Oklahoma v. Castro-Huerta (2022)

Oklahoma v. Castro-Huerta (2022)

597 U.S. 269

Following the Supreme Court’s decision in McGirt v. Oklahoma (2020) that Congress had never properly disestablished the Creek Nation’s reservation, a variety of jurisdictional questions arose. In light of McGirt, the Oklahoma Court of Appeals (the court of last appeal for criminal matters in Oklahoma) held that four other reservations (those of the Cherokee, Choctaw, Chickasaw, and Seminole, which together with the Creek make up the group known as the “Five Civilized Tribes” throughout the 18th, 19th, and early 20th centuries) had also not been properly disestablished, meaning that nearly half the state of Oklahoma (including the state’s second-largest city, Tulsa) was now considered “Indian country.” At the time, the region was 10-15% Native American.

Following McGirt, the state needed to transfer vast amounts of ongoing and past criminal cases that were initially brought and tried in state courts into the federal court system, a process involving the state vacating the sentences of numerous criminals across the state and having them retried in federal court.

Although McGirt made clear that the state could not prosecute crimes committed by tribal members on Indian territory (and also that the state could prosecute crimes committed by Non-Native Americans against non-Native Americans, even in Indian territory), whether the state had concurrent jurisdiction to prosecute non-Native Americans who committed crimes against tribal members in Indian territory remained unsettled. The Oklahoma Supreme Court (the court of last appeals for non-criminal cases) held in a 2021 decision that non-Native Americans with Native American victims could only be tried in federal or tribal courts. The Oklahoma Court of Appeals ruled on appeal that McGirt did not apply retroactively to requests for postconviction relief, thus mooting the question of state jurisdiction over crimes with a non-Native American perpetrator and a Native American victim in the particular case under review.

Alleging that these jurisdictional confusions and difficulties created by McGirt were endangering public safety, the state challenged one of the numerous cases in which a defendant’s conviction was vacated and the case was retried in federal court (this case involved a conviction that was still going through the appeals process and thus was not affected by the decision that McGirt did not apply retroactively) to the Supreme Court. Though Oklahoma asked the Court to reconsider McGirt altogether, the state specifically made their challenge on a case involving a crime committed by a non-Native American against a Native American, out of a hope to at least reverse the state court’s decision regarding the state’s lack of jurisdiction over these types of crimes in the case that the Court declined to review McGirt. The Supreme Court did in fact decline to reconsider McGirt but agreed to review the question of whether the state had concurrent jurisdiction to prosecute crimes committed by non-Native Americans against Native Americans.

In the particular case reviewed, Victor Manuel Castro-Huerta, a non-Native American, admitted to and was convicted in state courts of neglecting his then-5-year-old Cherokee stepdaughter (who was legally blind and had cerebral palsy). She was found in critical condition, severely undernourished, and “covered in excrement” in his and his wife’s home on Cherokee territory in Tulsa. He was originally sentenced to 35 year in prison by a state court, but following the vacation of his conviction and sentence, he was retried and sentenced to 7 years in prison by a federal court.

Opinion of the Court: Kavanaugh, Roberts, Thomas, Alito, Barrett.

Dissenting opinion: Gorsuch, Breyer, Sotomayor, Kagan.

Justice Kavanaugh delivered the opinion of the Court.

This case presents a jurisdictional question about the prosecution of crimes committed by non-Indians against Indians in Indian country: Under current federal law, does the Federal Government have exclusive jurisdiction to prosecute those crimes? Or do the Federal Government and the State have concurrent jurisdiction to prosecute those crimes? We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. . . .

II

The jurisdictional dispute in this case arises because Oklahoma’s territory includes Indian country. 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.” To begin with, the Constitution allows a State to exercise jurisdiction in Indian country. Indian country is part of the State, not separate from the State. To be sure, under this Court’s precedents, federal law may preempt that state jurisdiction in certain circumstances. But otherwise, as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country. As this Court has phrased it, a State is generally “entitled to the sovereignty and jurisdiction over all the territory within her limits.” Lessee of Pollard v. Hagan (1845).

In the early years of the Republic, the Federal Government sometimes treated Indian country as separate from state territory—in the same way that, for example, New Jersey is separate from New York. Most prominently, in the 1832 decision in Worcester v. Georgia, this Court held that Georgia state law had no force in the Cherokee Nation because the Cherokee Nation “is a distinct community occupying its own territory.”

But the “general notion drawn from Chief Justice Marshall’s opinion in Worcester v. Georgia “has yielded to closer analysis.” Organized Village of Kake v. Egan (1962). “By 1880 the Court no longer viewed reservations as distinct nations.” Since the latter half of the 1800s, the Court has consistently and explicitly held that Indian reservations are “part of the surrounding State” and subject to the State’s jurisdiction “except as forbidden by federal law.” . . .

In accord with that overarching jurisdictional principle dating back to the 1800s, States have jurisdiction to prosecute crimes committed in Indian country unless preempted. In the leading case in the criminal context—the McBratney case from 1882—this Court held that States have jurisdiction to prosecute crimes committed by non-Indians against non-Indians in Indian country. United States v. McBratney (1882). The Court stated that Colorado had “criminal jurisdiction” over crimes by non-Indians against non-Indians “throughout the whole of the territory within its limits, including the Ute Reservation.” Several years later, the Court similarly decided that Montana had criminal jurisdiction over crimes by non-Indians against non-Indians in Indian country within that State. Draper v. United States, (1896). The McBratney principle remains good law.

In short, the Court’s precedents establish that Indian country is part of a State’s territory and that, unless preempted, States have jurisdiction over crimes committed in Indian country.

III

The central question that we must decide, therefore, is whether the State’s authority to prosecute crimes committed by non-Indians against Indians in Indian country has been preempted. Under the Court’s precedents, as we will explain, a State’s jurisdiction in Indian country may be preempted (i) by federal law under ordinary principles of federal preemption, or (ii) when the exercise of state jurisdiction would unlawfully infringe on tribal self-government. . . .

IV

The dissent emphasizes the history of mistreatment of American Indians. But that history does not resolve the legal questions presented in this case. Those questions are: (i) whether Indian country is part of a State or instead is separate and independent from a State; and (ii) if Indian country is part of a State, whether the State has concurrent jurisdiction with the Federal Government to prosecute crimes committed by non-Indians against Indians in Indian country.

The answers to those questions are straightforward. On the first question, as explained above, this Court has repeatedly ruled that Indian country is part of a State, not separate from a State. . . . Because Indian country is part of a State, not separate from a State, the second question here—the question regarding the State’s jurisdiction to prosecute Castro-Huerta—is also straightforward. Under the Constitution, States have jurisdiction to prosecute crimes within their territory except when preempted (in a manner consistent with the Constitution) by federal law or by principles of tribal self-government. As we have explained, no federal law preempts the State’s exercise of jurisdiction over crimes committed by non-Indians against Indians in Indian country. And principles of tribal self-government likewise do not preempt state jurisdiction here.

As a corollary to its argument that Indian country is inherently separate from States, the dissent contends that Congress must affirmatively authorize States to exercise jurisdiction in Indian country, even jurisdiction to prosecute crimes committed by non-Indians. But under the Constitution and this Court’s precedents, the default is that States may exercise criminal jurisdiction within their territory. See Amdt. 10. States do not need a permission slip from Congress to exercise their sovereign authority. In other words, the default is that States have criminal jurisdiction in Indian country unless that jurisdiction is preempted. In the dissent’s view, by contrast, the default is that States do not have criminal jurisdiction in Indian country unless Congress specifically provides it. The dissent’s view is inconsistent with the Constitution’s structure, the States’ inherent sovereignty, and the Court’s precedents.

Straying further afield, the dissent seizes on treaties from the 1800s. But those treaties do not preclude state jurisdiction here. . . . Some early treaties may have been consistent with the Worcester-era theory of separateness. But as relevant here, those treaties have been supplanted: Specific to Oklahoma, those treaties, in relevant part, were formally supplanted no later than the 1906 Act enabling Oklahoma’s statehood. As this Court has previously concluded, “admission of a State into the Union” “necessarily repeals the provisions of any prior statute, or of any existing treaty” that is inconsistent with the State’s exercise of criminal jurisdiction “throughout the whole of the territory within its limits,” including Indian country, unless the enabling act says otherwise “by express words.” McBratney. The Oklahoma Enabling Act contains no such express exception. Therefore, at least since Oklahoma’s statehood in the early 1900s, Indian country has been part of the territory of Oklahoma.

The dissent responds that the language of the 1906 statute enabling Oklahoma’s statehood itself established a jurisdictional division between the State and Indian country. That argument is mistaken. This Court long ago explained that interpreting a statehood act to divest a State of jurisdiction over Indian country “wholly situated within [its] geographical boundaries” would undermine “the very nature of the equality conferred on the State by virtue of its admission into the Union.” Draper. The dissent incorrectly seeks to characterize various aspects of the Court’s decision as dicta. 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. Therefore, a State has jurisdiction to prosecute crimes committed in Indian country unless state jurisdiction is preempted. With respect to crimes committed by non-Indians against Indians in Indian country, the Court today further holds that the General Crimes Act does not preempt the State’s authority to prosecute; that Public Law 280 does not preempt the State’s authority to prosecute; that no principle of tribal self-government preempts the State’s authority to prosecute; that the cited treaties do not preempt Oklahoma’s authority to prosecute; and that the Oklahoma Enabling Act does not preempt Oklahoma’s authority to prosecute (indeed, it solidifies the State’s presumptive sovereign authority to prosecute). Comments in the dissenting opinion suggesting anything otherwise “are just that: comments in a dissenting opinion.” Railroad Retirement Bd. v. Fritz (1980).

From start to finish, the dissent employs extraordinary rhetoric in articulating its deeply held policy views about what Indian law should be. The dissent goes so far as to draft a proposed statute for Congress. But this Court’s proper role under Article III of the Constitution is to declare what the law is, not what we think the law should be. The dissent’s views about the jurisdictional question presented in this case are contrary to this Court’s precedents and to the laws enacted by Congress.

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We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. We therefore reverse the judgment of the Oklahoma Court of Criminal Appeals and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Gorsuch, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.

In 1831, Georgia arrested Samuel Worcester, a white missionary, for preaching to the Cherokee on tribal lands without a license. Really, the prosecution was a show of force—an attempt by the State to demonstrate its authority over tribal lands. Speaking for this Court, Chief Justice Marshall refused to endorse Georgia’s ploy because the State enjoyed no lawful right to govern the territory of a separate sovereign. See Worcester v. Georgia (1832). The Court’s decision was deeply unpopular, and both Georgia and President Jackson flouted it. But in time, Worcester came to be recognized as one of this Court’s finer hours. The decision established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise. Worcester proved that, even in the “[c]ourts of the conqueror,” the rule of law meant something. Johnson’s Lessee v. McIntosh (1823).

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. . . .

Today the Court rules for Oklahoma. In doing so, the Court announces that, when it comes to crimes by non-Indians against tribal members within tribal reservations, Oklahoma may “exercise jurisdiction.” But this declaration comes as if by oracle, without any sense of the history recounted above and unattached to any colorable legal authority. Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.

The source of the Court’s error is foundational. Through most of its opinion, the Court proceeds on the premise that Oklahoma possesses “inherent” sovereign power to prosecute crimes on tribal reservations until and unless Congress “preempt[s]” that authority. The Court emphasizes that States normally wield broad police powers within their borders absent some preemptive federal law. But the effort to wedge Tribes into that paradigm is a category error. Tribes are not private organizations within state boundaries. Their reservations are not glorified private campgrounds. Tribes are sovereigns. And the preemption rule applicable to them is exactly the opposite of the normal rule. Tribal sovereignty means that the criminal laws of the States “can have no force” on tribal members within tribal bounds unless and until Congress clearly ordains otherwise. Worcester. After all, the power to punish crimes by or against one’s own citizens within one’s own territory to the exclusion of other authorities is and has always been among the most essential attributes of sovereignty. Nor is this “‘notion,’” some discarded artifact of a bygone era. To be sure, Washington, Jefferson, Marshall, and so many others at the Nation’s founding appreciated the sovereign status of Native American Tribes. But this Court’s own cases have consistently reaffirmed the point. Just weeks ago, the Court held that federal prosecutors did not violate the Double Jeopardy Clause based on the essential premise that tribal criminal law is the product of a “separate sovereig[n]” exercising its own “retained sovereignty.” Denezpi v. United States (2022). Recently, too, this Court confirmed that Tribes enjoy sovereign immunity from suit. See Michigan v. Bay Mills Indian Community (2014). Throughout our history, “the basic policy of Worcester” that Tribes are separate sovereigns “has remained.” Williams v. Lee.

Because Tribes are sovereigns, this Court has consistently recognized that the usual “standards of pre-emption” are “unhelpful.” White Mountain Apache Tribe v. Bracker (1980). In typical preemption cases, courts “start with the assumption” that Congress has not displaced state authority. Rice v. Santa Fe Elevator Corp. (1947). But when a State tries to regulate tribal affairs, the same “backdrop” does not apply because Tribes have a “claim to sovereignty [that] long predates that of our own Government.” McClanahan. So instead of searching for an Act of Congress displacing state authority, our cases require a search for federal legislation conferring state authority: “[U]nless and until Congress acts, the tribes retain their historic sovereign authority.” Bay Mills Indian Community. What is more, courts must “tread lightly” before concluding Congress has abrogated tribal sovereignty in favor of state authority. Santa Clara Pueblo. Any ambiguities in Congress’s work must be resolved in favor of tribal sovereignty and against state power. And, if anything, these rules bear special force in the criminal context, which lies at the heart of tribal sovereignty and in which Congress “has provided a nearly comprehensive set of statutes allocating criminal jurisdiction” among federal, tribal, and state authorities. . . .

Plainly, the Court’s balancing-test game is not one we should be playing in this case. But what if we did? Suppose this Court could (somehow) ignore Congress’s decision to allow States like Oklahoma to exercise criminal jurisdiction in cases like ours only with tribal consent. Suppose we could (somehow) replace that rule with one of our own creation. Even proceeding on that stunning premise, it is far from obvious how the Court arrives at its preferred result. . . .

Even the Court acknowledges that Congress can undo its decision and preempt state authority at any time. And Congress could do exactly that with a simple amendment to Public Law 280. It might say: A State lacks criminal jurisdiction over crimes by or against Indians in Indian Country, unless the State complies with the procedures to obtain tribal consent outlined in 25 U. S. C. §1321, and, where necessary, amends its constitution or statutes pursuant to 25 U. S. C. §1324. Of course, that reminder of the obvious should hardly be necessary. But thanks to this Court’s egregious misappropriation of legislative authority, “the ball is back in Congress’ court.” Ledbetter v. Goodyear Tire & Rubber Co. (2007).

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In the 1830s, this Court struggled to keep our Nation’s promises to the Cherokee. Justice Story celebrated the decision in Worcester: “‘[T]hanks be to God, the Court can wash [its] hands clean of the iniquity of oppressing the Indians and disregarding their rights.’”  “‘The Court had done its duty,’” even if Georgia refused to do its own. Today, the tables turn. Oklahoma’s courts exercised the fortitude to stand athwart their own State’s lawless disregard of the Cherokee’s sovereignty. Now, at the bidding of Oklahoma’s executive branch, this Court unravels those lower-court decisions, defies Congress’s statutes requiring tribal consent, offers its own consent in place of the Tribe’s, and allows Oklahoma to intrude on a feature of tribal sovereignty recognized since the founding. One can only hope the political branches and future courts will do their duty to honor this Nation’s promises even as we have failed today to do our own.