Legal Sidebari

SCOTUS Bolsters State Criminal Jurisdiction
on Tribal Lands
July 1, 2022
Rejecting the view that states lack criminal jurisdiction on tribal reservations unless Congress specifically
grants such jurisdiction, on June 29, 2022, the Supreme Court announced in Oklahoma v. Castro-Huerta
that “the default is that States have criminal jurisdiction in Indian country unless that jurisdiction is
preempted.” In practice, this decision will allow Oklahoma—and likely other states that choose to follow
Oklahoma’s lead—to prosecute crimes involving non-Indian perpetrators within reservations and other
Indian lands, even when the victims are members of federally recognized tribes.
Legal Background
In the 2020 case of McGirt v. Oklahoma, the Supreme Court decided that land reserved for a tribe in
Oklahoma remained “Indian country” for criminal jurisdiction purposes. Explaining that “[s]tate courts
generally have no jurisdiction to [prosecute] Indians for conduct committed in ‘Indian country’” absent
congressional authorization, the Court overturned the petitioner’s Oklahoma state conviction.
In the wake of McGirt, the State of Oklahoma filed dozens of petitions for certiorari asking the Supreme
Court to reconsider its ruling and to address additional jurisdictional questions. The Court ultimately
granted certiorari in Oklahoma v. Castro-Huerta to answer the question of whether states have inherent
authority to prosecute non-Indians—that is, persons who are not members of a federally recognized
tribe—who commit crimes against Indians in Indian country (though the Court declined Oklahoma’s
invitation to consider overruling McGirt outright).
The Majority Opinion
In a 5-4 decision, the Castro-Huerta Court concluded that states have inherent criminal jurisdiction over
non-Indians, except where such jurisdiction is preempted by (1) federal law or (2) the interests of tribal
self-government. Writing for the majority, Justice Brett Kavanaugh acknowledged that this conclusion
appears contrary to the holding of one of the foundational federal Indian law cases, Worcester v. Georgia.
That 1832 case held that Georgia state law had no force within the Cherokee Nation’s boundaries.
However, in Castro-Huerta the Court determined that subsequent judicial holdings had eroded Worcester
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v. Georgia, including “the leading case in the criminal context” of United States v. McBratney, an 1882
case upholding Colorado state jurisdiction over crimes committed by non-Indians against non-Indians on
reservation lands. McBratney relied on the “equal footing” doctrine to conclude that Congress’s grant of
statehood established state criminal jurisdiction over all non-Indians within state boundaries regardless of
tribal land status. McBratney, however, did not involve a “question . . . as to the punishment of crimes
committed by or against Indians.” Nonetheless, the Castro-Huerta Court invoked McBratney—which the
Court said “remains good law”—as establishing a principle that “unless preempted, States have
jurisdiction over crimes committed in Indian country.”
The Castro-Huerta Court then laid out two separate principles by which state jurisdiction could be
preempted: (1) “by federal law under ordinary principles of federal preemption”; and (2) when such
jurisdiction would “unlawfully infringe on tribal self-government.” As to ordinary federal preemption, the
defendant in Castro-Huerta argued that both the General Crimes Act (18 U.S.C. § 1152) and Public Law
No. 83-280 (often called “Public Law 280”) preempt the Oklahoma criminal laws. The Castro-Huerta
Court rejected both of these preemption arguments, explaining that the General Crimes Act extended the
federal laws applicable in federal enclaves to Indian country but did not expressly exclude state law from
also applying. Although federal law in federal enclaves is exclusive, meaning that states cannot prosecute
violations of state law within those enclaves, the Castro-Huerta Court determined that the General Crimes
Act did not clearly extend that exclusivity to Indian country. Accordingly, the Court found the General
Crimes Act did not preempt Oklahoma from prosecuting its state criminal laws in Indian country.
The Court undertook a similar examination of Public Law 280: even though Public Law 280 provided
certain states (other than Oklahoma) with criminal jurisdiction over crimes by and against Indians, which
would seem unnecessary if state jurisdiction flowed inherently from statehood, the Castro-Huerta Court
focused on the lack of an express preemption statement. Because Public Law 280 “contains no language
that preempts States’ civil or criminal jurisdiction,” it could not preempt Oklahoma’s exercise of state
criminal jurisdiction.
The Court next examined the second category of possible “preemption” it identified: infringement on
tribal self-government. As the Court framed it, the question of whether state jurisdiction would infringe
on tribal self-government involves a “balancing test” applied to “tribal interests, federal interests, and
state interests.” This balancing test was adapted from White Mountain Apache Tribe v. Bracker, a 1980
tax case evaluating whether Arizona license and fuel taxes were preempted from application to a non-
Indian entity’s activities on a reservation. In the Castro-Huerta Court’s view, state criminal jurisdiction
over non-Indian defendants neither limited tribal jurisdiction nor subjected tribes or tribal members to
state law. Nor, said the Court, would state jurisdiction impede the federal interest in protecting Indian
victims because state prosecution would supplement, not supplant, federal authority. Thus, the tribal and
federal interests did not outweigh Oklahoma’s “strong sovereign interest” in public safety and criminal
justice.
Justice Gorsuch’s Dissent
Justice Neil Gorsuch, who wrote the majority opinion in McGirt just two years before Castro-Huerta,
authored a dissent that was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice
Gorsuch wrote that Worcester v. Georgia established a “foundational rule”: “Native American tribes retain
their sovereignty unless and until Congress ordains otherwise.” Criticizing the majority opinion as
existing “as if by oracle, without any sense of the history . . . and unattached to any colorable legal
authority,” the dissent accused the majority of trampling “one of the most essential attributes” of tribes’
sovereignty—the authority to be the sole source of punishment for crimes by or against one’s citizens. In
the dissent’s view, the “Court has no business usurping congressional decisions about the appropriate

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balance between federal, tribal, and state interests,” and it suggested that Congress could take action to
prevent the majority decision from “sow[ing] needless confusion across the country.”
Considerations for Congress
Castro-Huerta appears to broaden states’ ability to prosecute crimes committed against Indians in Indian
country. In Oklahoma, where McGirt led to a shift in prosecutorial burdens from the state to the tribes and
federal government, Castro-Huerta may presage a shift in the opposite direction. As an initial matter,
Congress could reassess near-term appropriations whose budget justifications relied on predictions about
surging federal caseloads in Indian country. In the longer term, if Congress wishes to codify either a
presumption or an actual grant of state criminal jurisdiction over general crimes committed by non-
Indians against Indians in Indian country, it could consider legislation to do so.
If Congress seeks to foreclose or restrict states’ exercise of criminal jurisdiction in Indian country, Castro-
Huerta suggests that an express preemption statement may be needed. Congress could consider amending
relevant existing statutes or drafting standalone legislation to establish preemption. For example, the
General Crimes Act could be amended to state that the federal laws it references are exclusive of state
criminal law in Indian country; or Congress could amend Public Law 280 to say that states lack criminal
jurisdiction over crimes by or against Indians in Indian country except where such jurisdiction has been
expressly granted by Congress. If Congress were to choose that path, it could also maintain, expand, or
eliminate the current requirements that states seeking additional jurisdiction in Indian country must,
among other things, obtain tribal consent as outlined in 25 U.S.C. § 1321.

Author Information

Mainon A. Schwartz

Legislative Attorney




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