Oklahoma v. Castro-Huerta Affords Concurrent Jurisdiction to States for Crimes Against Indians in Indian Country

A few years ago, I wrote this post analyzing criminal jurisdiction on the Qualla Boundary in Western North Carolina.  I explained the jurisdictional rules for prosecuting crimes committed on the Qualla Boundary, or Eastern Cherokee Indian Reservation, as follows:

State jurisdiction.

North Carolina has exclusive jurisdiction over a non-Indian who commits a crime defined by state law against another non-Indian on the Qualla Boundary.

North Carolina has exclusive jurisdiction over a non-Indian who commits a victimless crime defined by state law on the Qualla Boundary.

Federal jurisdiction.

The federal government has exclusive jurisdiction over “major crimes” committed by Indians on the Qualla Boundary.

The federal government has exclusive jurisdiction over non-Indians who commit crimes against Indians on the Qualla Boundary.

The federal government has jurisdiction over other crimes committed by Indians against non-Indians on the Qualla Boundary unless the defendant already has been punished by the tribal court.

The federal government has jurisdiction over victimless crimes committed by Indians on the Qualla Boundary unless the defendant already has been punished by the tribal court.

Tribal jurisdiction.

The tribe has jurisdiction over an Indian who commits a crime that is not defined as a “major crime.”

Update. A decision from the United States Supreme Court last term likely changed one of those rules. The Court in Oklahoma v. Castro-Huerta, 597 U.S. ___, 142 S.Ct. 2486 (2022), held in a 5-4 decision that the state and federal governments have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country unless state jurisdiction is preempted.

Facts and Procedural History. Victor Manuel Castro-Huerta was convicted of child neglect in Oklahoma state court for the maltreatment of his five-year-old stepdaughter, a Cherokee Indian, while the family lived in Tulsa, Oklahoma. After Castro-Huerta was convicted, rulings from the Supreme Court and Oklahoma’s appellate courts that certain Oklahoma reservations had never been disestablished by Congress rendered the area of Tulsa in which the crimes were committed Indian country.

Castro-Huerta argued on appeal that because his alleged crimes had been committed against an Indian in Indian country, the federal government had exclusive jurisdiction. The Oklahoma Court of Criminal Appeals agreed, and Castro-Huerta’s conviction was vacated.

Meanwhile, a federal grand jury indicted Castro-Huerta for the same conduct. He accepted a plea agreement for a 7-year-sentence to be followed by deportation.

The Supreme Court characterized Castro-Huerta’s case as exemplifying a familiar pattern in Oklahoma in the wake of the court decisions recognizing Indian territory: State convictions have been reversed and some defendants have received lighter sentences in federal court or have gone free. Thus, “[i]n light of the sudden significance of this jurisdictional question for public safety and the criminal justice system in Oklahoma,” 142 S. Ct. at 2492, the Court granted certiorari to decide whether a state has concurrent jurisdiction with the federal government to prosecute crimes committed by non-Indians in Indian Country.

Analysis. The majority, in an opinion authored by Justice Kavanaugh, reasoned that Indian country is part of a State’s territory and that, unless preempted, states have jurisdiction over crimes committed in Indian country. The Court explained that a state’s jurisdiction 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.

No preemption by federal law. The Court opined that the General Crimes Act, 18 U.S.C. § 1152, which provides that the federal criminal laws that apply to federal enclaves also apply in Indian country, did not render Indian country equivalent to a federal enclave for jurisdictional purposes or “erase preexisting or otherwise lawfully assumed state jurisdiction to prosecute crimes committed by non-Indians in Indian country.” 142 S. Ct. at 2496. The Court further held that Public Law 280, which granted certain states broad jurisdiction to prosecute state-law offenses committed by or against Indians in Indian country did not preempt state jurisdiction even if some of its language would be surplusage if concurrent jurisdiction already existed.

No infringement of tribal self-government. The Court then applied the balancing test from White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), which requires consideration of tribal interests, federal interests, and state interests, to determine whether the exercise of state jurisdiction would unlawfully infringe upon tribal self-government. The Court reasoned that the state’s prosecution of a non-Indian for a crime committed against an Indian would not deprive the tribe of prosecutorial authority, since tribes generally lack criminal jurisdiction to prosecute non-Indians, even when they commit crimes against Indians in Indian country. In addition, a state prosecution of a non-Indian does not involve the exercise of state power over any Indian or tribe. As to the federal interest, the Court found that state prosecution would not harm the federal interest in protecting Indian victims as it would supplement rather than supplant federal authority. As to the state’s interest, the Court cited Oklahoma’s interest in ensuring public safety and criminal justice within its territory and in protecting all crime victims. The Court said that adopting Castro-Huerta’s argument that he was free from state prosecution on the basis that his victim was an Indian would “require this Court to treat Indian victims as second-class citizens.” 142 S. Ct. at 2502. Based on these considerations, the court held that Bracker did not bar the State from prosecuting crimes committed by non-Indians against Indians in Indian country.

The dissent. Justice Gorsuch authored a blistering dissent, accusing the majority of acceding to Oklahoma’s “unlawful power grab at the expense of the Cherokee.” 142 S. Ct. at 2505 (Gorsuch, J., dissenting). The dissent characterized Congressional action and precedent as yielding three clear principles: (1) tribal sovereign authority excludes the operation of other sovereigns’ criminal law unless Congress ordains otherwise; (2) Congress has authorized the state to prosecute crimes by or against Indians in Indian country only if states satisfy certain requirements, which include obtaining tribal consent; and (3) Oklahoma has not satisfied those requirements and thus lacks the authority to try crimes against tribal members within a tribal reservation.

The dissent further opined that the majority’s balancing test might come out differently for different tribes in different states, since Bracker instructs courts to focus on the specific context at issue, accounting for the circumstances of the tribe in question and relevant treaties and statutes. In the view of the dissenters, “any faithful application of Bracker to other Tribes in other States should only confirm the soundness of the traditional rule that state authorities may not try crimes like this one absent congressional authorization.” 142 S. Ct. 2526 (Gorsuch, J., dissenting).

Application to the Qualla Boundary. In responding to the dissent’s characterization of the limits of the majority’s opinion, the Court reiterated its holding as follows:

  • Indian country within a state is part of a state.
  • A state has jurisdiction to prosecute crimes committed in Indian country unless state jurisdiction is preempted.
  • The federal law cited by Castro-Huerta did not preempt the state’s authority to prosecute.
  • No principle of tribal self-government preempted the state’s authority to prosecute; and
  • Cited treaties and the Oklahoma Enabling Act did not preempt the state’s authority to prosecute.

Thus, despite the dissent’s view of the variability of the balancing test, it seems likely that a court would find that North Carolina has concurrent jurisdiction over crimes committed by non-Indians against Indians in the Qualla Boundary. The bigger question is whether North Carolina will choose to exercise that jurisdiction by instituting state prosecutions against these non-Indian defendants or instead will leave these matters to be prosecuted solely in federal court.