In sequel to McGirt, justices will again review scope of state prosecutorial power in Indian country

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A sad story involving child neglect has become the subject of a Supreme Court case – and white-hot political rhetoric – because the crime occurred on the reservation of the Cherokee Nation of Oklahoma and the victim (but, crucially, not the defendant) is a citizen of the Eastern Band of Cherokee Indians.

The case, Oklahoma v. Castro-Huerta, will be argued on Wednesday, the final argument of the 2021-22 term (and the final argument of Justice Stephen Breyer’s career). It is a sequel of sorts to the court’s 2020 decision in McGirt v. Oklahoma, the most monumental federal Indian law decision of the new century. The legal issue is whether states possess criminal jurisdiction over crimes committed by non-Indians against Indians within Indian reservations concurrent with the federal government’s power. If Oklahoma wins, the consequences on Indian country criminal jurisdiction throughout the nation will be extraordinary. If Victor Manuel Castro-Huerta wins, his conviction in Oklahoma state court for neglecting his five-year-old stepdaughter will be overturned, but he likely will be indicted instead by the United States — and the Indian country criminal jurisdictional regime will remain in place.

In McGirt, the court determined by a 5-4 vote that the historic Creek Reservation boundaries have continued to exist despite a century-long understanding that the reservation had been terminated by the time Oklahoma earned statehood in 1912. But Congress never terminated the reservation, nor did it authorize Oklahoma to enforce its criminal laws on the reservation. Black-letter federal law provides that, since at least Worcester v. Georgia in 1832, states cannot prosecute crimes committed on Indian reservation land without federal approval. Thanks to McGirt, we now know that the Creek reservation remained extant, and we also know Oklahoma never possessed criminal jurisdiction authority.

In the weeks and months following the McGirt decision, the Oklahoma Court of Criminal Appeals grudgingly applied the McGirt’s reasoning to the Cherokee, Chickasaw, Choctaw, and Seminole reservations. Those historic Indian reservations are once again considered “Indian country” (a legal term of art defined at 18 U.S.C. § 1151), where state power over Indians consists only of the power that Congress expressly grants the states. Approximately 40% of Oklahoma’s land mass is now considered “Indian country.”

To say that Oklahoma begrudges its newly limited jurisdiction is to put it mildly. Oklahoma’s leadership frequently claims that lawlessness is rampant and worsening, all because of McGirt. It is true that 235 Oklahoma prisoners have won relief from Oklahoma courts since the decision, but only a couple dozen mostly nonviolent offenders have been released. But for the political rhetoric, most Oklahomans likely would not even perceive the difference in criminal jurisdiction.

That does not mean McGirt’s impact is minimal. Thousands of criminal suspects are affected. The biggest change is that many thousands of prosecutions (by Oklahoma’s count) previously brought by the state are now being brought by the United States and the tribes. Refusing to give up on its power, Oklahoma petitioned more than 40 times to the Supreme Court throughout 2020 and 2021 to review cases it lost in the Oklahoma Court of Criminal Appeals. The state — acutely aware that Justice Ruth Bader Ginsburg, who was in the five-justice majority in McGirt, had been replaced by Justice Amy Coney Barrett — was probing for a Supreme Court vehicle to overrule McGirt. The court rejected nearly all those petitions.

The one petition the court did grant is Oklahoma’s petition in Castro-Huerta. But the justices declined the state’s entreaty to use the case to explicitly reconsider McGirt. Instead, the justices limited their review to a narrower question: whether McGirt (which involved a defendant who was an enrolled member of an Indian tribe) also applies to non-Indian defendants accused of committing crimes against tribe members. In other words, the state is seeking to use Castro-Huerta to restore its power over non-Indian offenders.

Usually, when it comes to Indian country criminal jurisdiction, either the United States or a given state possesses the power to prosecute, but not both (tribal criminal jurisdiction is a separate matter). The Constitution vests the Indian affairs power with Congress through the Indian commerce clause, the treaty power, and related powers. Indian affairs are similar to foreign affairs in that the federal government possesses exclusive power to manage relations with Indian tribes. The fact that the Oklahoma tribes’ reservations were created by treaties negotiated between the tribes and the federal government pretty much says it all. Because Congress possesses this power, Congress decides which governments govern Indian country, and how they do so.

In Oklahoma, because Congress never authorized the state to prosecute Indian country crime, state power is considered preempted by operation of federal law. As Castro-Huerta’s brief notes, Congress has extended at least some power to prosecute crime in Indian country to a couple dozen states, but not Oklahoma. Absent a controlling act of Congress, Oklahoma presumably remains governed by the baseline rules.

The legal issue in Castro-Huerta revolves around an apparent conflict between the General Crimes Act (also known as the Indian Country Crimes Act) and a series of Supreme Court decisions on the power of states to prosecute non-Indians for crimes against other non-Indians in Indian country. The GCA provides in relevant part: “[T]he general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.” To paraphrase: Wherever federal power is exclusive, such as Indian country, the United States possesses exclusive power to prosecute generally applicable federal crimes. If the GCA applies, then Oklahoma’s prosecution of Castro-Huerta is preempted by federal law.

Oklahoma argues, however, that a series of old Supreme Court precedents can be read to allow its prosecution of Castro-Huerta. Those cases, led by United States v. McBratney (1882) and Draper v. United States (1896), hold that states can prosecute non-Indians for crimes against non-Indians in Indian country even in the absence of express congressional authorization. The court’s reasoning in those cases focused on the “equal footing doctrine,” which provides that new states enter the Union with the same powers as the original 13 states.

The McBratney court reasoned that statehood placed Indian reservations within the boundaries, and therefore jurisdiction, of the state. Consequently, the state could prosecute non-Indians for crimes committed against non-Indians in Indian country. That case involved Utah, a state that did not disclaim jurisdiction over Indian country (unlike numerous other states in the west, which did agree to stay out of tribal affairs). The Draper case, on the other hand, involved Montana, which did disclaim jurisdiction over Indian country. Still, the court held the equal footing doctrine controlled again, allowing state authority to prosecute non-Indians. Oklahoma claims the broad reasoning of those cases is not confined to just non-Indian crimes against non-Indians, but all crimes by non-Indians.

McBratney and Draper seem to federal Indian law observers to be aberrations; after all, Indian country is Indian country and Congress never authorized any form of state jurisdiction. In the same year as Draper, the court held in Ward v. Race Horse that the equal footing doctrine also could terminate Indian treaty rights. Race Horse seemed to have been impliedly overruled less than a decade later in United States v. Winans (1905), which enforced Indian treaty rights over an equal footing doctrine defense. The court never again applied the equal footing doctrine to defeat Indian treaty rights and, in 2019, the court formally overruled Race Horse. What remains of the equal footing doctrine in Indian affairs? It’s not clear. Perhaps Castro-Huerta is a vehicle to resurrect the doctrine in Indian law.

Oklahoma isn’t relying exclusively on the reasoning of those old cases, though. The state is betting that the Supreme Court agrees with it that Indian affairs stopped being akin to foreign affairs sometime in the late 19th or early 20th century. Keep in mind that most tribal nations at that time were utterly powerless and destitute, subject completely to the political decisions of the federal government. Indian reservations, especially in Oklahoma, often were overrun with non-Indian settlement. In that historical context, enabling state jurisdiction inside Indian country made sense to some as a policy matter. In Oklahoma, as Justice Neil Gorsuch wrote for the McGirt majority, “the rule of the strong” controlled over “the rule of law.”

Castro-Huerta and the United States argue that the GCA’s text controls. The GCA provides that the United States possesses the power to prosecute federal crimes in federal enclaves, which Congress in 1948 made clear included Indian country (another portion of the law not relevant here governs the tribes’ prosecutorial powers vis a vis the United States). The GCA itself does not explicitly say that the federal government possesses exclusive jurisdiction over Indian country crimes, but Castro-Huerta and the United States argue that Congress legislated with that understanding. If that understanding is correct, then McBratney and Draper likely were wrongly decided. If Oklahoma wins, then states seemingly acquire concurrent jurisdiction over crimes committed by non-Indians against Indians throughout Indian country nationally. Non-Indian child abusers in many parts of Indian country then could be prosecuted and convicted by three governments, federal, state, and tribal — triple jeopardy.

In its play to hold on to as much power as it can, Oklahoma has identified a gap in Indian law. The Supreme Court has never explicitly answered a question that no one before ever asked: whether states are preempted from prosecuting non-Indian-on-Indian crimes in Indian country. Soon we will know the answer.



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