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Acting attorney general mulls post-Castro jurisdiction

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Victoria Wicks
Acting Attorney General Mark Vargo.

The U.S. Supreme Court held in a recent opinion that states have concurrent jurisdiction in Indian country over non-Indians committing crimes against any victim. This ruling creates overlapping prosecution powers of state, federal, and tribal authorities.

Mark Vargo is well situated to view this opinion from various angles. He’s currently the acting South Dakota Attorney General, appointed to fill the term vacated when the former Attorney General was impeached. After the newly elected Attorney General is sworn in in January, Vargo will return to his role as Pennington County State’s Attorney. Before being elected to that office in 2012, he was a federal prosecutor with the U.S. Attorney’s office in Rapid City.

SDPB’s Victoria Wicks caught up with Mark Vargo by phone to get his take on the changes brought by the opinion in Oklahoma v. Castro-Huerta.

In 2020, a U.S. Supreme Court opinion led to a great expansion of tribal land in Oklahoma. As a result, almost half of the state, including Tulsa, is now Indian country. Two years later, the high court ruled in its Castro-Huerta opinion that the state has concurrent jurisdiction on tribal land when the offender is non-Indian. That ruling now applies to all states that have trust land within their borders.

Mark Vargo says the Castro-Huerta opinion does not eliminate what already exists, but it does add a layer.

“The grant of jurisdiction or the statement that the states have jurisdiction does not change the fact that the federal government also has jurisdiction, and so under either the Assimilative Crimes Act or under the Major Crimes Act, the cases that the federal government is already prosecuting, they can continue to prosecute. There’s nothing that says they can’t.”

Vargo says the authority of tribal courts also has not changed.

“Tribal court jurisdiction over non-Native peoples is somewhat limited. It’s mostly under the Violence Against Women Act, and there’s a very long list of requirements to basically become part of that program.”

According to the National Congress of American Indians, two tribal nations with land inside South Dakota’s borders have qualified for VAWA: Standing Rock and the Sisseton-Wahpeton Oyate of the Lake Traverse Reservation. State jurisdiction on both of these reservations, if it’s ever exercised, might be complicated by the fact that their land extends into North Dakota.

“But the bottom line is, even if the state has jurisdiction to prosecute somebody and that person can also be taken into tribal court, they are concurrent jurisdiction, and specifically they are separate sovereigns,” Vargo said.

Jurisdiction is complicated. The Department of Justice handles certain types of crimes like piracy or treason, or probably more common, violations of interstate commerce. DOJ has jurisdiction on federal property such as federal buildings and national parks and such. And Vargo says DOJ also handles crimes on federal enclaves that might be surrounded by state land.

“For instance, on Ellsworth, there are some areas of exclusive federal jurisdiction: the flight path, the control tower, and I think the main gate.”

Vargo recalls a case at Ellsworth Air Force Base that he handled when he was a federal prosecutor in Rapid City.

“As a federal prosecutor I did a rape case that occurred within the flight path, and was therefore an area of exclusive federal jurisdiction even though both the victim and the perpetrator were not members of the Air Force. These were dependents.”

In other areas of the Air Force base, he says either Meade County or Pennington County would have jurisdiction over crimes that would then be tried in state court.

But Indian country is different, especially after Castro-Huerta. If federal authorities decline to prosecute a case involving a non-Indian offender on tribal land, the state can now step in, even if the victim is Native.

“We’d be a safety net, so to speak, if a federal agency for whatever reason declined the case.”

But Vargo says he does not anticipate that will happen.

VARGO: “I think given the history of the U.S. Attorney’s office in South Dakota, I don’t have any reason to believe they’re going to change their standards of federal prosecution, but that’s certainly a conversation that I intend to have with the U.S. Attorney’s office.”

WICKS “And does this mean, then, if the state has jurisdiction over a case, that DCI can get search warrants and that sort of thing?”

VARGO: “That is an entirely different question, and I think that’s going to require, if not new case law, at the very least it’s going to require a great deal of cooperation with and coordination with our tribal counterparts.”

Rapid City freelancer Victoria L. Wicks has been producing news for SDPB since August 2007.
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