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U.S. Supreme Court hands states criminal jurisdiction on tribal land

Supreme Court Justices Brett Kavanaugh, left, and Neil Gorsuch.
U.S. Supreme Court
Supreme Court Justices Brett Kavanaugh, left, and Neil Gorsuch.

At the end of June, after the ruling that overturned Roe v. Wade, the U.S. Supreme Court issued another opinion that shook tribal nations.

The case debates whether the state or federal government should have had jurisdiction over the prosecution of Victor Castro-Huerta in Tulsa. That city was considered to be part of Oklahoma at the time Castro-Huerta, a non-Indian, was charged with felony neglect of a Native child. He appealed his conviction after a 2020 Supreme Court opinion found that Tulsa, as well as much of Oklahoma, was on reservation land.

SDPB’s Victoria Wicks is exploring this situation in two parts. Today we hear some of the arguments made before the U.S. Supreme Court in April.

A note: Federal law uses the word “Indian” as an official designation meaning an enrolled member of one of the 574 tribes recognized by the U.S. government.

That word is included as a legal term.

This case involves one state, Oklahoma, where large swaths of reservation land were returned to tribes after the U.S. Supreme Court found that Congress had never disestablished those boundaries.

That opinion, McGirt v. Oklahoma, came out in 2020.

Two years later, Oklahoma has tried dozens of times to get the Supreme Court to reconsider McGirt. Failing that, the state now wants jurisdiction over crimes committed in Indian country by non-Indians, even when the victim is Native. The case is titled Oklahoma v. Castro-Huerta.

Justice Clarence Thomas was once known for remaining silent during oral arguments, but now, as the justice with seniority, he is the first to speak after the Chief Justice has introduced the case.

Thomas kicks off the colloquy with Kannon Shanmugam, the lawyer representing Oklahoma.

Justice Thomas

“These reservations have been around a long time, and why is it now that -- why, after so many years, that we are getting the first case involving jurisdiction over non-Indians committing crimes against Indians?”

Kannon K. Shanmugam

“Justice Thomas, only in 2020 did 43 percent of the State of Oklahoma become Indian country. Before that, there was comparatively little Indian country in the State of Oklahoma, and so this was, frankly, not an issue in Oklahoma and not an issue that arose all that frequently in the rest of the country either.”

Shanmugam says the issue has taken on acute importance in light of the McGirt ruling, with federal authorities overwhelmed by the additional caseload.

He says Congress has given federal prosecutors jurisdiction over Indian offenders but not victims, and Congress has never enacted a statute establishing exclusive federal jurisdiction over non-Indian offenders committing crimes on tribal land.

“The state has inherent sovereign authority to punish crimes committed within its borders, and no federal law preempts that authority as to crimes committed by non-Indians,” he said.

Shanmugam spent more than an hour defending Oklahoma’s position, especially against Justice Neil Gorsuch.

“In the 1920s, Oklahoma systematically used its state courts to deprive Indians of their -- their property when oil was discovered on their lands. There's a long history of this,” Gorsuch said.

With his questions, Gorsuch previews what he will eventually write in his dissenting opinion. “Congress has provided as well a mechanism for tribes who wish to opt in to state concurrent jurisdiction in Public Law 280, so that's available. We know that. They've chosen not to. Should that be something we consider?”

Public Law 280 has been around since 1953, in various forms, and now allows states to take over tribal criminal justice if 20 percent of the tribe votes in favor.

Gorsuch doesn’t wait for Shanmugam to answer.

“We have the treaties, okay, which have been in existence and promising this tribe since before the Trail of Tears they would not be subject to state jurisdiction precisely because the states were known to be their enemies,” Gorsuch said to Shanmugam. “Does that count in -- in your balancing -- your new Bracker balancing test which we've never heretofore applied in criminal law?”

Gorsuch refers to a 1980 U.S. Supreme Court opinion in White Mountain Apache v. Bracker that developed a test to balance tribal, federal, and state interests in taxation on tribal land.

Oklahoma has proposed using the Bracker test to determine jurisdiction in criminal cases.

Shanmugam says the balancing framework is a familiar approach to preemption, looking at whether state law interferes with the tribal right to self-governance.

“Of course, the tribes have an interest in protecting their members from criminal offenses,” he said. “The State of Oklahoma likewise has an interest in protecting all of its citizens, including its tribal citizens.”

Throughout oral arguments, no one disputes that the situation in Oklahoma, after the McGirt opinion, is the reason for this appeal, and that the situation exists nowhere else in the nation.

Chief Justice John Roberts asks Shanmugam if the McGirt opinion has any bearing on the legal arguments or if it’s just background for Oklahoma’s cry for help.

John G. Roberts, Jr.

“So, really, at the end of the day, when you're talking about McGirt, you're really just waving -- waving a bloody shirt. It doesn't have any direct pertinence on the legal analysis here.”

Kannon K. Shanmugam

“This is an extraordinary situation, I think, unlike any situation in recent history, where what's going on right now in Oklahoma is a giant law enforcement experiment. You have half -- almost half of an American state now, at least as to this category of crimes, under the exclusive criminal jurisdiction of the federal government, and the federal government is failing in that task.”

Also not disputed is that this decision will apply to all states that have tribal land in trust within their borders.

Justice Sonia Sotomayor asks Shanmugam why Oklahoma is looking for a nationwide solution. “It may be that you and some -- that you're the only state that wants concurrent jurisdiction to fix a state-specific problem,” she said. “But why should we assume that every other state wants that responsibility?”

Sotomayor says if the court agrees to the broad solution, all states will be handed an obligation to protect Indian victims: “What you’re saying is an unfunded mandate to 49 other states.”

The majority opinion in this case, issued on June 29, establishes that states do have concurrent jurisdiction on reservation land over crimes committed by non-Indians against any victims, regardless of race or tribal affiliation.

Justices who eventually side with the majority express concerns at oral arguments about the extremely vulnerable victim in this case. Victor Manuel Castro-Huerta was convicted of neglecting his five-year-old stepdaughter, who is legally blind, has cerebral palsy, and was found to be badly malnourished, infected with lice, and covered in feces.

But an attorney for the U.S. Department of Justice says the predicament of the individual victim is not the point in considering jurisdiction.

Edwin Kneedler, arguing his 150th case before the U.S. Supreme Court, says it should be up to the tribes and Congress to determine criminal jurisdiction, and treaties and federal law already allow for that to happen.

“Congress enacted, again, a framework in which it’s up to the respective sovereigns to decide how Indian country should be governed and from the tribal perspective, it’s not a question whether a particular Indian victim in a particular case would be better protected or not,” he said. “There is a collective judgment to be made on behalf of the tribe with respect to its territory.”

In an exchange with Kneedler, Justice Sotomayor emphasizes that Native victims are also tribal citizens protected by treaty.

Sonia Sotomayor

“In treaties, the Cherokee Treaty here, says that the federal government will protect them, correct?”

Edwin S. Kneedler


Sonia Sotomayor

“And so, to the extent that a victim has expectations, that's the expectation, correct?”

Edwin S. Kneedler

“Yeah. So, as -- as a member of the tribe. And, yes, an important difference between the United States and the state, it's not just two -- two entities, both can prosecute. There is a trust relationship between the United States and a state -- excuse me, and a tribe and the tribal members. There is not a trust relationship between a state and the tribal members. And it's understandable, particularly given the history -- as -- as this Court said in McGirt itself, there is a long history of separating tribes and tribal members from the states because of the hostility.”

Kneedler says federal law allows a tribe to consent to state jurisdiction if it believes tribal citizens would be better served, but the essence of sovereignty is that the people of the tribe decide.

Four justices agreed with that contention. Five joined the majority opinion, written by Justice Brett Kavanaugh, that Indian country is part of a state, not separate from it.

Rapid City freelancer Victoria L. Wicks has been producing news for SDPB since August 2007. She Retired from this position in March 2023.
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