Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on June 27, 29, and 30, 2022 (Part I).
Opinion: Oklahoma v. Castro-Huerta, 21-429
Oklahoma v. Castro-Huerta, 21-429. By a 5-4 vote, the Court held that “the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.” Respondent Victor Castro-Huerta, a resident of Tulsa, was convicted by the State of Oklahoma of child neglect and sentenced to 35 years of imprisonment with the possibility of parole. After he was convicted, the Court decided McGirt v. Oklahoma, 591 U.S. ___ (2020), which held that Congress had never disestablished the Creek Reservation in eastern Oklahoma. The practical impact of McGirt (taking into account other similarly situated reservations) is that eastern Oklahoma (including Tulsa) is now recognized as Indian country. Castro-Huerta argued that, as a non-Indian who allegedly committed a crime against an Indian in Indian country, the federal government had exclusive jurisdiction to prosecute him and that the state therefore lacked jurisdiction to do so. The Oklahoma Court of Criminal Appeals agreed. (While Castro-Huerta’s state case was on appeal, a federal grand jury indicted him, and he accepted a plea agreement for a 7-year sentence followed by removal from the United States.) In an opinion by Justice Kavanaugh, the Court reversed the Oklahoma Court of Criminal Appeals.
The Court began by declaring that “the Constitution allows a State to exercise jurisdiction in Indian country. Indian country is part of the State, not separate from the State.” Unless federal law preempts state law, “as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.” The Court acknowledged that early on, as exemplified by cases such as Worcester v. Georgia, 6 Pet. 515 (1832), “the Federal Government sometimes treated Indian country as separate from state territory.” But, found the Court, that was no longer true by the 1880s. Since then, “the Court has consistently and explicitly held that Indian reservations are ‘part of the surrounding State’ and subject to the State’s jurisdiction ‘except as forbidden by federal law.’” For example, in the “leading case” of United States v. McBratney, 104 U.S. 621 (1882), the “Court held that States have jurisdiction to prosecute crimes committed by non-Indians against non-Indians in Indian country.” And so the Court considered two questions related to whether states may prosecute crimes committed by non-Indians against Indians in Indian country: whether federal law preempts such state authority and “whether principles of tribal self-government preclude the exercise of” such state authority.
Starting with the former, the Court found that neither the General Crimes Act, 18 U.S.C. §1152, nor Public Law 280 preempts state authority to prosecute crimes committed by non-Indians against Indians in Indian country. The General Crimes Act provides in relevant part that: “Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, . . . shall extend to the Indian country.” The Court concluded that this text does not preempt state authority. It “simply ‘extend[s]’ federal law to Indian country, leaving untouched the background principle of state jurisdiction over crimes committed within the State, including in Indian country.” Although the Act specifies the body of federal criminal law that extends to Indian country (the federal laws that apply in federal enclaves), it “does not say that Indian country is the equivalent to a federal enclave for jurisdictional purposes.” The Court noted that if Castro-Huerta’s argument to the contrary were correct, the Act would (contrary to McBratney) “preclude States from prosecuting any crimes in Indian country—presumably even those crimes committed by non-Indians against non-Indians.” Castro-Huerta asserted that the General Crimes Act is comparable to the Major Crimes Act, which the Court has said provides for exclusive jurisdiction over major crimes committed by Indians in Indian country, but the Court said “the Major Crimes Act contains substantially different language than the General Crimes Act.” Nor was the Court persuaded by Castro-Huerta’s argument that “[a]t the time of the [General Crimes] Act’s earliest iterations in 1817 and 1834, Indian country was separate from the States.” Said the Court, “[t]he history of territorial separation during the early years of the Republic is not a license or excuse to rewrite the text of the General Crimes Act.” The Court was likewise unimpressed with Castro-Huerta’s contention that Congress recodified the General Crimes Act in 1948, two years after the Court said in dicta in Williams v. United States, 327 U.S. 711 (1946), that states lack jurisdiction over crimes committed by non-Indians against Indians in Indian country. The Court stated that “the reenactment canon does not overcome clear statutory language” and, in any event, “does not apply to dicta.” Finally, the Court said that its repeated dicta similar to Williams is irrelevant: “the Court’s dicta, even if repeated, does not constitute precedent.”
The Court next ruled that Public Law 280 does not preempt state jurisdiction. Although “Public Law 280 affirmatively grants certain States broad jurisdiction to prosecute state-law offenses committed by or against Indians in Indian country,” the statute “does not preempt any preexisting or otherwise lawfully assumed jurisdiction that States possess to prosecute crimes in Indian country.” See Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S. 138, 150 (1984). Castro-Huerta argued “that the enactment of Public Law 280 in 1953 would have been pointless surplusage if States already had concurrent jurisdiction over crimes committed by non-Indians against Indians in Indian country. So he says that, as of 1953, Congress must have assumed that States did not already have concurrent jurisdiction over those crimes.” But, said the Court, “assumptions are not laws” and Public Law 280 contains no preemptive language. Further, “Public Law 280 encompasses far more than just non-Indian on Indian crimes (the issue here). Public Law 280 also grants States jurisdiction over crimes committed by Indians.”
Finally, the Court applied the Bracker balancing test to “consider tribal interests, federal interests, and state interests.” See White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). The Court concluded that “Bracker does not bar the State from prosecuting crimes committed by non-Indians against Indians in Indian country.” First, “the exercise of state jurisdiction here would not infringe on tribal self-government.” Second, “a state prosecution of a non-Indian likewise would not harm the federal interest in protecting Indian victims.” And third, “the State has a strong sovereign interest in ensuring public safety and criminal justice within its territory, and in protecting all crime victims.” The Court closed by saying that “the dissent employs extraordinary rhetoric in articulating its deeply held policy views about what Indian law should be. The dissent goes so far as to draft a proposed statute for Congress. But this Court’s proper role under Article III of the Constitution is to declare what the law is, not what we think the law should be. The dissent’s views about the jurisdictional question presented in this case are contrary to this Court’s precedents and to the laws enacted by Congress.”
Justice Gorsuch filed a lengthy dissent, which Justices Breyer, Sotomayor, and Kagan joined. “Truly,” Justice Gorsuch wrote, “a more ahistorical and mistaken statement of Indian law would be hard to fathom.” Justice Gorsuch said that “[t]he source of the Court’s error is foundational”: the notion “that States normally wield broad police powers within their borders absent some preemptive federal law.” But that wrongly treats tribes like run-of-the-mill private organizations, not the sovereigns that they are. Quoting Worcester v. Georgia, he stated that “Tribal sovereignty means that the criminal laws of the States ‘can have no force’ on tribal members within tribal bounds unless and until Congress clearly ordains otherwise.” That principle is not “some discarded artifact of a bygone era,” but a concept repeatedly reaffirmed by the Court. Citing recent cases, Justice Gorsuch stated that “instead of searching for an Act of Congress displacing state authority, our cases require a search for federal legislation conferring state authority.” And in conducting that search, “courts must ‘tread lightly’ before concluding that Congress has abrogated tribal sovereignty in favor of state authority”―especially in the criminal context.
Justice Gorsuch then turned to the various laws governing criminal jurisdiction on tribal lands that Congress enacted between 1834 and 1968 and found that none of them met that demanding standard. To the contrary, “[e]ach operates against the backdrop understanding that Tribes are sovereign and that in our constitutional order only Congress may displace their authority.” To summarize greatly: Starting with the General Crimes Act, Justice Gorsuch noted that “Congress adopted the GCA in the aftermath of Worcester’s holding that the federal government alone may regulate tribal affairs and States do not possess inherent authority to apply their criminal laws on tribal lands. Responding to that decision, Congress did not choose to exercise its authority to allow state jurisdiction on tribal lands. Far from it. Congress chose only to extend federal law to tribal lands—and even then only for certain crimes involving non-Indian settlers.” Justice Gorsuch next discussed the 1835 Treaty of New Echota, which stated that the Cherokee Tribe would “remain forever free from ‘State sovereignties’ and ‘the jurisdiction of any State.’” Then the 1906 Oklahoma Enabling Act “insisted that tribal lands ‘shall be and remain subject to the jurisdiction, disposal, and control of the United States.’” Turning to McBratney and related decisions, Justice Gorsuch said: “as aggressive as these decisions were, they took care to safeguard the rule that a State’s admission to the Union does not convey with it the power to punish ‘crimes committed by or against Indians.’” Only in Public Law 280 and related statutes has Congress “authorized the application of state criminal law on tribal lands for offenses committed by or against Native Americans.”
Justice Gorsuch observed that in 1946 in Williams v. United States, the Court stated that while States “may have jurisdiction over offenses committed on th[e] reservation between persons who are not Indians, the laws and courts of the United States, rather than those of [the States], have jurisdiction over offenses committed there . . . by one who is not an Indian against one who is an Indian.” The 1959 decision in Williams v. Lee, 358 U.S. 217, repeated the point. With one isolated exception, the Executive Branch adopted that understanding. And “even Oklahoma has more or less conceded the point” in its earlier briefing in McGirt.
Turning to Bracker balancing, Justice Gorsuch said that “Bracker never purported to claim for this Court the raw power to ‘balance’ away tribal sovereignty in favor of state criminal jurisdiction over crimes by or against tribal members.” Bracker instead “started with the traditional ‘backdrop’ presumption that States lack jurisdiction in Indian country.” Public Law 280―which since 1968 has required tribal consent for a state to obtain criminal jurisdiction under it―shows that “Congress has already ‘balanced’ competing tribal, state, and federal interests―and its balance demands tribal consent.” Justice Gorsuch then walked through those interests and disputed the majority at every turn. The notion that state prosecutions will “help” Indians is paternalistic, he said. “Maybe the Cherokee have so far withheld their consent because, throughout the Nation’s history, state governments have sometimes proven less than reliable sources of justice for Indian victims.” On the state’s interest, Justice Gorsuch disputed Oklahoma’s post-McGirt “sky is falling” claim, noting that “neither the tribal nor the federal authorities on the receiving end of this new workload think the ‘costs’ of this period of readjustment begin to justify the Court’s course.” Justice Gorsuch added that the Bracker balancing test might come out differently when applied to different tribes in different states, and that different tribes might be able to point to treaties that produce a different result. And he added that Congress can step in and “undo” the Court’s “decision and preempt state authority at any time” through a simple amendment to Public Law 280.