Amicus Curiae Brief — Oklahoma, Applicant v. Shaun Michael Bosse
Supreme Court briefMay 17, 2021
Ask Donna
What actually matters in this document.
Text
No. 20A161
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
STATE OF OKLAHOMA, APPLICANT
v.
SHAUN MICHAEL BOSSE
(CAPITAL CASE)
_______________
ON APPLICATION TO STAY MANDATE
OF THE OKLAHOMA COURT OF CRIMINAL APPEALS
PENDING REVIEW ON CERTIORARI
_______________
MOTION OF THE UNITED STATES
FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE AND
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
RESPECTING THE APPLICATION FOR A STAY
_______________
ELIZABETH B. PRELOGAR
Acting Solicitor General
Counsel of Record
JEAN E. WILLIAMS
Acting Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ERICA L. ROSS
Assistant to the Solicitor General
JAMES A. MAYSONETT
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 20A161
STATE OF OKLAHOMA, APPLICANT
v.
SHAUN MICHAEL BOSSE
(CAPITAL CASE)
_______________
ON APPLICATION TO STAY MANDATE
OF THE OKLAHOMA COURT OF CRIMINAL APPEALS
PENDING REVIEW ON CERTIORARI
_______________
MOTION OF THE UNITED STATES
FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE AND
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
RESPECTING THE APPLICATION FOR A STAY
_______________
The Acting Solicitor General, on behalf of the United States,
respectfully moves to file this brief as amicus curiae regarding
the State of Oklahoma’s application to stay the mandate of the
Oklahoma Court of Criminal Appeals (OCCA).
This case raises the
question whether Oklahoma has jurisdiction, concurrent with the
United
States,
to
prosecute
crimes
against Indians within Indian country.
committed
by
non-Indians
The allocation of criminal
jurisdiction in Indian country here affects the responsibilities
and interests of three sovereigns:
the State, which has filed the
application; the Chickasaw Nation, which has moved to file an
2
amicus brief in this case; and the United States.
The United
States thus has a substantial interest in the resolution of this
case, and we respectfully submit that a brief expressing the views
of the United States on the question of criminal jurisdiction would
be of material assistance to the Court.
STATEMENT
1.
Federal law defines “ Indian country” to include, inter
alia, “all land within the limits of any Indian reservation under
the jurisdiction of the United States Government, notwithstanding
the issuance of any patent.”
18 U.S.C. 1151(a).
has
the
determined
exercises
otherwise,
criminal
jurisdiction
against Indians in Indian country.
federal
over
Unless Congress
government
crimes
generally
committed
See 18 U.S.C. 1152.
by
or
Offenses
by one Indian against another Indian “typically are subject to the
jurisdiction of the concerned Indian Tribe,” Negonsott v. Samuels,
507 U.S. 99, 102 (1993); see 18 U.S.C. 1152, except that the Indian
Major Crimes Act, ch. 341, § 9, 23 Stat. 385 (18 U.S.C. 1153)
(Major Crimes Act), grants the federal government jurisdiction
over certain serious offenses when an Indian is the perpetrator,
even if the victim is an Indian.
State jurisdiction generally
covers crimes within Indian country that are committed by nonIndians if they (1) are committed against other non-Indians or
(2) are victimless.
See Duro v. Reina, 495 U.S. 676, 680 n.1
(1990); Solem v. Bartlett, 465 U.S. 463, 465 n.2, 467 n.8 (1984).
3
2.
This case concerns a crime committed by a non-Indian
against Indians in Oklahoma.
state
court
of
the
2010
In 2012, respondent was convicted in
murders
of
Katrina
Griffin
children, who were members of the Chickasaw Nation.
and
her
Bosse v.
State, 360 P.3d 1203, 1211-1214 (Okla. Crim. App. 2015), vacated,
137 S. Ct. 1 (2016) (per curiam); Appl. App. 1, at 16, 23. 1
At
that time, respondent did not argue that his crimes were committed
on an Indian reservation or that the State lacked jurisdiction.
See generally Bosse, 360 P.3d at 1214-1235 (discussing fifteen
propositions of error raised on direct appeal); see also Bosse v.
State, 400 P.3d 834 (Okla. Crim. App. 2017) (opinion on remand
from this Court’s decision granting, vacating, and remanding for
further consideration in light of Payne v. Tennessee, 501 U.S. 808
(1991)), cert. denied, 138 S. Ct. 1264 (2017).
In
2019,
respondent
filed
a
successive
post-conviction
application in state court, contending that his offense against
Indian
victims
occurred
within
the
boundaries
of
an
Indian
reservation, and thus that the state courts lacked jurisdiction
over his crimes.
Appl. App. 1, at 1-2.
After this Court issued
its decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), which
held
that
Congress
never
disestablished
the
Muscogee
(Creek)
Nation’s reservation in eastern Oklahoma, id. at 2468, respondent
“Appl.” refers to the application for a stay. “Appl. App.
1” refers to Appendix 1 to the application, which is the decision
of the OCCA.
1
4
relied on McGirt to seek relief, see Appl. App. 1, at 2. Respondent
contended that the Chickasaw Nation’s reservation likewise had
never been disestablished, and that as a result, only the federal
government, and not the State, had jurisdiction over his onreservation crimes against Indians.
See Appl. App. 1, at 3-4.
After remanding to the state district court for an evidentiary
hearing, the OCCA agreed with respondent that the State lacked
jurisdiction over his crimes, on the ground that they occurred
within the boundaries of the Chickasaw Nation’s reservation, which
had not been disestablished.
rejected
the
State’s
procedurally barred.
And
the
OCCA
jurisdiction,
Appl. App. 1, at 10.
arguments
that
respondent’s
The OCCA
claim
was
Id. at 16-17; see generally id. at 16-19.
rejected
the
concurrent
contention
with
the
that
the
federal
State
had
government’s
jurisdiction under 18 U.S.C. 1152, over on-reservation crimes by
non-Indians against Indians.
Appl. App. 1, at 19-23.
Relying on
this Court’s prior decisions, the text of Section 1152, and other
statutes specifically granting States criminal jurisdiction over
crimes
committed
by
non-Indians
against
Indians,
the
OCCA
determined that “[a]bsent any law, compact or treaty” altering the
default rules, “federal and tribal governments have jurisdiction
over crimes committed by or against Indians in Indian Country, and
state jurisdiction over those crimes is preempted by federal law.”
Appl. App. 1, at 23.
Because no such law, compact, or treaty
5
applied, the OCCA held that “[t]he State of Oklahoma does not have
concurrent jurisdiction to prosecute” respondent.
3.
Ibid.
The State sought a stay of the mandate from the OCCA,
supported in part by the Chickasaw Nation.
See Appl. 4-5.
The
OCCA ultimately stayed the mandate for 45 days from April 15, 2021.
Id. at 5.
The State now seeks a further stay from this Court
pending its filing, and this Court’s consideration of, a timely
petition for a writ of certiorari.
Id. at 5-6.
ARGUMENT
A Circuit Justice or this Court will grant a stay pending the
filing and disposition of a petition for a writ of certiorari if
the applicant “show[s] (1) a reasonable probability that four
Justices will consider the issue sufficiently meritorious to grant
certiorari; (2) a fair prospect that a majority of the Court will
vote to reverse the judgment below; and (3) a likelihood that
irreparable
harm
will
result
from
the
denial
of
a
stay.”
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam).
“In close cases, the Circuit Justice or the Court will balance the
equities and weigh the relative harms to the applicant and to the
respondent.”
Ibid.
The State of Oklahoma contends (Appl. 7-23) that the Court is
likely
to
grant
certiorari
and
reverse
on
two
questions:
(1) whether the OCCA properly rejected the State’s contention that
respondent’s claim based on McGirt v. Oklahoma, 140 S. Ct. 2452
6
(2020), was procedurally barred; and (2) whether States have
jurisdiction, concurrent with the United States, to prosecute nonIndians for crimes against Indians committed in Indian country.
The United States addresses the second question, agreeing with
respondent
respondent’s
that
the
State
offenses
does
against
not
have
Indians.
jurisdiction
The
United
over
States
therefore respectfully submits that the Court is unlikely to grant
certiorari and reverse on the second question presented.
In
response
to
this
Court’s
invitation
to
file
a
brief
expressing the views of the United States on this same question of
criminal jurisdiction in Arizona v. Flint, 492 U.S. 911 (1989),
the Solicitor General stated that “[i]f the Court were writing on
a clean slate, it might conclude that federal jurisdiction under
Section 1152 is not exclusive and that [a State] therefore has
jurisdiction
over
offenses
Indians in Indian country.”
committed
by
non-Indians
against
U.S. Br. at 3, Flint, supra (No. 88-
603) (Flint Br.); see p. 26 & n.9, infra.
explained, however, that “[t]he Court
* * *
The Solicitor General
[wa]s not writing on
a clean slate,” and that the text and history of Section 1152, as
well as additional congressional enactments and the practice of
all three Branches of the federal government, supported the view
that
States
lack
jurisdiction
over
such
crimes.
Ibid.
In
addition, the Solicitor General observed, several of the States’
highest courts had held that the federal government has exclusive
7
jurisdiction over crimes committed by non-Indians against Indians
in Indian country.
Although
Ibid.
this
Court’s
decision
in
McGirt
v.
Oklahoma,
140 S. Ct. 2452 (2020), increases the practical consequences of
that jurisdictional determination, no basis exists to reverse the
long-held understanding of the division of federal, state, and
tribal jurisdiction in Indian country, which generally governs
throughout the Nation. 2
To the contrary, on a number of occasions
over many decades, this Court has reaffirmed the established rule
that a State does not have jurisdiction over offenses by nonIndians against Indians in Indian country.
It is thus unlikely
that this Court would grant certiorari and reverse on this issue.
1.
Section 1152 of Title 18 provides that “[e]xcept as
otherwise expressly provided by law, the 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
country.”
District
of
Columbia,
18 U.S.C. 1152.
shall
extend
to
the
Indian
The second paragraph of Section 1152
explicitly excepts from its coverage offenses committed by one
Indian against the person or property of another Indian.
Those
offenses are left exclusively to tribal jurisdiction, except for
The United States took the position in its amicus brief
in McGirt (at 38) that if the Court held that the territory in
question constituted a reservation over which the federal
government had jurisdiction, the federal jurisdiction over crimes
by non-Indians against Indians would be exclusive.
2
8
“major crimes” by Indians that are subject to federal jurisdiction
under 18 U.S.C. 1153.
In United States v. McBratney, 104 U.S. 621 (1882), this Court
held that crimes committed by non-Indians against other nonIndians
were
implicitly
excluded
McBratney, 104 U.S. at 623-624.
from
federal
jurisdiction.
The Court acknowledged that such
crimes were subject to federal jurisdiction prior to statehood,
but it held that the Act admitting Colorado to the Union implicitly
repealed any prior statute insofar as it applied to offenses by
non-Indians against non-Indians and vested such jurisdiction in
the State.
Ibid.; see New York ex rel. Ray v. Martin, 326 U.S.
496, 500 & n.5 (1946).
The Court emphasized, however, that
McBratney presented no question “as to the punishment of crimes
committed by or against Indians.”
104 U.S. at 624; accord Draper
v. United States, 164 U.S. 240, 247 (1896); see United States v.
Wheeler, 435 U.S. 313, 325 n.21 (1978); United States v. Antelope,
430 U.S. 641, 643 n.2 (1977).
As a result of the second paragraph of Section 1152 and this
Court’s decision in McBratney, Section 1152 applies only to crimes
committed either by or against Indians.
In Donnelly v. United
States, 228 U.S. 243 (1913), the Court rejected an attempt to
narrow the scope of Section 1152 still further to exclude crimes
by non-Indians against Indians.
McBratney’s
rationale,
The defendant argued that under
California’s
admission
to
the
Union
9
conferred on the State the “undivided authority to punish crimes
committed upon
* * *
an Indian reservation, excepting crimes
committed by the Indians.”
Id. at 271.
The Court in Donnelly
described McBratney as holding, in effect, that the “admission of
States
qualified
the
former
Federal
jurisdiction
over
Indian
country included therein by withholding from the United States and
conferring upon the State the control of offenses committed by
white people against whites, in the absence of some law or treaty
to the contrary.”
principle
as
Ibid.
having
two
The Court thus viewed the McBratney
aspects:
the
withdrawal
of
federal
jurisdiction and the conferral of jurisdiction on the State over
crimes by non-Indians against non-Indians.
The Court determined,
however, that “offenses committed by or against Indians are not
within the principle of
* * *
McBratney.”
Ibid.
The Court
observed that “[t]his was in effect held as to crimes committed by
the Indians” in United States v. Kagama, 118 U.S. 375, 383-384
(1886),
which
sustained
federal
jurisdiction
under
the
Major
Crimes Act over crimes by Indians in Indian country on the ground
that the Indians are wards of the Nation and in need of its
protection.
Donnelly, 228 U.S. at 271 (emphasis omitted).
The
Court concluded that “[t]his same reason applies -- perhaps a
fortiori -- with respect to crimes committed by [non-Indians]
against
the
occupying
persons
or
reservations
property
set
apart
of
the
for
Indian
the
very
tribes
while
purpose
of
10
segregating them from the whites and others not of Indian blood.”
Id. at 272. 3
2.
Under Donnelly, the United States has jurisdiction under
Section 1152 to prosecute respondent for the conduct at issue here.
The
question,
then,
is
whether
Oklahoma
had
concurrent
jurisdiction to prosecute him as well.
As the OCCA observed (Appl. App. 1, at 21), it is settled
that federal jurisdiction under Section 1153 over crimes committed
by Indians is exclusive.
United States v. John, 437 U.S. 634, 651
(1978); Seymour v. Superintendent, 368 U.S. 351, 359 (1962);
Williams v. Lee, 358 U.S. 217, 220 n.5 (1959).
This rule is said
to protect Indian defendants from the possibility of prejudice in
state courts, and thus is an expression of the federal duty to
protect the Indians.
Oklahoma
situation,
See, e.g., Kagama, 118 U.S. at 383-384.
contends
involving
(Appl.
crimes
18-23)
committed
that
by
in
the
non-Indians
converse
against
Indians, a different rule should govern, permitting the State to
exercise concurrent jurisdiction.
The text and history of Section
1152 do not support that argument, and Oklahoma cites no decision
of this Court, or any other court, adopting it.
To the contrary,
the rationale of Donnelly is inconsistent with that argument
Federal convictions of non-Indians for crimes against
Indians in Indian country were subsequently sustained in United
States v. Pelican, 232 U.S. 442 (1914); United States v. Ramsey,
271 U.S. 467 (1926); United States v. Chavez, 290 U.S. 357 (1933);
and Williams v. United States, 327 U.S. 711 (1946).
3
11
because the State here points to no law that withdraws federal
jurisdiction and confers it on the State.
Moreover, this Court
has long regarded federal jurisdiction over crimes by non-Indians
against Indians within Indian country as exclusive, and state
courts and lower federal courts have consistently reached the same
conclusion.
It is therefore unlikely that this Court would grant
a
for
petition
a
writ
of
certiorari
and
reverse
the
OCCA’s
decision.
a.
Section 1152 applies to Indian country the laws of the
United States that apply to crimes committed within the “sole and
exclusive jurisdiction of the United States.”
18 U.S.C. 1152.
The quoted phrase suggests that Congress contemplated a parallel
between Indian country and the federal enclaves over which Congress
may “exercise exclusive Legislation,” U.S. Const. Art. I, § 8, Cl.
17, and other areas over which the United States has exclusive
jurisdiction.
Because state criminal laws are inapplicable in
such areas, the text of Section 1152 indicates that Congress
intended those laws to be generally inapplicable in Indian country
as well.
That
inference
is
reinforced
by
Section
1152’s
history.
Section 1152 was enacted in 1834 as Section 25 of the Intercourse
Act (Indian Tribes), ch. 161, 4 Stat. 733.
at 500 n.6.
See Martin, 326 U.S.
At that time, this Court’s then-recent decision in
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), “reflected the
12
view that Indian Tribes were wholly distinct nations within whose
boundaries ‘the laws of [a State] can have no force.’ ”
New Mexico
v. Mescalero Apache Tribe, 462 U.S. 324, 331 (1983) (quoting
Worcester, 31 U.S. (6 Pet.) at 561) (brackets in original).
As a
result, the Congress that enacted what is now Section 1152 no doubt
assumed
that
it
occupied
the
entire
field
of
criminal
law
enforcement in Indian country (except for that undertaken by the
Tribes), and that the States therefore did not have concurrent
jurisdiction over reservations within their borders.
Although this Court subsequently held in McBratney that a
State
has
against
jurisdiction
non-Indians,
argument here.
over
crimes
McBratney
committed
does
not
by
non-Indians
support
Oklahoma’s
The basis of the holding in McBratney was not that
the predecessor to Section 1152 remained applicable and that the
State nonetheless had concurrent jurisdiction over those crimes.
Rather, the Court held that the Act admitting Colorado to the Union
implicitly repealed any federal statute that would have applied to
crimes involving only non-Indians, and that the State acquired
jurisdiction as a result of that repeal.
623-624.
McBratney, 104 U.S. at
That reasoning supports the conclusion that where, as
here, Section 1152 has not been repealed, federal jurisdiction
remains exclusive of state jurisdiction.
at 271-272.
See Donnelly, 228 U.S.
13
The reasoning of McBratney is consistent with principles that
historically have governed jurisdiction in Indian country.
Framers
of
the
Constitution
intended
that
relations
The
between
Indians and non-Indians would be regulated by the United States,
to the exclusion of the States, and Congress has consistently acted
on that premise.
See, e.g., County of Oneida v. Oneida Indian
Nation, 470 U.S. 226, 234-235 & n.4 (1985).
The first Congress
enacted the Indian Trade and Intercourse Act, ch. 33, 1 Stat. 137
(1790), which established that the federal government, rather than
the States, would exercise basic police and regulatory powers over
interactions
between
Indians
and
non-Indians.
See
Cohen’s
Handbook of Federal Indian Law § 1.03[2], at 35-38 (Nell Jessup
Newton et al. eds. 2012) (Cohen).
The original Indian Trade and
Intercourse Act provided for the punishment of non-Indians who
committed crimes against Indians, ch. 33, §§ 5 and 6, 1 Stat. 138,
consistent
with
the
United
States’
obligations
under
certain
treaties and in an effort to “prevent abuses of the Indians and
conflicts between Indians and whites.”
Cohen § 1.03[2] at 36.
Subsequent
conclude
Congresses
reasonably
could
that
because
offenses committed by non-Indians against other non-Indians in
Indian country do not directly involve relations with the Indians,
jurisdiction
could
be
transferred
to
the
States
without
undermining this principle of exclusive federal control.
contrast,
criminal
offenses
by
or
against
Indians
By
directly
14
implicate
relations
traditionally
have
between
been
the
Indians
and
subject
of
non-Indians,
federal,
not
which
state,
concern. 4
b.
Consistent with the text and history of Section 1152,
this Court has stated on multiple occasions, albeit in dicta, that
in the absence of authorization by Congress, the States do not
have jurisdiction over offenses committed by non-Indians against
Indians in Indian country.
In the first of those cases, Williams v. United States,
327 U.S. 711 (1946), a non-Indian man was charged with having
sexual intercourse with an underage Indian girl on a reservation.
Although
no
jurisdictional
claim
was
raised,
the
Court,
in
describing the statutory regime under which the non-Indian was
prosecuted, stated:
Oklahoma observes (Appl. 19) that in In re Wilson,
140 U.S. 575 (1891), the Court stated that the words “‘sole and
exclusive’” in the predecessor to Section 1152 “do not apply to
the jurisdiction extended over the Indian country, but are only
used in the description of the laws which are extended to it.”
Id. at 578. The Court made that statement in discussing the second
paragraph of the provision, which then (as now) provided that
federal jurisdiction does not extend “to offenses committed by one
Indian against the person or property of another Indian, nor to
any Indian committing any offense in the Indian country who has
been punished by the local law of the tribe, or to any case where,
by treaty stipulations, the exclusive jurisdiction over such
offenses is or may be secured to the Indian tribes respectively.”
18 U.S.C. 1152; see Rev. Stat. § 2145; Wilson, 140 U.S. at 578.
Neither Wilson’s statement, nor Donnelly’s quotation of it, see
228 U.S. at 268, suggests that States may exercise criminal
jurisdiction over offenses committed by non-Indians against
Indians in Indian country.
4
15
While the laws and courts of the State of Arizona may have
jurisdiction over offenses committed on [the] reservation
between persons who are not Indians, the laws and courts of
the United States, rather than those of Arizona, have
jurisdiction over offenses committed there, as in this case,
by one who is not an Indian against one who is an Indian.
Id. at 714 (emphasis added; footnote omitted).
In Williams v. Lee, supra, the Court held that an Arizona
court did not have jurisdiction over a civil suit brought by a
non-Indian against an Indian arising out of a transaction occurring
on
the
Navajo
Reservation,
because
the
exercise
of
state
jurisdiction would undermine the authority of the tribal courts.
After
discussing
jurisdictional
principles
governing
Indian
reservations generally, and observing that “state courts have been
allowed to try non-Indians who committed crimes against each other
on a reservation,” the Court stated that “if the crime was by or
against an Indian, tribal jurisdiction or that expressly conferred
on
other
courts
by
Congress
has
remained
exclusive.”
358 U.S. at 220; see generally id. at 218-221.
Lee,
As a result, the
Court observed, “non-Indians committing crimes against Indians are
now generally tried in federal courts.”
Id. at 220 n.5.
The Court described the governing jurisdictional principles
in similar terms in Washington v. Confederated Bands & Tribes of
the Yakima Indian Nation, 439 U.S. 463 (1979) (Yakima Indian
Nation), in which it upheld the manner in which Washington assumed
jurisdiction over Indians and Indian territory pursuant to the Act
of Aug. 15, 1953, ch. 505, 67 Stat. 588 (Public Law 280).
The
16
Court observed that before the State assumed jurisdiction, its law
reached into Indian reservations only if it did not infringe on
tribal
self-government.
“As
a
practical
matter,”
the
Court
explained, this “meant that criminal offenses by or against Indians
[had] been subject only to federal or tribal laws
where Congress
apply.’ ”
* * *
except
* * * ‘expressly provided that State laws shall
Yakima Indian Nation, 439 U.S. at 470-471 (quoting
McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 170-171
(1973)); see also, e.g., Solem v. Bartlett, 465 U.S. 463, 465 n.2
(1985) (“Within Indian country, state jurisdiction is limited to
crimes by non-Indians against non-Indians, see New York ex rel.
Ray v. Martin, 326 U.S. 496 (1946), and victimless crimes by nonIndians.”); Solem, 465 U.S. at 467 n.8 (Lands with reservation
status “fall within the exclusive criminal jurisdiction of federal
and tribal courts under 18 U.S.C. §§ 1152, 1153.”); Oliphant v.
Suquamish Indian Tribe, 435 U.S. 191, 204-205 (1978).
In the past two decades, this Court has continued to describe
the allocation of jurisdiction in Indian country in similar terms.
In Nevada v. Hicks, 533 U.S. 353 (2001), the Court described
“Sections 1152 and 1153 of Title 18” as “giv[ing] United States
and tribal criminal law generally exclusive application” over
“crimes
committed
omitted).
in
Indian
country.”
Id.
at
365
(emphasis
And in United States v. Bryant, 136 S. Ct. 1954 (2016),
the Court observed that “[m]ost States lack jurisdiction over
17
crimes
committed
in
Indian
country
against
Indian
victims,”
identifying as the exception States granted criminal jurisdiction
by Public Law 280.
Id. at 1960.
Most recently, in McGirt, this
Court stated that while the Major Crimes Act “applies only to
certain crimes committed in Indian country by Indian defendants,”
Section 1152 “provides that federal law applies to a broader range
of crimes by or against Indians in Indian country.”
2479.
140 S. Ct. at
The Court implied that such jurisdiction was exclusive,
explaining that “States are otherwise free to apply their criminal
laws in cases of non-Indian victims and defendants, including
within Indian country.
See McBratney, 104 U.S.[] at 624.”
Ibid.
(emphasis added).
The statements in those decisions were dicta, insofar as the
Court did not have before it a non-Indian defendant who was charged
or convicted in state court.
But those repeated statements of the
governing rule cannot be dismissed as mere casual asides.
In
Williams v. United States and Williams v. Lee, they were part of
a thorough and considered review of jurisdictional principles in
Indian country.
358
U.S.
at
See Williams, 327 U.S. at 714-715 n.10; Lee,
219-222.
In
Yakima
Indian
Nation,
the
Court’s
observation set the stage for a discussion of Public Law 280, which
authorized the States to assume jurisdiction over offenses “by or
against Indians” in Indian country -- an enactment that alone
indicates that the States do not have such jurisdiction in the
18
absence of express authorization by Congress.
infra.
See pp. 19-21,
And in Solem, the Court’s statements of the rule of
exclusive federal jurisdiction over crimes by or against Indians
explained the consequences of a holding that a tract of land has
reservation status -- the very issue in this case.
So too in this Court’s more recent decisions, the discussion
of jurisdiction over crimes against Indians in Indian country has
reflected careful consideration.
In Hicks, the Court’s discussion
of state jurisdiction provided the backdrop for its holding that
while “[t]he States’ inherent jurisdiction on reservations can of
course be stripped by Congress” -- as it had been under Sections
1152 and 1153 -- Congress had not proscribed the particular action
at issue (state officers’ entering a reservation “to investigate
or prosecute violations of state law occurring off reservation”).
533 U.S. at 365-366.
In Bryant, the Court described the “complex
patchwork of federal, state, and tribal law governing Indian
country,” which “made it difficult to stem the tide of domestic
violence experienced by Native American women” and thus formed the
impetus for enactment of the statute at issue.
136 S. Ct. at 1959-
1960 (citation and internal quotation marks omitted).
And in
McGirt, the Court addressed the scope of state jurisdiction in
considering Oklahoma’s and the United States’ contention that
recognizing a present-day Creek reservation would “unsettle an
untold number of convictions and frustrate the State’s ability to
19
prosecute crimes in the future.”
140 S. Ct. at 2479.
Those
contentions were featured prominently in the briefing and at
argument, see, e.g., U.S. Br. 37-39; Tr. 54-55, 64, and the Court’s
opinion gave them significant attention, 140 S. Ct. at 2479-2480. 5
c.
Public Law 280 and a number of State-specific statutes
provide additional support for the conclusion that, in the absence
of affirmative authorization by Congress, States lack jurisdiction
over offenses committed by non-Indians against Indians within
Indian country.
Section 2 of Public Law 280 enacted 18 U.S.C. 1162, which is
entitled “State jurisdiction over offenses committed by or against
Indians in the Indian country.”
Subsection (a) of Section 1162
now provides that the listed States (which do not include Oklahoma)
“shall have jurisdiction over offenses committed by or against
Indians” in particular areas “to the same extent that such State
* * *
has jurisdiction over offenses committed elsewhere within
the State
* * *
, and the criminal laws of such State
* * *
Oklahoma observes (Appl. 21) that in County of Yakima v.
Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S.
251 (1992), the Court recognized “the rights of States, absent a
congressional prohibition, to exercise criminal (and, implicitly,
civil) jurisdiction over non-Indians located on reservation
lands.” Id. at 257-258. In support of that statement, the Court
cited Martin, supra -- which held that, under McBratney, New York
had “jurisdiction to punish a murder of one non-Indian committed
by another non-Indian” on a reservation. Martin, 326 U.S. at 498.
County of Yakima’s reference to “criminal * * * jurisdiction,”
502 U.S. at 257, thus does not address jurisdiction over crimes
committed by non-Indians against Indian victims.
5
20
shall have the same force and effect within such Indian country as
they have elsewhere within the State.” 18 U.S.C. 1162(a) (emphasis
added).
The title and text of Section 1162(a) indicate that it
establishes the sole and complete basis for regulation of state
“jurisdiction over offenses committed by or against Indians in the
Indian country” in the listed States.
Ibid.; see Three Affiliated
Tribes of Fort Berthold Reservation v. Wold Engineering, P.C.,
476 U.S. 877, 884 (1986).
jurisdiction
over
In addition, if the States already had
crimes
by
non-Indians
against
Indians
notwithstanding Section 1152’s vesting of such jurisdiction in the
United
States,
as
Oklahoma
contends,
then
Section
1162(a)’s
conferral of jurisdiction on the listed States over offenses
“against
Indians”
would
be
superfluous:
that
phrase
is
not
necessary to confer jurisdiction over offenses committed against
Indians by other Indians, which are covered by the reference to
offenses committed “by
* * *
Indians.”
18 U.S.C. 1162(a). 6
Oklahoma observes (Appl. 21, 23 n.13) that this Court
has held that state courts may exercise jurisdiction over civil
claims by Indians against non-Indians arising in Indian country
regardless of a State’s assumption of jurisdiction under Public
Law 280, which provides for the assumption of jurisdiction “over
civil causes of actions between Indians or to which Indians are
parties.” 25 U.S.C. 1322 (emphasis added); see Three Affiliated
Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C.,
467 U.S. 138, 148-149 (1984). As respondent explains (Br. 17 n.5),
however, the underscored language provides jurisdiction over suits
by non-Indians against Indians.
Although it could have been
drafted more narrowly, the phrase is not superfluous.
6
21
The conclusion that the States listed in Section 1162(a) did
not
already
have
jurisdiction
over
offenses
by
non-Indians
“against Indians” is reinforced by Section 6 of Public Law 280,
which authorized non-listed States to amend their constitutions or
statutes to remove any legal impediments to the “assumption” of
jurisdiction that Section 1162(a) conferred on listed States -i.e., offenses “by or against Indians” in Indian country. 67 Stat.
590.
It is likewise supported by Section 7 of Public Law 280,
which granted the consent of the United States to any State “not
having
action.
jurisdiction”
to
“assume”
jurisdiction
by
legislative
Ibid.; see Civil Rights Act of 1968, Pub. L. No. 90-284,
§§ 401(a), 403(b), 82 Stat. 78, 79 (25 U.S.C. 1321(a), 1323(b))
(repealing Section 7 and providing instead that States “not having
jurisdiction” over offenses committed “by or against Indians” may
“assume” such jurisdiction only with the consent of the Tribe
concerned).
In addition, Congress’s enactment of other statutes,
prior to the enactment of Public Law 280, that provided specific
States with jurisdiction “over offenses committed by or against
Indians,” starting with a special statute applicable to Kansas,
Act of June 8, 1940, ch. 276, 54 Stat. 249 (18 U.S.C. 3243) (Kansas
Act),
further
confirms
that
States
do
not
otherwise
have
jurisdiction over crimes by non-Indians against Indian victims.
22
See p. 22, infra (discussing laws conferring jurisdiction on New
York and Iowa). 7
It is also significant that Congress’s enactment of the
statutory provisions just discussed alternated with this Court’s
repeated
statements
offenses
“by
or
that
against
the
States
Indians”
congressional authorization.
Thus:
in
lack
the
jurisdiction
absence
of
over
express
(1) Congress enacted the
Kansas Act in 1940, conferring jurisdiction on Kansas on the
understanding that the State was otherwise without jurisdiction
over such offenses; (2) this Court expressed the same view in
Williams v. United States, supra, in 1946; (3) Congress then acted
on that premise when it passed special statutes providing certain
criminal jurisdiction for New York and Iowa in 1948, see Act of
July 2, 1948, ch. 809, 62 Stat. 1224 (25 U.S.C. 232) (New York);
Act of June 30, 1948, ch. 759, 62 Stat. 1161 (Iowa), repealed, Act
of Dec. 11, 2018, Pub. L. No. 115-301, 132 Stat. 4395; and Public
Law 280 in 1953; (4) this Court reiterated the rule of Williams v.
United States in Williams v. Lee in 1959; (5) Congress amended
Public Law 280 in 1968; and (6) this Court again reiterated that
view in Yakima Indian Nation in 1979, and on several occasions
As the United States explained in Flint, the legislative
history of those provisions manifests Congress’s understanding
that absent affirmative authorization by Congress, States
generally lack criminal jurisdiction over offenses committed by
non-Indians against Indians within Indian country. See Flint Br.
at 15-17.
7
23
thereafter, see pp. 15-19, supra.
congressional
action
and
this
In light of this pattern of
Court’s
reiterations
of
the
jurisdictional rule, the Court is unlikely to grant certiorari and
reverse
the
decision
below
on
the
question
of
criminal
jurisdiction.
d.
That is particularly true because the conclusion that
the OCCA reached in this case is consistent with the holdings of
other state and federal courts.
The courts of South Dakota,
Arizona, North Dakota, and Montana have held that those States are
without
jurisdiction
over
offenses
committed
by
non-Indians
against Indians in Indian country. See State v. Larson, 455 N.W.2d
600 (S.D. 1990); State v. Flint, 756 P.2d 324 (Ariz. App. 1988),
cert. denied, 492 U.S. 911 (1989); State v. Greenwalt, 663 P.2d
1178 (Mont. 1983); State v. Kuntz, 66 N.W.2d 531 (N.D. 1954); see
also State v. Youpee, 61 P.2d 832, 835 (Mont. 1936) (dictum).
A
number of other state courts have expressed the same view in dicta.
See, e.g., State v. Stanton, 933 N.W.2d 244, 249 (Iowa 2019); State
v. Reber, 171 P.3d 406, 407-408 (Utah 2007); State v. Sebastian,
701 A.2d 13, 22 & n.21 (Conn. 1997), cert. denied, 522 U.S. 1077
(1998); State v. Warner, 379 P.2d 66, 68-69 (N.M. 1963); State v.
Jackson, 16 N.W.2d 752, 754 (Minn. 1944).
courts have reached the same conclusion.
And multiple federal
See, e.g., United States
v. Langford, 641 F.3d 1195, 1199 (10th Cir. 2011); United States
v. Bruce, 394 F.3d 1215, 1221 (9th Cir. 2005); see also Cohen
24
§ 9.03[1], at 763 (stating that “if federal jurisdiction exists
under one or both of [Section 1152 or 1153], the states lack
concurrent criminal jurisdiction to prosecute the same conduct”). 8
3.
In light of this long line of consistent authority and
congressional enactments, the State’s contrary arguments provide
an insufficient basis for granting certiorari and altering the
allocation of jurisdiction in Indian country, which would overturn
the established practice throughout the United States.
The
State
suggests
that
the
“strong
presumption
against
preemption of state law” favors finding concurrent jurisdiction
over crimes committed by non-Indians against Indians in Indian
country.
Appl. 20 (citing Wyeth v. Levine, 555 U.S. 555, 565
(2009)).
As this Court has explained, however, in light of “the
history
of
tribal
sovereignty”
and
the
federal
government’s
plenary authority over Indian affairs, “questions of pre-emption
in this area are not resolved by reference to standards of pre-
In State v. McAlhaney, 17 S.E.2d 352 (1941), the Supreme
Court of North Carolina held that the State had jurisdiction over
an offense by a non-Indian against an Indian on the Eastern
Cherokee Reservation. That decision predates much of this Court’s
relevant jurisprudence and most of the congressional enactments
conferring jurisdiction over such crimes on particular States, and
it has since been called into question, albeit in a different
context. See State v. Nobles, 818 S.E.2d 129, 135 & n.2 (N.C. Ct.
App. 2018) (rejecting argument, based on McAlhaney, that “North
Carolina at least has concurrent criminal jurisdiction” over
crimes committed within Indian country “without regard to whether
the defendant is an Indian or non-Indian,” and holding that federal
jurisdiction under the Major Crimes Act is exclusive).
8
25
emption that have developed in other areas of law.”
Cotton
Petroleum Corp. v. New Mexico, 490 U.S. 163, 176 (1989); see, e.g.,
New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333-334 (1983).
Rather, in deciding whether state law may be applied to the onreservation conduct of non-Indians in matters affecting Indians,
this
Court,
in
the
absence
of
a
governing
Act
of
Congress,
undertakes a “ ‘particularized examination of the relevant state,
federal, and tribal interests.’ ”
Cotton Petroleum, 490 U.S. at
176 (quoting Ramah Navajo Sch. Bd. v. Bureau of Revenue, 458 U.S.
832, 838 (1982)).
Here, that more context-specific interest balancing is not
implicated,
because
Congress
has
passed
statutes
specifically
addressing the subject of jurisdiction over offenses committed by
non-Indians against Indians in Indian country.
The relevant
question is whether those statutes permit Oklahoma to exercise
jurisdiction over such offenses.
400
U.S.
423,
424
n.1,
427
Cf. Kennerly v. District Court,
(1971)
(per
curiam)
(noting
the
“detailed regulatory scrutiny which Congress has traditionally
brought to bear on the extension of state jurisdiction, whether
civil or criminal, to actions to which Indians are parties arising
in Indian country”).
and
consistent
As already discussed, the text, background,
interpretation
of
Section
1152,
as
well
as
Congress’s other enactments in this area, indicate that Oklahoma
26
lacks jurisdiction over crimes committed by non-Indians against
Indians. 9
Although this Court’s decision in McGirt greatly increased
the practical consequences of the question presented in Oklahoma,
that change does not warrant this Court’s reconsideration of state
criminal jurisdiction in Indian country throughout the Nation
under Section 1152.
That is particularly so because Congress is
considering a bill that would permit the Chickasaw and Cherokee
Nations
exercise
to
of
enter
into
compacts
with
concurrent
criminal
jurisdiction
Indians within [their] reservation[s].”
the
State
regarding
“by
or
the
against
H.R. 3091 § (6)(b)(1),
The United States explained in its amicus brief in Flint
that a strong policy argument could be made in more modern times
-- putting to one side the origins and history of Indian law and
criminal jurisdiction in Indian country in particular -- that
concurrent state jurisdiction over crimes committed by non-Indians
against Indians would be consistent with state, federal, and tribal
interests. See Flint Br. at 15-17. Largely for that reason, the
Office of Legal Counsel concluded in 1979 that, although the
question was “exceedingly difficult,” a “substantial case” could
be made that the States should not be deprived of jurisdiction
over
offenses
committed
by
non-Indians
against
Indians.
Memorandum Opinion for the Deputy Attorney General, 3 Op. O.L.C.
111, 117, 120; see Reply Br. 12-13. The United States Attorneys’
Manual took a similar position.
U.S. Dep’t of Justice, United
States Attorneys’ Manual § 9-20.215 (1985).
As the government
explained in Flint, however, the government subsequently came to
a different view upon a thorough reexamination of the issue in
light of the statutory text, history, and case law discussed above.
The current Justice Manual thus explains that absent a contrary
Act of Congress, federal jurisdiction over crimes committed by
non-Indians against Indians in Indian country is exclusive. See
U.S. Dep’t of Justice, Criminal Resource Manual 685 (updated Jan.
23, 2020). The United States adheres to that view here.
9
27
117th Cong., 1st Sess. (2021); see id. § 3(7).
Although the United
States has not taken a position on that particular bill at this
time, this type of targeted action by Congress would be one means
to address practical difficulties resulting from exclusive federal
jurisdiction over crimes by non-Indian defendants against Indian
victims
in
Oklahoma,
without
altering
the
well-established
jurisdictional regime throughout the entire country.
140 S. Ct. at 2481-2482.
See McGirt,
For all of these reasons, it is unlikely
that this Court would grant certiorari and reverse the ruling below
that the State lacked criminal jurisdiction in this case.
4.
Oklahoma
argues
that
there
is
a
likelihood
of
irreparable injury if this Court does not further stay the OCCA’s
mandate.
As Oklahoma observes (Appl. 23), the federal government
has filed charges against respondent based on the murders at issue
in this case.
D. Ct. Doc. 1 at 1, United States v. Bosse, No. 21-
203 (W.D. Okla.) (Mar. 30, 2021) (Criminal Complaint).
Thus, if
the mandate is not stayed and respondent is released from state
custody, the United States will obtain custody of and prosecute
him.
Oklahoma suggests that such a “transfer of custody will
trigger the Interstate Agreement on Detainers’ so-called antishuttling provision, thereby preventing the federal government
from
returning
Respondent
to
state
custody
dismissal of its case with prejudice.”
without
risking
Appl. 23-24 (emphasis
28
omitted). The United States respectfully disagrees. As an initial
matter,
the
Interstate
Agreement
on
Detainers’
anti-shuttling
provision applies only to “prisoner[s]” who are “serving a term of
imprisonment.”
18 U.S.C. App. 2, § 4(a) and (e).
Because the
federal government would obtain custody of respondent after his
release
from
state
custody,
respondent
would
no
longer
be
a
“prisoner” “serving a term of imprisonment” imposed by the State,
and the anti-shuttling provision would not be implicated.
In addition, even if the anti-shuttling provision applied, it
would not have the effect Oklahoma asserts.
Oklahoma suggests
(Appl.
might
23-24)
that
the
federal
government
not
return
respondent to Oklahoma, because doing so would “risk dismissal of
[the federal government’s] case with prejudice.”
But under Tenth
Circuit case law, the anti-shuttling provision would be violated
-- and the federal charges subject to dismissal -- only if the
federal government returned respondent to state custody before his
federal
trial
was
completed.
905 F.2d 330, 331-333 (1990).
See
United
States
v.
Coffman,
If this Court were to deny a stay
but later grant a petition for a writ of certiorari and reverse
the decision below, the federal government could simply await the
completion of a federal trial (or, if appropriate, dismiss the
federal charges) before returning respondent to state custody.
Thus, insofar as the State rests its claim of irreparable injury
29
on
the
Interstate
Agreement
on
Detainers,
the
United
States
disagrees with that argument.
Finally, Oklahoma suggests (Appl. 24-25) that absent a stay
from this Court, other state convictions may be vacated (including
in cases in which the federal statute of limitations has expired)
while new crimes go unprosecuted.
A stay of the mandate in this
case would not necessarily foreclose the OCCA from holding that
the State lacked authority to try other non-Indian defendants for
crimes against Indians in Indian country and subsequently issuing
its mandate to provide for the release of the defendants involved.
And while there is no doubt that the burden on federal lawenforcement resources in Oklahoma has increased greatly following
this Court’s decision in McGirt and the OCCA’s decisions applying
it to other Tribes, the government remains committed to prosecuting
crimes that fall within its jurisdiction under 18 U.S.C. 1152.
30
CONCLUSION
For the foregoing reasons, the Court should conclude that
there is not a significant likelihood that the Court would grant
certiorari and reverse the holding below that the State was without
jurisdiction over respondent’s offenses against Indians.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Acting Solicitor General
JEAN E. WILLIAMS
Acting Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ERICA L. ROSS
Assistant to the Solicitor General
JAMES A. MAYSONETT
Attorney
MAY 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.