An ‘Ahistorical and Mistaken Statement of Indian Law’
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An ‘Ahistorical and Mistaken Statement of Indian Law’

Brownstein Client Alert, June 30, 2022


In stunning disregard of over 200 years of precedent (dating back to the 1823 landmark case Worcester v. Georgia), on June 29, 2022, via Oklahoma v. Castro-Huerta, the Supreme Court stepped into a dispute over criminal jurisdiction in Indian country. In a 5-4 decision, the majority held that the federal and state governments have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. This was contrary to the position taken by the United States and tribes in the case. They argued that, under the General Crimes Act, crimes by non-Indians against Indians in Indian country fall within the exclusive jurisdiction of the federal government unless a state has followed established procedures, including obtaining tribal consent to such state jurisdiction, or specific laws grant states expanded criminal jurisdiction, such as Public Law 280.

Writing for the majority, Justice Brett Kavanaugh explained the court’s holding in terms that reflect his comfort with expanded state jurisdiction: “To be clear, the Court today holds that Indian country within a State’s territory is part of a State, not separate from a State” (emphasis added). This statement underscores this court’s view that states have jurisdiction over Indian country in the absence of specific rules enacted by Congress, a departure from established principles and 200 years of precedent in federal Indian law.

The Case

The appeal was brought by Oklahoma in the wake of the Supreme Court’s 2020 decision in McGirt v. Oklahoma. As a result of the holding in McGirt, much of eastern Oklahoma is now recognized as Indian country, even though many of the residents are non-Indian. The non-Indian plaintiff in Oklahoma v. Castro-Huerta challenged his state conviction, which pre-dated the McGirt decision, on the basis that the state did not have jurisdiction over crimes committed by non-Indians against Indians in Indian country. Oklahoma argued that the state has concurrent jurisdiction over crimes committed by non-Indians, insisting that the federal government was not succeeding in filling the gap left in law enforcement following the McGirt decision. The majority concluded that exercise of state jurisdiction does not unlawfully infringe on tribal self-government and that a state can prosecute non-Indians for all crimes committed in Indian country unless and until Congress acts to preempt state jurisdiction. Oklahoma had asked the court to reconsider the McGirt decision, but it declined to reach that question.

The Majority’s Reasoning

To reach its conclusion, the court held that the two federal laws—namely the General Crimes Act and Public Law 280—did not preempt a state’s authority to prosecute, nor did the principle of tribal self-government. The court explained that the text of the General Crimes Act did not, by its terms, preclude state jurisdiction. Similarly, it explained that Public Law 280—which affirmatively grants certain states broad jurisdiction to prosecute state-law offenses by or against Indians on Indian land—did not preempt any jurisdiction states already had to prosecute crimes in Indian country. With respect to self-government, the court answered its critics with the explanation that, with limited exceptions, Indian tribes lack jurisdiction to prosecute crimes committed by non-Indians and further explained that state prosecution of a non-Indian does not involve exercise of state power over any Indian or tribe, and state prosecution of a non-Indian would not harm the federal interest of protecting Indian victims. The court also relied on the state’s “strong sovereign interest” in public safety and criminal justice within its territory and in ensuring appropriate punishment for offenders. In its ruling, the court seemingly ignored hundreds of years of established precedent and its own prior rulings, which detail the inherent sovereignty of Indian tribes as well as the constitutionally established nation-to-nation relationship between the United States and Indian tribes.

The Dissent

In a powerful dissent, Justice Neil Gorsuch explained that, based on foundational principles of law and the court’s own precedent, Indian tribes should retain their sovereignty unless and until Congress provides otherwise. He characterized the state’s actions as an “unlawful power grab” at the expense of tribes. He criticized the majority opinion as a “declaration . . . by oracle . . . unattached to any colorable legal authority. Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.” Justice Gorsuch’s words characterize this as another decision by the majority this term that upsets settled precedent based on the court’s views of the relationship between the branches of government. Notably, Justice Gorsuch also appealed to future courts and the political branches to restore tribal sovereignty, potentially with an amendment to Public Law 280.

The Potential Implications and Remedies

It appears that the Supreme Court does not intend to affirm tribes’ inherent sovereignty absent specific grants from Congress, which turns the foundation of federal Indian law on its head. This decision illustrates that the majority of the current court does not truly understand the nature of tribal sovereignty. While this decision focuses on criminal jurisdiction, tribal jurisdiction over other areas including taxation and zoning could be further eroded in future cases. Following this ruling, tribal leadership will not likely look to the judicial branch to affirm tribal sovereignty. Thus, tribes and the United States in its role as trustee for tribes might want to pursue negotiated or political solutions rather than federal appellate litigation options under the current Supreme Court. For now, it appears that tribes and those supporting tribal sovereignty will have to look to Congress to protect tribal interests.

As Justice Gorsuch points out in his dissent, Congress has plenary authority over tribes, and their inherent sovereignty should not be diminished except through explicit acts of Congress. To the extent the Castro-Huerta decision is limited to state criminal jurisdiction over non-Indians, as posited in the dissent, Congress can reverse this decision by amending Public Law 280 to clarify that a state lacks criminal jurisdiction over crimes against Indians in Indian country unless a state complies with federal procedures for obtaining tribal consent and, where necessary, amends its own constitution or statutes. If tribes seek to restore the previous balance between state, federal and tribal authorities, this legislative fix could be a favorable option.

This document is intended to provide you with general information regarding the U.S. Supreme Court's ruling in Oklahoma v. Castro-Huerta. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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