This Report summarizes an opinion issued on January 24, 2022 (Part I); and cases granted review on January 21 and 24, 2022 (Part II).
Cases Granted Review: Oklahoma v. Castro-Huerta, 21-429
Oklahoma v. Castro-Huerta, 21-429. The Court will decide “[w]hether a State has authority to prosecute non-Indians who commit crimes against Indians in Indian country.” The case comes to the Court in the wake of McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), a 5-4 decision in which the Court held that a large swath of Oklahoma is “Indian country” and that, as a result, the federal government has exclusive authority under the Major Crimes Act “to prosecute Indians who commit serious crimes there.” The petition describes the fallout from McGirt as “calamitous and . . . worsening by the day” because the decision stripped Oklahoma of its traditional authority to exercise criminal jurisdiction over the entire state. But despite the petition’s request, the Court declined to reconsider McGirt itself.
As the petition explains, prosecutorial authority over crimes “committed in ‘Indian country’ . . . is governed by a ‘complex patchwork of federal, state, and tribal law.’” States have “exclusive authority to prosecute crimes committed by non-Indians against non-Indians in Indian country.” See United States v. McBratney, 104 U.S. 621 (1882). And under the Major Crimes Act, 18 U.S.C. §1153, the federal government has “exclusive authority to prosecute certain enumerated felonies committed by Indians in Indian country.” But what about crimes committed by non-Indians against Indians in Indian country? Although the General Crimes Act, 18 U.S.C. §1152, “provides the federal government with authority to prosecute violations of general federal criminal law where either the defendant or the victim was an Indian and the other party was not,” the “Court has never squarely held that States do not have concurrent authority to prosecute non-Indians for state-law crimes committed against Indians in Indian country.”
Oklahoma asks the Court to hold that states have such concurrent authority, to reverse the Oklahoma Court of Criminal Appeals’ contrary holding, and to reinstate respondent’s state conviction for child neglect and resulting 35-year sentence. Respondent is a non-Indian who was convicted after his five-year-old stepdaughter, a member of the Eastern Band of Cherokee Indians, was taken to the hospital in critical condition. The child, who has cerebral palsy and is legally blind, “was dehydrated, emaciated, and covered in lice and excrement, and she weighed only nineteen pounds.” Investigators “later discovered that her crib was filled with bedbugs and cockroaches and contained a single, dry sippy cup, the top of which was chewed through.” Respondent knew that the child needed “five bottles of nutritional supplement a day,” but “had provided her between only twelve and eighteen bottles the previous month.” The state courts ultimately vacated respondent’s conviction on the ground that, like the Major Crimes Act in McGirt, “the General Crimes Act preempt[s] state prosecutions for crimes committed by non-Indians against Indians in Indian country.”
Oklahoma argues that the state courts erred in “extending McGirt beyond the confines of the Major Crimes Act” to preempt state prosecutions of “all crimes committed by non-Indians against Indians in Indian country.” In its view, neither the text of the General Crimes Act, the Court’s precedents, nor the complexities of federal-state-tribal relations displaces the state’s inherent authority to prosecute non-Indians. Textually, Oklahoma argues that the General Crimes Act does not explicitly “relieve a State of its prosecutorial authority over non-Indians in Indian country.” It states only that, “[e]xcept 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, except the District of Columbia, shall extend to the Indian country.” In the state’s view, “the phrase ‘sole and exclusive jurisdiction’ is used to ‘describe the laws of the United States’ that extend to Indian country” and “does not concern the discrete question of who has prosecutorial authority within Indian country.” And “[t]he phrase ‘except as otherwise expressly provided by law’ . . . refers to federal laws that exempt Indian country from the reach of federal criminal law in certain circumstances” and “does not mean . . . that state criminal law does not apply in Indian country unless Congress expressly provides for that result.”
Nor do the “Court’s precedents . . . prohibit States from prosecuting crimes committed by non-Indians against Indians in Indian country.” Relying on McBratney and other cases dating back to 1859, Oklahoma argues that states have inherent sovereign authority “to prosecute crimes committed by non-Indians against non-Indians in Indian country.” Oklahoma stresses that “the Court’s modern precedents demonstrate that, in the absence of a congressional prohibition, a State’s sovereign authority extends to non-Indians in Indian country—including in interactions between non-Indians and Indians.” Oklahoma also argues that “no tribal interest is impaired by the exercise of state jurisdiction” because “Indian tribes generally do not have criminal jurisdiction over non-Indians.” The state, on the other hand, “has legitimate interests both in protecting its Indian citizens and in enforcing its criminal laws against non-Indian citizens.”
Castro-Huerta rejects Oklahoma’s view that states have prosecutorial authority unless Congress takes it away, instead arguing that “States have criminal jurisdiction over criminal offenses involving Indians only if Congress has expressly conferred it.” He grounds that position in various other federal statutes conferring on individual states authority to prosecute crimes committed “by or against Indians on Indian reservations,” see, e.g., 25 U.S.C. §1321(a)(1) (Public Law 280), statutes “which would become nonsense if States already have such jurisdiction.” Castro-Huerta further argues that “Oklahoma seeks a nontextual extension of” McBratney, a case respondent says the Court has already decided is “limited . . . to crimes not committed by ‘Indians or against Indians.’” In his view, the General Crimes Act’s text and context “confirm that, outside of McBratney’s exception, States lack criminal jurisdiction in Indian country.” Specifically, the phrase “sole and exclusive jurisdiction,” respondent maintains, “indicates that Congress understood Indian country to parallel federal enclaves, where the federal government ‘exercise[s] exclusive’ jurisdiction and state criminal laws are inapplicable.” Regarding Oklahoma’s policy arguments, Castro-Huerta argues that “this Court does not undertake the ad hoc weighing of policy arguments that Oklahoma invites.”
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]