The Supreme Court has affirmed a state’s jurisdiction for prosecuting crimes committed in Indian territory. The case stems from an instance of child neglect against a member of Oklahoma’s Eastern Band of Cherokee Indians by a non-Native American on an Indian reservation.

In the case of Oklahoma v Castro-Huerta, the nation’s highest court ruled 5-4 that states and the federal government both have jurisdiction to prosecute crimes committed by non-Indians against Indians on Indian land. Justice Brent Kavanauah wrote the majority opinion in the case, stating, “This Court has long held that Indian country is part of a State, not separate from it. Under the Constitution, States have jurisdiction to prosecute crimes within their territory except when preempted by federal law or by principles of tribal self-government.”

Justice Neil Gorsuch wrote a dissenting opinion, which was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

What’s the background?

Victor Manuel Castro-Huerta was convicted of neglecting his stepdaughter in 2015 and sentenced to 35 years in prison. That conviction was later vacated because the crime occured in “Indian country.” Castro-Huerta later pleaded guilty to the charges in a federal court.

The ruling adds context to the jurisdiction the state has for prosecuting non-Native Americans for crimes against Native Americans in “Indian country” following the court’s 2020 decision in McGirt v. Oklahoma.

Jimcy McGirt, a member of the Seminole/Creek Nations of Oklahoma, was found guilty in a county court of several crimes including one count of first-degree rape by instrumentation in 1997. He was sentenced to 500 years in prison on two counts and life without parole on the third.

The case eventually went to the Supreme Court on the grounds that under the Indian Major Crimes Act any crime taking place in Indian Country, including Creek Nation, was under the sole jurisdiction of the federal government.

What did SCOTUS say?

“The default is that States have criminal jurisdiction in Indian country unless that jurisdiction is preempted,” Kavanaugh wrote. “And that jurisdiction has not been preempted here.”

In his dissent, Gorsuch said, “Where this Court once stood firm, today it wilts. After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands.”

He added, “Now, the State seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee Reservation. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s.”

Gorsuch suggested Congress adopt a “adopt a state-specific statute authorizing it to prosecute crimes by or against tribal members on tribal lands.”

Kavanaugh disagreed, writing, “The dissent emphasizes the history of mistreatment of American Indians. But that history does not resolve the legal questions presented in this case. Those questions are: (i) whether Indian country is part of a State or instead is separate and independent from a State; and (ii) if Indian country is part of a State, whether the State has concurrent jurisdiction with the Federal Government to prosecute crimes committed by non-Indians against Indians in Indian country.”

He added that “this Court has repeatedly ruled that Indian country is part of a State, not separate from a State.”

Gorsuch’s dissent from his conservative colleagues was not unexpected in the minds of some court observers.

Carolyn Shapiro, co-director of the Institute on the Supreme Court of the United States at the Chicago Kent College of Law, told Straight Arrow News in a recent interview, “And it turns out that Justice Gorsuch has a very different perspective on Indian law than most of his conservative colleagues. So in some ways, it’s not surprising when we see Justice Gorsuch join the liberals because he’s done that before in other cases involving Indian law.”