From SCOTUS: State and Feds Both Have Power to Prosecute “Non-Indians” in Indian Country

On June 29, 2022, the United States Supreme Court issued a 5-4 decision that upended “centuries of tradition and practice” concerning the prosecution of crimes committed by non-Native Americans in Indian country, according to SCOTUSblog.

In Oklahoma v. Castro-Huerta, 597 U.S. ____ (2022), the high court concluded that the federal government and states have “concurrent” or shared power to prosecute crimes committed by non-Native Americans in Indian country because (1) no law preempts a State’s jurisdiction to prosecute crimes committed within the State and (2) Indian country within a State is not treated as separate from state territory. The full opinion can be read here:

Writing for the five-justice majority, Justice Brett Kavanaugh first recognized that federal law defines “Indian country” to include, among other things, “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” Castro-Huerta, slip op., at 4. Justice Kavanaugh then wrote “the Constitution allows a State to exercise jurisdiction in Indian country” and “Indian country is part of the State, not separate from the State.” Id.

While commenting that federal law “may preempt” state jurisdiction in certain circumstances, Justice Kavanaugh acknowledged that the United States Constitution established that “as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.” Id. at 4-5. And, consequently, States have the right to exercise criminal jurisdiction over crimes committed by non-Native Americans in Indian country within their territory. See id. at 5-6. Justice Kavanaugh wrote that the only exceptions would be if federal law preempted State jurisdiction in the arena of criminal prosecutions of non-Native Americans in Indian country or “if the exercise of such jurisdiction would unlawfully infringe on tribal self-government.” Id. at 6-7.

The defendant in Castro-Huerta argued that two laws preempt a State’s ability to prosecute non-Native Americans in Indian country–(1) The General Crimes Act, which grants the Federal Government jurisdiction to prosecute crimes in Indian country, 18 U.S.C. § 1152, and (2) Public Law 280, which grants States or authorizes States to acquire certain additional jurisdiction over crimes committed in Indian country, 67 Stat. 588, 18 U.S.C. § 1162, 25 U.S.C. § 1321. Id. at 7.

Ultimately, the majority found that neither law precluded State jurisdiction over crimes committed by non-Native Americans in Indian country. First, Justice Kavanaugh analyzed the plain terms of the General Crimes Act and concluded that the text of that law “extends federal law to Indian country, leaving untouched the background principle of state jurisdiction over crimes committed within the State, including Indian country.” Id. at 8. Second, Justice Kavanaugh reviewed Public Law 280 and concluded that this law did not “divest States of pre-existing and otherwise lawfully assumed jurisdiction.” Id. at 16 (quoting Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S. 138, 150 (1984)). In other words, neither the General Crimes Act nor Public Law 280 alters a State’s constitutional status quo ante regarding jurisdiction in civil or criminal matters and so the States retain jurisdiction to prosecute crimes committed by non-Native Americans in Indian country.

Justice Gorsuch wrote for a four-justice dissent. There, Justice Gorsuch critiqued the majority for turning upside-down the long-recognized principle that “Native American Tribes retain their sovereignty unless and until Congress ordains otherwise.” Castro-Huerta, dissenting opinion, slip. op. at 1. In other words, to Justice Gorsuch and the other dissenters, the majority got the question precisely backwards–the question should not be whether some law preempted a State’s ordinary power to hear and decide matters within its territory; instead, the question should be whether Congress enacted a law that strips a Native American Tribe of its sovereignty within its territory. Justice Gorsuch declared no such law has ever been enacted. He wrote forcefully as follows:

Where this Court once stood firm, today it wilts. After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands. At various points in its history, Oklahoma has chafed at this limitation. Now, the State seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee Reservation. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s. Respectfully, I dissent.

Castro-Huerta, dissenting opinion of Gorsuch, J., slip op. at 1-2.

In the end, Castro-Huerta marks a seismic change in criminal jurisdiction on tribal lands. Before Castro-Huerta, only Tribal authorities or the Federal Government could prosecute crimes in Indian country. Castro-Huerta granted States the power to prosecute crimes in those lands as well.

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