Supreme Court Says State Has Concurrent Criminal Jurisdiction Over Non-Indians in Indian Country | Snell and Wilmer
[co-author: Dianna Sauceda- Chirinos*]
In a 5-4 decision, the U.S. Supreme Court ruled in Oklahoma vs. 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 held that Indian Country is not a “federal enclave” and therefore the state is not preempted by federal law when prosecuting crimes committed by non-Indians against Indians in Indian country. In doing so, the Court also rejected the idea that the exercise of state jurisdiction over these non-Indian offenders would undermine tribal autonomy.
The majority decision, written by Judge Brett Kavanaugh, extends the decision in the McBratney case of 1882. In this case, the Court ruled that states have jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian Territory. 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”), an undocumented non-Indian who resided in Tulsa, Oklahoma. In 2015, Castro-Huerta was charged by the State of Oklahoma with child neglect, a felony Castro-Huerta was tried and found guilty by the state and sentenced to 35 years in prison with the possibility of release conditional. Castro-Huerta appealed his conviction and while his appeal was pending, the United States Supreme Court ruled McGirt v. Oklahoma, a landmark decision ruling that the Creek Nation reservation in eastern Oklahoma had not been properly removed. The consequence of McGirt was that the eastern portion of Oklahoma, which includes Tulsa, is now considered Indian Country and different jurisdictional rules may apply to the 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 pre-empted. The Oklahoma Court of Criminal Appeals sided with Castro-Huerta and overturned his conviction. While Castro-Huerta’s appeals were pending, he was indicted by a federal grand jury for the same crime. Castro-Huerta accepted a plea deal for a reduced sentence, seven years, followed by removal from the United States.
Judge Kavanaugh wrote that this case “exemplifies a pattern now familiar in Oklahoma as a result of McGirt.” Simply put, Oklahoma courts have had to overturn many state convictions due to jurisdictional issues. Castro-Huerta argued that, in his case, the state was preempted by both the General Crimes Act and Public Law 280. Judge Kavanaugh held that the General Crimes Act dealt only with the question of federal law and its application in Indian country; it does not address the question of the (concurrent) jurisdiction of States. Although the General Crimes Act deals with federal enclaves (for example, military bases and national parks), it “does not say that Indians [C]country is equivalent to a federal enclave for jurisdictional purposes”. The majority accepted.
Justice Kavanaugh concluded that “Public Law 280 does not prejudice any pre-existing or otherwise legally assumed jurisdiction that states possess to prosecute crimes in India”. [C]country. Rejecting Castro-Huerta’s argument that Public Law 280 was an “unnecessary surplus”, Judge Kavanaugh wrote that “assumptions are not laws, and the fact remains that Public Law 280 does not contain any language pre-empting state jurisdiction, as the Court has already held in Three Affiliated Tribes.” In fact, Public Law 280 grants states jurisdiction over crimes committed by Indians in Indian Country.
Judge Kavanaugh also rejected Castro-Huerta’s argument that exercising state jurisdiction over non-Indian offenders who commit crimes against Indians in Indian Country “would not infringe upon tribal autonomy.” because state prosecution “would not deprive the tribe of any of its prosecuting authority” since “Indian tribes do not have the criminal jurisdiction to prosecute crimes committed by non-Indians such as Castro-Huerta” even when the crime is “against Indians in India”. [C]country. Judge Kavanaugh further explained that “state prosecutions would supplement federal authority, not supplant [it].” In the end, Judge Kavanaugh explained that “the reservations [are not] distinct nations” because “the Indians [C]country is part of a State and is not separate from a State”. Without tribal self-governance principles in play, the majority determined that the states have concurrent jurisdiction with the federal government over Indian Country.
Judge Gorsuch fervently disagreed, writing “the federal government promised the tribe that they would forever remain free from interference by state authorities” and “[o]Only the tribe or the federal government could punish crimes committed by or against tribal members on tribal land. Justice Gorsuch stressed the importance of the historical worcester decision of 1832, where the Supreme Court “refused[ed] sanction the seizure of power[s]by the State on Indian territory. Justice Gorsuch believed that the evolution of federal jurisdiction in Indian Country clarified one point: “States could play no role in prosecuting crimes committed by or against Native Americans on tribal lands.” The majority decision therefore advances “Oklahoma’s effort to establish a legal foothold for its wish to exercise jurisdiction over crimes involving tribal members on tribal lands.” Finally, Gorsuch believed that the majority decision undermined tribal sovereignty and that the Court McGirt decision against which the State of Oklahoma passionately campaigned.
In summary, the Supreme Court ruled that, unless specifically waived, 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.