Damage Control in SCOTUS on “Indian Country”

The U.S. Supreme Court today decided a major case on prosecution jurisdiction in Oklahoma v. Castro-Huerta, No. 21-429. This is an example of the Court in damage-control mode. An earlier, disruptive, and legally dubious decision has had severe impacts on criminal justice. Rather than overrule it, the Court acts to limit the damage.

Two years ago, the Court decided 5-4 in McGirt v. Oklahoma that large portions of that state were still “Indian country”* because Congress had not formally diminished or disestablished the original reservations, even though the land in question had not been part of a reservation in practice for a very long time.

In dissent, Chief Justice Roberts noted the astonishing holding and its consequences:

In 1997, the State of Oklahoma convicted petitioner Jimcy McGirt of molesting, raping, and forcibly sodomizing a four-year-old girl, his wife’s granddaughter. McGirt was sentenced to 1,000 years plus life in prison. Today, the  Court holds that Oklahoma lacked jurisdiction to prosecute McGirt—on the improbable ground that, unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians like McGirt. Not only does the Court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma. The rediscovered reservations encompass the entire eastern half of the State—19 million acres that are home to 1.8 million people, only 10%–15% of whom are Indians.

McGirt held that the Major Crimes Act (MCA) “allows only the federal government, not the States, to try tribal members for major crimes.” It also noted, “But the MCA applies only to certain crimes committed in Indian country by Indian defendants. A neighboring statute provides that federal law applies to a broader range of crimes by or against Indians in Indian country.”

Note that the exclusivity holding is limited to the MCA, which in turn is limited to crimes committed by tribal members. The “neighboring statute” applies to “crimes by or against Indians.”  The magnitude of the destructive impact of McGirt depends in significant part on whether its rule is extended to crimes against Indian victims by non-Indian perpetrators. The reality is that the federal government does not have institutional motivation to fund and conduct effective law enforcement for all the crimes committed by Indian perpetrators, and that problem would be greatly aggravated if crimes against Indian victims also came under the ban.

The McGirt opinion was written by Justice Gorsuch, joined by the four “liberal” Justices at the time: Ginsburg, Breyer, Sotomayor, and Kagan. Since then, the membership of the Court has changed by one, with Justice Barrett succeeding the late Justice Ginsburg. In the present case, Oklahoma asked the Court to consider two questions.

1. Whether a State has authority to prosecute non-Indians who commit crimes against Indians in Indian country.
2. Whether McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), should be overruled.

The Court agreed to take up the case limited to Question 1. Forget about Question 2, Oklahoma. A reversal after a fifth-vote personnel change would look bad, even if you’re right.

Today’s opinion by Justice Kavanaugh summarizes the facts:

In 2015, Victor Manuel Castro-Huerta lived in Tulsa, Oklahoma, with his wife and their several children, including Castro-Huerta’s then-5-year-old stepdaughter, who is a Cherokee Indian. The stepdaughter has cerebral palsy and is legally blind. One day in 2015, Castro-Huerta’s sister-in-law was in the house and noticed that the young girl was sick. After a 911 call, the girl was rushed to a Tulsa hospital in critical condition. Dehydrated, emaciated, and covered in lice and excrement, she weighed only 19 pounds. Investigators later found her bed filled with bedbugs and cockroaches.

When questioned, Castro-Huerta admitted that he had severely undernourished his stepdaughter during the preceding month. The State of Oklahoma criminally charged both Castro-Huerta and his wife for child neglect. Both were convicted. Castro-Huerta was sentenced to 35 years of imprisonment, with the possibility of parole. This case concerns the State’s prosecution of Castro-Huerta.

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In the wake of McGirt, Castro-Huerta argued that the Federal Government’s jurisdiction to prosecute crimes committed by a non-Indian against an Indian in Indian country is exclusive and that the State therefore lacked jurisdiction to prosecute him. The Oklahoma Court of Criminal Appeals agreed with Castro-Huerta. Relying on an earlier Oklahoma decision holding that the federal General Crimes Act grants the Federal Government exclusive jurisdiction, the court ruled that the State did not have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. The court therefore vacated Castro-Huerta’s conviction. No. F–2017–1203 (Apr. 29, 2021); see also Bosse v. State, 2021 OK CR 3, 484 P. 3d 286; Roth v. State, 2021 OK CR 27, 499 P. 3d 23.

While Castro-Huerta’s state appellate proceedings were ongoing, a federal grand jury in Oklahoma indicted Castro-Huerta for the same conduct. Castro-Huerta accepted a plea agreement for a 7-year sentence followed by removal from the United States.

By what screwed-up concept of justice for Indians is it considered a victory that a non-Indian abusive stepfather gets off with an inadequate plea bargain from an overloaded U.S. Attorney’s office for severely abusing a helpless, disabled 5-year-old Indian girl, nearly to death? The majority was not going to go that way.

Today’s opinion returns to one of the nation’s oldest legal controversies, the status of Indian reservations within states. In its landmark 1832 decision in Worcester v. Georgia, the Supreme Court held that Georgia could not prosecute a non-Indian for a minor violation of Georgia law inside Cherokee territory, effectively making that territory a separate sovereign, as if it were a state. However, as Hamilton foresaw in the Federalist, the judicial branch is dependent on the executive to enforce its decisions. Treaty obligations were regularly violated through the rest on the nineteenth century, a history Justice Gorsuch recounts in the dissent. But that history has less to do with the finer points of sovereignty and more to do with the realities of the hardball politics of the era.

The majority notes that the Worcester view of sovereignty did not last long.

But the “general notion drawn from Chief Justice Marshall’s opinion in Worcester v. Georgia” “has yielded to closer analysis.” Organized Village of Kake v. Egan, 369 U. S. 60, 72 (1962). “By 1880 the Court no longer viewed reservations as distinct nations.” Ibid. Since the latter half of the 1800s, the Court has consistently and explicitly held that Indian reservations are “part of the surrounding State” and subject to the State’s jurisdiction “except as forbidden by federal law.” Ibid.

No one doubts that Congress has full control of these matters when it chooses to speak. The majority establishes state jurisdiction as the default rule and asks whether Congress has taken it away. McGirt held that Congress had made federal jurisdiction exclusive in the Major Crimes Act, thereby removing state jurisdiction for the crimes covered by that act, i.e., where the defendant is a tribal member. The Court today held that Congress had not made federal jurisdiction exclusive in the General Crimes Act, which has a broader scope. Therefore, the state system has concurrent jurisdiction and can prosecute crimes by non-Indians whether the victim is Indian or not.

McGirt remains a problem, though, and Congress needs to step up and address these issues. The simplest change would be to introduce a concept like “adverse possession” into the definition of “Indian country” for the purpose of criminal jurisdiction. In property law, if a person has been in possession of land as its purported owner for a very long time, he cannot be ousted by a person who shows up with some ancient document claiming the title. Similarly, “Indian country” should be limited to lands that have actually been under the control of an operating tribal government sometime within a stated period, perhaps the last 20 years.

Ancient outrages committed by people long since dead against people long since dead should not be allowed to defeat justice for victims of crime in the here and now. They should not put violent criminals back on the street to commit new crimes. That is not justice by any rational definition. Congress, get on the stick.

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* With considerable hesitation, I use the term “Indian” throughout this post. That is the term used in the statutes and precedents and mostly in the opinions. Of course, the term is a misnomer tracing back to the fact that 530 years ago navigators had no good way to determine longitude. “Native American” is also a misnomer, as everyone born in America is a native American. “Indigenous” would be better, but it hasn’t caught on yet in the United States.