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This week the Supreme Court closed out its term issuing seven opinions covering topics such as the limits of the Environmental Protection Agency (EPA) in regulating climate change, the "stay in Mexico" policy for immigrants seeking asylum, the scope of the limits of religious expression at public schools, and reducing sentences under the First Step Act. Importantly for Indian Country, Wednesday saw the issuance of the opinion in Oklahoma v. Castro-Huerta, a case that now allows states to prosecute non-Indians in Indian Country.
The 5-4 decision in Castro-Huerta was the latest attempt by Oklahoma to limit or reverse the effects of the McGirt decision, which clarified that Congress had never formally disestablished five reservations in eastern Oklahoma, including those of the Cherokee Nation and Muscogee (Creek) Nation. That decision established that most of eastern Oklahoma remains a part of Indian Country and essentially stripped Oklahoma of its criminal jurisdiction in that part of the state whenever a Tribal member is involved. If the state cannot prosecute a crime for lack of jurisdiction, then the case has to be referred to Federal or Tribal court. Such was the case in Castro-Huerta.
Victor Castro-Huerta is not a Native American, but his stepdaughter is. In 2015, when his sister-in-law was visiting, she discovered that his 5-year-old stepdaughter was in critical condition, weighing only 19 pounds. After the girl was taken to the hospital, charges of criminal child neglect were brought against both Castro-Huerta and his wife. Castro-Huerta was sentenced to 35 years in prison by the Oklahoma state courts. After the McGirt decision, He appealed the Oklahoma court decision as lacking jurisdiction. The courts agreed, and his case was referred to the Federal Government, where he struck a plea deal for a seven-year sentence instead of the 35 years previously levied.
Criminal jurisdiction in Indian Country has long been a complicated affair. In the early days of the United States, most treaties acknowledged the exclusive sovereignty of tribes over their lands, but out of fear that White men would not get a fair trial in a Tribal court, they stipulated that U.S. citizens would be exempt from Tribal jurisdiction and would instead be tried in Federal courts. Those familiar with the history of U.S./Tribal relations knows that this deference to Tribal sovereignty did not last. Over the years exceptions to the rules have been developed that have led to much debate and complicated charts trying to map out the jurisdictional limits of states and tribes.
Speaking for the majority, Justice Brett Kavanaugh complicated the matter even further. Citing the 10th Amendment and supporting cases, Kavanaugh declared that a state has jurisdiction over all of its territory, including Indian Country, unless Congress has explicitly excluded it. Congress has given Federal courts jurisdiction over Indian Country and Congress created special rules for Tribal members, but in the case of a non-Indian committing a crime against an Indian, Congress never explicitly forbade states from exercising jurisdiction, so the Court concluded that concurrent jurisdiction must exist, and states may also prosecute in these cases.
Justice Neil Gorsuch issued a dissent in which the three liberal justices joined, stating that the decision to grant states concurrent jurisdiction violates the principal of Tribal sovereignty recognized in Worcester v. Georgia (1832). Rather than recognize state jurisdiction except where Congress has restricted it in favor of tribes, the dissent argues that Tribal sovereignty exists, and is only limited when Congress restricts it in favor of the states, which has happened most notably in 1953 when Congress passed Public Law 280 giving certain states jurisdiction over criminal offenses committed “by or against Indians.” The implication being that states do not have jurisdiction over crimes committed against Indians in Indian Country unless so authorized. Justice Gorsuch ended by calling on Congress to amend Public Law 280 to correct for this decision and clarify the limits of state jurisdiction in Indian Country. The Principal Chief of the Cherokee Nation came out with a statement agreeing with Gorsuch and condemning the decision almost immediately upon its release.
It is worth noting that some suspect Kavanaugh’s decision was based largely on practical concerns. As noted in the opinion, the McGirt decision has forced Oklahoma to transfer 18,000 cases a year to Federal and Tribal officials, and despite increased Federal funding for public safety in Oklahoma, the courts cannot keep up. Allowing the states to exercise jurisdiction will increase public safety resources and could reduce crime in Indian Country, both in Oklahoma and elsewhere, but others worry that this is short-sighted and will lead to a long-term reduction in Tribal sovereignty overall.
The final Supreme Court opinions issued on Thursday marked the end of the current term, as well as the end of Justice Stephen Breyer’s tenure on the Court. His resignation was effective Thursday at noon, shortly after which Justice Ketanji Brown Jackson was sworn in as the 116th Justice and the first Black woman to serve on the U.S. Supreme Court.
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