In 5-4 ruling, court dramatically expands the power of states to prosecute crimes on reservations

OPINION ANALYSIS

On the second-to-last day of the 2021-22 term, the Supreme Court ruled 5-4 that Oklahoma — and all other states — possesses concurrent jurisdiction with the federal government over crimes committed by non-Indians against Indians in Indian country, wiping away centuries of tradition and practice.

Victor Manuel Castro-Huerta, a non-Indian person, was convicted by the state of Oklahoma for criminal child neglect of a citizen of the Eastern Band of Cherokee Indians within the reservation boundaries of the Cherokee Nation of Oklahoma. That conviction came before the court’s 2020 decision in McGirt v. Oklahoma, which ruled that the Muscogee Nation’s reservation had not been disestablished upon the granting of statehood to Oklahoma. As a result of McGirt, the reservations of other tribes similarly situated to Muscogee are also now considered extant, including that of the Cherokee Nation. All land within an extant Indian reservation is considered “Indian country.”

McGirt made clear that much of eastern Oklahoma was Indian country and, as a result, that state and local authorities have no jurisdiction to prosecute Indian defendants accused of crimes on that land. Only the federal government and the tribes themselves can prosecute those defendants. That outcome has its roots in the Trade and Intercourse Act, which was passed by the first Congress in 1790 and federalized virtually all aspects of Indian affairs. Ever since then, Indian country criminal jurisdiction had been considered exclusively federal and tribal. The court’s 1832 decision in Worcester v. Georgia confirmed that state law had no force in Indian country absent congressional authorization. However, the court chipped away at that general rule in United States v. McBratney (1881) and Draper v. United States (1896), allowing state prosecutions of non-Indians who committed crimes against non-Indians in Indian country, even in the absence of congressional authorization.

On Thursday, the Court reversed the presumption against state jurisdiction, holding that unless Congress acts to preempt state jurisdiction, states can prosecute non-Indians for all crimes committed in Indian country. Writing for the court, Justice Brett Kavanaugh listed several of the court’s precedents that conflicted with the Worcester, concluding that “the Worcester-era understanding of Indian country as separate from the State was abandoned later in the 1800s,” presumably meaning the McBratney and Draper decisions.

Once the majority concluded that state jurisdiction was presumptive, it then rejected Castro-Huerta’s related claim that the General Crimes Act preempted state law. Enacted in its current form during the codification of the United States Code in 1948, the GCA provides that “the general laws of the United States as to the punishment of offenses committed … within the sole and exclusive jurisdiction of the United States … shall extend to the Indian country.” The court concluded that by 1948, the territorial separation between Indian tribes and states was no longer. Therefore, the GCA cannot mean that Indian country is a federal enclave where federal jurisdiction is exclusive. The Court reached a similar conclusion on the preemptive impact of Public Law 280, enacted in 1953, which authorized certain states to assert criminal jurisdiction over Indian country (but not Oklahoma).

The majority then analyzed the state’s jurisdiction under the federal Indian law preemption analysis under White Mountain Apache Tribe v. Bracker, which held that state jurisdiction in Indian country is preempted where it interferes with tribal self-government. The court found no tribal interest in preventing state criminal jurisdiction in this situation, focusing instead on the state’s interest in public safety within “its territory.” And since federal prosecutions are not barred by concurrent state jurisdiction, the court downplayed the federal interest as well. Important to the majority was the aftermath of the McGirt decision, which the court stated allowed some defendants to negotiate lenient plea deals with the federal government and allowed some to “go[] free.”

In dissent, Justice Neil Gorsuch praised the court’s decision in Worcester, noting that it was a deeply unpopular decision at the time, but it showed that “the rule of law meant something.” Criticizing the majority for discarding the Worcester presumption in the absence of congressional authorization, he concluded, “Where this Court once stood firm, today it wilts.” Comparing Oklahoma in the 2020s to Georgia in the 1930s, both of which asserted criminal jurisdiction in “lawless disregard” of tribal sovereignty, Gorsuch described a much-different history than the majority. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined Gorsuch’s dissent.

While the majority described a gradual assumption of state authority in Indian country aided by historical trends and ratified by a series of Supreme Court precedents, the dissent focused on Congress, which never explicitly authorized state jurisdiction over these types of defendants. Both majority and dissent accused the other of overstepping the role of the judiciary, but the dissent’s focus gave primacy to the role of Congress over the majority’s reliance on historical changes acknowledged and ratified by the judiciary.

Going forward, the majority asserted that this decision is broadly applicable “throughout the United States,” seemingly authorizing any state to assert criminal jurisdiction over crimes committed by non-Indians against Indians absent a contrary act of Congress applicable to a given tribe or reservation. The overall impact will depend on whether state prosecutors decide to start charging more crimes, but the potential of Castro-Huerta to disrupt Indian country criminal justice is massive.

In its conclusion, the dissent pointed out that Congress could easily amend Public Law 280 to correct this outcome, invoking Justice Ruth Bader Ginsburg’s famed dissent in Ledbetter v. Goodyear Tire & Rubber Co. from 2007 that led to a quick reversal of that decision by Congress in 2008. Congressional lawmaking in the Indian country criminal jurisdiction space has been robust in recent decades, going so far as to authorize tribes to prosecute non-Indians for intimate partner violence and child abuse, so the dissent’s entreaty for a congressional fix could be effective.