools available to all tribes, regardless of jurisdictional authority.

As the Supreme Court foreshadows drastic threats on tribal sovereignty and the American criminal punishment system continues to cage and kill Indigenous people at unfathomable rates, Healing to Wellness Courts provide a nation-building and sovereignty-promoting tool that offers tribes the opportunity to opt out of the Western carceral paradigm. Of the many tribes already using the Healing to Wellness Court instrument successfully, those under Public Law 280 jurisdiction shine a particularly bright light for how to continue the fight for liberation and decolonization when all of tribal sovereignty is on the line.

Copyright © 2024 Abby Edelberg Popenoe. J.D. Candidate, University of California, Davis, School of Law, 2024.