Amicus Curiae Brief — Oklahoma, Petitioner v. Victor Manuel Castro-Huerta
Supreme Court briefMar 7, 2022
Ask Donna
What actually matters in this document.
Text
No. 21-429
In the Supreme Court of the United States
STATE OF OKLAHOMA, PETITIONER,
v.
VICTOR MANUEL CASTRO-HUERTA
ON WRIT OF CERTIORARI
TO THE OKLAHOMA COURT OF CRIMINAL APPEALS
BRIEF FOR THE STATES OF TEXAS, KANSAS,
LOUISIANA, NEBRASKA, AND VIRGINIA AS AMICI
CURIAE IN SUPPORT OF PETITIONER
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney
General
JUDD E. STONE II
Solicitor General
Counsel of Record
PHILIP A. LIONBERGER
RANCE CRAFT
Assistant Solicitors General
OFFICE OF THE TEXAS
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Judd.Stone@oag.texas.gov
(512) 936-1700
T ABL E OF C O NT ENT S
Page
Table of authorities .......................................................... II
Interest of amici curiae ......................................................1
Summary of argument .......................................................2
Argument ............................................................................3
I. States
Share
Concurrent
Criminal
Jurisdiction with the Federal Government
To Prosecute Non-Indians Who Commit
Crimes Against Indians in Indian Country. ........3
A. The General Crimes Act does not
prohibit States from exercising their
inherent criminal jurisdiction over a nonIndian who commits a crime against an
Indian in Indian country. .................................4
B. There is no express congressional
prohibition against States’ inherent
criminal jurisdiction and concurrent
federal-state jurisdiction under 18
U.S.C. § 1152. ..................................................11
II. States Exercising Their Inherent Criminal
Jurisdiction Will Help Stanch the
Victimization of Indians by Non-Indians in
Indian Country. ....................................................14
A. Overall victimization rates of Indians are
atrociously high. ..............................................15
B. State prosecutorial authority is needed
to shore up the federal government’s
insufficient
response
to
Indian
victimization. ...................................................25
Conclusion .........................................................................29
(I)
T ABL E OF AU T HORI T IE S
Page(s)
Cases:
Abbate v. United States,
359 U.S. 187 (1959) ..................................................... 12
Arizona v. United States,
567 U.S. 387 (2012) ....................................................... 5
Barnhart v. Sigmon Coal Co.,
534 U.S. 438 (2002) ....................................................... 6
Bond v. United States,
572 U.S. 844 (2014) ....................................................... 4
Cent. Bank of Denver, N.A. v. First Interstate
Bank of Denver, N.A.,
511 U.S. 164 (1994) ....................................................... 6
Conn. Nat’l Bank v. Germain,
503 U.S. 249 (1992) ....................................................... 6
County of Yakima v. Confederated Tribes & Bands
of Yakima Indian Nation,
502 U.S. 251 (1992) ..................................................... 11
Donnelly v. United States,
228 U.S. 243 (1913) .................................................. 9-10
Gobeille v. Liberty Mut. Ins. Co.,
577 U.S. 312 (2016) ..................................................... 14
Goodson v. United States,
54 P. 423 (Okla. Terr. 1898) ....................................... 13
Gregory v. Ashcroft,
501 U.S. 452 (1991) ....................................................... 5
Heath v. Alabama,
474 U.S. 82 (1985) ......................................................... 1
Lewis v. United States,
523 U.S. 155 (1998) ....................................................... 9
(II)
III
Cases—Continued:
Page(s)
McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316 (1819) ...................................... 4
McGirt v. Oklahoma,
140 S. Ct. 2452 (2020) ..................................... 1, 2, 3, 27
Mumford v. Wardwell,
73 U.S. (6 Wall.) 423 (1867) ......................................... 5
Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ....................................................... 4
Nevada v. Hicks,
533 U.S. 353 (2001) ................................................. 6, 11
New York ex rel. Ray v. Martin,
326 U.S. 496 (1946) ....................................................... 6
Oliphant v. Suquamish Indian Tribe,
435 U.S. 191 (1978) ............................................... 12, 26
Oregon v. Ice,
555 U.S. 160 (2009) ....................................................... 1
Oregon ex rel. State Land Bd. v. Corvallis Sand &
Gravel Co.,
429 U.S. 363 (1977) ....................................................... 5
Perrin v. United States,
444 U.S. 37 (1979) ......................................................... 7
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) ....................................................... 6
Rotkiske v. Klemm,
140 S. Ct. 355 (2019) ..................................................... 6
Sebelius v. Cloer,
569 U.S. 369 (2013) ....................................................... 6
IV
Cases—Continued:
Page(s)
State v. Flint,
756 P.2d 324 (Ariz. Ct. App. 1988) ...................... 12, 13
State v. Greenwalt,
663 P.2d 1178 (Mont. 1983) ................................. 12, 13
State v. Jackson,
16 N.W.2d 752 (Minn. 1944) ...................................... 13
State v. Kuntz,
66 N.W.2d 531 (N.D. 1954) ........................................ 12
State v. Larson,
455 N.W.2d 600 (S.D. 1990) ................................. 12, 13
State v. McAlhaney,
17 S.E.2d 352 (N.C. 1941) .................................... 12, 13
State v. Schaefer,
781 P.2d 264 (Mont. 1989).......................................... 14
State v. Youpee,
61 P.2d 832 (Mont. 1936)............................................ 13
Surplus Trading Co. v. Cook,
281 U.S. 647 (1930) ..................................................... 11
U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995) ....................................................... 5
United States v. Begay,
42 F.3d 486 (9th Cir. 1994) .......................................... 8
United States v. Cowboy,
694 F.2d 1228 (10th Cir. 1982) .............................. 8, 10
United States v. Lamott,
831 F.3d 1153 (9th Cir. 2016) .................................... 16
United States v. Lopez,
514 U.S. 549 (1995) ....................................................... 4
V
Cases—Continued:
Page(s)
United States v. McGowan,
302 U.S. 535 (1938) ..................................................... 11
United States v. Morrison,
529 U.S. 598 (2000) ....................................................... 4
United States v. Smith,
925 F.3d 410 (9th Cir.), cert. denied,
140 S. Ct. 407 (2019) ..................................................... 9
United States v. White,
508 F.2d 453 (8th Cir. 1974) ........................................ 8
United States v. Yannott,
42 F.3d 999 (6th Cir. 1994) .......................................... 8
Williams v. United States,
327 U.S. 711 (1946) ..................................................... 13
Wis. Cent. Ltd. v. United States,
138 S. Ct. 2067 (2018) ................................................... 7
Constitutional Provisions and Statutes:
U.S. Const. amend. X ......................................................... 4
U.S. Const. art. VI, cl. 2 ..................................................... 5
18 U.S.C.:
§ 7 ................................................................................ 8, 9
§ 7(3) ............................................................................... 9
§ 13 .................................................................................. 8
§ 13(a) ............................................................................. 8
§ 1152 ................................................ 2, 3, 6, 7, 10, 11, 26
§ 1153 .............................................................................. 1
§ 1154 ............................................................................ 10
25 U.S.C.:
§ 2801 ............................................................................ 18
§ 2802 ............................................................................ 18
§§ 5701-5705 ................................................................ 18
VI
Constitutional Provisions and Statues—Continued:
Page(s)
28 U.S.C. § 534 .................................................................. 24
34 U.S.C.:
§ 10452(a)(11)-(12) ...................................................... 18
§ 10461(b)(23)-(24) ...................................................... 18
§ 20126(b)(2) ................................................................ 18
§ 20126(b)(4) ............................................................... 18
Hate Crimes Statistics Act of 1990, Pub. Law
101-275, 104 Stat. 140 ................................................. 24
Not Invisible Act of 2019, Pub. L. No. 116-166,
134 Stat. 766 (2020) .................................................... 18
Savanna’s Act, Pub. L. No. 116-165, 134 Stat.
760 (2020) ..................................................................... 18
Violence Against Women Reauthorization Act
of 2013, 25 U.S.C. § 1304 ............................................ 12
Miscellaneous:
85 Fed. Reg. 27,633 (May 5, 2020) ................................ 22
The American Indian Population: 2000, U.S.
Census Bureau, Rep. No. MSO/01-AI/AN
(Sept. 2001), https://tinyurl.com/4nfs ................. 18-19
André B. Rosay, Violence Against American
Indian and Alaskan Native Women and
Men, Nat’l Inst. of Just., US. Dep’t of Just.
2 (2016), https://tinyurl.com/bvrxyzvc. .............. 22, 23
André B. Rosay, National Survey Estimates of
Violence Against American Indian and Alaska
Native People, 69 Dep't of Just. J. of Fed. L. &
Prac. 91 (Jan. 2021) ........................................ 15, 16, 24
VII
Miscellaneous Continued:
Page(s)
Andrew Gonzalez, Homicide in Alaska: 1976-2016,
Alaska Just. Info. Ctr., Univ. of Alaska
Anchorage 8 (2020),
http://.handle.net/11122/11067 .................................. 21
Brian D. Johnson, The Missing Link: Examining
Prosecutorial Decision-Making Across Federal
District Courts, Nat'l Inst. of Just., U.S. Dep't of
Just. xii (2014), https://tinyurl.com/95kpba66.......... 26
Cecily Hilleary, Rise in Hate Crimes Alarms
Native American Communities, Voice of Am.
(June 5, 2017), https://tinyurl.com/tme972er .... 24, 25
Dominga Cruz et al., The Oklahoma Decision
Reveals Why Native Americans Have a Hard
Time Seeking Justice,
Wash. Post, July 22, 2020 ..................................... 25-26
Exec. Order No. 14,053, 86 Fed. Reg. 64,337
(Nov. 15, 2021)................................................... 15,16,18
Garet Bleir & Ana Zoledziowski, Murdered and
Missing Native American Women Challenge
Police and Courts, Ctr. for Pub. Integrity
(2018), https://tinyurl.com/5fzzwv9n .................. 16, 24
Hate Crime Statistics, 2015, Fed. Bureau of
Investigation, U.S. Dep't of Just. 1 (2016),
https://tinyurl.com/54a5tkzd ..................................... 25
Indian Country Investigations and Prosecutions,
U.S. Dep’t of Just. 3 (2019),
https://tinyurl.com/3vcca79y ..................................... 27
VIII
Miscellaneous Continued:
Page(s)
Kaci A. Clement, The Victimization of Native
American Women in the United States: The
Impact and Potential Underlying Factors
(2020), https://tinyurl.com/mc8pp2j4 ................. 22, 23
Leslie A. Hagen, Violent Crime in Indian Country
and the Federal Response, 69 Dep't of Just. J. of
Fed. L. & Prac. 79 (Mar. 2021) ................................. 16
Madeline Masucci & Lynn Langton, Hate Crime
Victimization, 2004-2015, Bureau of Just.
Stats., U.S. Dep't of Just. (June 2017),
https://tinyurl.com/2sazst8b ..................................... 24
Melissa Tehee, Royleen J. Ross, & Iva GreyWolf,
Relevant Psychological Responses in Cases of
Missing or Murdered Indigenous Peoples, 69
Dep't of Just. J. of Fed. L. & Prac. 251
(Mar. 2021) .................................................................. 16
Mose A. Herne et al., Homicide Among American
Indians/Alaska Natives, 1999-2009:
Implications for Public Health Interventions,
131 Pub. Health Rep. 597 (2016),
https://tinyurl.com/dw2s2yfe .................................... 21
Ronet Bachman et al., Violence Against American
Indian and Alaska Native Women and the
Criminal Justice Response: What is Known,
U.S. Dep't of Just. 18 (2008) (unpublished
report), https://tinyurl.com/uv5ftvau ................. 21, 22
Steven W. Perry, American Indians and Crime,
1992-2002, Bureau of Just. Stats., U.S. Dep't of
Just. iii (2004),
https://tinyurl.com/7xeaxv44 .............. 15, 17, 19, 20, 21
IX
Miscellaneous Continued:
Page(s)
U.S. Gov't Accountability Off., GAO-22-104045,
Murdered or Missing Indigenous Women:
New Efforts Are Underway but Opportunities
Exist to Improve the Federal
Response (2022) ...................................16-17, 18, 26, 27
Unmasking the Hidden Crisis of Murdered and
Missing Indigenous Women: Exploring
Solutions to End the Cycle of Violence: Hearing
Before the Subcomm. for Indigenous Peoples of
the United States of the H. Comm. on Natural
Resources, 116th Cong. (2019) ............................ 18, 26
Urban Indian Health Inst., Seattle Indian Health
Bd., Missing and Murdered Indigenous
Women & Girls 2 (2018),
https://tinyurl.com/5e7wem4y ............................ 16, 23
I NT EREST OF AM IC I CU RIAE
Amici curiae are the States of Texas, Kansas, Louisiana, Nebraska, and Virginia (“Amici States”). 1
All States have a sovereign interest in prosecuting
crimes committed within their borders. Heath v. Alabama, 474 U.S. 82, 93 (1985). Indeed, administering a
criminal-justice system is “among the basic sovereign
prerogatives States retain.” Oregon v. Ice, 555 U.S. 160,
168 (2009).
As Oklahoma’s experience in this case shows, that
core sovereign function is in jeopardy in States with historic Indian lands. 2 The Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), raised the prospect that
reservations long regarded by all as diminished or disestablished still qualify as “Indian country” under federal
law. Oklahoma state courts have since confirmed that,
under McGirt, that is the case for the historical territories of the Five Tribes of Oklahoma, which collectively
comprise around 43% of the State. The immediate result
was to oust Oklahoma’s jurisdiction in those areas to
prosecute Indians for crimes listed in the Major Crimes
Act, including murder, kidnapping, and felony child
abuse. 18 U.S.C. § 1153. In the decision below, the Oklahoma Court of Criminal Appeals extended McGirt’s
No counsel for a party authored this brief in whole or in part,
and no person other than amici curiae and their counsel made a monetary contribution intended to fund the preparation of submission
of this brief. Counsel for all parties have provided blanket consent
to the filing of this brief.
2
We use the terms “Indian” and “non-Indian” to be consistent
with federal statutes and caselaw. And unless context requires otherwise, the term “Indian” in this brief subsumes such terms as “Native American,” “American Indian,” “Alaska Native,” and any combinations of these terms.
1
(1)
2
holding to the General Crimes Act, id. § 1152, depriving
Oklahoma of authority to prosecute non-Indians for all
crimes committed against Indians in the same broad
swath of the State. Pet. App. 4a, 36a–38a.
The fallout from McGirt and the decision below is a
criminal-justice crisis in Oklahoma. Thousands of criminal defendants are seeking dismissal of their cases, federal prosecutors and courts are overwhelmed, and an unknown number of crimes are going unprosecuted. No
State wants to reprise Oklahoma’s experience, even on a
smaller scale.
This Court’s grant of certiorari on the first question
presented in Oklahoma’s petition is thus an important
first step in ameliorating the untenable situation occurring in that State since the McGirt decision was handed
down. The Amici States support Oklahoma’s contention
that States share concurrent authority with the federal
government to prosecute non-Indians who commit
crimes against Indians in Indian country under the General Crimes Act. The Court should reverse the Oklahoma
Court of Criminal Appeals’ erroneous expansion of
McGirt, which, if followed, would deprive States of an important and necessary role in prosecuting non-Indians
who victimize Indians.
S UMMARY O F A RGUME NT
One attribute of state sovereignty is the States’
authority to prosecute non-Indians who commit alleged
criminal offenses against Indians in the Indian country
that lies within their borders. The decision below
incorrectly held that the General Crimes Act deprives
them of that authority. And it did so absent an express
congressional prohibition denying States the right to
exercise criminal jurisdiction over non-Indians who
perpretrate crimes against Indians in Indian country.
3
Only by reversing the decision below and recognizing
States’ inherent criminal jurisdiction over non-Indians in
Indian country can States be empowered to combat the
violent victimization of Indians on tribal lands.
Otherwise, the acute problem of non-Indians committing
crimes against Indians on tribal lands will only worsen.
A RGUMENT
I. States Share Concurrent Criminal Jurisdiction
with the Federal Government To Prosecute NonIndians Who Commit Crimes Against Indians in
Indian Country.
Amici States agree with Oklahoma that it shares concurrent jurisdiction with the federal government over all
crimes committed by non-Indians in Indian country, including Respondent’s case. In the state courts below, Respondent, relying on 18 U.S.C. section 1152 and McGirt
v. Oklahoma, 140 S. Ct. 2452 (2020), claimed the State
had no jurisdiction to prosecute him. Pet. App.2a. Accepting Respondent’s jurisdictional challenge, the Oklahoma Court of Criminal Appeals rejected the State’s assertion of concurrent jurisdiction, holding that “[t]he ruling in McGirt governs this case and requires us to find
the District Court of Tulsa County did not have jurisdiction to prosecute [Respondent].” Pet. App.4a. The court’s
ruling is contrary to clear language in the General
Crimes Act and caselaw establishing that the federal and
state courts have concurrent criminal jurisdiction over
such non-Indian offenders on tribal lands.
4
A. The General Crimes Act does not prohibit
States from exercising their inherent criminal
jurisdiction over a non-Indian who commits a
crime against an Indian in Indian country.
1. It is constitutional bedrock that “[t]he Federal
Government ‘is acknowledged by all to be one of enumerated powers,’” Nat’l Fed’n of Indep. Bus. v. Sebelius
(N.F.I.B.), 567 U.S. 519, 534 (2012) (quoting McCulloch
v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819)), and that
“[t]he powers not delegated to the United States by the
Constitution . . . are reserved to the States respectively,
or to the people.” U.S. Const. amend. X. Meaning, the
Federal Government must show that a constitutional
grant of power authorizes each of its actions. See, e.g.,
N.F.I.B., 567 U.S. at 535.
But “[t]he same does not apply to the States, because
the Constitution is not the source of their power.” Id.
“The States thus can and do perform many of the vital
functions of modern government . . . even though the
Constitution’s text does not authorize any government to
do so.” Id. at 535–36. This general power of governing,
possessed by the States but not by the Federal Government, is known as a “police power.” Id. at 536. A clear
example of this “traditional state authority is the punishment of local criminal activity.” Bond v. United States,
572 U.S. 844, 858 (2014) (citing United States v. Morrison, 529 U.S. 598, 618 (2000)). “In our federal system,”
then, “the National Government possesses only limited
powers; the States and the people retain the remainder,”
and “[t]he States have broad authority to enact legislation for the public good”—that is, “a ‘police power.’” Id.
at 854 (quoting United States v. Lopez, 514 U.S. 549, 567
(1995)).
5
“Under the equal-footing doctrine ‘the new States
since admitted have the same rights, sovereignty and jurisdiction . . . as the original States possess within their
respective borders.’” Oregon ex rel. State Land Bd. v.
Corvallis Sand & Gravel Co., 429 U.S. 363, 370 (1977)
(quoting Mumford v. Wardwell, 73 U.S. (6 Wall.) 423, 426
(1867)). States, accordingly, as the presumptive sovereigns within their borders, have the inherent right to exercise their police power over criminal acts within their
jurisdiction.
In addition, “[f]ederalism, central to the constitutional design, adopts the principle that both the National
and State Governments have elements of sovereignty the
other is bound to respect.” Arizona v. United States, 567
U.S. 387, 398–99 (2012) (citing Gregory v. Ashcroft, 501
U.S. 452, 457 (1991); U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779, 838 (1995) (Kennedy, J., concurring)).
When the laws of the two sovereigns in our federal system are in conflict or at cross-purposes, “[t]he Supremacy Clause provides a clear rule that federal law ‘shall be
the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.’” Id. at 399 (quoting U.S. Const. art. VI, cl. 2). “Under this principle, Congress has the power to preempt
state law” and “may withdraw specified powers from the
States by enacting a statute containing an express
preemption provision.” Id. (citations omitted). Preemption analysis, though, starts from the assumption “that
the historic police powers of the States are not superseded unless that was the clear and manifest purpose of
Congress.” Id. at 400 (cleaned up).
2. These foundational principles remain true with
respect to States’ criminal jurisdiction over non-Indians
6
on Indian country within state borders. It is a well-established attribute of state sovereignty that States have the
authority to prosecute non-Indians who commit alleged
criminal offenses against Indians in the Indian country
that lies within a State’s borders. See Nevada v. Hicks,
533 U.S. 353, 361 (2001) (“State sovereignty does not end
at a reservation’s border.”); New York ex rel. Ray v.
Martin, 326 U.S. 496, 499–500 (1946) (stating that because of their statehood, “each state ha[s] a right to exercise jurisdiction over Indian reservations within its
boundaries”). The Oklahoma Court of Criminal Appeals
held that the General Crimes Act confers exclusive federal prosecutorial authority over Indian country and
thereby strips Oklahoma of its authority to prosecute
crimes committed by non-Indians against Indians in Indian country that lies within the State’s boundaries. See
Pet. App.4a; see also Pet. App.36a–39a. But nothing in
the language of the General Crimes Act, 18 U.S.C.
§ 1152, rids States of that authority. The court below misconstrued the Act.
3. Statutory construction, as always, starts with the
statutory language. Rotkiske v. Klemm, 140 S. Ct. 355,
360 (2019); Cent. Bank of Denver, N.A. v. First Interstate
Bank of Denver, N.A., 511 U.S. 164, 173 (1994). The
Court “determine[s] whether the language at issue has a
plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519
U.S. 337, 340 (1997). The inquiry ceases “if the statutory
language is unambiguous and ‘the statutory scheme is
coherent and consistent.’” Sebelius v. Cloer, 569 U.S. 369,
380 (2013) (quoting Barnhart v. Sigmon Coal Co., 534
U.S. 438, 450 (2002) (internal quotation marks omitted));
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992).
Statutory terms “generally should be ‘interpreted as
7
taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.’” Wis.
Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018)
(quoting Perrin v. United States, 444 U.S. 37, 42 (1979)).
4. The General Crimes Act provides:
Except 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 District of Columbia,
shall extend to the Indian country.
This section shall 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. The first sentence extends to Indian
country “the general laws of the United States” applying
to offenses that occur on lands “within the sole and exclusive jurisdiction of the United States” other than the
District of Columbia. Id.
The second sentence excludes three categories of
specified offenses committed by Indians from the Act’s
coverage. Id. First, it does not apply to an Indian committing a crime against another Indian. Id. Second, it
does not apply to any crime committed by an Indian
when the Indian has been punished by a tribe. Id. Third,
it does not apply where a treaty gives exclusive jurisdiction over the crime to a tribe. Id.
5. The critical language regarding the issue here is
the first sentence of section 1152. Its words do not
8
prohibit state criminal jurisdiction over non-Indians in
Indian country, as the Oklahoma Court of Criminal Appeals interpreted that provision.
a. The main clause of the sentence is “the general
laws of the United States . . . shall extend to the Indian
country.” The subject of the clause, “general laws,” and
the prepositional phrase, “of the United States,” has
been interpreted to mean “laws, commonly known as federal enclave laws, which are criminal statutes enacted by
Congress under its admiralty, maritime, and property
powers, governing enclaves such as national parks.”
United States v. Cowboy, 694 F.2d 1228, 1234 (10th Cir.
1982) (citing United States v. White, 508 F.2d 453, 454–
55 (8th Cir. 1974)); see also United States v. Begay, 42
F.3d 486, 498–99 (9th Cir. 1994) (same); United States v.
Yannott, 42 F.3d 999, 1003–04 (6th Cir. 1994) (same).
General enclave laws include the Assimilative Crimes
Act. 18 U.S.C. § 13. 3 The plain text of the Assimilative
Crimes Act does not refer to Indians or Indian country.
Id. § 13(a). And it
3
The Act states in relevant part:
Whoever within or upon any of the places now existing or
hereafter reserved or acquired as provided in [18 U.S.C.
§ 7] of this title, or on, above, or below any portion of the
territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or
district is guilty of any act or omission which, although not
made punishable by any enactment of Congress, would be
punishable if committed or omitted within the jurisdiction
of the State, Territory, Possession, or District in which such
place is situated, by the laws thereof in force at the time of
such act or omission, shall be guilty of a like offense and
subject to a like punishment.
Id. § 13(a).
9
contains no limitation based on the status of the
defendant, to include whether he is Indian or nonIndian. Instead, it begins with the all-encompassing term “[w]hoever” in regards to whom it might
apply—so long as this person commits the offense
“within or upon any of the places now existing or
hereafter reserved or acquired as provided in [18
U.S.C. § 7].”
United States v. Smith, 925 F.3d 410, 415 (9th Cir.), cert.
denied, 140 S. Ct. 407 (2019). The “special maritime and
territorial jurisdiction of the United States,” 18 U.S.C.
§ 7(3), includes Indian reservations, Smith, 925 F.3d at
416.
If an offense is committed in a federal enclave and
there is no federal statute defining that offense (i.e., an
offense “not made punishable by any enactment of Congress”), the federal government may nonetheless prosecute the offense through the Assimilative Crimes Act by
assimilating a “like offense” and “like punishment” from
the law of the State in which the federal enclave is situated. See Lewis v. United States, 523 U.S. 155, 160 (1998)
(“The ACA’s basic purpose is one of borrowing state law
to fill gaps in the federal criminal law that applies on federal enclaves.”).
b. The adjectival prepositional phrase “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” further modifies “general laws.” This language incorporates into Indian country the federal criminal law that applies in areas under
exclusive federal jurisdiction. The words “sole and exclusive” “are used in order to describe the laws of the
United States, which, by that section, are extended to the
Indian country.” Donnelly v. United States, 228 U.S. 243,
10
268 (1913). (Which of course suggests, Indian country is
not within the sole and exclusive jurisdiction of the
United States, because why else enact the General
Crimes Act to extend the laws that apply to that territory
to the Indian country.) So, considering federal enclave
laws and the Assimilative Crimes Act, the plain language
of the General Crimes Act (subject to the limitations in
its second sentence) borrows the rules of decision from
state law to supply the content of federal law, plus those
federal crimes applicable where federal jurisdiction is
exclusive. But it does not express whether federal jurisdiction is exclusive or concurrent for prosecuting non-Indians for alleged crimes against Indians in Indian country under the federal enclave laws and the Assimilative
Crimes Act. It has nothing to say on that subject.
c. In addition, the introductory phrase of the first
sentence, “[e]xcept as otherwise expressly provided by
law,” expresses an exception to the main idea in the rest
of the sentence. By its terms, section 1152 applies “the
general laws” unless “otherwise expressly provided by
law.” “The purpose of the proviso is to make it clear that
other, more specific Indian country criminal laws prevail
over section 1152.” Cowboy, 694 F.2d at 1234. So, for example, the liquor-sales statute, 18 U.S.C. § 1154, is a
criminal law expressly applicable to Indian country and,
thus, applies in lieu of similar laws that would otherwise
extend to Indian country under the General Crimes Act,
id. § 1152. But this phrase gives no indication about,
much less a prohibition of, States and the federal government exercising concurrent jurisdiction to prosecute
crimes in Indian country that lies within a State’s boundaries.
d. In sum, the plain language of the General Crimes
Act, 18 U.S.C. § 1152, taken at face value, does not
11
answer the question whether States and the federal government may have concurrent criminal jurisdiction in Indian country. Nothing in the text expressly preempts a
State from prosecuting a non-Indian who commits a
crime against an Indian in Indian country within the
State’s borders. The Oklahoma Court of Criminal Appeals’ decision reaching that result is unwarranted under
the statutory language and should be overturned.
B. There is no express congressional prohibition
against States’ inherent criminal jurisdiction
and concurrent federal-state jurisdiction
under 18 U.S.C. § 1152.
Of course, Congress may strip States of their inherent jurisdiction over non-Indians who commit crimes
against Indians in Indian country. Hicks, 533 U.S. at 365.
But “absent a congressional prohibition,” a State may
“exercise criminal . . . jurisdiction over non-Indians located on reservation lands.” County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502
U.S. 251, 257–58 (1992); see also United States v.
McGowan, 302 U.S. 535, 539 (1938) (applying federal law
prohibiting the introduction of liquor into Indian country, but noting that the federal prohibition did not deprive the State of Nevada “of its sovereignty over the
area in question” absent the federal government’s assertion of “exclusive jurisdiction within the [Indian] colony”); Surplus Trading Co. v. Cook, 281 U.S. 647, 651
(1930) (stating that “unless there be a later and affirmative cession of jurisdiction by the state, the reservation
is a part of her territory and within the field of operation
of her laws, save that they can have no operation which
would impair the effective use of the reservation for the
purposes for which it is maintained”). There is no such
prohibition here, see supra Part.I.A, and therefore,
12
States should be allowed to exercise their inherent criminal jurisdiction over non-Indians in Indian country concurrently with the federal government.
1. There is no apparent justification for preempting
States’ jurisdiction in this situation. To the contrary, allowing States and the federal government to exercise
concurrent criminal jurisdiction over non-Indians furthers tribal interests. And no tribal interest is adversely
affected by state prosecution of non-Indians for Indiancountry crimes because tribes lack criminal jurisdiction
over non-Indians, Oliphant v. Suquamish Indian Tribe,
435 U.S. 191, 195 (1978)—except of course, to the extent
tribes may prosecute non-Indians for domestic-violence
crimes under the Violence Against Women Reauthorization Act of 2013, 25 U.S.C. § 1304. Nor does a state prosecution of a non-Indian committing a crime against an
Indian in Indian country bar a subsequent federal prosecution of the same person for the same conduct. See Abbate v. United States, 359 U.S. 187 (1959).
2. Granted, some state courts have interpreted the
General Crimes Act to be a congressional prohibition
against state criminal jurisdiction. E.g., State v. Larson,
455 N.W.2d 600, 601 (S.D. 1990); State v. Greenwalt, 663
P.2d 1178, 1183 (Mont. 1983); State v. Kuntz, 66 N.W.2d
531, 532 (N.D. 1954); State v. Flint, 756 P.2d 324, 325
(Ariz. Ct. App. 1988). But see State v. McAlhaney, 17
S.E.2d 352, 354 (N.C. 1941) (“Unless expressly excepted,
our laws apply equally to all persons, irrespective of race,
and all persons within the State are subject to its criminal laws and are within the jurisdiction of its courts. Particularly is this so as to [the Cherokee Indians in North
Carolina who are] citizens of the State.”); Greenwalt, 663
P.2d at 1184 (Harrison, J., dissenting) (finding jurisdiction in this matter relating to a theft by a non-Indian of
13
a calf of a Indian citizen and noting “Indians, resident in
Montana, . . . are citizens of the State of Montana,” and
accordingly “[t]hey are entitled to the protection of our
laws and are responsible to our laws”).
But these cases should be rejected. Each of them
cited Williams v. United States, 327 U.S. 711 (1946). Williams, which involved the Assimilative Crimes Act,
stated that “courts of the United States, rather than
those of Arizona, have jurisdiction over offenses committed [within the Colorado River Indian Reservation], as in
this case, by one who is not an Indian against one who is
an Indian.” Id. at 714 & n.10 But this language is dicta.
The Court there had to consider only its own jurisdiction,
but it did not have to consider whether Arizona and the
federal courts had concurrent jurisdiction. See id. at 713–
14. Thus, these state courts were apparently relying on
the dicta in Williams, rather than adhering to the text of
the laws Congress enacted. See Larson, 455 N.W.2d at
601; Greenwalt, 663 P.2d at 1182; Flint, 756 P.2d at 325.
The only state court that squarely addressed the issue before Williams—McAlhaney, supra—came out the
other way. To be sure, a couple of state courts pre-Williams had suggested that States lack jurisdiction over
these crimes. See State v. Jackson, 16 N.W.2d 752, 754
(Minn. 1944); State v. Youpee, 61 P.2d 832, 835 (Mont.
1936). But see Goodson v. United States, 54 P. 423, 426
(Okla. Terr. 1898) (“Prior to [the Major Crimes Act], as
we have before stated, it was the universal practice to
prosecute offenses committed on an Indian reservation
within the borders of a state in the state courts, and to
prosecute all crimes committed on a reservation in a territory in the United States courts.”). But as shown in
Part I.A supra, nothing in the statutory language prohibits a State from exercising concurrent criminal
14
jurisdiction with the federal government in cases where
a non-Indian perpetrates a crime against an Indian in Indian country within the boundaries of the State.
3. The lack of such a congressional prohibition is unsurprising. Indians who reside in Indian country within
a State, whether they live on a reservation or off one, are
citizens of that State. As citizens of a State, they are entitled to the protection of the State’s criminal (and civil)
laws, just as they are responsible under those laws. And
they are entitled to the equal protection guaranteed to
all citizens, Indian and non-Indian alike, under their
State’s constitutions. See State v. Schaefer, 781 P.2d 264,
266 (Mont. 1989) (holding that a state court had jurisdiction to criminally prosecute a non-Indian defendant for
violations of pawnbroker statutes by charging excessive
interest rates, even though the alleged offenses occurred
within the boundaries of an Indian reservation and involved transactions with Indians). Absent any congressional prohibition against it, the States’ exercise of inherent criminal jurisdiction over non-Indian perpetrators of
crimes in Indian country is appropriate.
II. States Exercising Their Inherent Criminal
Jurisdiction Will Help Stanch the Victimization
of Indians by Non-Indians in Indian Country.
The lower court’s reading of the General Crimes Act
should also be rejected because it would have significant
negative consequences that Congress could not have intended—and in fact that “no sensible person could have
intended.” Gobeille v. Liberty Mut. Ins. Co., 577 U.S.
312, 319 (2016). Not recognizing the States’ inherent
criminal jurisdiction over non-Indians in Indian country
will inhibit efforts to combat the appalling problem of the
violent victimization of Indians on tribal lands. If
15
undisturbed, the decision below will only worsen the victimization.
A. Overall victimization rates of Indians are
atrociously high.
1. The high numbers of violent victimization of Indians are striking. Compared to members of other demographic groups, Indians suffer proportionally more violent victimizations and are more likely to report their attackers as belonging to a different demographic group
than their own. Exec. Order No. 14,053, 86 Fed. Reg.
64,337 (Nov. 15, 2021); André B. Rosay, National Survey
Estimates of Violence Against American Indian and
Alaska Native People, 69 Dep’t of Just. J. of Fed. L. &
Prac. 91, 94, 96 (Jan. 2021); Steven W. Perry, American
Indians and Crime, 1992-2002, Bureau of Just. Stats.,
U.S. Dep’t of Just. iii (2004), https://tinyurl.com/7xeaxv44. Three prominent surveys provide national data on
the victimization experiences of Indians—the National
Crime Victimization Survey (NCVS), the National Violence Against Women Survey (NVAWS), and the National Intimate Partner and Sexual Violence Survey
(NISVS). Rosay, Survey Estimates, 69 Dep’t of Just. J.
of Fed. L. & Prac. at 91. All three of these surveys provide national estimates on the prevalence and incidence
of violence against Indians. Id.
The results from the NCVS, the NVAWS, and the
NISVS reveal two key, consistent findings. First,
violent victimizations are more common for people who identify themselves as American Indian
or Alaska Native than for people who do not. Second, interracial victimizations are also more common for people who identify themselves as American Indian or Alaska Native than for people who
do not.
16
Id. at 99.
a. Additionally, Indian women across the country
are murdered and sexually assaulted on reservations and
nearby towns at far higher rates than other American
women. Melissa Tehee, Royleen J. Ross, & Iva GreyWolf, Relevant Psychological Responses in Cases of
Missing or Murdered Indigenous Peoples, 69 Dep’t of
Just. J. of Fed. L. & Prac. 251, 251 (Mar. 2021); Garet
Bleir & Ana Zoledziowski, Murdered and Missing Native American Women Challenge Police and Courts,
Ctr. for Pub. Integrity (2018), https://tinyurl.com/
5fzzwv9n. Estimates suggest Indian women “are 2.5
times more likely than the national average to experience certain violent crimes, such as nonfatal strangulation.” Leslie A. Hagen, Violent Crime in Indian Country
and the Federal Response, 69 Dep’t of Just. J. of Fed. L.
& Prac. 79, 79 (Mar. 2021) (citing United States v.
Lamott, 831 F.3d 1153, 1154 (9th Cir. 2016)). The Center
for Disease Control and Prevention has reported that
murder is the third-leading cause of death among Indian
women and that rates of violence on reservations can be
up to ten times higher than the national average. Urban
Indian Health Inst., Seattle Indian Health Bd., Missing
and Murdered Indigenous Women & Girls 2 (2018),
https://tinyurl.com/5e7wem4y.
Murdered and missing indigenous people is “a longstanding crisis.” Tehee et al., Missing or Murdered Indigenous Peoples, 69 Dep’t of Just. J. of Fed. L. & Prac.
at 251; see also Exec. Order No. 14,053, 86 Fed. Reg. at
64338 (“[M]ore work is needed to address the crisis of
ongoing violence against Native Americans—and of
missing or murdered indigenous people.”); U.S. Gov’t
Accountability Off., GAO-22-104045, Murdered or Missing Indigenous Women: New Efforts Are Underway but
17
Opportunities Exist to Improve the Federal Response 1
(2022) (“[T]he incidence of violence committed against
American Indian and Alaska Native (AI/AN) women in
the U.S. constitutes a crisis.”).
b. A statistical study of the years 1992–2002 by the
Bureau of Justice Statistics of the Department of Justice
reveals several additional disturbing findings. To begin,
Indians experienced a per capita rate of violence twice
that of the U.S. resident population. Perry, Indians and
Crime, supra, at iv. The violent crime rate in every age
group below age 35 was significantly higher for Indians
than for all persons. Id. Among Indians 25 to 34 years’
old, the rate of violent crime victimizations was more
than 2½ times the rate for all persons the same age. Id.
Rates of violent victimization for both males and females were higher for Indians than for all races. Id. at v.
The rate of violent victimization among Indian women
was more than double that among all women. Id. Offenders who were strangers to the victims committed most
robberies (71%) against Indians. Id. Indians were more
likely to be victims of physical assault, rape, and sexual
assault committed by a stranger or acquaintance as opposed to an intimate partner or family member. Id. Approximately 60% of Indian victims of violence—about the
same percentage as of all victims of violence—described
the offender as White. Id.
c. Proffered explanations for the high rates of murdered and missing Indians include:
•
•
•
•
jurisdictional barriers[,]
indifference from government officials[,]
the lack of cross-jurisdictional communication
and planning[,]
failure to adequately fund tribal justice systems, and
18
•
the problem of sex traffickers and other predators targeting Native women specifically.
Unmasking the Hidden Crisis of Murdered and Missing Indigenous Women: Exploring Solutions to End the
Cycle of Violence: Hearing Before the Subcomm. for Indigenous Peoples of the United States of the H. Comm.
on Natural Resources, 116th Cong. 2 (2019) (written testimony of Prof. Sarah Deer, Univ. of Kan.). Two recent
laws aimed at ameliorating the crisis of murdered and
missing Indians are Savanna’s Act, Pub. L. No. 116-165,
134 Stat. 760 (2020) (codified at 25 U.S.C.§§ 5701-5705,
34 U.S.C. §§ 10452(a)(11)-(12), 10461(b)(23)-(24),
20126(b)(2), (4)), and the Not Invisible Act of 2019, Pub.
L. No. 116-166, 134 Stat. 766 (2020) (codified, in part, at
25 U.S.C. §§ 2801 note, 2802 note). These laws were enacted to require the Department of Justice and the Department of the Interior “to take various actions to increase intergovernmental coordination and the collection
of data relevant to missing or murdered Indians, including Indian women.” GAO-22-104045 Rep., supra, at 2–3.
But so far, “executive action has not achieved changes
sufficient to reverse the epidemic of missing or murdered
indigenous people and violence against Native Americans.” Exec. Order No. 14,053, 86 Fed. Reg. at 64338.
2. The NCVS for 1992 to 2001 indicated that Indians
accounted for an average of about 1.3% of all violent victimizations annually. GAO-22-104045 Rep., supra, at 4.
The figure is statistically significant because, in 2000,
0.9% of the U.S. population, or 2.5 million people identified as American Indian or Alaska Native alone, while
1.5% of the U.S. population, or 4.1 million people, identified as American Indian or Alaska Native alone or in
combination with another race. The American Indian
Population: 2000, U.S. Census Bureau, Rep. No.
19
MSO/01-AI/AN (Sept. 2001), https://tinyurl.com/4nfs
kurd.
The NCVS also reflects that the annual average violent crime rate among Indians from 1992 to 2001 (101 per
1,000 persons ages 12 or older) was about 2½ times the
national rate (41 per 1,000 persons). Perry, Indians and
Crime, supra, at 4. The annual average violent crime rate
among Indians was twice as high as that of African
Americans (50 per 1,000 persons), 2½ times higher than
that for Whites (41 per 1,000 persons), and 4½ times that
for Asians (22 per 1,000 persons). Id. at 5.
For types of violent crimes from 1992 to 2001, Indians
aged 12 or older were twice as likely to experience a rape
or sexual assault (5 per 1,000) compared to all races (2
per 1,000). Id. And Indians (8 per 1,000) experienced robberies at double the rate for Whites (4 per 1,000) but at
a more similar rate for African Americans (10 per 1,000).
Id.
From 1992 to 2001, the yearly average violent crime
rates were 49 per 1,000 males aged 12 or older and 35 per
1,000 females. Id. at 7. The violent crime rate among Indian males was 118 per 1,000, more than double the overall rate. Id. The rate of violent crime victimization among
Indian females (86 per 1,000) was 2½ times the rate for
all females. Id. The victimization rate among Indian females was much higher than that found among African
American females (46 per 1,000 age 12 or older), about
2½ times higher than that among White females, and 5
times that of Asian females. Id.
For Indian victims of violence, strangers committed
42% of the violent crimes against Indians during the
1992–2001 period. Id. at 8. In 66% of the violent crimes
in which the race of the offender was reported, Indian
victims indicated the offender was either White or Black.
20
Id. at 9. Nearly 4 in 5 Indian victims of rape or sexual
assault described the offender as White. About 3 in 5 Indian victims of robbery (57%), aggravated assault (58%),
and simple assault (55%) described the offender as
White. Id. The offender was described as Black for approximately 1 in 10 incidents of rapes or sexual assaults
(8%), aggravated assaults (10%), and simple assault
(9%), and about 2 in 5 robberies (17%) against Indian victims. Id.
3. The Uniform Crime Reporting program of the
Federal Bureau of Investigation (FBI) sheds further
light on the extent of violent victimizations of Indians.
From 1976 to 2001, about 144 Indians on average were
murdered each year. Id. at 12. Indians represented 0.7%
of all murder victims nationwide, similar to their 0.9%
share of the population. Id. During the same period, in
most murder cases involving a White or African American victim, the offender was the same race as the victim.
Id. at 14. By comparison, Indians were somewhat less
likely to be murdered by an offender of their own race.
Id. Strangers accounted for 17% of Indian murders. Id.
Most of the offenses investigated by U.S. attorneys
in Indian country in fiscal year 2000 were violent crimes.
Id. at 19. Just under 75% of suspects investigated in Indian country involved a violent crime, compared to the
national total of 5%. Id. An estimated 73% of all charges
filed in U.S. district courts for Indian country offenses
were for violent crimes, compared to the national total of
about 5%. Id. at 20.
4. Another study of homicides among Indians from
1999 to 2009 found that, although overall homicide rates
had declined in the United States during the previous
two decades, homicide rates among males, adolescents,
young adults, and non-Hispanic Indians were
21
substantially elevated. Mose A. Herne et al., Homicide
Among American Indians/Alaska Natives, 1999-2009:
Implications for Public Health Interventions, 131 Pub.
Health Rep. 597, 598 (2016), https://tinyurl.com/
dw2s2yfe. Overall, the U.S. homicide rate decreased by
8% during 2007–2009 (from 6.1 per 100,000 population in
2007 to 5.5 per 100,000 population in 2009). Id. In 2009,
homicide rates were lower for every racial and ethnic
group except for Indians, whose homicide rate increased
by 15% (from 7.8 per 100,000 population in 2007 to 9.0 per
100,000 population in 2009). Id.
The FBI’s supplemental homicide reports showed
1,856 homicide victims in Alaska reported by law enforcement agencies between 1976 and 2016. Andrew
Gonzalez, Homicide in Alaska: 1976-2016, Alaska Just.
Info. Ctr., Univ. of Alaska Anchorage 8 (2020), http://
hdl.handle.net/11122/11067. Indians were overrepresented in the reports. Almost a third of the victims was
Indian. Id. Moreover, the homicide rates for Indians living on tribal lands are significantly higher than the rates
for any other race or ethnic group in the country. Ronet
Bachman et al., Violence Against American Indian and
Alaska Native Women and the Criminal Justice Response: What is Known, U.S. Dep’t of Just. 18 (2008) (unpublished report), https://tinyurl.com/uv5ftvau. And Indian women who live in tribal communities have higher
rates of homicide compared to the national average for
Indian females. Id. at 24.
Take Alaska for example. Alaska residents who are
American Indian or Alaska Native are killed far more often than would be expected given their overall representation in Alaska’s population. Id. at 51. Indian victims
were over-represented in Alaska homicides (30.5%) compared to their population (16.3%). Id. at 9, 29. Although
22
the data shows that homicide victimization in Alaska, as
it is in general, is predominantly a male phenomenon, Indian women comprise 10.2% of homicide victims and
8.1% of the population in Alaska—a 25% larger proportion of victims compared to population. Id. at 32, 48. For
all homicide victims in Alaska, the homicide suspect was
most likely of the same race. Id. at 9. Still, Indian female
victims were killed by a White suspect 18.4% of the time.
Id. at 9, 43.
5. Indian women, as noted, experience violent victimization at disproportionate rates. Kaci A. Clement,
The Victimization of Native American Women in the
United States: The Impact and Potential Underlying
Factors, at 1 (2020) (Honors thesis, Univ. of S. Dakota),
https://tinyurl.com/mc8pp2j4; see also Proclamation No.
10026, 85 Fed. Reg. 27,633 (May 5, 2020) (establishing
Missing and Murdered American Indians and Alaska
Natives Awareness Day, 2020). The NISVS in 2010
showed that more than 4 in 5 American Indian and
Alaska Native women (84.3 %) have experienced violence
in their lifetime, including 56.1% who have experienced
sexual violence and 48.8% who have experienced stalking. André B. Rosay, Violence Against American Indian
and Alaska Native Women and Men, Nat’l Inst. of Just.,
U.S. Dep’t of Just. 2 (2016), https://tinyurl.com/bvrxyzvc.
Indian women were more likely than any other racial
group to report being a victim of sexual violence or stalking. Clement, Victimization of Native American
Women, supra, at 7.
Overall, the NISVS showed more than 1 million Indian women experienced sexual violence in their lifetime.
Rosay, Violence Against American Indians, supra, at
14. Amnesty International has found that 86% of survivors in reported sexual-violence cases involving Indian
23
women reported that their attackers were non-Indian
men. Clement, The Victimization of Native American
Women, supra, at 8. According to the NISVS, Indian female victims were 3.0 times as likely to have experienced
sexual violence by an interracial perpetrator as non-Hispanic White-only female victims (96% versus 32%).
Rosay, Violence Against American Indians, supra, at
18.
In addition, the number of Indian women officially reported missing to authorities or that are missing but not
recorded is troubling. According to the FBI, there were
85,459 active missing person’s reports at the end of 2018.
Clement, Victimization of Native American Women, supra, at 8. That year, 9,914 individuals who were classified
as Indian were reported as missing. Id.; see also Missing
and Murdered Indigenous Women & Girls, supra, at 2
(noting that, in 2016, there were 5,712 reports of missing
Indian women and girls).
Furthermore, almost half of Indian women (48.8 percent) surveyed in the NISVS experienced stalking in
their lifetime. Rosay, Violence Against American Indians, supra, at 33. They were 1.8 times more likely to have
experienced stalking in their lifetime than non-Hispanic
White-only women. Id.
In sum, the NISVS found that more than 1.5 million
Indian women had experienced violence in their lifetime.
Id. at 2. Relative to non-Hispanic White-only women, Indian women were 1.2 times as likely to have experienced
violence in their lifetime. Id. And relative to non-Hispanic White-only women, Indian women were also significantly more likely to have experienced violence by an interracial perpetrator and significantly less likely to have
experienced violence by a perpetrator of the same race.
Id.
24
6. The NVAWS was conducted in 1995 and 1996.
Rosay, Survey Estimates, 69 Dep’t of Just. J. of Fed. L.
& Prac. at 95. Its purpose was “to provide lifetime and
past-year prevalence and incidence estimates of emotional abuse, physical assault, forcible rape, and stalking
experienced by adult women and men in the United
States.” Id. “Because of low sample sizes, few analyses
were possible to describe the violence experienced by
[Indians]. The only estimates available from the NVAWS
for [Indians] are lifetime prevalence estimates.” Id. The
NVAWS results showed that adult women and men who
identify as Indian are more likely to be victimized than
adult women and men in the United States who do not
identify as Indian. Id. at 96. Information about the perpetrator’s race was not available from the NVAWS. Id.
7. Hate crimes are another type of victimization of
Indians. Although hate crimes against Indians do not often make headlines, recent infamies have raised concerns about a possible upsurge in hate crimes against Indian communities. See Cecily Hilleary, Rise in Hate
Crimes Alarms Native American Communities, Voice
of Am. (June 5, 2017), https://tinyurl.com/tme972er;
Bleir & Zoledziowski, Murdered and Missing Native
American Women, supra. “Hate crimes” are those “that
manifest evidence of prejudice based on race, gender or
gender identity, religion, disability, sexual orientation,
or ethnicity.” Madeline Masucci & Lynn Langton, Hate
Crime Victimization, 2004-2015, Bureau of Just. Stats.,
U.S. Dep’t of Just. (June 2017) (quoting Hate Crimes
Statistics Act of 1990, Pub. Law 101-275, 104 Stat. 140
(codified at 28 U.S.C. § 534 (note))), https://tinyurl.com/2sazst8b.
From 2011 to 2015, victims surveyed suspected that
nearly half (48%) of hate-crime victimizations were
25
motivated by racial bias. Id. at 2. And nearly half (46%)
of violent hate crime victimizations were committed by a
stranger. Id. at 7. The FBI, in 2015, catalogued 4,029 single-bias hate crime offenses 4 that were motivated by
race, ethnicity, or ancestry. Hate Crime Statistics, 2015,
Fed. Bureau of Investigation, U.S. Dep’t of Just. 2
(2016), https://tinyurl.com/54a5tkzd. Of these offenses,
3.4% were motivated by anti-Indian bias, a statistically
significant figure given that Indians are about 1% of the
total U.S. population. Id. One scholar in global hate crime
believes that number is too low; her studies show that
only about 10% of victims report hate crimes to tribal or
local police. Hilleary, Rise in Hate Crimes, supra.
B. State prosecutorial authority is needed to
shore up the federal government’s insufficient
response to Indian victimization.
The overall picture that these statistics paint of the
victimization of Indians is no doubt complicated by the
jurisdictional issues arising in this case. Barring Oklahoma from prosecuting crimes committed by non-Indians against Indians on tribal lands will only make it more
difficult for Indians who have been victimized to receive
justice.
1. The Cherokee Nation in their petition-stage Amicus Curiae Brief supporting Respondent note that policymakers might improve law enforcement in Indian
country by granting tribal prosecutorial authority over
non-Indians and revoking sentencing limits over all
crimes committed in Indian country. Br. of the Cherokee
Nation I/S/O Resp. 7 n.11 (quoting Dominga Cruz et al.,
“A single-bias incident” is “an incident in which one or more
offense types are motivated by the same bias.” Hate Crime Statistics, 2015, Fed. Bureau of Investigation, U.S. Dep’t of Just. 1 (2016),
https://tinyurl.com/54a5tkzd.
4
26
The Oklahoma Decision Reveals Why Native Americans Have a Hard Time Seeking Justice, Wash. Post,
July 22, 2020). Of course, that suggestion is a nonstarter
under current law because non-Indians are exempt from
tribal courts’ criminal jurisdiction, see Oliphant, 435 U.S.
at 212, leaving the federal government to prosecute nonIndians who commit crimes against Indians on tribal
lands within Oklahoma, 18 U.S.C. § 1152.
And non-Indian criminals know it. Reportedly, “nonIndians may be more likely to commit crimes in Indian
country because they are aware that tribes lack criminal
jurisdiction over non-Indians and that their criminal activity may not draw the attention of federal prosecutors.”
GAO-22-104045 Rep., supra, at 14. Other systemic barriers to tribal justice exist as well, including a lack of detention space, concerns over judicial independence, and
various resource challenges. Id. at 18–24; see also Unmasking the Hidden Crisis of Murdered and Missing
Indigenous Women, HNRC–SCIP Hrg. Compilation,
supra, at 4 (written test. of Prof. Deer) (stating that
“tribal justice systems are chronically underfunded,
making it difficult to have necessary staffing, training,
and resources to adequately address high crime rates on
Indian reservations”).
The federal government generally has a poor record
of prosecuting violent crimes against Indians. Federal
prosecutors decline to prosecute violent crimes at high
rates. A study in 2014 found an overall federal declination rate of 7%. Brian D. Johnson, The Missing Link:
Examining Prosecutorial Decision-Making Across
Federal District Courts, Nat’l Inst. of Just., U.S. Dep’t
of Just. xii (2014), https://tinyurl.com/95kpba66. By contrast, in Indian country, the 2019 declination rate was
32%, excluding cases transferred to another jurisdiction
27
for prosecution. Indian Country Investigations and
Prosecutions, U.S. Dep’t of Just. 3 (2019), https://tinyurl.com/3vcca79y. Adjusted to account for cases referred to another jurisdiction, the 2019 declination rate
is like the declination rates for prior years: 39% in 2018;
37% in 2017; and 34% in 2016. Id.
While declination rates alone do not reflect federal officers’ commitment to combating crime in Indian country
and likely reflect additional systemic difficulties in Indian country regarding the criminal justice system, id. at
3, the disparity between the overall federal declination
rate and the declination rates in Indian country is stark.
Even the Department of Justice calls the relatively high
declination rate for violent offenses in Indian country
“troubling.” Id. at 33. Tribes have “expressed concerns
about the rate at which USAOs decline to prosecute Indian country crimes and noted that a high number of declinations sends a signal to crime victims and criminals
that there is no justice or accountability.” GAO-22104045 Rep., supra, at 16.
2. The Cherokee Nation in its cert-stage amicus
brief was also dismissive of Amici States’ “reliance on
statistics” regarding high victimization rates of Indians
that “pre-date McGirt.” Br. of the Cherokee Nation
I/S/O Resp. 7 n.11. Notably, though, they take no issue
with the veracity of the statistics the Amici States cited
or the magnitude of the problem. And just because some
of the statistics cited were gathered before McGirt was
handed down in no way diminishes their relevance here.
It is not as though once McGirt was decided Indian victimizations ceased or were ameliorated because of that
decision. If anything, it stands to reason that the Oklahoma Court of Criminal Appeals’ reliance on McGirt to
restrict States’ inherent criminal jurisdiction over non-
28
Indians in Indian country will only exacerbate the problem of Indian victimizations at the hands of non-Indians.
In sum, non-Indians who perpetrate violent crimes
against Indians in Indian country may go unprosecuted
and unpunished. Barring Oklahoma from prosecuting
non-Indians who commit crimes against Indians on tribal
lands within the State’s boundaries will likely only
worsen Indian victimization.
29
C O NCL USI O N
This Court should reverse the Oklahoma Court of
Criminal Appeals’ decision vacating Respondent’s conviction and sentence and remand for further proceedings.
Respectfully submitted.
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney
General
JUDD E. STONE II
Solicitor General
Counsel of Record
PHILIP A. LIONBERGER
RANCE CRAFT
Assistant Solicitors General
OFFICE OF THE TEXAS
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Judd.Stone@oag.texas.gov
(512) 936-1700
MARCH 2022
Counsel for Additional Amici States:
DEREK SCHMIDT
Attorney General
of Kansas
JEFF LANDRY
Attorney General
of Louisiana
DOUGLAS J. PETERSON
Attorney General
of Nebraska
JASON S. MIYARES
Attorney General
of Virginia
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.