Supreme Court Holds State Has Concurrent Criminal Jurisdiction Over Non-Indians in Indian Country
June 30, 2022
By Heidi McNeil Staudenmaier and Dianna Sauceda-Chirinos1
In a 5-4 decision, the United States Supreme Court ruled in Oklahoma v. Castro-Huerta, on June 29, that the Federal Government and the State have concurrent jurisdiction to prosecute non-Indians who commit crimes against Indians in Indian Country. The majority opined that Indian Country is not a “federal enclave” and, therefore, the State is not preempted by federal law when it prosecutes crimes committed by non-Indians against Indians in Indian Country. In so holding, the Court also rejected the idea that the State’s exercise of jurisdiction over these non-Indian offenders would infringe on tribal self-governance.
The majority ruling, authored by Justice Brett Kavanaugh, extends the ruling in the McBratney case from 1882. In that case, the Court held that States have jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian Country. The dissent, led by Justice Neil Gorsuch, was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. In his dissent, Justice Gorsuch demonstrates his continued defense of tribal sovereignty.
The case involved Victor Manuel Castro-Huerta (“Castro-Huerta"), a non-Indian, undocumented man who resided in Tulsa, Oklahoma. In 2015, Castro-Huerta was criminally charged by the State of Oklahoma with child neglect, a crime the State alleged he committed against his then-five-year-old stepdaughter, a disabled citizen of Cherokee Nation. Castro-Huerta was tried and convicted by the State and sentenced to 35 years of imprisonment with the possibility of parole. Castro-Huerta appealed his conviction and while his appeal was pending, the United States Supreme Court decided McGirt v. Oklahoma, a landmark ruling holding that the Creek Nation’s reservation in eastern Oklahoma had not been properly disestablished. The consequence of McGirt was that the eastern part of Oklahoma, which includes Tulsa, is now viewed as Indian Country and different jurisdictional rules may apply for prosecution of crimes in those areas.
Accordingly, Castro-Huerta argued that the Federal Government had exclusive jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian Country, and therefore, the State was preempted. The Oklahoma Court of Criminal Appeals sided with Castro-Huerta and vacated his conviction. While Castro-Huerta’s appellate proceedings were pending, he was indicted by a federal grand jury for the same crime. Castro-Huerta accepted a plea agreement for a reduced sentence, seven years, followed by removal from the United States.
Justice Kavanaugh wrote that this case “exemplifies a now-familiar pattern in Oklahoma in the wake of McGirt.” That is, Oklahoma courts have had to vacate numerous state convictions because of jurisdictional issues. Castro-Huerta argued that, in his case, the State was preempted by both the General Crimes Act and Public Law 280. Justice Kavanaugh opined that the General Crimes Act only addresses the issue of federal law and its application in Indian Country; it does not address the issue of (concurrent) state jurisdiction. Although the General Crimes Act addresses federal enclaves (e.g., military bases and national parks), it “does not say that Indian [C]ountry is equivalent to a federal enclave for jurisdiction purposes.” The majority agreed.
Justice Kavanaugh concluded “Public Law 280 does not preempt any preexisting or otherwise lawfully assumed jurisdiction that States possess to prosecute crimes in Indian [C]ountry.” Rejecting Castro-Huerta’s argument that Public Law 280 would have been “pointless surplusage,” Justice Kavanaugh wrote that “assumptions are not laws, and the fact remains that Public Law 280 contains no language preempting state jurisdiction, as the Court already held in Three Affiliated Tribes.” In fact, Public Law 280 grants States jurisdiction over crimes committed by Indians in Indian Country.
Justice Kavanaugh also rejected Castro-Huerta’s argument that the State’s exercise of jurisdiction over non-Indian offenders who commit crimes against Indians in Indian Country “would not infringe on tribal self-government” because the State’s prosecution “would not deprive the tribe of any of its prosecutorial authority” since “Indian tribes lack criminal jurisdiction to prosecute crimes committed by non-Indians such as Castro-Huerta” even when the crime is “against Indians in Indian [C]ountry.” Justice Kavanaugh further reasoned that “State prosecution would supplement federal authority, not supplant [it].” Ultimately, Justice Kavanaugh explained that “reservations [are not] distinct nations” because “Indian [C]ountry is part of a State, not separate from a State.” Without tribal self-government principles at stake, the majority determined that States have concurrent jurisdiction with the Federal Government over Indian Country.
Justice Gorsuch fervently disagreed, writing “the federal government promised the Tribe that it would remain forever free from interference by state authorities” and “[o]nly the Tribe or the federal government could punish crimes by or against tribal members on tribal lands.” Justice Gorsuch emphasized the importance of the historic Worcester decision from 1832, where the Supreme Court “refus[ed] to sanction power grab[s]” by the State over Indian territory. Justice Gorsuch believed the evolution of federal jurisdiction in Indian Country makes one point clear: “States could play no role in the prosecution of crimes by or against Native Americans on tribal lands.” The majority’s ruling, therefore, advances “Oklahoma’s effort to gain a legal foothold for its wish to exercise jurisdiction over crimes involving tribal members on tribal lands.” Finally, Gorsuch believed the majority’s ruling undermines tribal sovereignty and the Court’s McGirt decision, which the State of Oklahoma has passionately campaigned against.
In sum, the Supreme Court ruled that, unless specifically preempted, States have concurrent jurisdiction with the Federal Government in Indian Country and can therefore prosecute crimes committed by non-Indians against Indians in Indian Country.
- Dianna Sauceda-Chirinos is a 2022 Summer Associate at Snell & Wilmer and is a 2023 J.D. Candidate at the William S. Boyd School of Law at the University of Nevada, Las Vegas.
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