Respondents Brief — Oklahoma, Petitioner v. Victor Manuel Castro-Huerta

Supreme Court briefMar 28, 2022

Ask Donna

What actually matters in this document.

Text

No. 21-429

_________

STATE OF OKLAHOMA,

Petitioner,

VICTOR MANUEL CASTRO-HUERTA

Respondent.

________

NICOLLETTE BRANDT

CHAD JOHNSON

OKLAHOMA INDIGENT

DEFENSE SYSTEM

P.O. Box 926

Norman, Oklahoma 73070

(405) 801-2727

DAVID A. STRAUSS

SARAH M. KONSKY

JENNER & BLOCK

SUPREME COURT AND

APPELLATE CLINIC AT

THE UNIVERSITY OF

CHICAGO LAW SCHOOL

1111 E. 60th St.

Chicago, IL 60637

ZACHARY C. SCHAUF

Counsel of Record

MATTHEW S. HELLMAN

LEONARD R. POWELL

ALLISON M. TJEMSLAND

VICTORIA HALL-PALERM

KELSEY L. STIMPLE

KEVIN J. KENNEDY

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

zschauf@jenner.com

TABLE OF AUTHORITIES ......................................... iii

INTRODUCTION ............................................................. 1

STATEMENT .................................................................... 5

Early Statutes Establish Exclusive

Federal Jurisdiction Over Crimes

Involving Indians........................................ 5

Post-1940 Statutes Identify When

States May Prosecute Crimes

Involving Indians........................................ 7

Criminal

Jurisdiction

Today

Reflects Sovereign Choices By

Congress, States, And Tribes ................... 7

Oklahoma

Courts

Reject

Petitioner’s Unprecedented

Theory ........................................................ 10

SUMMARY OF ARGUMENT ...................................... 11

ARGUMENT .................................................................... 13

Congress’s Post-1940 Statutes Preempt

States From Prosecuting Crimes Against

Indians In Indian Country. ................................. 13

The 1948 GCA Preempts State

Jurisdiction. ............................................... 14

Congress’s

Post-1940

Scheme

Confirms States Cannot Exercise

Extra-Statutory Jurisdiction. ................. 21

II.

The Rule That Williams Affirmed Was

Always Correct. .................................................... 28

III.

Petitioner’s

Arguments

Lack

Merit. .......................................................... 25

States Never Had Jurisdiction To

Prosecute Crimes Covered By The

GCA. ........................................................... 30

Congress Understood The

GCA To Leave No Room For

State Prosecutions........................ 31

Modern Preemption

Principles Confirm The GCA

Was Always Preemptive. ............ 41

Petitioner’s

Arguments

Lack

Merit. .......................................................... 44

McBratney And Draper

Confirm

Petitioner

Wrong. ............................................ 44

Petitioner’s Civil Cases Are

Irrelevant....................................... 46

Bracker Does Not Apply But Confirms

States Lack Jurisdiction Here. ........................... 49

CONCLUSION ................................................................ 53

iii

Advocate Health Care Network v.

Stapleton, 137 S. Ct. 1652 (2017) .......................... 20

Alden v. Maine, 527 U.S. 706 (1999) .......................... 27

Arizona v. United States, 567 U.S. 387

(2012) ............................................................... passim

Askew v. American Waterways Operators,

Inc., 411 U.S. 325 (1973) ......................................... 18

Bond v. United States, 572 U.S. 844 (2014) ............... 30

Bryan v. Itasca County, 426 U.S. 373

(1976) ........................................................................ 23

Caldwell v. State, 1 Stew. & P. 327 (Ala.

1832) .......................................................................... 40

Chamber of Commerce of United States v.

Whiting, 563 U.S. 582 (2011) ................................. 33

Clark v. Martinez, 543 U.S. 371 (2005) ...................... 16

Cotton Petroleum Corp. v. New Mexico, 490

U.S. 163 (1989) ......................................................... 49

County of Yakima v. Confederated Tribes &

Bands of the Yakima Indian Nation,

502 U.S. 251 (1992) .................................................. 38

Coventry Health Care of Missouri, Inc. v.

Nevils, 137 S. Ct. 1190 (2017) ................................ 14

Crosby v. National Foreign Trade Council,

530 U.S. 363 (2000) ............................................ 23, 30

Custis v. United States, 511 U.S. 485 (1994) ............. 20

Department of Taxation & Finance of New

York v. Milhelm Attea & Brothers, Inc.,

512 U.S. 61 (1994) .................................................... 47

Donnelly v. United States, 228 U.S. 243

(1913) ............................................................... passim

Draper v. United States, 164 U.S. 240

(1896) .................................................................... 6, 44

Duro v. Reina, 495 U.S. 676 (1990),

superseded by statute as stated in Strate

v. A-1 Contractors, 520 U.S. 438 (1997) ..... 4, 46, 47

Exxon Corp. v. Eagerton, 462 U.S. 176

(1983) ...................................................................38-39

Finley v. United States, 490 U.S. 545 (1989),

superseded by statute as stated in Exxon

Mobil Corp. v. Allapattah Services, Inc.,

545 U.S. 546 (2005) .................................................. 22

Forest Grove School District v. T.A., 557

U.S. 230 (2009) ......................................................... 19

Gamble v. United States, 139 S. Ct. 1960

(2019) ........................................................................ 43

Georgia v. Public.Resource.Org, Inc., 140 S.

Ct. 1498 (2020) ................................................ passim

Goforth v. State, 1982 OK CR 48, 644 P.2d

114 ............................................................................. 46

Helsinn Healthcare S.A. v. Teva

Pharmaceuticals USA, Inc., 139 S. Ct.

628 (2019) ........................................................... 19, 20

Herrera v. Wyoming, 139 S. Ct. 1686 (2019) ............. 36

Hillman v. Maretta, 569 U.S. 483 (2013) .............. 16-17

Hines v. Davidowitz, 312 U.S. 52

(1941) ............................................................... passim

Hydro Resources, Inc. v. United States

EPA, 608 F.3d 1131 (10th Cir. 2010) .................... 49

International Paper Co. v. Ouellette, 479

U.S. 481 (1987) ......................................................... 24

Iowa Mutual Insurance Co. v. LaPlante,

480 U.S. 9 (1987) ...................................................... 49

Kansas v. Garcia, 140 S. Ct. 791 (2020) ..................... 14

Kennerly v. District Court of Ninth

Judicial District of Montana, 400 U.S.

423 (1971) ................................................................. 23

Kurns v. Railroad Friction Products Corp.,

565 U.S. 625 (2012) .................................................. 22

Lamar, Archer & Cofrin, LLP v. Appling,

138 S. Ct. 1752 (2018).............................................. 20

Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407

(2019) ........................................................................ 22

Lewis v. United States, 523 U.S. 155 (1998) .............. 16

Logan v. Andrus, 457 F. Supp. 1318 (N.D.

Okla. 1978)................................................................ 37

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525

(2001) ........................................................................ 30

Los Coyotes Band of Cahuilla & Cupeno

Indians v. Jewell, 729 F.3d 1025 (9th Cir.

2013) .......................................................................... 52

McClanahan v. State Tax Commission of

Arizona, 411 U.S. 164 (1973) ........................... 24, 29

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) ..... 4, 6, 29

Merrill Lynch, Pierce, Fenner & Smith,

Inc. v. Curran, 456 U.S. 353 (1982) ................ 30, 39

Michigan v. Bay Mills Indian Community,

572 U.S. 782 (2014) .................................................. 22

Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999).................................. 36

National Farmers Union Insurance Cos. v.

Crow Tribe of Indians, 471 U.S. 845

(1985) ............................................................ 16, 46, 47

Negonsott v. Samuels, 507 U.S. 99 (1993) ....... 3, 15, 28

Nevada v. Hicks, 533 U.S. 353 (2001) .................... 6, 16

New Mexico v. Mescalero Apache Tribe, 462

U.S. 324 (1983) ............................................. 23, 24, 50

New York ex rel. Cutler v. Dibble, 62 U.S.

(21 How.) 366 (1858) ............................................... 47

New York ex rel. Ray v. Martin, 326 U.S.

496 (1946) ................................................................. 49

Oklahoma Tax Commission v. Citizen

Band Potawatomi Indian Tribe of

Oklahoma, 498 U.S. 505 (1991) ............................. 47

vii

Oliphant v. Suquamish Indian Tribe, 435

U.S. 191 (1978), superseded by statute as

stated in United States v. Lara, 541 U.S.

193 (2004) ........................................................ passim

Oneida County v. Oneida Indian Nation of

New York, 470 U.S. 226 (1985) .......................... 5, 32

Parker Drilling Management Services, Ltd.

v. Newton, 139 S. Ct. 1881, 1890 (2019) .......... 15, 18

Paul v. United States, 371 U.S. 245 (1963)..... 14, 17-18

Plains Commerce Bank v. Long Family

Land & Cattle Co., 554 U.S. 316 (2008) ............... 47

Powerex Corp. v. Reliant Energy Services,

Inc., 551 U.S. 224 (2007) ......................................... 15

RadLAX Gateway Hotel, LLC v.

Amalgamated Bank, 566 U.S. 639

(2012) ........................................................................ 26

Sac & Fox Tribe of Mississippi in Iowa v.

Licklider, 576 F.2d 145 (8th Cir. 1978) ................ 28

Sac & Fox Tribe of Indians of Oklahoma v.

United States, 179 Ct. Cl. 8 (1967) ........................ 37

Sekhar v. United States, 570 U.S. 729

(2013) ........................................................................ 14

Solem v. Bartlett, 465 U.S. 463 (1984)....................... 5-6

State v. Foreman, 16 Tenn. 256 (1835)....................... 40

State v. McAlhaney, 17 S.E.2d 352 (N.C.

1941) .......................................................................... 29

State v. Nobles, 818 S.E.2d 129 (N.C. Ct.

App. 2020) ................................................................ 29

viii

Territory v. Coleman, 1 Or. 191 (1855) ...................... 29

Three Affiliated Tribes of Fort Berthold

Reservation v. Wold Engineering, 476

U.S. 877 (1986) ................................................... 18, 23

Three Affiliated Tribes of Fort Berthold

Reservation v. Wold Engineering, 467

U.S. 138 (1984) ......................................................... 27

United States v. Bailey, 24 F. Cas. 937

(C.C.D. Tenn. 1834) ................................................ 41

United States v. Barnhart, 22 F. 285 (C.C.D.

Or. 1884) ................................................................... 29

United States v. Bryant, 579 U.S. 140

(2016) ........................................................ 6, 10, 49, 51

United States v. Cisna, 25 F. Cas. 422

(C.C.D. Ohio 1835) ............................................ 40, 41

United States v. Cook, 922 F.2d 1026 (2d Cir.

1991) .......................................................................... 28

United States v. Cooley, 141 S. Ct. 1638

(2021) .................................................................. 48, 50

United States v. Davis, 139 S. Ct. 2319

(2019) .................................................................... 4, 48

United States v. Jicarilla Apache Nation,

564 U.S. 162 (2011) .................................................. 50

United States v. John, 437 U.S. 634

(1978) ........................................................ 3, 11, 15, 40

United States v. Kagama, 118 U.S. 375

(1886) ............................................................ 35, 37, 42

United States v. Lara, 541 U.S. 193 (2004)............ 3, 35

United States v. Locke, 529 U.S. 89 (2000) .......... 29, 30

United States v. Mazurie, 419 U.S. 544

(1975) ........................................................................ 33

United States v. McBratney, 104 U.S. 621

(1881) ............................................................... passim

United States v. Mitchell, 463 U.S. 206

(1983) ........................................................................ 37

United States v. Pelican, 232 U.S. 442

(1914) ........................................................................ 45

United States v. Sutton, 215 U.S. 291, 295

(1909) ........................................................................ 44

United States v. Wheeler, 435 U.S. 313

(1978), superseded by statute as stated in

United States v. Lara, 541 U.S. 193

(2004) .................................................................... 5, 28

Van Buren v. United States, 141 S. Ct. 1648

(2021) ........................................................................ 21

Virginia Uranium, Inc. v. Warren, 139 S.

Ct. 1894 (2019) ............................................... 3, 14, 18

Washington v. Confederated Bands &

Tribes of Yakima Indian Nation, 439

U.S. 463 (1979) ............................................... 5, 29, 37

Williams

Lee,

358

U.S.

217

(1959) ............................................................... passim

Williams v. United States, 327 U.S. 711

(1946) .............................................................1-2, 6, 18

Ex parte Wilson, 140 U.S. 575 (1891) ........................ 17

Wisconsin Central Ltd. v. United States,

138 S. Ct. 2067 (2018).............................. 2, 18, 19, 38

Worcester v. Georgia, 31 U.S. (6 Pet.) 515

(1832), 533 U.S. 353 (2001) ............................ passim

U.S. Const. art. I, §8, cl. 17 .......................................... 14

18 U.S.C. §1152 ....................................................... 14, 16

18 U.S.C. §1153(a) ......................................................... 15

18 U.S.C. §1162(a) ........................................................... 8

18 U.S.C. §1162(c) ........................................................... 8

18 U.S.C. §1162(d)........................................................... 8

18 U.S.C. §3243 ........................................................... 7, 8

25 U.S.C. §232 ................................................................. 8

25 U.S.C. §1304 ............................................................... 9

25 U.S.C. §1321(a)(1) ...................................................... 7

25 U.S.C. §1322(a) ......................................................... 27

25 U.S.C. §1323(a) ........................................................... 7

25 U.S.C. §2801 note (a)(2)(B) ..................................... 50

25 U.S.C. §2810 ............................................................... 9

28 U.S.C. §543 ................................................................. 9

1835 Treaty of New Echota, Dec. 29, 1835, 7

Stat. 478.................................................................... 36

Act of July 22, 1790, ch. 33, 1 Stat. 137 ............ 5, 33, 34

Act of Mar. 1, 1793, ch. 19, 1 Stat. 329 ................... 5, 33

Act of May 19, 1796, ch. 30, 1 Stat. 469 ............ 5, 33, 34

Act of Mar. 30, 1802, ch. 13, 2 Stat. 139 ........... 5, 33, 34

Act of Mar. 3, 1817, ch. 92, 3 Stat. 383 ......................... 5

Act of Mar. 5, 1825, ch. 65, 4 Stat. 115 ....................... 34

Act of June 30, 1834, ch. 161, 4 Stat. 729 .......... passim

Act of May 31, 1946, ch. 279, Pub.L. No. 79394, 60 Stat. 229......................................................... 7

Act of June 25, 1948, ch. 645, Pub.L. No. 80772, 62 Stat. 683......................................................... 7

Act of June 30, 1948, ch. 759, Pub.L. No. 80846, 62 Stat. 1161....................................................... 7

Act of July 2, 1948, ch. 809, Pub.L. No. 80881, 62 Stat. 1224....................................................... 7

Act of Oct. 5, 1949, ch. 604, Pub.L. No. 81322, 63 Stat. 705......................................................... 7

Act of Aug. 15, 1953, ch. 505, Pub.L. No. 83280, 67 Stat. 588................................................... 7, 24

Act of Dec. 11, 2018, Pub.L. No. 115-301, 132

Stat. 4395.............................................................. 8, 10

Dawes Act of 1887, Pub.L. No. 49-105, 24

Stat. 388.................................................................... 48

Pub.L. No. 90-284, tit. VII, 82 Stat. 77

(1968) .......................................................................... 7

Pub.L. No. 95-395, 92 Stat. 813 (1978) ......................... 8

Pub.L. No. 96-227, 94 Stat. 317 (1980) ......................... 8

Pub.L. No. 96-420, 94 Stat. 1793 (1980) ....................... 8

xii

Pub.L. No. 97-429, 96 Stat. 2269 (1983) ....................... 8

Pub.L. No. 98-134, 97 Stat. 851 (1983) ......................... 8

Pub.L. No. 98-290, 98 Stat. 201 (1984) ......................... 8

Pub.L. No. 100-95, 101 Stat. 704 (1987) ....................... 8

Pub.L. No. 103-116, 107 Stat. 1118 (1993) ................... 8

Pub.L. No. 115-121, 132 Stat. 40 (2018) ....................... 8

Treaty with Apache, July 1, 1852, 10 Stat.

979 ............................................................................. 37

Treaty of Brownstone, Nov. 25, 1808, 7 Stat.

112 ............................................................................. 37

Treaty with Cherokee, Oct. 2, 1798, 7 Stat.

62 ............................................................................... 43

Treaty with Cherokee, July 2, 1791, 7 Stat. .............. 35

Treaty with Cherokee, July 19, 1866, 14

Stat. 1799.................................................................. 35

Treaty with the Chickasaws, Jan. 1, 1786, 7

Stat. 24...................................................................... 37

Treaty with Cow Creek Band, Sept. 19,

1853, 10 Stat. 1027................................................... 37

Treaty with Crow Tribe, May 7, 1868, 15

Stat. 649.................................................................... 37

Treaty of Hopewell, Nov. 28, 1785, 7 Stat.

18 ......................................................................... 35, 36

Treaty with Mandan Tribe, July 30, 1825, 7

Stat. 264 ................................................................... 37

xiii

Treaty with the Menominee, Mar. 30, 1817,

7 Stat. 153................................................................. 37

Treaty with Navajo, June 1, 1868, 15 Stat.

667 ............................................................................. 37

Treaty with Rogue River, Sept. 10, 1853, 10

Stat. 1018.................................................................. 37

Treaty with Sioux Tribe, Apr. 29, 1868, 15

Stat. 635.................................................................... 37

Tribal Law and Order Act of 2010, Pub.L.

No. 111-211, 124 Stat. 2258 ...................................... 9

Violence Against Women Reauthorization

Act of 2022, Pub.L. No. 117-103, 136 Stat.

48 ................................................................................. 9

Idaho Code §67-5101 ...................................................... 9

Okla. Const. art. I ......................................................... 45

Okla. Stat. Ann. tit. 57, §332.7(B) ............................... 52

Okla. Stat. Ann. tit. 57, §332.7(C) ............................... 52

H.R. 3091 §6(b)(1), 117th Cong. (introduced

May 11, 2021) ........................................................... 10

H.R. Rep. No. 57-2704 (1902) ...................................... 45

H.R. Rep. No. 76-1999 (1940) ...................................... 21

H.R. Rep. No. 80-1506 (1948) ...................................... 21

H.R. Rep. No. 80-2355 (1948) ...................................... 21

H.R. Rep. No. 80-2356 (1948) ...................................... 21

S. Rep. No. 76-1523 (1940) ........................................... 21

xiv

S. Rep. No. 80-1142 (1948) ..................................... 19, 21

S. Rep. No. 80-1489 (1948) ........................................... 21

S. Rep. No. 80-1490 (1948) ........................................... 21

4 Annals of Cong. 1254 (1795) ..................................... 43

7 Op. Atty. Gen. 174 (1855) .......................................... 41

69 Fed. Reg. 6,321 (Feb. 10, 2004) ................................ 9

80 Fed. Reg. 39,144 (July 8, 2015) ................................ 8

Gregory

Ablavsky,

The

Savage

Constitution, 63 Duke L.J. 999 (2014) ................. 43

Articles of Confederation of 1781, art. IX,

para. 4 ....................................................................... 32

Bureau of Justice Stats., Felony Sentences

in State Courts, 2006—Statistical

Tables 9 tbl.1.6 (Dec. 2009) .................................... 52

Duane Champagne & Carole Goldberg,

Captured Justice: Native Nations and

Public Law 280 (2d ed. 2020)................................... 8

Cohen’s Handbook of Federal Indian Law

(Nell Jessup Newton ed., 2012) .................. 9, 46, 51

Dep’t of Justice, Justice Manual §927.420(12) & cmt. (Feb. 2018) ................................ 53

The Federalist No. 3 (James Madison)

(Clinton Rossiter ed., 1961) ................................... 32

John J. Francis, et al., Reassessing

Concurrent

Tribal-State-Federal

Criminal Jurisdiction in Kansas, 59 U.

Kan. L. Rev. 949 (2011) .......................................... 52

Carole Goldberg, Tribal Jurisdictional

Status

Analysis,

Tribal

Ct.

Clearinghouse,

https://bit.ly/3iDcXyt

(last updated Feb. 16, 2010) .................................... 8

Indian Law & Order Comm’n, A Roadmap

for Making Native America Safer (Nov.

2013) .............................................................. 10, 51, 52

M. Brent Leonhard, Returning Washington

P.L. 280 Jurisdiction to Its Original

Consent-Based Grounds, 47 Gonz. L.

Rev. 663 (2012) .......................................................... 8

Doris Meissner, Report of the Task Force on

Indian Matters, U.S. Dep’t of Justice

(1975) ........................................................................ 51

Petition for a Writ of Certiorari, Sharp v.

Murphy, 140 S. Ct. 2412 (2020) (No. 171107) .......................................................................... 10

Antonin Scalia & Bryan A. Garner, Reading

Law (2011) .................................................... 19, 22, 26

Transcript of Oral Argument, McGirt v.

Oklahoma, 140 S. Ct. 2452 (2020) (No.

18-9526) .................................................................... 10

James Thomas Tucker et al., Voting Rights

in Arizona: 1982–2006, 17 S. Cal. Rev. L.

& Soc. Just. 283 (2008) ............................................ 43

xvi

Emily Tredeau, Tribal Control in Federal

Sentencing, 99 Calif. L. Rev. 1409 (2011) ............ 52

Everywhere today, a settled rule governs crimes by

non-Indians against Indians in Indian country: Where

Congress has authorized States to prosecute, States do.

Where not, not. In 21 States, Congress has authorized

prosecutions.

So they proceed.

In 26 States,

authorization is absent. So federal jurisdiction is

exclusive.

That result is no accident. It reflects a specific

statute (the General Crimes Act, or “GCA”) that

Congress reenacted in 1948 and myriad other statutes

allocating Indian-country criminal jurisdiction, all

embedding the rule that States may exercise jurisdiction

over cases like this one only with Congress’s approval.

The status quo, by congressional design, reflects choices

by three sovereigns: If States lack jurisdiction today, it

is because Congress did not confer jurisdiction, States

declined to assume jurisdiction under Public Law 280, or

Tribes exercised the veto Congress conferred.

Petitioner invites this Court to undo those choices,

upend Congress’s scheme, and jettison an understanding

settled for 75 years or more—all to create by judicial fiat

sweeping criminal liability without precedent since the

Founding.

The Court should decline. And to do so, it need not

excavate ancient history or explicate first principles.

Congress’s modern statutes settle it. The GCA applies

to Indian country the federal enclave laws, under which

federal jurisdiction is “sole and exclusive” and States

may act only with Congress’s approval. This Court’s

1946 decision in Williams v. United States recognized

that under the GCA, federal jurisdiction is indeed sole

and exclusive and that federal “courts …, rather than

those of [States], have jurisdiction over offenses … by

one who is not an Indian against one who is.” 327 U.S.

711, 714 (1946). Then, on the heels of Williams,

Congress reenacted the GCA. And days later, Congress

authorized some but not all States to exercise

jurisdiction over crimes “by or against Indians”—via

statutory text expressly based on the same rule as

Williams, using language that otherwise would be

superfluous. Shortly after, Public Law 280 created a

mechanism for all States to acquire such jurisdiction.

Along the way, Congress enacted many statutes finetuning jurisdiction, all premised on Williams’ rule.

Those statutes decide this case. Petitioner does not

dispute that the 1948 Congress “believed … States

generally lacked prosecutorial authority over crimes

committed by non-Indians against Indians in Indian

country.” Br. 29. Nor can Petitioner deny that nearsimultaneous statutes lodged that understanding in the

U.S. Code. The GCA thus “carries th[e] settled

meaning,” Georgia v. Public.Resource.Org, Inc., 140 S.

Ct. 1498, 1510 (2020), it was understood to bear “at the

time.” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067,

2074 (2018).

Petitioner asks this Court to pull out the rug. It says

this Court was wrong in Williams and Congress was

benighted to rely on the same rule. Thus, per Petitioner,

this Court should discard Williams and interpret the

1948 GCA to mean the opposite of what the 1948

Congress understood. But that is not how this Court

does statutory interpretation, which aims to identify—

not thwart—Congress’s understanding discernable in

statutory “text and context.” Va. Uranium, Inc. v.

Warren, 139 S. Ct. 1894, 1901 (2019) (plurality op.).

All that would be plenty to reject Petitioner’s

position. But there is two centuries more. From the

start, Congress exercised its “plenary and exclusive”

authority over Indian affairs, United States v. Lara, 541

U.S. 193, 200 (2004), to oust States from prosecuting

crimes involving Indians.

Congress immediately

“assumed federal jurisdiction over offenses by nonIndians against Indians,” Oliphant v. Suquamish Indian

Tribe, 435 U.S. 191, 201 (1978), via statutes recognizing

States lacked jurisdiction. Congress did so against the

backdrop of treaties covenanting that the United States

alone would protect Tribes from crime. And it acted

with Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), as

a guide. Congress’s “actions and inactions” thus

“demonstrated an intent to reserve jurisdiction over

non-Indians for the federal courts.” Oliphant, 435 U.S.

at 204.

This Court thus got it exactly right in Williams.

Indeed, the Court has already held that the GCA’s

sibling—the Major Crimes Act (“MCA”)—“is preemptive,” based on its “history,” United States v. John,

437 U.S. 634, 651 & n.22 (1978), and “text,” Negonsott v.

Samuels, 507 U.S. 99, 103 (1993). The GCA’s history and

text are indistinguishable.

Petitioner builds its contrary position largely on

three points.

First, it invokes United States v.

McBratney, 104 U.S. 621 (1881), which held that States

have exclusive jurisdiction over non-Indian/non-Indian

crimes. But Donnelly v. United States held that offenses

“by or against Indians are not within the principle of …

McBratney.” 228 U.S. 243, 271 (1913).

Indeed,

McBratney recognized that States may exercise

jurisdiction only if the GCA is “repeal[ed].” 104 U.S. at

623. So Donnelly’s holding—that the GCA continues to

apply here—decides this case too.

Second, Petitioner relies on civil decisions

“depart[ing]” from Worcester. Br. 18. Civil jurisdiction,

however, is different because Congress by statute

treated it as different. That is why this Court rejected

the same conflation when Tribes tried it. Duro v. Reina,

495 U.S. 676, 687 (1990).

Indeed, this Court cannot properly expand criminal

liability in the manner Petitioner urges. “Only … the

legislature” may “‘make an act a crime.’” United States

v. Davis, 139 S. Ct. 2319, 2325 (2019) (quoting United

States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)).

While the Court has some leeway to modify civil rules, it

may not—common-law style—proliferate criminal

liability.

Third, Petitioner invokes practical concerns based on

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). But those

concerns—which are overstated and based on citationfree figures, see Br. in Opp. 27-32; Cherokee Cert. Br. 312—do not justify disregarding Congress’s statutes and

upending settled law even in Oklahoma, much less

nationwide. Petitioner is not the first State to have

unlawfully exercised jurisdiction. Kansas in 1940 was in

the same boat. Like Petitioner, it wished to continue

existing practices. Kansas and Congress, however,

recognized a statute was required. In 82 years, much has

changed. But not our separation of powers.

1. With “the adoption of the Constitution, Indian

relations” became “the exclusive province of federal

law.” Oneida County v. Oneida Indian Nation of N.Y.,

470 U.S. 226, 234 (1985). “Beginning with the Trade and

Intercourse Act of 1790 … Congress assumed federal

jurisdiction over offenses by non-Indians against

Indians.” Oliphant, 435 U.S. at 201. Early Congresses

revised and reenacted the 1790 Act. Act of July 22, 1790,

ch. 33, §5, 1 Stat. 137, (“1790 Act”); see Act of Mar. 1,

1793, ch. 19, §4, 1 Stat. 329 (“1793 Act”); Act of May 19,

1796, ch. 30, §4 1 Stat. 469 (“1796 Act”); Act of Mar. 30,

1802, ch. 13, §4, 2 Stat. 139 (“1802 Act”); Act of Mar. 3,

1817, ch. 92, §2, 3 Stat. 383 (‘‘1817 Act’’).

Even so, some States asserted criminal jurisdiction

in Indian country. Worcester held that Georgia lacked

jurisdiction to prosecute non-Indians for crimes in

Cherokee territory. 31 U.S. at 561. Two years later in

1834, Congress enacted the GCA’s “direct progenitor.”

United States v. Wheeler, 435 U.S. 313, 324 (1978).

2. Although the Court has since “modified the[]

principles” of Worcester in some respects, its “basic

policy … has remained.” Williams v. Lee, 358 U.S. 217,

219 (1959). That includes the rule that, for crimes “by or

against … Indian[s],” “tribal jurisdiction or that

expressly conferred on other courts by Congress has

remained exclusive.” Id. at 220; see Washington v.

Confederated Bands & Tribes of Yakima Indian

Nation, 439 U.S. 463, 471 (1979); Solem v. Bartlett, 465

U.S. 463, 467 & n.8 (1984); Nevada v. Hicks, 533 U.S. 353,

365 (2001); United States v. Bryant, 579 U.S. 140, 146

(2016); McGirt, 140 S. Ct. at 2479.

McBratney held that States have exclusive

jurisdiction over non-Indian/non-Indian crimes. It read

Colorado’s enabling act to “repeal[]… prior statute[s]”

vesting jurisdiction in the federal government, including

the GCA (then codified at R.S. 2145). 104 U.S. at 621-22.

Draper v. United States reached the same result. 164

U.S. 240 (1896). The Court reserved the question of

crimes “by or against Indians.” McBratney, 104 U.S. at

624.

Donnelly resolved that question. It explained that

McBratney and Draper held that statehood

simultaneously (1) “withdr[e]w[] from the United States

… control of” non-Indian/non-Indian offenses; and (2)

“conferr[ed] upon” States that jurisdiction. 228 U.S. at

271. But Donnelly concluded “[u]pon full consideration”

that offenses “by or against Indians are not within the

principle of … McBratney and Draper.” Id. Donnelly

thus held the federal government could prosecute a nonIndian who murdered an Indian. Id. at 252.

Because McBratney and Draper rested on theories

of transfer, Donnelly had a flip side: States lack such

jurisdiction where the federal government retains it. In

1946, Williams made the point express: Under the GCA,

the “laws and courts of the United States, rather than

those of [States], have jurisdiction over offenses” by

non-Indians against Indians. 327 U.S. at 714.

Two years later, Congress reenacted the GCA. Act

of June 25, 1948, ch. 645, Pub.L. No. 80-772, §1152, 62

Stat. 683. Meanwhile, Congress enacted many statutes

conferring jurisdiction over crimes “by or against

Indians,” including for Kansas (1940), North Dakota

(1946), and Iowa and New York (1948).1

Public Law 280 gave additional States “jurisdiction

over offenses committed by or against Indians.” Act of

Aug. 15, 1953, ch. 505, Pub.L. No. 83-280, §2, 67 Stat. 588

(codified as amended at 18 U.S.C. §1162). It also allowed

“any other State” to “assume [such] jurisdiction.” Id. §7.

In 1968, Congress amended Public Law 280 to

require tribal consent. Pub.L. No. 90-284, tit. VII, §406,

82 Stat. 77 (codified at 25 U.S.C. §1326). It also

permitted States to “retrocede” jurisdiction. 25 U.S.C.

§1323(a). Assumptions and retrocessions can be full or

“part[ial].” Id. §§1321(a)(1), 1323(a).

Today, 21 States have jurisdiction over crimes “by or

against” Indians in some Indian country: Alaska,

California, Minnesota, Nebraska, Oregon, and Wisconsin

(“mandatory” Public Law 280 States); Florida, Idaho,

18 U.S.C. §3243; Act of May 31, 1946, ch. 279, Pub.L. No. 79-394, 60

Stat. 229; Act of June 30, 1948, ch. 759, Pub.L. No. 80-846, 62 Stat.

1161; Act of July 2, 1948, ch. 809, Pub.L. No. 80-881, 62 Stat. 1224;

Act of Oct. 5, 1949, ch. 604, Pub.L. No. 81-322, 63 Stat. 705.

Montana, and Washington (“optional” States); and

Colorado, Connecticut, Kansas, Maine, Massachusetts,

New York, North Dakota, Rhode Island, South Carolina,

Texas, and Utah (with State-specific statutes).2

Fourteen States have Indian country but no such

jurisdiction: Alabama, Arizona, Indiana, Iowa,

Louisiana, Michigan, Mississippi, Nevada, New Mexico,

North Carolina, Oklahoma, South Dakota, Virginia, and

Wyoming.3 Another 12 States have jurisdiction over

some Indian country but lack it elsewhere: Colorado,

Idaho, Massachusetts, Minnesota, Montana, Nebraska,

North Dakota, Oregon, Texas, Utah, Washington, and

Wisconsin.4

States use Public Law 280 to obtain bespoke

jurisdiction. Idaho, for example, asserted jurisdiction

over seven substantive areas (including neglected and

18 U.S.C. §1162(a), (c), (d); Duane Champagne & Carole Goldberg,

Captured Justice: Native Nations and Public Law 280, at 18-20 (2d

ed. 2020) (“Captured Justice”); Pub.L. No. 98-290, §5, 98 Stat. 201

(1984); Pub.L. No. 98-134, §6, 97 Stat. 851 (1983); 18 U.S.C. §3243;

Pub.L. No. 96-420, §6, 94 Stat. 1793 (1980); Pub.L. No. 100-95, §6(g),

101 Stat. 704 (1987); 25 U.S.C. §232; Pub.L. No. 95-395, §9, 92 Stat.

813 (1978); Pub.L. No. 103-116, §10, 107 Stat. 1118 (1993); Pub.L. No.

97-429, §6, 96 Stat. 2269 (1983); Pub.L. No. 96-227, §7b, 94 Stat. 317

(1980).

M. Brent Leonhard, Returning Washington P.L. 280 Jurisdiction

to Its Original Consent-Based Grounds, 47 Gonz. L. Rev. 663, 692

(2012); Pub.L. No. 115-121, 132 Stat. 40 (2018); Pub.L. No. 115-301,

132 Stat. 4395 (2018); 80 Fed. Reg. 39,144 (July 8, 2015).

Captured Justice 3, 18-20; Carole Goldberg, Tribal Jurisdictional

Status Analysis, Tribal Ct. Clearinghouse, https://bit.ly/3iDcXyt

(updated Feb. 16, 2010).

abused children). Idaho Code §67-5101. Many States

have retroceded some jurisdiction, including (for

example) Nebraska and Nevada. Cohen’s Handbook of

Federal Indian Law §6.04(3)(g) (Nell Jessup Newton

ed., 2012) (“Cohen’s”).

In States lacking plenary jurisdiction, wellestablished systems govern law enforcement involving

non-Indians. The federal government issues “special

law enforcement commissions,” which allow designees to

“enforce Federal law,” including for “crimes perpetrated

by non-Indians.” 69 Fed. Reg. 6,321, 6,321 (Feb. 10,

2004). Tribal prosecutors acting as special assistant U.S.

attorneys prosecute non-Indians. 28 U.S.C. §543; 25

U.S.C. §2810.

Congress remains active in improving this system.

In the Tribal Law and Order Act of 2010 (“TLOA”),

Congress increased funding and training for federal and

tribal law enforcement, mandated information-sharing,

and established the Indian Law and Order Commission.

Pub.L. No. 111-211, 124 Stat. 2258.

Congress has also expanded tribal jurisdiction. The

Violence Against Women Reauthorization Act of 2013

authorized Tribes to prosecute certain non-Indians for

domestic-violence offenses. 25 U.S.C. §1304. This

March, the Violence Against Women Reauthorization

Act of 2022 expanded tribal jurisdiction over nonIndians, including for “child violence.” Pub.L. No. 117103, §804(5)(B), 136 Stat. 48.

By contrast, Congress since 1968 has not regarded

state jurisdiction as a panacea. That is because even

where States have jurisdiction, they “have not devoted

their limited criminal justice resources to crimes

committed in Indian country.” Bryant, 579 U.S. at 146.

States often view jurisdictional grants as “essentially an

unfunded Federal mandate.” Indian Law & Order

Comm’n, A Roadmap for Making Native America Safer

69 (Nov. 2013) (“Roadmap”). “[C]alls for service go

unanswered, victims are left unattended, criminals are

undeterred, and Tribal governments are left stranded.”

Id.

Meanwhile, inserting States can undermine

accountability, to the detriment of effective law

enforcement. Infra 51.

In 2018, Congress (by request) repealed the grant to

Iowa of jurisdiction over crimes “by or against Indians.”

Act of Dec. 11, 2018, Pub.L. No. 115-301, 132 Stat. 4395.

Congress is considering how to allocate criminal

jurisdiction in Oklahoma after McGirt. E.g., H.R. 3091

§6(b)(1), 117th Cong. (introduced May 11, 2021)

(authorizing compacting over crimes “by or against

Indians” within Cherokee and Chickasaw reservations).

In Murphy and McGirt, Oklahoma affirmed that

“States lack criminal … jurisdiction … if either the

defendant or victim is an Indian.” Sharp v. Murphy Pet.

18 (No. 17-1107); see McGirt Arg. Tr. 54 (No. 18-9526).

Below, Respondent invoked that law. After McGirt,

the Oklahoma Court of Criminal Appeals agreed

Oklahoma lacked jurisdiction and rejected Petitioner’s

new concurrent-jurisdiction argument. Pet. App. 4a.

The trial court dismissed.

The federal government indicted Respondent, who

pled guilty to child neglect. The plea provides for a

seven-year sentence and then Respondent’s immediate

removal from the United States. It recounts that the

“Government has consulted with [the victim’s] family,”

who “consent[ed].” Plea Agreement 16, No. 20-cr-255

(N.D. Okla. Oct. 15, 2021), ECF No. 52.

I.A. This case should end with the GCA’s commonly

understood meaning in 1948, when Congress reenacted

it. The GCA applies to Indian country the laws

governing federal enclaves within “sole and exclusive”

federal jurisdiction, where States may act only with

permission. This text is materially identical to the

MCA’s, which this Court has held “is preemptive.”

John, 437 U.S. at 651. Moreover, Congress reenacted

the GCA on the heels of Williams’ affirmation that

federal jurisdiction under the GCA is exclusive, enacted

near-simultaneous statutes whose text embeds the same

understanding, and (as extra icing on the cake) had

before it reports confirming that understanding. The

GCA thus carries that settled meaning.

B. Based on the same understanding, Congress since

1940 has enacted many statutes, including Public Law

280, giving some—but only some—States the

jurisdiction Petitioner seeks. That comprehensive

scheme underscores the importance of adhering to the

settled understanding that Congress lodged in statute.

And it preempts Petitioner’s attempt to exercise extrastatutory jurisdiction.

Petitioner’s position would

thwart the choices of 26 States not to acquire the

jurisdiction at issue here, frustrate Congress’s choice to

give Tribes a veto, and render incoherent retrocessions

and repeals.

II.A. Williams’ rule is also correct as an original

matter. The Congress that enacted the 1948 GCA’s

progenitors regarded crimes involving Indians as a warand-peace issue of “dominant” “federal interest.”

Arizona v. United States, 567 U.S. 387, 399 (2012). Early

Congresses then “pervasive[ly]” regulated this area via

statutes and treaties whose text provided that only the

federal government, not States, could prosecute crimes

involving Indians in Indian country. Id. Worcester

crystalized that understanding in its holding that the

federal government alone may regulate “intercourse”

with Indians—and Congress enacted the 1834 GCA in

Worcester’s wake and based on the same understanding.

Meanwhile, Congress and this Court recognized that

criminal statutes involving Indians or Indian country are

preemptive absent repeal or express exception. If

Congress, in this context, intended to leave room for

States to exercise the jurisdiction Petitioner asserts, it

would have said so. But instead, the 1834 GCA applied

to Indian country the laws governing places within “sole

and exclusive” federal jurisdiction and embedded in its

text the understanding that States lacked jurisdiction.

B.1. McBratney and Draper confirm Petitioner is

wrong. They recognized that States can exercise

criminal jurisdiction in Indian country only if the GCA is

“repeal[ed].”

They held that statehood impliedly

repealed the GCA as to non-Indian/non-Indian crimes.

But Donnelly held that “offenses committed by or

against Indians are not within the principle of …

McBratney and Draper.” 228 U.S. at 271. And by

holding that the GCA has not been repealed as to cases

like this, Donnelly resolved the question presented here.

2. Civil cases cannot help Petitioner. This Court has

declined to conflate civil and criminal jurisdiction,

precisely because Congress’s statutes treat those realms

differently. Petitioner’s invitation to expand criminal

jurisdiction would also violate the principle that only the

legislature can create criminal liability.

III. Bracker balancing does not apply: Congress’s

statutes control, and Bracker does not govern the

criminal realm.

Regardless, Bracker balancing

underscores why Petitioner lacks jurisdiction.

To resolve this case, the Court need not sift first

principles or weigh Petitioner’s claim that it

“presumptively” has jurisdiction. Br. 11. Congress

enacted today’s GCA in 1948. This case thus turns on

how the statute was understood then. And that

understanding is not disputed or disputable. When

Congress in 1948 applied to Indian country the laws

governing places of “sole and exclusive” federal

jurisdiction, Congress acted against the backdrop of

Williams, enacted near-simultaneous statutes whose

text reflects the same understanding, and wove a web of

jurisdictional statutes premised on Williams’ rule. The

GCA thus “carries th[at] settled meaning.”

Public.Resource.Org, 140 S. Ct. at 1510.

This Court weighs a statute’s “preemptive effect” by

“looking to … text and context.” Va. Uranium, 139 S.

Ct. at 1901; see Coventry Health Care of Mo., Inc. v.

Nevils, 137 S. Ct. 1190, 1197 (2017). Statutes “may

preempt state authority by so stating in express terms”

or based on “restrictions or rights that are inferred.”

Kansas v. Garcia, 140 S. Ct. 791, 801 (2020).

1. The 1948 GCA’s operative text establishes that

States lack jurisdiction over crimes it covers. The GCA

provides that “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, … shall extend to the Indian country.” 18 U.S.C.

§1152 (emphases added). Via this text, Congress applied

to Indian country laws governing federal enclaves,

where the federal government “exercise[s] exclusive”

jurisdiction. U.S. Const. art. I, §8, cl. 17. And enclaves’

signal feature is that federal law “bars state regulation

without specific congressional action.” Paul v. United

States, 371 U.S. 245, 263-64 (1963) (citing Pac. Coast

Dairy v. Dep’t of Agric. of Cal., 318 U.S. 285, 296 (1943)).

So when Congress applied to Indian country “the

general laws of the United States” governing offenses in

federal enclaves, those “laws” included the baseline

enclave rule. See Sekhar v. United States, 570 U.S. 729,

733 (2013) (“[I]f a word is obviously transplanted from

another legal source, … it brings the old soil with it.”).

This text shows the GCA is preemptive. Petitioner

cannot apply its criminal laws to federal enclaves

without Congress’s approval. Equally, Petitioner may

not—without Congress’s approval—apply its criminal

laws to subjects that Congress directed be governed by

the laws applicable in these areas of “sole and exclusive”

federal jurisdiction. See Parker Drilling Mgmt. Servs.,

Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (interpreting

statute “extend[ing]” the laws applicable in “area[s] of

exclusive Federal jurisdiction located within a State” to

incorporate “federal enclave” law, including the rule that

“state law presumptively does not apply”).

This Court has given the same meaning to the same

text in the GCA’s sibling. Much like the GCA, the MCA

provides that defendants “shall be subject to the same

law and penalties as all other persons committing

[qualifying] offenses, within the exclusive jurisdiction of

the United States.” 18 U.S.C. §1153(a) (emphasis

added). The MCA “is pre-emptive of state jurisdiction

when it applies.” John, 437 U.S. at 65. And this Court

has explained that “the text of §1153 … make[s] clear[]”

that the MCA is preemptive—pointing to the word

“exclusive.” Negonsott, 507 U.S. at 103.

No relevant text distinguishes the GCA. Under

Petitioner’s position, materially identical text would

mean one thing in the MCA and something else in the

GCA, contrary to the canon of consistent usage.

Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S.

224, 232 (2007). Nor is it an answer to say that the MCA

applies to crimes by Indians and different background

principles govern.

This Court relied on “text.”

Negonsott, 507 U.S. at 103.

Even within the GCA, Petitioner’s view would make

the same text mean different things at different times.

The GCA, via the same text, covers crimes by Indians.

Petitioner does not dispute that the GCA preempts state

jurisdiction over such crimes. E.g., Hicks, 533 U.S. at

365. The GCA also “implicitly pre-empt[s] tribal

jurisdiction” over crimes by non-Indians. Nat’l Farmers

Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845,

854 (1985). Nothing in the GCA’s text leaves room for

Petitioner’s gerrymandered system, “which would

render [the GCA] a chameleon.” Clark v. Martinez, 543

U.S. 371, 382 (2005).

The textual evidence is even stronger because the

GCA makes express exceptions—and the atextual

exception Petitioner proposes would yield results

Congress is unlikely to have intended. The GCA

excludes crimes “by one Indian against … another” and

crimes by Indians “punished by the local law of the

tribe.” 18 U.S.C. §1152; see Act of June 30, 1834, ch. 161,

§25, 4 Stat. 729 (“1834 Act”). Thus, the GCA channels

prosecutions of Indians through one sovereign

(including for crimes against non-Indians). Similarly,

just one sovereign punishes non-Indians for crimes

against non-Indians. McBratney, 104 U.S. at 621-22.

But on Petitioner’s view, the GCA silently makes nonIndians who commit crimes against Indians uniquely

subject to two sovereigns’ plenary jurisdiction (plus the

federal criminal laws applicable everywhere). Cf. Lewis

v. United States, 523 U.S. 155, 163 (1998) (rejecting

interpretation “leav[ing] residents of federal enclaves

randomly subject to three sets of criminal laws”).

The better reading is the one that fits the text:

Congress understood that because the GCA makes no

exception for state prosecutions in cases like this, States

may not prosecute. See Hillman v. Maretta, 569 U.S.

483, 496 (2013) (“[w]here Congress explicitly

enumerates certain exceptions …, additional exceptions

are not to be implied”). That explains why, unlike for

tribal-court prosecutions, Congress did not address

multiple-prosecution

issues

from

state-court

prosecutions. See Oliphant, 435 U.S. at 203 (GCA

precludes tribal prosecutions of non-Indians partly

because it does not address “retrial of non-Indians” tried

in tribal court).

2. The passages Petitioner cites from Donnelly and

Wilson, Br. 24, are not to the contrary. Those cases

rejected the argument that when the MCA vested some

jurisdiction in territorial courts, it displaced the GCA by

rendering federal jurisdiction no longer “sole and

exclusive.” See Donnelly, 228 U.S. at 268 (phrase “do[es]

not mean that the United States must have sole and

exclusive jurisdiction … in order that [the GCA] may

apply”); accord Ex parte Wilson, 140 U.S. 575, 578

(1891). As Negonsott recognized, that conclusion does

not detract from the significance of Congress’s decision

to apply to Indian country the laws governing areas of

“exclusive” federal jurisdiction.

Petitioner also observes that the GCA does not

explicitly say “state jurisdiction is preempted” and that

statutes “extend[ing]” federal law do not always

preempt state law. Br. 24-25. The GCA, however,

extends a particular type of federal law: enclave laws

governing places of “sole and exclusive” federal

jurisdiction, where the default is States legislate only

with “specific congressional” approval. Paul, 371 U.S. at

263-64; see Parker, 139 S. Ct. at 1890.5 And even if (as is

often true) Congress could have spoken yet more clearly,

preemption never requires neon lights or even an

explicit “congressional statement” (particularly in

Indian country). Three Affiliated Tribes of Fort

Berthold Rsrv. v. Wold Eng’g, 476 U.S. 877, 885 (1986);

infra 22-23. Here, moreover, the phrase “sole and

exclusive” is only the start of the textual and contextual

evidence showing States lack jurisdiction.

3. If doubt about the GCA’s preemptive force

lingered, it would disappear by reading the GCA in

“context,” Va. Uranium, 139 S. Ct. at 1901, and based on

how it would have been understood “at the time

Congress” acted, Wis. Cent., 138 S. Ct. at 2070.

Congress enacted today’s GCA in 1948. And the 1948

understanding was clear: Under the GCA, the “courts of

the United States, rather than those of [States], have

jurisdiction over offenses” like this. Williams, 327 U.S.

at 714. We know as much not just because Williams

affirmed that rule but because Congress nearsimultaneously enacted related statutes whose text

reflects that rule.

Several complementary principles recognize that

when Congress acts based on such an understanding,

that understanding governs. “Congress is presumed to

be aware of an administrative or judicial interpretation

Askew v. American Waterways Operators, Inc., 411 U.S. 325

(1973), declined to interpret federal maritime jurisdiction as

exclusive when Congress extended it to areas “historically within

… [States’] police power.” Id. at 343. States have not historically

regulated crimes involving Indians. Infra 28-39.

… and to adopt that interpretation when it re-enacts a

statute.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230,

239-40 (2009). Similarly, when a phrase has acquired a

“settled … meaning,” and “Congress reenacts the same

language,” “we presume … Congress … adopted the

earlier judicial construction.” Helsinn Healthcare S.A.

v. Teva Pharms. USA, Inc., 139 S. Ct. 628, 633-34 (2019);

see Antonin Scalia & Bryan A. Garner, Reading Law 325

(2011) (applying canon “unquestionably justified” based

on “even a single decision” of “jurisdiction’s highest

court”).

These principles stem from the bedrock rule that

what “[t]he words of a governing text … convey, in their

context, is what the text means.” Scalia & Garner 64,

248; see Wis. Cent., 138 S. Ct. at 2070. These principles

also vindicate the separation of powers. If critics

disagree with interpretations Congress took as settled,

they “can take their objections across the street.”

Public.Resource.Org, 140 S. Ct. at 1510. But if this

Court tinkers, it may derange Congress’s work.

4. Here, related statutes enacted days apart confirm

that Williams’ rule reflected the understanding when

Congress acted. On June 30, 1948—just five days after

reenacting the GCA—Congress gave Iowa jurisdiction

over crimes “by or against Indians.” Supra 7 n.1. Two

days later, Congress gave New York the same

jurisdiction. Id. These statutes built on grants to

Kansas (1940) and North Dakota (1946) and presaged

Public Law 280’s nationwide system (a draft of which

was before the 1948 Congress, S. Rep. No. 80-1142

(1948)).

These statutes confirm that Williams accorded with

contemporary understandings. Otherwise, the phrase

“against Indians” would be superfluous. On Petitioner’s

view, States already had jurisdiction over crimes by nonIndians against Indians. They lacked jurisdiction only

over crimes by Indians. So per Petitioner, the phrase

“against Indians” never did anything. This Court

“presume[s] that each word Congress uses is there for a

reason” and none is “surplusage.” Advoc. Health Care

Network v. Stapleton, 137 S. Ct. 1652, 1659 (2017). Here,

Congress added the phrase “against Indians” because it

understood the law the same way as Williams.

These statutes also show that when the 1948

Congress wanted to give States broader jurisdiction

over crimes against Indians, it “knew how.” Custis v.

United States, 511 U.S. 485, 492 (1994). But Congress

chose not to give all States such jurisdiction or to modify

the GCA. This Court often draws “a preemptive

inference … not from federal inaction alone, but from

inaction joined with action.” Arizona, 567 U.S. at 40607. Here, a strong “negative implication” arises from

“Congress’s passage of other related statutes that

expressly permit” States to exercise the authority

Petitioner claims. Custis, 511 U.S. at 492.6

It is thus irrelevant that Williams did not apply its rule to reverse

a non-Indian’s conviction. The reenactment canon is a pragmatic

principle that applies beyond holdings from a jurisdiction’s highest

court and extends to interpretations from lower courts or agencies.

Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1762

(2018); cf. Helsinn, 139 S. Ct. at 633-34 (this Court “suggest[ed]” an

interpretation and Federal Circuit “made explicit what was

5. On-point legislative history “is ‘extra icing on a

cake already frosted.’” Van Buren v. United States, 141

S. Ct. 1648, 1661 (2021) (quoting Yates v. United States,

574 U.S. 528, 557 (2015) (Kagan, J., dissenting)). The

1948 Congress received multiple reports stating that

“States have no jurisdiction to enforce laws designed to

protect the Indians from crimes perpetrated by or

against Indians.” S. Rep. No. 80-1142, at 2 (1948); see

H.R. Rep. No. 80-1506, at 1 (1948); H.R. Rep. No. 802356, at 1 (1948); H.R. Rep. No. 80-2355, at 1 (1948); S.

Rep. No. 80-1490 (1948); S. Rep. No. 80-1489 (1948).

Shortly before, the Acting Secretary of Interior

explained that States’ authority over crimes “upon tribal

… lands extends in the main only to situations where

both the offender and the victim are white.” S. Rep. No.

76-1523, at 2 (1940); see H.R. Rep. No. 76-1999, at 2

(1940).

Because Congress enacted the 1948 GCA based on

this understanding, Petitioner must “take [its]

objections across the street.” Public.Resource.Org, 140

S. Ct. at 1510.

Since 1940, Congress has enacted many statutes

giving some (but only some) States jurisdiction over

crimes “against Indians.” That includes Public Law 280

and the nationwide procedure it created. Congress

expressly premised all those statutes on the same rule

implicit”). Here, Congress’s related statutes confirm that Williams

reflected settled understandings.

Williams recognized.

Now, accepting Petitioner’s

position would thwart that scheme, render it incoherent,

and thrust on States unwanted jurisdiction.

1. These statutes, first, underscore the imperative of

adhering to the rule Congress lodged in the 1948 GCA.

This Court has emphasized the “paramount importance

… that Congress be able to legislate against a

background of clear interpretive rules.” Finley v.

United States, 490 U.S. 545, 556 (1989); see Scalia &

Garner 13. And when Congress in fact continues to rely

on a rule, adhering to it is especially critical. Cf.

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 802

(2014) (retaining tribal sovereign immunity “against the

backdrop of a congressional choice” to “specifically

preserv[e] immunity in some contexts and abrogat[e] it

in others, but never adopt[] the change Michigan

wants”).

2. Second, this comprehensive scheme confirms that

Congress preempted extra-statutory prosecutions.

Preemption arises where federal “regulation [is] ‘so

pervasive ... that Congress left no room for the States to

supplement it’ or where there is a ‘federal interest ... so

dominant that the federal system will be assumed to

preclude … state laws on the same subject.’” Arizona,

567 U.S. at 399. State law is also preempted where it

“conflict[s] with a federal statute,” Kurns v. R.R.

Friction Prods. Corp., 565 U.S. 625, 630 (2012), including

when it “stands as an obstacle to the accomplishment

and execution of [federal law’s] full purposes and

objectives,” Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407,

1415 (2019).

Preemption always flows especially easily where the

federal interest has traditionally been paramount.

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 375

(2000). Indian affairs is such a domain. This Court has

thus emphasized that in Indian country, displacement of

state law is “not limit[ed]” by “familiar principles of

preemption.” New Mexico v. Mescalero Apache Tribe,

462 U.S. 324, 334 (1983). State law may recede even

without “congressional intent to preempt,” id., and it

suffices that “a detailed federal regulatory scheme

exists” whose “general thrust will be impaired.” Three

Affiliated Tribes, 476 U.S. at 885. This standard “give[s]

effect to the plenary and exclusive power of the Federal

Government to deal with Indian tribes” and “regulate

and protect … Indians … against interference.” Bryan

v. Itasca County, 426 U.S. 373, 376 n.2 (1976).

3. Here, accepting Petitioner’s position would upend

the scheme Congress built on Williams’ rule.

Congress enacted Public Law 280 “to replace the ad

hoc regulation of state jurisdiction over Indian country

with general legislation.” Three Affiliated Tribes, 476

U.S. at 884. It was the product of “comprehensive and

detailed congressional scrutiny” concerning when “to

extend [States’] civil or criminal jurisdiction.” Kennerly

v. Dist. Ct. of Ninth Jud. Dist. of Mont., 400 U.S. 423, 427

(1971). This Court has thus “enforced [Public Law 280’s]

procedural requirements … stringently.”

Three

Affiliated Tribes, 476 U.S. at 877.

After Congress undertook that detailed scrutiny, it

built its scheme on the same understanding as Williams:

States presumptively lack jurisdiction over crimes

involving Indians in Indian country. It gave certain

States “jurisdiction over offenses committed by or

against Indians,” and specified that “any other State not

having jurisdiction with respect to criminal offenses”

could “assume [such] jurisdiction.” Pub.L. No. 83-280,

§§2, 7 (emphases added).

Public Law 280 preempts Petitioner’s attempt to

expand its criminal jurisdiction beyond what existed in

1953 without complying with Public Law 280. This

Court will not “believe that Congress would have

required” that States follow Public Law 280’s

procedures “if the States were free to accomplish the

same goal unilaterally.” McClanahan v. State Tax

Comm’n of Ariz., 411 U.S. 164, 177-78 (1973); see

Mescalero Apache, 462 U.S. at 340 (“Congress would not

have jealously protected” tribal rights had Congress

“thought that the States had residual power” to impose

concurrent regulations).

Contrary to Petitioner’s claims, Public Law 280 and

Congress’s State-specific statutes are not concerned

only with promoting “expand[ed] … state jurisdiction.”

Br. 13. Like most statutes, they strike a balance: Public

Law 280 permits States to expand jurisdiction beyond

the 1953 baseline—but also lets them stick with

exclusive federal jurisdiction.

States choosing

expansion may also pick what jurisdiction to accept.

And Public Law 280 conditions expansions on tribal

consent and allows retrocessions. Meanwhile, Congress

sometimes repeals jurisdictional grants.

Precisely because Congress legislated against the

backdrop of Williams, jettisoning its rule would

confound Congress’s “balance of interests.” Int’l Paper

Co. v. Ouellette, 479 U.S. 481, 495 (1987).

First, Petitioner’s position would thwart 26 States’

choices not to expand criminal jurisdiction (or to elect a

limited expansion). States had reasons not to seek the

jurisdiction Petitioner would impose, including that they

“anticipate[d] that the burdens … might be

considerable.” Williams v. Lee, 358 U.S. at 222-23.

Second, Petitioner’s position would frustrate

Congress’s decision to allow Tribes to withhold consent.

Third,

Petitioner’s

position

would

render

retrocessions and repeals incoherent. Would States like

Nebraska or Iowa lack jurisdiction over crimes by nonIndians against Indians—because retrocession or repeal

specifically eliminated the jurisdiction at issue? Or

would they have jurisdiction—because the jurisdictional

grant was superfluous? This Court adheres to “settled

meanings,” Public.Resource.Org, 140 S. Ct. at 1510,

precisely to avoid creating such disruptive questions.

1. Petitioner does not dispute that the 1948 Congress

“believed” States to lack jurisdiction over cases like this,

Br. 29, and has no adequate answer to how that

concession forecloses its position.

First, Petitioner pleads that “the views of a

subsequent Congress form a hazardous basis for

inferring the intent of an earlier one.” Id. The 1948

Congress, however, is not a “subsequent Congress.”

The 1948 Congress reenacted the GCA. Likewise, the

1953 Congress did not offer “views.” It embedded

Williams’ rule in Public Law 280’s text.

Nor is it “psychoanaly[sis],” Br. 29, to read the 1948

GCA in harmony with related statutes and this Court’s

recent decisions. Such statutes and decisions are “part

of the statute’s context” and are relevant even for those

skeptical of a “presumption of legislative knowledge.”

Scalia & Garner 323-24. As Justice Scalia explained,

considering those sources “rests on two sound

principles: (1) that the body of the law should make

sense, and (2) that it is the responsibility of the courts …

to make it so.” Id. at 199-200.

Alternatively, Petitioner says the GCA’s 1948

reenactment should be read to incorporate a general

“retreat from Worcester.” Br. 26. But that “retreat”

never encompassed the issue here. And it is a

“commonplace … that the specific governs the general.”

RadLAX Gateway Hotel, LLC v. Amalgamated Bank,

566 U.S. 639, 645 (2012). Williams addressed the specific

question at issue two years before, and the Iowa and

New York acts lodged that understanding in statute.

Petitioner’s most candid argument is that the Court

should ignore the 1948 understanding. Yes, the 1948

Congress believed the rule was as Williams stated. Br.

29. And yes, the 1948 “Congress may have been

‘inspired’” by Williams. Br. 32. But per Petitioner, this

Court was wrong in Williams and Congress was wrong

to rely on Williams’ rule. Id. So Petitioner asks this

Court to discard Williams and make the 1948 GCA mean

the opposite of the 1948 understanding.

The short answer is the one given above: Statutory

interpretation is not a bait-and-switch. When a statute

has acquired a meaning, it “carries this settled meaning”

when reenacted. Public.Resource.Org, 140 S. Ct. at

1510. Tellingly, Petitioner’s sole authority for its

Inspiration-Is-Irrelevant canon is Alden v. Maine, 527

U.S. 706, 714 (1999). Alden was a constitutional decision

that disregarded recent statutes subjecting States to

“suit in their own courts” “inspired” by this Court’s nowoverruled decisions authorizing such suits. Id. at 714.

2. Petitioner gets no help from Three Affiliated

Tribes of Fort Berthold Reservation v. Wold

Engineering, 467 U.S. 138 (1984).

There, North

Dakota’s courts had held that, before Public Law 280,

they could hear civil suits by Indians against nonIndians. Id. at 144, 150 & n.9. This Court ultimately

agreed. Id. at 148. North Dakota’s courts nonetheless

then read Public Law 280 to foreclose jurisdiction. Id. at

146. This Court held that Public Law 280 did not “divest

States of pre-existing and otherwise lawfully assumed

jurisdiction.” Id. at 150.

This case is the opposite: Unlike in Three Affiliated

Tribes, States in 1953 did not have “pre-existing”

jurisdiction over prosecutions like this. Congress

enacted Public Law 280 against the backdrop of

Williams (a case with no counterpart in Three Affiliated

Tribes) and State-specific statutes reflecting the same

understanding (nonexistent in Three Affiliated Tribes).

Then, Congress in Public Law 280 enacted text again

reflecting that understanding and conferring

jurisdiction over crimes “against Indians.” The civil

provisions, by contrast, are agnostic about the issue

Three Affiliated Tribes decided: Those provisions

authorize assumptions of jurisdiction over “causes of

action … to which Indians are parties.” 25 U.S.C.

§1322(a). That grant was necessary for States to obtain

jurisdiction over civil claims against Indians, and every

word does work under Three Affiliated Tribes’ rule.

3. Petitioner tries to solve its surplusage problem by

asserting that, had the phrase “against Indians” “not

been included” in Public Law 280 “and courts were to

adhere to … Williams,” no court would have had

jurisdiction to prosecute “non-Indians who committed

crimes against Indians.” Br. 34. But first, that argument

proves Respondent’s point. Congress expected courts

would “adhere to … Williams,” id., and rather than

abrogating Williams, enacted text premised on

Williams’ rule.

Second, this argument does not even apply to the

State-specific statutes Congress enacted alongside the

GCA. Those statutes granted concurrent jurisdiction.

E.g., Negonsott, 507 U.S. at 108; United States v. Cook,

922 F.2d 1026, 1033 (2d Cir. 1991); Sac & Fox Tribe of

Miss. in Iowa v. Licklider, 576 F.2d 145, 148 (8th Cir.

1978). On Petitioner’s view, the phrase “against

Indians” never did anything. That textual point

underscores that the 1948 GCA was understood to

preempt state jurisdiction.

The rule Williams affirmed is correct as an original

matter too. The 1834 Act—the 1948 GCA’s “direct

progenitor,” Wheeler, 435 U.S. at 324—contained the

same preemptive text. 1834 Act §25; supra 14-18. And

its context powerfully points to preemption, with

Congress’s early statutes and treaties bearing the

hallmarks of a preemptive scheme. Congress and this

Court have long understood those statutes that way,

which is why crimes “against Indians have been subject

only to federal or tribal laws, except where Congress …

has ‘expressly provided that State laws shall apply.’”

Yakima, 439 U.S. at 470-71. Petitioner cites no case

approving a prosecution on its theory.7

All this renders irrelevant Petitioner’s claims about

States’ “inherent authority” (based largely on cases

about neither Indians nor reservations). Br. 3, 12, 15-17.

As this Court has observed, the question of “residual …

sovereignty in the total absence of federal treaty

obligations or legislation” is often “of little more than

theoretical importance.” McClanahan, 411 U.S. at 172.

So, too, here: Given the “treaties and statutes” that

govern, id., the answer to the question presented is that

if States wish to prosecute crimes involving Indians in

Indian country, a statute is required.8

Some States have unlawfully exercised jurisdiction over Indian

country generally. McGirt, 140 S. Ct. at 2470-71. Petitioner,

however, cites no case adopting its theory that States lack

jurisdiction over crimes by Indians but have jurisdiction over

crimes by non-Indians against Indians. E.g., State v. McAlhaney,

17 S.E.2d 352, 353-54 (N.C. 1941) (approving prosecution of nonIndian because “all persons” are subject to state law, including

“Cherokee”); cf. State v. Nobles, 818 S.E.2d 129, 135 & n.2 (N.C. Ct.

App. 2020) (rejecting McAlhaney). Petitioner’s amici also cite no

such cases: United States v. Barnhart, 22 F. 285, 289 (C.C.D. Or.

1884), “assum[ed]” without deciding that the State had jurisdiction,

and Territory v. Coleman, 1 Or. 191 (1855), just decided a doublejeopardy issue.

If Petitioner asserts a presumption against preemption, Br. 12,

none applies in areas “of significant federal presence,” United States

v. Locke, 529 U.S. 89, 108 (2000).

This Court always interprets statutes with a view

toward “the circumstances in which the[y] … w[ere]

adopted,” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,

542 (2001), and “contemporary legal context,” Merrill

Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S.

353, 381 (1982). That is because “[p]art of a fair reading

of statutory text is recognizing that ‘Congress legislates

against the backdrop’ of certain unexpressed

presumptions.” Bond v. United States, 572 U.S. 844, 857

(2014).

That approach is especially critical in preemption

cases involving statutes dating to the early Republic. In

preemption cases, “the entire scheme of the statute must

… be considered.” Crosby, 530 U.S. at 373. So context

is more-than-usually important. Thus, when Oliphant

considered whether federal law precludes Tribes from

exercising “criminal jurisdiction over non-Indians,” it

gave “considerable weight” to “commonly shared

presumption[s]” reflected in early statutes and treaties.

435 U.S. at 206, 208. Oliphant concluded that “[w]hile

Congress never expressly forbade” Tribes from

exercising jurisdiction, Congress “believed this to be the

necessary result of its … actions.” Id. at 204. Other

decisions are of a piece.9 Here, that approach confirms

E.g., Locke, 529 U.S. at 99 (statute applied in “area where the

federal interest has been manifest since the beginning of our

Republic”); Hines v. Davidowitz, 312 U.S. 52, 67-68 (1941) (“it is of

importance” that immigration “from the first has been most

generally conceded imperatively to demand broad national

authority”).

this Court’s long-ago conclusion: Congress’s “actions and

inactions in regulating criminal jurisdiction on Indian

reservations demonstrated an intent to reserve

jurisdiction over non-Indians for the federal courts.” Id.

(citing Ex parte Mayfield, 141 U.S. 107, 115-16 (1891)).

When the 1834 Congress applied to Indian country

the laws governing areas within “sole and exclusive”

federal jurisdiction, it understood the statute to “le[ave]

no room” for States to prosecute crimes involving

Indians. Arizona, 567 U.S. at 399. Congress in 1834

regarded the area the GCA covers as one of “dominant”

“federal interest” (the war-and-peace issue of crimes

against Indians). Id. Congress then enacted the GCA as

part of a web of statutes and treaties “pervasively”

regulating that area (while lodging in their text

Congress’s understanding that States had no role). Id.

And Congress legislated against the backdrop of

Worcester (barring States from prosecuting non-Indians

based on “intercourse” with Indians). Meanwhile,

Congress and this Court “consistently believed”

statutes like the 1834 Act yielded preemption. Oliphant,

435 U.S. at 204. States thus may not prosecute crimes

involving Indians falling within the GCA’s scope.

i. The “protection [of] aliens” is quintessentially a

matter for the “Federal Government … entrusted with

full and exclusive responsibility for the conduct of affairs

with foreign sovereignties,” especially given the risks of

“war, or … suspension of intercourse” crimes can yield.

Hines v. Davidowitz, 312 U.S. 52, 62-65 (1941).

“[I]nternational controversies of the gravest moment,

sometimes even leading to war, may arise from real or

imagined wrongs to another’s subjects.” Id. at 64. Thus,

“[o]ur system … requires that federal power” over such

matters “be left entirely free from local interference.”

Id. at 63.

The Framers viewed crimes against Indians just that

way. Under the Articles of Confederation, “hostilities

ha[d] been provoked by the improper conduct of …

States, who, either unable or unwilling to restrain or

punish offenses, ha[d] given occasion to the slaughter of

many innocent inhabitants.” The Federalist No. 3, at 44

(James Madison) (Clinton Rossiter ed., 1961). Those

provocations resulted partly from how the Articles

limited federal Indian-affairs powers.

Articles of

Confederation of 1781, art. IX, para. 4. The Constitution

removed these “shackles,” Worcester, 31 U.S. at 559, and

“with [its] adoption …, Indian relations” became “the

exclusive province of federal law.” Oneida County, 470

U.S. at 235.

After ratification, crime against Indians remained a

war-and-peace matter. Early Congresses focused on

“providing effective protection for the Indians ‘from the

violences of the lawless part of our frontier inhabitants’”

because they believed that “[w]ithout such protection,”

“all the exertions of the Government to prevent

destructive retaliations by the Indians will prove

fruitless and all our present agreeable prospects

illusory.’” Oliphant, 435 U.S. at 201 (quoting Seventh

Annual Address of President George Washington, 1

Messages and Papers of the Presidents, 1789-1897, pp.

181, 185 (J. Richardson ed., 1897)).

ii. That type of “dominant” “federal interest,”

Arizona, 567 U.S. at 399, in a “uniquely federal area[],”

Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582,

604 (2011), always weighs heavily toward preemption.

Here, moreover, Congress from the start exercised its

“exclusive constitutional authority to deal with Indian

tribes,” United States v. Mazurie, 419 U.S. 544, 554 n.11

(1975), to enact a comprehensive set of statutes and

treaties governing crimes involving Indians.

a. “Beginning with the Trade and Intercourse Act of

1790,” Congress “assumed federal jurisdiction over

offenses by non-Indians against Indians” and created a

system for their punishment. Oliphant, 435 U.S. at 201.

Via statutes in 1790, 1793, 1796, and 1802, Congress

imposed liability for crimes by a U.S. “citizen … against

the person or property of any peaceable and friendly

Indian.” 1790 Act §5; see 1793 Act §4; 1796 Act §4; 1802

Act §4. Congress first extended the enclave laws to

Indian country in 1817, before enacting the 1834 Act as

a “comprehensive statute[].” Williams v. Lee, 358 U.S.

at 220. The 1834 Act “extended” to Indian country “the

laws of the United States” punishing crimes “committed

… within the sole and exclusive jurisdiction of the

United States.” 1834 Act §25. It declined to apply these

laws to crimes “by one Indian against … another” but

made no exception to permit state jurisdiction. Id.

These statutes, consistent with the war-and-peace

imperatives behind them, treated crimes involving

Indians as an inter-sovereign issue within the domain of

the “Federal Government … entrusted with full and

exclusive responsibility for the conduct of affairs with”

Tribes. Hines, 312 U.S. at 63. They prescribed specific

punishments for specific offenses, like death for murder.

1796 Act §6; 1802 Act §6.10 And starting in 1796, these

statutes specified that criminal punishments went handin-hand with compensation to Indians. 1796 Act §4; 1802

Act §4. The 1834 Act, for example, directed that when a

“white person” “in the commission … of any crime”

“injured or destroyed” “property of any friendly

Indian,” and “a conviction is had for such crime,” the nonIndian “so convicted shall be sentenced to pay to such

friendly Indian … twice the just value.” 1834 Act §16.

Then, the 1834 Act provided that if non-Indians could

not pay “the just value,” the shortfall “shall be paid out

of the [U.S.] treasury”—but only if Indians refrained

from “private revenge.” Id. By thus centralizing

redress, these statutes sought to keep the peace.

These statutes did not authorize States to interfere

and, instead, identified States as lacking jurisdiction.

Several early statutes penalized misconduct “which, if

committed within the jurisdiction of any state … would

be punishable by [state] laws.” 1790 Act §5 (emphasis

added); 1796 Act §4; 1802 Act §4. The statutes also

punished crimes by Indians who “come over or across

the said boundary line, into any state.” 1796 Act §14

(emphasis added); 1802 Act §10. And the 1834 Act

provided remedies against Indians who “pass[ed] from

Indian country into any state” and did damage, while

setting rules for apprehending fugitives who

“commit[ted] crimes … within any state … and … fled

The 1834 Act imposed the same penalty by incorporating federal

enclave laws. See Act of Mar. 5, 1825, ch. 65, §4, 4 Stat. 115.

into the Indian country.” 1834 Act §§17, 19 (emphases

added).

These statutes left no room for States to prosecute

crimes involving Indians: When Congress exercises its

“plenary and exclusive” authority, Lara, 541 U.S. at 200,

to apply to Indian country the laws governing areas

where federal jurisdiction is “sole and exclusive,”

alongside text excluding Indian country from state

jurisdiction, then federal jurisdiction is exclusive.11

b. These statutes accorded with early treaties

affirming that only the federal government had the

power and duty to protect Indians—including,

specifically, the Cherokee.

The Treaty of Hopewell affirmed that the Nation was

“under the protection of the United States of America,

and of no other sovereign whosoever.” Art. III, Nov. 28,

1785, 7 Stat. 18. Subsequent treaties restated and “reaffirmed” this commitment. Treaty with Cherokee, art.

II, July 2, 1791, 7 Stat. 39; Treaty with Cherokee, July

19, 1866, 14 Stat. 1799.

This promise of exclusive protection included

protection from crimes. The Treaty of Hopewell

Petitioner “suggests” Congress lacks plenary and exclusive power

over Indian affairs or crime involving Indians. Br. 39 n.3. Settled

law, however, forecloses that suggestion. E.g., Lara, 541 U.S. at

200. Petitioner has not preserved any argument that preemption

here would exceed Congress’s constitutional authority. Indeed,

since the 1790 Act, crime involving Indians in Indian country has

been a federal domain (and State criminal jurisdiction historically

provided Indians “no protection,” United States v. Kagama, 118

U.S. 375, 383-84 (1886)). Supra 28-35.

promised that the United States would punish nonIndians who “commit[ted] a robbery or murder, or other

capital crime, on any Indian … in the same manner as if

… committed on a [U.S.] citizen.” Treaty of Hopewell,

art. VII. Especially relevant here, the United States

later reaffirmed that it would protect Cherokees from

“interruption and intrusion from [U.S.] citizens,” even as

it covenanted that Cherokee lands would not “be

included within the … jurisdiction of any State.” 1835

Treaty of New Echota, Arts. 5-6, Dec. 29, 1835, 7 Stat.

478.

These provisions “would naturally be understood by

the Indians” as promising that the federal government,

and only the federal government, would protect

Cherokees from non-Indians. Herrera v. Wyoming, 139

S. Ct. 1686, 1701 (2019).

Petitioner’s contrary

argument—that the promise to protect Indians from

“interruption” “no more precludes state jurisdiction

than does any other federal law,” Br. 40 n.4—ignores the

context in which this promise appears, including the

promises of exclusive protection and that Cherokee

lands would remain free from state jurisdiction. No

Indian would have understood those promises to leave

room for States to seize power to “protect” Indians on

Cherokee lands. See Minnesota v. Mille Lacs Band of

Chippewa Indians, 526 U.S. 172, 196 (1999). Congress

may “abrogate [these] treaty rights,” but only if it

“clearly express[es] its intent.” Herrera, 139 S. Ct. at

1698. Instead, Congress vindicated these promises via

statutes applying to Indian country the laws governing

areas of “sole and exclusive” federal jurisdiction and

treating Indian country as outside state jurisdiction.

Non-Cherokee treaties spoke near-identically.

Countless treaties provided for sole U.S. protection,12

called for the federal government to prosecute crimes

against Indians,13 and required Tribes to hand over nonIndians to the United States.14 See Oliphant, 435 U.S. at

208 (emphasizing that such provisions contemplated

exclusive federal jurisdiction).

These treaties embodied the “general trust

relationship” the federal government from the start had

with “the Indian people.” United States v. Mitchell, 463

U.S. 206, 225 (1983). States never “enjoy[ed] this …

relationship.” Yakima, 439 U.S. at 501. More than that:

19th-century Congresses understood States as often

Indians’ “deadliest enemies” and recognized that

Indians would “receive [from States] no protection.”

United States v. Kagama, 118 U.S. 375, 384 (1886). With

that backdrop, it is small wonder that the governing

E.g., Treaty of Brownstone, art. V, Nov. 25, 1808, 7 Stat. 112;

Treaty with Menominies, art. 5, Mar. 30, 1817, 7 Stat. 153; Treaty

with Chickasaws, art. II, Jan. 1, 1786, 7 Stat. 24; Sac & Fox Tribe of

Indians of Okla. v. United States, 179 Ct. Cl. 8, 24 n.8 (1967); Logan

v. Andrus, 457 F. Supp. 1318, 1321 (N.D. Okla. 1978).

E.g., Treaty with Navajo, art. I, June 1, 1868, 15 Stat. 667; Treaty

with Sioux Tribe, art. 1, Apr. 29, 1868, 15 Stat. 635; Treaty with

Rogue River, art. 6, Sept. 10, 1853, 10 Stat. 1018; Treaty with

Apache, art. VI, July 1, 1852, 10 Stat. 979.

E.g., Treaty with Cow Creek Band, art. VI, Sept. 19, 1853, 10 Stat.

1027; Treaty with Mandan Tribe, art. 6, July 30, 1825, 7 Stat. 264;

Treaty with Crow Tribe, art. 1, May 7, 1868, 15 Stat. 649.

statutes and treaties made no room for state

jurisdiction.15

iii. These statutes and treaties are all the more

significant given Worcester.

There, a missionary

traveled to spread Christianity among the Cherokee. 31

U.S. at 538. Georgia prosecuted him based on a statute

prohibiting non-Indians from living in Cherokee

territory without a license. Id. at 537-38. This Court—

relying on many of the statutes and treaties cited

above—held the prosecution “void.” Id. at 562. It

explained that the Cherokee Nation was a “distinct

community … in which the laws of Georgia can have no

force” and that the “whole intercourse” with the Nation

is “vested in the [federal] government.” Id. at 561-63.16

Just as the 1948 Congress enacted the 1948 GCA two

years after Williams, the 1834 Congress enacted the

1834 Act two years after Worcester. Had the 1834

Congress intended to leave room for States to prosecute

non-Indians for crimes against Indians, it would have

said so. Instead, Congress enacted text embodying the

same understanding as Worcester. The GCA thus bears

the meaning it was understood to have “at th[at] time.”

Wis. Cent., 138 S. Ct. at 2074; see Exxon Corp. v.

Even were the statutes and treaties ambiguous, the Indian canon

would require rejecting Petitioner’s position. County of Yakima v.

Confederated Tribes & Bands of the Yakima Indian Nation, 502

U.S. 251, 269 (1992).

Contrary to Petitioner’s claim, Worcester did not say Georgia

could always prosecute “its own citizens.” It said States’ power

extends no farther than their territory or citizens. 31 U.S. at 542.

Worcester then held that Georgia’s law was “void,” id. at 562,

precluding its application to anyone.

Eagerton, 462 U.S. 176, 184 (1983) (Natural Gas Act

preemptive because Congress enacted it on

understanding that interstate wholesale gas sales are

“not subject to state regulation”).

Petitioner cannot gain by observing that this Court

has since “modified the[] principles” of Worcester.

Williams v. Lee, 358 U.S. at 219. Even leaving aside that

Worcester’s “basic policy … has remained,” or that this

Court has affirmed that Worcester still governs the

question here, id., this Court certainly made no

modifications before 1834. So Worcester remained “the

contemporary legal context” for the 1834 Act. Merrill

Lynch, 456 U.S. at 381.

iv. Finally, Congress and this Court understood that

criminal statutes involving Indians or Indian country

ousted prosecutions by other sovereigns, absent repeal

or express exception.

First, Oliphant held that because the GCA did not

exclude crimes by non-Indians against Indians, the GCA

implicitly precluded tribal-court jurisdiction. 435 U.S. at

203.

Nineteenth-century Congresses, Oliphant

explained, “consistently believed this to be the

necessary result of its repeated legislative actions.” Id.

at 204.

Second, McBratney held that Colorado had

jurisdiction over non-Indian/non-Indian crimes in Indian

country only because “prior statute[s]” vesting

jurisdiction in the federal government—including the

GCA—had been impliedly “repeal[ed].” 104 U.S. at 62122; supra 6.

Third, John explained that Congress enacted the

MCA on the same understanding. An early draft would

have extended federal jurisdiction beyond reservations

to crimes by Indians in States. 437 U.S. at 651 n.22. But

Congress understood that this expansion, if adopted,

would “tak[e] away from State courts, whether there be

a reservation … or not” jurisdiction over the listed

crimes when committed by an Indian. Id. So Congress

narrowed the MCA to apply only on reservations. Id.

These decisions accorded with broadly shared 19thcentury views. States and the federal government of

course struggled over jurisdiction in Indian country

(with some States continuing “defiance” even after

Worcester). Williams v. Lee, 358 U.S. at 219. They

struggled, however, from a common all-or-nothing

understanding: If lawful federal statutes or treaties

addressed a subject, they controlled absolutely. That

was the theory of not just McBratney and the MCA but

myriad lower-court decisions that were nearcontemporaneous with the 1834 Act. E.g., State v.

Foreman, 16 Tenn. 256, 324, 331 (1835) (“I know of no

half-way doctrine …. We either have an exclusive

jurisdiction … or we have no jurisdiction.”); see Caldwell

v. State, 1 Stew. & P. 327, 418 (Ala. 1832) (similar).

That includes United States v. Cisna, 25 F. Cas. 422

(C.C.D. Ohio 1835), which Petitioner cites. Justice

McLean believed Ohio could exercise jurisdiction

because federal trade and intercourse statutes had been

“rendered inoperative” by “nonenforcement.” Id. at 42425. And he believed States could punish their “own

citizens” because (in his view) the Constitution “limited”

federal “power … to the mere purposes of trade.” Id. at

425. Many aspects of Justice McLean’s idiosyncratic

views render him an unreliable guide, including his

separate opinion in Worcester, 31 U.S. at 563; his limited

view of federal criminal authority, see United States v.

Bailey, 24 F. Cas. 937, 940 (C.C.D. Tenn. 1834); and his

approval of New York’s “exten[sion of] jurisdiction in

criminal cases … over … Indians,” Cisna, 25 F. Cas. at

425. But in regarding federal jurisdiction as all-ornothing, he was typical.17

In this context, it is anachronistic for Petitioner to

demand from the 1834 Act an even clearer statement of

preemption. The 1834 Congress applied to Indian

country the laws governing areas of “sole and exclusive”

federal jurisdiction; treated Indian country as entirely

outside state jurisdiction; and understood that laws like

the 1834 Act displaced state jurisdiction. To complain

that the 1834 Act did not expressly say “the GCA

preempts state law,” Br. 24-25, is to fault Congress for

not including text it would have regarded as surplusage.

Congress’s 19th-century understanding accords with

today’s preemption principles. Where the “federal

government, in the exercise of its superior authority …,

has enacted a complete scheme” to address issues of

paramount federal concern, States cannot “conflict or

interfere with, curtail or complement, the federal law, or

The Attorney General opinion Petitioner cites, Br. 18, contains

just one offhand remark and focuses on Choctaw courts’

jurisdiction. 7 Op. Atty. Gen. 174, 175 (1855).

enforce additional or auxiliary regulations.” Hines, 312

U.S. at 66-67. That is what Congress did here, where its

“various actions and inactions”—culminating in the 1834

Act—“demonstrated an intent to reserve [criminal]

jurisdiction over non-Indians for the federal courts.”

Oliphant, 435 U.S. at 204.

To recap: Congress by statute and treaty provided

that the federal government—and only the federal

government—would protect Indians from crime. Supra

33-38. Congress created a comprehensive scheme that

set

particular

punishments

and

established

compensation mechanisms. Supra 33-35. And when

Congress wished to leave space for other sovereigns, it

made express exceptions. Supra 16-17. But Congress

made no exception for state prosecutions and instead

applied to Indian country laws governing areas of “sole

and exclusive” federal jurisdiction.

Congress declined to make such an exception

because it did not agree with Petitioner’s claim that

state jurisdiction furthers federal and tribal interests.

Br. 41-44. That claim is wrong today, infra Part III, and

certainly did not accord with the understanding of 19thcentury Congresses that viewed States as often Indians’

“deadliest enemies.” Kagama, 118 U.S. at 384. Instead,

19th-century Congresses understood that Indians were

“wards of the nation”—the federal government—and

the federal government was alone responsible for

punishing “crimes committed by white men against the

persons or property of the Indian tribes while occupying

reservations set apart for the very purpose of

segregating them from” non-Indians. Donnelly, 228

U.S. at 272.

Indeed, had States’ jurisdiction extended to such

crimes, there was every reason to fear States could

thwart federal policy. Congress doubted States would

execute their own citizens for murdering Indians, as

federal law required. 4 Annals of Cong. 1254 (1795).

Congress also had cause to question whether state

prosecutions imposing lesser punishments might bar

retrial (given that early 19th-century “courts were

divided” on the dual-sovereignty doctrine, Gamble v.

United States, 139 S. Ct. 1960, 1976 (2019)). And even if

state prosecutions were not formally preclusive,

Congress might fear that overlapping prosecutions

could undermine accountability and yield confusion that

could interfere with closure on war-and-peace issues.

Cf. Treaty with Cherokee, art. IX, Oct. 2, 1798, 7 Stat.

62.

That is just the start. Many States had antimiscegenation laws, which they could enforce against

non-Indians for the “crime” of marrying Indians. James

Thomas Tucker et al., Voting Rights in Arizona: 19822006, 17 S. Cal. Rev. L. & Soc. Just. 283, 283 & n.3 (2008).

Many States also opposed federal policy promoting

“civilization and improvement of the Indians”—which

they could frustrate by prosecuting non-Indian

missionaries, teachers, and others based on “crimes”

against Indians.

Gregory Ablavsky, The Savage

Constitution, 63 Duke L.J. 999, 1018-38 (2014); cf.

Worcester, 31 U.S. at 538. Congress had no need to

address those concerns precisely because it understood

States to lack jurisdiction.

Petitioner builds its position on (1) McBratney and

Draper, and (2) civil cases. Neither helps it.

McBratney and Draper confirm States could not

exercise the power Petitioner claims. Those decisions

held that States have exclusive jurisdiction to prosecute

non-Indian/non-Indian crimes—reading statehood to

“necessarily repeal[]” any “prior statute, or … treaty”

creating federal jurisdiction. McBratney, 104 U.S. at

621, 623; Draper, 164 U.S. at 244. Both decisions

emphasized that they did not address crimes “by or

against Indians.” McBratney, 104 U.S. at 624; see

Draper, 164 U.S. at 247. Still, Petitioner says “their

reasoning” supports its position. Br. 12.

They do the opposite. First, this Court has rejected

the extension Petitioner seeks. Donnelly held “[u]pon

[f]ull consideration” that “offenses committed by or

against Indians are not within the principle of …

McBratney and Draper.” Donnelly, 228 U.S. at 271.

And it did so precisely because crimes against Indians—

“wards of the nation”—differ from crimes against nonIndians. Id. at 272; see United States v. Sutton, 215 U.S.

291, 295 (1909) (McBratney/Draper not applicable to

“any other jurisdiction than that named in” those

decisions).

Second, McBratney and Draper’s reasoning cannot

be squared with Petitioner’s position. As Donnelly

explains, their theory is that statehood acts (1) impliedly

“withdr[e]w[] [federal] control of” non-Indian/non-

Indian offenses (including under the GCA); and (2)

simultaneously “conferr[ed] upon the states” that same

jurisdiction. Donnelly, 228 U.S. at 271. And under that

theory, Donnelly’s

holding—that

the federal

government has jurisdiction—means States do not.

That is why Williams so easily concluded that

federal jurisdiction here is exclusive. Williams treated

that proposition as self-evident because, under

McBratney, Draper, and Donnelly, it is. By contrast,

Petitioner’s concurrent-jurisdiction theory cannot be

squared with these decisions. Accord United States v.

Pelican, 232 U.S. 442, 451 (1914) (upholding federal

conviction of non-Indian for murdering Indian allottee

based on provision affirming federal government’s

“exclusive jurisdiction” over allottees).18

Indeed, Petitioner cannot avail itself of the novel

concurrent jurisdiction it seeks to create. Oklahoma’s

enabling act disclaims jurisdiction over Indian lands and

provides that they “remain subject to [federal]

jurisdiction, disposal, and control.” Okla. Const. art. I,

§3. Consistent with McBratney, Draper, and Donnelly,

Petitioner argues that Donnelly rejected only the argument that

States had “undivided authority.” Br. 26. It did so, however, by

holding that McBratney’s “principle” does not apply to cases like

this. Given Donnelly, Petitioner also gets no help from 1902

legislative history cited in Williams suggesting that, before

Donnelly, some regarded McBratney’s reach as unclear. Br. 28

(citing Williams, 327 U.S. at 714 n.10). And contra Petitioner, this

committee report did not say that, even before Donnelly, state

courts prosecuted crimes by non-Indians against Indians; it said

that in South Dakota, offenses by non-Indians “go unpunished,”

including offenses “upon an … other [non-Indian] person.” H.R.

Rep. No. 57-2704 at 1-2 (1902).

Oklahoma courts construe this disclaimer to permit only

exclusive state jurisdiction or exclusive federal

jurisdiction: It “disclaim[s] jurisdiction over Indian lands

… to the extent that the federal government claim[s]

jurisdiction.” Goforth v. State, 1982 OK CR 48 ¶4.

i. Petitioner says this Court has repeatedly “upheld

the exercise of state jurisdiction over non-Indians.” Br.

22. But McBratney and Draper aside, the Court has

done so only in civil cases. And civil cases are different

because Congress has by statute treated them as

different.

Congress “has legislated, in so far as it saw fit, by

taking jurisdiction in criminal matters.” Nat’l Farmers,

471 U.S. at 855 (similar). By contrast, Congress has

largely “omit[ted] to take jurisdiction in civil matters.”

Id. So the web of criminal statutes detailed above has no

civil counterpart. In particular, Congress never enacted

statutes applying to Indian country civil laws governing

areas of “sole and exclusive” federal jurisdiction.

Instead, Congress has largely left civil rules to this

Court. Id.; see Cohen’s §6.03 (“Congress has provided a

nearly comprehensive set of statutes allocating criminal

jurisdiction in Indian country. In contrast, Congress has

rarely been specific about the allocation of civil

jurisdiction.”).

This Court thus rejected the mirror image of

Petitioner’s argument when Tribes made it. Tribes

observed that “[t]ribal courts … resolve civil disputes

involving nonmembers, including non-Indians.” Duro,

495 U.S. at 687. And Tribes invited this Court to

conclude that Tribes therefore may invoke “retained

tribal powers” to prosecute non-members. Id. This

Court, however, declined to conflate civil and criminal

jurisdiction—precisely because the “development of

principles governing civil jurisdiction in Indian country

has been markedly different from the development of

rules dealing with criminal jurisdiction.” Id. at 687-88;

accord Nat’l Farmers, 471 U.S. at 854.

That same point renders irrelevant Petitioner’s

miscellaneous civil cases, including cases concerning

“interactions between non-Indians and Indians.” Br. 36.

Two of them concerned taxes on non-Indians. Dep’t of

Tax’n & Fin. of N.Y. v. Milhelm Attea & Brothers, Inc.,

512 U.S. 61, 73-75 (1994); Okla. Tax Comm’n v. Citizen

Band Potawatomi Indian Tribe of Okla., 498 U.S. 505,

512 (1991). Three Affiliated Tribes concerned statecourt civil suits where Indians voluntarily appear as

plaintiffs. Such suits starkly differ from criminal cases—

where States seek to vindicate “the sovereignty of the

government,” Br. 43 (quoting Heath v. Alabama, 474

U.S. 82, 88 (1985)), and which impose a far “more direct

intrusion” into reservations, Duro, 495 U.S. at 677.

Finally, New York ex rel. Cutler v. Dibble, 62 U.S. (21

How.) 366 (1858), merely authorized state courts to use

summary procedures to exclude non-Indian trespassers.

Such boundary-policing ejections are nothing like fullblown prosecutions. Tribes, for example, may “exclude”

non-Indians even though Tribes generally “do not …

possess authority over non-Indians.” Plains Com. Bank

v. Long Fam. Land & Cattle Co., 554 U.S. 316, 328

(2008).

ii. Petitioner’s civil cases are also irrelevant because

the rules governing criminal lawmaking differ. This

Court has some leeway to adjust civil jurisdictional

rules, subject to stare decisis and Congress’s statutes

and treaties. Williams v. Lee, 358 U.S. at 220. Indeed,

Petitioner characterizes its civil cases as “depart[ing]”

from Worcester. Br. 18 (quoting Hicks, 533 U.S. at 361).

But the Court has no similar freedom to expand criminal

liability in common-law fashion. “Only the people’s

elected representatives” can “‘make an act a crime.’”

Davis, 139 S. Ct. at 2325. To keep faith with that

principle, the Court must reject Petitioner’s request to

impose new liability on non-Indians across 26 States.19

It does not help Petitioner that United States v.

Cooley, 141 S. Ct. 1638 (2021), applied the Montana

framework to hold that tribal police have “authority to

detain temporarily and to search a non-Indian on a public

right-of-way.” Id. at 1641. First, Cooley did not expand

criminal jurisdiction; it reversed a Ninth Circuit decision

limiting law-enforcement powers Tribes long exercised

and this Court had approved. Id. at 1644. Second,

Cooley concerned temporary stops, not prosecution and

punishment. Id.

iii. Context shows why Petitioner gets no help from

County of Yakima’s statement that “‘absent a

congressional prohibition,’ a State has the right to

McBratney is not to the contrary. McBratney rested its holding

on a state enabling act, and Congress had not yet authorized largescale non-Indian populations in Indian country (which Congress

only did six years later). Dawes Act of 1887, Pub.L. No. 49-105, 24

Stat. 388. It would be very different to expand state jurisdiction

109 years after Donnelly held that McBratney does not apply here.

‘exercise criminal (and, implicitly, civil) jurisdiction over

non-Indians.’” Br. 23. For that proposition, County of

Yakima cited New York ex rel. Ray v. Martin, 326 U.S.

496 (1946). Martin was a McBratney/Draper-type case

about non-Indian/non-Indian crime. As to the question

here, this Court continues to affirm that “States lack

jurisdiction over crimes committed in Indian country

against Indian victims.” Bryant, 579 U.S. at 146.

A. Bracker balancing should not apply. First,

Bracker applies only “[a]bsent governing acts of

Congress.” Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9,

14 (1987). Here, statutes and treaties govern.

Second, this Court has never applied Bracker to

criminal jurisdiction and should not start. Multi-factor

balancing is no way to expand criminal liability. Supra

48; see Hydro Res., Inc. v. U.S. EPA, 608 F.3d 1131, 1160

(10th Cir. 2010) (en banc) (Gorsuch, J.). And expanding

Bracker would yield a morass: It calls for a “flexible preemption analysis sensitive to the particular facts and

legislation.” Cotton Petroleum Corp. v. New Mexico, 490

U.S. 163, 176 (1989). That balancing could mean results

that differ based on particular state criminal statutes

and individual facts. Id.

B. Regardless, Bracker underscores why Petitioner

is wrong. Bracker looks to “interests reflected in federal

law,” and “[s]tate jurisdiction is preempted … if it

interferes or is incompatible with federal and tribal

interests …, unless the State interests at stake are

sufficient to justify the assertion of State authority.”

Mescalero Apache, 462 U.S. at 334.

States have no cognizable interest in the

jurisdiction Petitioner asserts. Congress created a

procedure for States to obtain this jurisdiction, and all

26 States lacking it made choices not to obtain it. Indeed,

States have an interest in avoiding having “the burdens

accompanying such power” thrust upon them. Williams

v. Lee, 358 U.S. at 222-23. Prosecutors in (say) rural

Nevada won’t be able to just ignore cases within the

jurisdiction Petitioner would impose. They will have to

expend limited resources.

Prosecutors have long

criticized Public Law 280 as an unfunded mandate—and

Petitioner would burden dozens more States. Supra 10.

2. The jurisdiction Petitioner asserts also interferes

with “federal and tribal interests reflected in federal

law.” Mescalero Apache, 462 U.S. at 334. Tribes have

overpowering interests in the protection of tribal

citizens. E.g., Cooley, 141 S. Ct. at 1643; 25 U.S.C. §2801

note (a)(2)(B). Federal law, in turn, vests in Congress

responsibility for determining how best to protect tribal

citizens, consistent with the federal government’s treaty

promises to serve as Tribes’ sole protector. United

States v. Jicarilla Apache Nation, 564 U.S. 162, 173-74

(2011).

Those interests may not be inherently

incompatible with expanding state jurisdiction (as

evident from statutes authorizing such jurisdiction).

But they are incompatible with States unilaterally

doing so.

Here, Petitioner’s unilateral expansion will

undermine tribal sovereignty. When States prosecute

crimes against Indians, they project sovereign power

into the heart of tribal communities. Even the nonIndian defendants in cases like this are often deeply

embedded in tribal communities, as spouses, partners,

parents, and the like. Petitioner thus badly misses the

point when it says Tribes have no interest because they

generally lack “authority to prosecute non-Indians.” Br.

42. Tribes have weighty interests in how those

prosecutions occur.

Unilateral expansions of state jurisdiction will also

undermine law enforcement. No one has a stronger

interest in protecting tribal citizens than Tribes. And

Tribes do not believe state jurisdiction is the answer.

Tribes see that “States have not devoted their limited

criminal justice resources to crimes committed in Indian

country.” Bryant, 579 U.S. at 146. Likewise, Tribes

know that adding concurrent state jurisdiction often

exacerbates law-enforcement challenges. As Congress’s

Indian Law and Order Commission explained, an “oftused justification … is that the overlay of Federal and

State law will make Indian country safer.” Roadmap 3.

But “in practice, the opposite has occurred,” which

“contributes to … an institutionalized public safety

crisis.” Id. That is because inserting States into wellestablished systems hinders accountability and

proliferates confusion.

“[E]ach … component[]”

becomes “uncertain as to the extent of its authority.”

Doris Meissner, Report of the Task Force on Indian

Matters, U.S. Dep’t of Justice, at 54 (1975); accord

Cohen’s §6.03(2)(c).

When state jurisdiction expands, moreover, the

federal government often reduces its commitment. In

Kansas, a study found no “reported federal cases … and

the authors [we]re unaware of a single federal charge

being brought in the last decade.” John J. Francis, et al.,

Reassessing

Concurrent

Tribal-State-Federal

Jurisdiction in Kansas, 59 U. Kan. L. Rev. 949, 985

(2011). The federal government also reduces funding for

Indian-country law enforcement in Public Law 280

states (including where jurisdiction is concurrent).20

Concurrent jurisdiction can also create opportunities

for mischief. It may result in sentences that are

unequally lenient. That is because federal sentences are

typically harsher than state sentences21 and under

Petitioner’s rule, non-Indians—but not Indians—may be

prosecuted in state court. Where that is so, non-Indians

are “likelier to end up in state courts” because federal

prosecutors leave non-Indians to States but cannot do so

for Indians. Emily Tredeau, Tribal Control in Federal

Sentencing, 99 Calif. L. Rev. 1409, 1413 (2011).

Concurrent jurisdiction can also yield sentences that

are too harsh. More prosecution is not always better.

And the federal government, as Indians’ trustee and

guardian, may decide a lower sentence best vindicates

the interests of the victim and the community. E.g.,

Dep’t of Justice, Justice Manual §9-27.420(12) & cmt.

Roadmap 69; Los Coyotes Band of Cuahilla & Cupeno Indians v.

Jewell, 729 F.3d 1025, 1031 (9th Cir. 2013).

Contrary to Petitioner’s suggestion, federal defendants generally

serve longer sentences. Bureau of Justice Stats., Felony Sentences

in State Courts, 2006—Statistical Tables 9 tbl.1.6 (Dec. 2009).

While some Oklahoma sentences are longer on paper, defendants

are parole-eligible after serving just 25% or 33%. Okla. Stat. Ann.

tit. 57 §332.7(B)-(C).

(Feb. 2018). Under Petitioner’s rule, States can thwart

that choice.

The Court need not take Respondent’s word for it:

Congress since 1968 has recognized that state

jurisdiction is no panacea. And Tribes and the federal

government have strong interests in addressing lawenforcement issues via the mechanisms Congress has

favored instead—which are more effective and more

respectful of tribal sovereignty. In 2013 and in March

2022, Congress expanded Tribes’ jurisdiction to

prosecute non-Indians. Supra 9. Via TLOA, Congress

increased the federal government’s resources and

accountability for carrying out its responsibilities. Id.

Petitioner suggests a different approach should

prevail “in Oklahoma” “in light of … McGirt.” Br. 45.

But those arguments are irrelevant to the nationwide

rule Petitioner urges and, regardless, do not belong in

this Court. Just as Kansas in 1940 obtained a statute to

bless its Indian-country prosecutions, Petitioner under

our separation of powers must direct its request to

Congress (such as via the legislation already before

Congress).

The judgment below should be affirmed.

Respectfully submitted,

NICOLLETTE BRANDT

CHAD JOHNSON

OKLAHOMA INDIGENT

DEFENSE SYSTEM

P.O. Box 926

Norman, Oklahoma 73070

(405) 801-2727

DAVID A. STRAUSS

SARAH M. KONSKY

JENNER & BLOCK

SUPREME COURT AND

APPELLATE CLINIC AT

THE UNIVERSITY OF

CHICAGO LAW SCHOOL

1111 E. 60th St.

Chicago, IL 60637

ZACHARY C. SCHAUF

Counsel of Record

MATTHEW S. HELLMAN

LEONARD R. POWELL

ALLISON M. TJEMSLAND

VICTORIA HALL-PALERM

KELSEY L. STIMPLE

KEVIN J. KENNEDY

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

zschauf@jenner.com

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.