Do states have criminal jurisdiction over crimes carried out by non-Indians against Indians in Indian country?
This case asks the Supreme Court to consider the contours of state prosecutorial power in Indian country. This case flows from the Supreme Court’s decision in McGirt v. Oklahoma, which found that a significant portion of eastern Oklahoma was Indian country for criminal law purposes. Oklahoma asserts that, under principles of state sovereignty, it has the authority to prosecute crimes committed by non-Indians against Indians in Indian country within the state’s territorial boundaries. Victor Manuel Castro-Huerta counters that a state can prosecute non-Indians for crimes committed in Indian country only when Congress has authorized the state to do so; in all other situations, the federal government has the exclusive authority to prosecute under the General Crimes Act. This case has significant implications for tribal sovereignty and criminal jurisdictional boundaries between states and Indian tribes.
Questions as Framed for the Court by the Parties
Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country.
Victor Manuel Castro-Huerta (“Castro-Huerta”) is a non-Indian who was convicted of child neglect by a jury in Tulsa County District Court, a state court in Oklahoma. Castro-Huerta v. Oklahoma at 1a. Castro-Huerta appealed the decision, arguing that the State of Oklahoma (“Oklahoma”) did not have jurisdiction—the power to issue a binding ruling—to prosecute him based on the Supreme Court’s decision in McGirt v. Oklahoma (“McGirt”). Id.
In McGirt, the United States Supreme Court held that Oklahoma had no jurisdiction to prosecute an Indian who had committed a crime in Indian Country on the Creek Reservation. McGirt v. Oklahoma at 2. The Court found that the geographic location was Indian Country because the reservation was established by treaty and because Congress had never disestablished the reservation. Id. at 1.
To determine if McGirt was applicable, the Oklahoma Court of Criminal Appeals remanded Castro-Huerta’s case to the District Court of Tulsa (“District Court”) to determine whether Castro-Huerta’s victim was an Indian and whether the crime occurred in Indian Country, either on the Muscogee Creek Reservation or the Cherokee Reservation. Castro-Huerta v. Oklahoma at 2a.
The parties agreed that the victim had Indian blood and was registered as a citizen of the Cherokee Nation, which is a federally recognized tribe. Id. at 3a. The parties also accepted that according to various historical treaties, the crime took place within the “geographic area of the Cherokee Nation.” Id. Based on the various treaties, the District Court found that the geographic area was within the boundaries of the reservation established for the Cherokee Nation. Id. The District Court determined that there was no evidence to show that Congress ever “erased the boundaries of, or disestablished, the Cherokee Reservation.” Id. Therefore, the District Court decided that the area where Castro-Huerta allegedly committed the crime was Indian Country in the Cherokee Reservation. Id.
Oklahoma contended that it would have jurisdiction to prosecute all non-Indians who commit crimes in Indian Country, and that this jurisdiction is concurrent with that of the federal government. Id. at 4a. Castro-Huerta countered that the Supreme Court’s decision in McGirt should control, and therefore Oklahoma would not have jurisdiction over the case because the alleged crime was committed against an Indian in Indian country. Id. The District Court left the question of concurrent jurisdiction to the Oklahoma Court of Criminal Appeals. Id.
On April 29, 2021, the Court of Criminal Appeals determined that the decision in McGirt governed Castro-Huerta’s case. Id. Therefore, according to the Court, Oklahoma had no authority to prosecute Castro-Huerta for the crime. Id. Oklahoma appealed the decision, again contending that it had concurrent jurisdiction to prosecute the case. Brief for Petitioner, Oklahoma at 2.
The Supreme Court granted Oklahoma certiorari on January 21, 2022. Id. at 1.
THE GENERAL CRIMES ACT & STATE PROSECUTORIAL AUTHORITY
Petitioner Oklahoma posits that 18 U.S.C. § 1152, the General Crimes Act (“GCA”), does not preempt a state’s ability to prosecute non-Indians for crimes committed against Indians in Indian country. Brief for Petitioner, Oklahoma at 23. Oklahoma argues that the “sole and exclusive jurisdiction” language in the GCA describes a set of “general laws” that “extend” to Indian country. Id. at 24. Oklahoma highlights that the GCA simply clarifies that federal laws within the United States’ “sole and exclusive jurisdiction” apply to Indian country. Id. Moreover, Oklahoma contends that the Constitution and federal jurisdictional statutes use the verb “extend” in a manner that does not preempt state jurisdiction. Id. at 24–25. Therefore, according to Oklahoma, the GCA does not usurp a state’s prosecutorial authority. Id.
Oklahoma further argues that prior Supreme Court’s cases have not held that the GCA establishes “exclusive federal criminal jurisdiction in Indian country.” Id. at 26. Oklahoma posits that in Donnelly v. United States (“Donnelly”) the Supreme Court’s primary focus was the federal government’s power under the GCA and not the state’s power. Id. at 28. Oklahoma argues that the Donnelly Court’s assertion that states lack “undivided authority” to prosecute crimes committed by non-Indians against Indians in Indian country has been treated as dicta in later Supreme Court cases because the Court did not seriously consider the issue. Id. at 26–28. Oklahoma points out that even the Office of Legal Counsel believes that the issue of criminal jurisdiction over crimes committed by non-Indians in Indian country remains unresolved. Id. at 28.
Respondent Castro-Huerta counters that when Congress first promulgated the GCA in 1834, Congress intended for the statute to cover areas of “dominant federal interest,” primarily the “war-and-peace issue” of non-Indians committing crimes against Indians. Brief for Respondent, Castro-Huerta at 31. Castro-Huerta stresses that Congress and the Supreme Court have frequently found that statutes, like the GCA, which serve significant federal interests preempt state authority over crimes involving Indians. Id. Furthermore, Castro-Huerta highlights that Congress has “exclusive constitutional authority” regarding interactions with Indian tribes. Id. at 33. Castro-Huerta also notes that when Congress regulates a unique field of federal interest, this heavily favors preemption. Id.
Castro-Huerta underscores that the GCA is composed of a comprehensive set of federal laws that leave “no room” for states to exercise prosecutorial authority over crimes involving Indians. Id. at 35. Castro-Huerta argues that modern preemption principles establish that the GCA has always preempted state authority to prosecute non-Indians for crimes committed against Indians in Indian country. Id. at 41. Castro-Huerta points out that if Congress wanted to make room for state authority, it would have explicitly provided for such exceptions in the Act itself. Id. at 42. Since Congress opted not to do so, Castro-Huerta argues that the GCA applies laws within the federal government’s “sole and exclusive jurisdiction” to Indian country. Id.
PREEMPTION OF STATE PROSECUTIONS IN INDIAN COUNTRY
Oklahoma asserts that, although Congress enacted a series of laws authorizing specific states to prosecute crimes against non-Indians in Indian country, that alone does not demonstrate that Congress “previously preempted” the State’s authority to prosecute those crimes. Brief for Petitioner at 28–29. Oklahoma asserts that the text of these statutes does not declare that state authority to prosecute non-Indians in Indian country is preempted unless Congress says otherwise. Id. at 29. Moreover, Oklahoma posits that Congress’s main concern in enacting these statutes centered on the absence of jurisdiction over crimes committed by Indians in Indian country. Id. at 30. In particular, Oklahoma points to the prior lack of jurisdiction over misdemeanors and lesser crimes committed by Indians on Indian land. Id. Referencing the Kansas Act of 1940, Oklahoma argues that the catalyst for congressional action was an inter-jurisdictional dispute over an Indian fugitive. Id.
Indeed, Oklahoma contends that the passing of Public Law 280, which gave several states prosecutorial power in Indian country, does not prove that the states did not already have prior jurisdictional authority. Id. at 33. Oklahoma claims that Supreme Court precedent, namely the civil case Three Affiliated Tribes of Fort Berthold Reservation v. World Engineering, P.C. (“Three Affiliated Tribes”), already established that Congress did not intend for Public Law 280 to deprive states of “preexisting and otherwise lawful” jurisdiction. Id. Oklahoma argues that Public Law 280 removed “obstacles to the assumption of jurisdiction” but did not affect lawfully exercised jurisdiction before its passage. Id. at 33–34. Oklahoma concludes that nothing in the text or congressional history of Public Law 280 supports the argument that states should be stripped of their “inherent authority” to prosecute non-Indians for crimes committed in Indian country. Id. at 35.
In response, Castro-Huerta, analyzing Public Law 280, notes that Congress intended to substitute “ad hoc regulation” of state authority over Indian country with a comprehensive set of federal legislation. Brief for Respondent at 23. Castro-Huerta claims that Congress would not have articulated specific jurisdictional procedures for states if it believed states could “unilaterally” accomplish the same goal. Id. at 24. Castro-Huerta argues that Public Law 280 preempts any state’s attempt to broaden criminal jurisdiction in Indian country beyond that which is already statutorily authorized. Id. Castro-Huerta challenges Oklahoma’s assertion that Congress’s only concern in enacting state-specific jurisdictional statutes was “expand[ed] … state jurisdiction.” Id. Castro-Huerta argues that Public Law 280 is primarily concerned with balancing different sovereign interests. Id. Castro-Huerta stresses that Congress conditioned any expansion of state power on the consent of the tribes, and that Congress may reduce the state’s authority if it chooses to do so. Id.
Castro-Huerta also challenges Oklahoma’s reliance on Three Affiliated Tribes because that case concerned “preexisting” civil jurisdiction and states have never had “preexisting” criminal jurisdiction over crimes committed by non-Indians against Indians on tribal lands. Id. at 26. Castro-Huerta emphasizes that civil provisions at issue in Three Affiliated Tribes are “agnostic” regarding the criminal jurisdictional issue presented in this case. Id.
BALANCING TRIBAL SOVEREIGNTY AND STATE PROSECUTORIAL AUTHORITY
Oklahoma, relying on the Supreme Court’s decision in White Mountain Apache Tribe v. Bracker (“Bracker”), argues that there is “no rigid rule” that courts use when deciding whether a particular state law applies to an Indian tribe. Brief for Petitioner at 40. Oklahoma stresses that Bracker requires a “particularized” analysis of the “state, federal, and tribal interests at stake” when determining if a state’s exercise of power will “violate federal law.” Id. Oklahoma asserts that a state law is only preempted if it “interferes or is incompatible with” tribal interests or federal law. Id. at 41. Oklahoma acknowledges that Bracker has yet to be applied to state criminal jurisdiction in Indian country. Id. Nonetheless, Oklahoma underscores that if the Supreme Court applied the Bracker framework the analysis would support the conclusion that states should be allowed to prosecute non-Indians for crimes committed in Indian country. Id.
Oklahoma posits that no “serious issues” regarding tribal sovereignty would be implicated if the state could prosecute non-Indians in Indian country because tribes lack the “inherent authority” to try and punish non-Indians. Id. at 42. Oklahoma maintains that Indian tribes do not have the “full attributes of sovereignty” because of their “incorporation” into the United States. Id. Moreover, Oklahoma argues that the state would not be “exercising authority” over an Indian if it prosecuted non-Indians. Id. at 43. Oklahoma points out that it would not represent the Indian victims in the criminal cases but rather punish non-Indian criminal defendants for breaking the law. Id. Oklahoma further argues that because the federal government and the states are separate sovereigns, a state conviction would not preclude a federal prosecution if the federal government believed that Indian interests were not being served in the state prosecution. Id. at 45. In light of the Supreme Court’s recent decision in McGirt, Oklahoma concludes that the state needs the ability to prosecute non-Indians in Indian country to maintain public safety. Id.
Castro-Huerta counters that Bracker only applies when there are no applicable governing Congressional acts or treaties. Brief for the Respondent at 49. Castro-Huerta points out that there are multiple congressional statutes relevant to this case. Id. Nevertheless, if Bracker was applied to this case, Castro-Huerta argues that a Bracker balancing of interests does not favor Oklahoma’s position. Id.
Castro-Huerta highlights that if a state prosecutes crimes committed against Indians, that state imposes its “sovereign power into the heart of tribal communities.” Id. at 50–51. Castro-Huerta emphasizes that the federal government reduces its financial commitments to tribal communities when state jurisdiction expands. Id. at 51. Castro-Huerta points out that Indian Country law enforcement in states covered by Public Law 280 receives less funding than in states not covered by the law. Id. at 52. Moreover, Castro-Huerta warns that concurrent jurisdiction in Indian country could lead to uneven sentencing and undermine the federal government’s role as “trustee” of Indian tribes and nations. Id. Castro-Huerta argues that both the federal government and Indian tribes have a significant interest in addressing law enforcement issues in Indian country. Id. at 53. Castro-Huerta posits that Congress’s mechanisms for addressing these issues show greater respect for tribal sovereignty. Id. at 53. Castro-Huerta maintains that Oklahoma’s invocation of McGirt’s effects in Oklahoma is irrelevant to this case because here Oklahoma is advocating for a nationwide rule and not an Oklahoma-specific ruling. Id. Castro-Huerta concludes that since Oklahoma desires prosecutorial authority in Indian country within its territorial boundaries, it must direct its request to Congress, not the Supreme Court. Id.
PUBLIC SAFETY AND JUSTICE FOR TRIBE MEMBERS
The City of Tulsa (“Tulsa”), in support of Oklahoma, contends that without concurrent jurisdiction, many crimes against tribe members are going “unpunished or underpunished.”
Brief of Amicus Curiae Tulsa, in support of Petitioner at 6. In support of its argument, Tulsa points out that the Tribes cannot prosecute non-Indians, so crimes committed by non-Indians can only be prosecuted by federal authorities. Id. Therefore, Tulsa asserts, because the federal prosecutors only choose to prosecute the “most serious crimes,” many crimes against Indians by non-Indians go unpunished. Id. Similarly, the states of Texas, Kansas, Louisiana, Nebraska, and Virginia (“Texas et al.”), in support of Oklahoma, argue that concurrent state-federal jurisdiction will increase justice for Native victims of crime. Brief of Amici Curiae Texas et al., in support of Petitioner at 15. In support of their contention, Texas et al. cite the disproportionately high rate of violent crimes—including sexual assault, homicide, sex trafficking, and hate crimes—against Tribe members. Id. at 15, 16, 18, 24. Texas et al. contend that the concurrent state jurisdiction will fill the gap left by the federal government's “insufficient response” to such crimes. Id. at 25.
The National Congress of American Indians (“NCAI”), in support of Castro-Huerta, counters that concurrent state jurisdiction over criminal cases will not improve policing of crimes against Indians. Brief of Amicus Curiae, NCAI, in support of Respondent at 26. NCAI contends that the state authorities have repeatedly failed to prosecute most alleged perpetrators of sexual violence against Native women and have refused to investigate the missing and murdered Native women, assuming that they were targeted based on their “high risk lifestyle.” Id. at 28. NCAI argues that concurrent state jurisdiction will instead lead to an increase in police brutality against Indigenous people, who are already the group most at risk to be shot by police. Id. at 26, 28.
COOPERATION BETWEEN STATE AND TRIBAL LAW ENFORCEMENT
The Oklahoma District Attorneys Association, Oklahoma Sheriffs’ Association, Association of Oklahoma Narcotic Enforcers, and 27 Oklahoma District Attorneys (“ODAA et al.”), in support of Oklahoma, assert that cross-deputization agreements, which allow state officers to conduct law enforcement activities that are within Tribal or federal jurisdiction, are limited in their application. Brief of Amici Curiae, ODAA et al., in support of Petitioner at 14. According to the ODAA et al., some cross-deputization agreements have strained state resources by requiring deputies to provide tribal court paperwork and transport arrestees to other counties. Id. Accordingly, ODAA et al. contend that cross-deputization agreements will be terminated and therefore be ineffective. Id.
The Navajo Nation, Ute Mountain Ute Tribe, Southern Ute Tribe, Crow Nation, and Cheyenne River Sioux Tribe (“Navajo Nation et al.”), in support of Castro-Huerta, assert that the state does not need jurisdiction over these cases because states can still cooperate with the Tribes and federal government to supplement the provision of criminal justice in Indian country. Brief of Amicus Curiae, Navajo Nation et al., in support of Respondent at 27. The Navajo Nation et al. posit that Tribes such as the Navajo Nation and Southern Ute Tribe have entered into cross-commission and deputization agreements, where state officers are given the authority to act as Tribal or federal officers under certain circumstances. Id. at 29. Furthermore, a group of Former United States Attorneys (“Former U.S. Attorneys”), in support of Castro Huerta, provide examples of cases where state-federal cooperation has been successful, such as when a non-Indian shot both an Indian and non-Indian in one incident and the state prosecuted one shooting and the federal authorities prosecuted the other shooting. Brief of Amici Curiae Former U.S. Attorneys, in support of Respondent at 6.
TRIBAL SOVEREIGNTY AND THE SEPARATION OF POWERS
The Oklahoma Association of Chiefs of Police (“OACP”), in support of Oklahoma, argues that McGirt has created jurisdictional confusion that would only be enhanced by a ruling in Castro-Huerta’s favor. Brief of Amicus Curiae OACP, in support of Petitioner at 5. OACP contends that if crimes against Indians by non-Indians lie solely in federal jurisdiction, the federal and state authorities will face difficult question about the Tribal affiliation of victims and suspects. Id. According to OACP, the jurisdictional question is only compounded by the lack of a database that would easily clarify Tribal affiliation for the relevant state or federal officers. Id.
The Environmental Federation of Oklahoma, Oklahoma Farm Bureau Legal Foundation, Oklahoma Cattlemen’s Association, and Petroleum Alliance of Oklahoma (“EFO et al.”), in support of Oklahoma, argue that the jurisdictional confusion post-McGirt will infuse into the areas of civil regulation and taxing jurisdiction, creating destabilizing uncertainty. Brief of Amici Curiae EFO et al., in support of Petitioner at 26. EFO et al. contend that this would have catastrophic effects on the business community in Eastern Oklahoma. Id.
In response, the National Association of Criminal Defense Lawyers (“NACDL”), in support of Castro-Huerta, counters that due to separation of powers considerations, the judiciary should not be the branch to decide that concurrent jurisdiction should apply; instead, Congress must speak clearly to authorize state prosecution. Brief of Amicus Curiae NACDL, in support of Respondent at 10, 11. NACDL contends that requiring Congressional action in this area is the only way to promote governmental accountability and protect individual liberties. Id. at 11. Moreover, Former U.S. Attorneys, in support of Castro-Huerta, assert that Congress is uniquely situated to discuss with state and federal authorities to reach a result “tailored to their specific needs and request.” Brief of Amici Curiae Former U.S. Attorneys, in support of Respondent at 18.
Similarly, the Cherokee Nation, Chickasaw Nation, Choctaw Nation of Oklahoma, Muscogee (Creek) Nation, and Seminole Nation of Oklahoma (“Cherokee Nation et al.”), in support of Castro-Huerta, contend that the Nations have a “sovereign interest” in the relationship between non-Indians and Indians in Indian country. Brief of Amici Curiae Cherokee Nation et al., in support of Respondent at 19. According to the Cherokee Nation et al., because the sovereign relationship between the Nations and their citizens is important, the Supreme Court should not grant more prosecutorial authority to states without Congressional action. Id. at 29, 30.
The authors would like to thank Professor Michael Sliger for his guidance and insights into this case.
- Andrea DenHoed, SCOTUS will hear Oklahoma v. Castro-Huerta, denies request to consider overturning McGirt, NonDoc, (Jan. 21, 2022).
- Curtis Killman, Supreme Court lets McGirt ruling stand, will consider letting Oklahoma share jurisdiction, TulsaWorld (Jan. 22, 2022).
- Cynthia L. Cooper, Judging Jurisdiction: Federal and tribal courts in Oklahoma grapple with the aftermath of McGirt, ABA Journal (April 1, 2022).
- Sadie Gurman, Supreme Court Upended the Legal System in Oklahoma and Could Do It Again, The Wall Street Journal (March 12, 2022).