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

No. 21-429

IN THE

Supreme Court of the United States

____________________

OKLAHOMA,

Petitioner,

v.

VICTOR MANUEL CASTRO-HUERTA,

Respondent.

____________________

On Writ of Certiorari to the

Court of Criminal Appeals of Oklahoma

____________________

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

____________________

MICHAEL R. DREEBEN

Counsel of Record

ELENA ZARABOZO

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20036

YERS

(202) 383-5300

1201 Speedway Blvd.

mdreeben@omm.com

Tucson, AZ 85721

bbergman@email.ariBRANTON NESTOR

zona.edu

O’MELVENY & MYERS LLP

610 Newport Center Drive

MELISSA C. CASSEL

O’MELVENY & MYERS LLP 17th Floor

Two Embarcadero Center Newport Beach, CA 92660

28th Floor

San Francisco, CA 94111 BRUCE PETTIG

O’MELVENY & MYERS LLP

7 Times Square

New York, NY 10036

BARBARA E. BERGMAN

Co-Chair, Amicus Curiae

Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAW-

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE .......................... 1

SUMMARY OF ARGUMENT................................... 2

ARGUMENT ............................................................. 4

I.

STATES DO NOT HAVE

JURISDICTION OVER CRIMES

INVOLVING INDIANS IN

INDIAN COUNTRY UNLESS

CONGRESS CLEARLY SAYS

OTHERWISE ....................................... 4

II.

FEDERAL CRIMINAL LAW

PRINCIPLES REINFORCE THE

HEIGHTENED NEED FOR

CONGRESS TO SPEAK

CLEARLY TO AUTHORIZE

STATE PROSECUTION ..................... 6

A.

Criminal Liability’s

Distinct Characteristics

Confirm Why Congress

Must Speak Clearly To

Broaden Oklahoma’s

Prosecutorial Authority ............ 6

B.

Separation Of Powers

Principles Underscore

Why Congress Must Speak

Clearly In Order To Alter

Criminal Jurisdiction

Within Indian Country ........... 10

C.

These Principles Make The

Extension Of McBratney

And Bracker Particularly

Inappropriate In This

Context .................................... 16

CONCLUSION ........................................................ 19

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Blackfeather v. United States,

190 U.S. 368 (1903) ............................................. 13

Bouie v. City of Columbia,

378 U.S. 347 (1964) ............................................... 8

Boumediene v. Bush,

553 U.S. 723 (2008) ............................................. 11

Breed v. Jones,

421 U.S. 519 (1975) ............................................... 7

Bryan v. Itasca County,

426 U.S. 373 (1976) ......................................... 5, 15

County of Oneida v. Oneida Indian Nation,

470 U.S. 226 (1985) ............................................... 5

Crandon v. United States,

494 U.S. 152 (1990) ............................................... 9

Donnelly v. United States,

228 U.S. 243 (1913) ............................................. 17

Draper v. United States,

164 U.S. 240 (1896) ............................................. 16

Duro v. Reina,

495 U.S. 676 (1990) ............................................... 7

Ex parte Crow Dog,

109 U.S. 556 (1883) ............................................. 14

Gamble v. United States,

139 S. Ct. 1960 (2019)........................................... 8

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Heath v. Alabama,

474 U.S. 82 (1985) ................................................. 8

Hernandez v. Mesa,

140 S. Ct. 735 (2020)........................................... 16

Iowa Mut. Ins. Co. v. LaPlante,

480 U.S. 9 (1987) ........................................... 13, 14

Jones v. United States,

529 U.S. 848 (2000) ............................................... 9

Kennerly v. District Court of Montana,

400 U.S. 423 (1971) ............................................. 15

McClanahan v. Arizona State Tax Comm'n,

411 U.S. 164 (1973) ............................................. 15

McGirt v. Oklahoma,

140 S. Ct. 2452 (2020)..................................... 2, 14

Mistretta v. United States,

488 U.S. 361 (1989) ............................................. 11

Negonsott v. Samuels,

507 U.S. 99 (1993) ................................... 12, 14, 15

Oliphant v. Suquamish Indian Tribe,

435 U.S. 191 (1978) ....................................... 13, 16

Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978) ............................................... 13

United States v. Bass,

404 U.S. 336 (1971) ........................................... 7, 9

United States v. Cooley,

141 S. Ct. 1638 (2021)......................................... 12

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Davis,

139 S. Ct. 2319 (2019)..................................... 9, 11

United States v. Hudson,

11 U.S. (7 Cranch) 32 (1812) .............................. 11

United States v. Lanier,

520 U.S. 259 (1997) ......................................... 8, 11

United States v. Lara,

541 U.S. 193 (2004) ............................................. 12

United States v. Mazurie,

419 U.S. 544 (1975) ............................................. 12

United States v. McBratney,

104 U.S. 621 (1882) ............................... 3, 5, 16, 17

United States v. Pelican,

232 U.S. 442 (1914) ............................................. 14

United States v. Ramsey,

271 U.S. 467 (1926) ....................................... 14, 15

United States v. U.S. Gypsum Co.,

438 U.S. 422 (1978) ............................................... 9

United States v. Wheeler,

435 U.S. 313 (1978) ............................................... 8

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) .............................. 10

Washington v. Confederated Bands &

Tribes of the Yakima Indian Nation,

439 U.S. 463 (1979) ............................... 4, 6, 13, 15

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Whalen v. United States,

445 U.S. 684 (1980) ............................................. 11

White Mountain Apache Tribe v. Bracker,

448 U.S. 136 (1980) ............................... 3, 5, 17, 18

Williams v. Lee,

358 U.S. 217 (1959) ............................................... 5

Williams v. United States,

327 U.S. 711 (1946) ............................................... 4

Wooden v. United States,

142 S. Ct. 1063 (2022)............................... 9, 10, 11

Worcester v. Georgia,

31 U.S. 515 (1832) ................................................. 5

Constitutional Provisions

U.S. Const. Art. I, § 1 ........................................... 2, 11

Statutes

18 U.S.C. § 1152 ......................................................... 2

25 U.S.C. § 1304(b)(1) .............................................. 13

Act of Aug. 15, 1953, Pub. L. No. 83280, 67 Stat. 588 ................................................. 15

Consolidated Appropriations Act (Mar.

15, 2022) .............................................................. 13

General Allotment Act of 1887, Pub. L.

No. 49-105, § 6, 24 Stat. 388............................... 14

Kansas Act of 1940, Pub. L. No. 76-565,

54 Stat. 249 ......................................................... 15

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Treatises

Cohen’s Handbook of Federal Indian

Law § 9.03(1) ....................................................... 17

RESTATEMENT OF THE LAW OF AMERICAN

INDIANS Chap. 5 (2021) ..................................... 4, 5

Other Authorities

Federalist No. 47 (Madison) (J. Cooke

ed. 1961) .............................................................. 11

Federalist No. 51 (Madison) .................................... 11

Rachel E. Barkow, Separation of Powers

and the Criminal Law, 58 Stan. L.

Rev. 989 (2006) ..................................................... 6

1

INTEREST OF AMICUS CURIAE1

The National Association of Criminal Defense

Lawyers is a nonprofit voluntary professional bar association that works on behalf of criminal defense attorneys to ensure justice and due process for those accused of crime or misconduct. NACDL was founded

in 1958. It has a nationwide membership of many

thousands of direct members, and up to 40,000 affiliates. NACDL’s members include private criminal defense lawyers, public defenders, military defense

counsel, law professors, and judges. NACDL is the

only nationwide professional bar association for public defenders and private criminal defense lawyers.

NACDL is dedicated to advancing the proper, efficient, and just administration of justice. NACDL files

numerous amicus briefs each year in this Court, and

other federal and state courts, seeking to provide amicus assistance in cases that present issues of broad

importance to criminal defendants, criminal defense

lawyers, and the criminal justice system as a whole.

Accordingly, NACDL is keenly interested in ensuring

that both Indian and non-Indian criminal defendants

are afforded all of the rights and protections to which

they are entitled—including protection from prosecution by States that lack criminal jurisdiction over

crimes by non-Indians against Indians in Indian

country.

1 No counsel for a party authored this brief in whole or in part,

and no entity or person, other than amicus curiae and its counsel, made a monetary contribution intended to fund the preparation or submission of this brief. All parties have consented to the

filing of this brief.

2

SUMMARY OF ARGUMENT

Oklahoma asserts authority to prosecute crimes

committed by non-Indians against Indians in Indian

country concurrently with the federal government’s

authority under the General Crimes Act, 18 U.S.C.

§ 1152. (“GCA”). Pet. Br. 2-3. That post-McGirt v.

Oklahoma, 140 S. Ct. 2452, 2463 (2020), power grab

contradicts a century of history, precedent, and policy

that allocates to the federal government and the

tribes exclusive jurisdiction—to the exclusion of the

States—over Indian country crimes involving Indians

absent clear congressional authorization to the contrary. Respondent and his amici demonstrate those

points. This brief shows that basic principles of criminal liability rooted in the separation of powers, due

process, and traditional restraint in construing criminal laws corroborate that conclusion.

A foundational principle of our system of government is that the boundaries of criminal law must be

clearly defined by legislatures, not courts. Constitutional considerations support this longstanding rule.

All “legislative Powers,” including the power to define

crimes, is vested in Congress. U.S. Const. Art. I, § 1.

Due process requires that the law give fair warning of

the conduct proscribed and punishment meted out—

warning that demands clear enactments of Congress.

And the serious implications of criminal conviction for

liberty and the definition of social norms require that

every prosecution must be firmly rooted in the unambiguous pronouncements of the legislature. No other

approach can adequately protect the life and liberty

of presumptively innocent criminal defendants.

3

Oklahoma seeks to circumvent the legislative process, requesting that this Court grant to it a vast expansion of criminal jurisdiction in Indian country

never authorized by Congress. As respondent and

other amici explain, States do not possess inherent jurisdiction over crimes involving Indians in Indian

country. Only Congress, which has plenary and exclusive authority to regulate Indian affairs and to

safeguard Indian interests, can confer such jurisdiction on Oklahoma. Yet, despite having actively adjusted the roles of federal, state, and tribal authorities

in enforcing criminal law in Indian country for more

than a century, Congress has never granted Oklahoma the authority it seeks here. The absence of clear

congressional authorization ends this case.

Oklahoma’s contention that United States v.

McBratney, 104 U.S. 621 (1882), effectively establishes its jurisdiction is misplaced. As Oklahoma concedes, McBratney recognized state jurisdiction over

crimes in which neither perpetrator nor victim is Indian. This case is critically different because the alleged offense was committed against an Indian victim.

It is for Congress, not the common law, to decide

whether state jurisdiction should be extended to

crimes in Indian country involving Indians. Similarly

inapt is Oklahoma’s reliance on White Mountain

Apache Tribe v. Bracker, 448 U.S. 136 (1980), which

established a balancing test for application of state

civil law in Indian country. The same separation-ofpowers and due process principles that require Congress to speak clearly in defining the boundaries of

criminal law preclude Bracker’s application here. The

limits of criminal jurisdiction cannot be determined

by judicial balancing tests.

4

For all the foregoing reasons, the judgment of the

Oklahoma Court of Criminal Appeals should be affirmed.

ARGUMENT

I.

STATES DO NOT HAVE JURISDICTION OVER

CRIMES INVOLVING INDIANS IN INDIAN COUNTRY UNLESS CONGRESS CLEARLY SAYS OTHERWISE

A longstanding principle of Indian law holds that

a State lacks jurisdiction over crimes involving Indians in Indian country unless Congress clearly says

otherwise. See, e.g., Williams v. United States, 327

U.S. 711, 714 (1946) (“[T]he United States, rather

than … [the State], ha[s] jurisdiction over offenses

committed” in Indian country “by one who is not an

Indian against one who is.”); Washington v. Confederated Bands & Tribes of the Yakima Indian Nation,

439 U.S. 463, 470-71 (1979) (“[C]riminal offenses by

or against Indians have been subject only to federal

or tribal laws, except where Congress … has expressly

provided that State laws shall apply.” (citations and

internal quotation marks omitted)); see also RESTATEMENT OF THE LAW OF AMERICAN INDIANS Chap. 5

(2021).2

2 The RESTATEMENT explains that:

Absent express authorization by federal legislation, the

criminal jurisdiction of states over crimes committed in

Indian country is preempted by federal law, excepting:

(a) non-Indian crimes with non-Indian victims;

and

(b) victimless crimes committed by non-Indians.

5

This principle of federal primacy stems from Congress’s “plenary and exclusive” role in Indian affairs.

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

Williams v. Lee, 358 U.S. 217, 220 (1959); County of

Oneida v. Oneida Indian Nation, 470 U.S. 226, 23435 & n.4 (1985); see generally Worcester v. Georgia, 31

U.S. 515, 561 (1832). This Court’s cases, lower court

decisions, and statutory provisions uniformly reflect

the principle that States may not assume jurisdiction

over crimes involving Indians in Indian country without congressional authorization. See Resp. Br. at 510, 13-43; see generally Amicus Br. of Federal Indian

Law Scholars and Historians. Only in limited and

distinguishable contexts has this Court recognized

state authority in Indian country absent an explicit

congressional grant. See United States v. McBratney,

104 U.S. 621 (1882) (permitting state criminal jurisdiction over crimes by non-Indians against non-Indians in Indian country); White Mountain Apache Tribe

v. Bracker, 448 U.S. 136 (1980) (opening the door to

state civil jurisdiction in limited contexts); section

II.C., infra. That is because a bedrock understanding

is that state jurisdiction over crimes involving Indians in Indian country may be conferred only by Congress. See, e.g., Resp. Br. 44-53.

Id. § 71. The commentary reinforces this rule: “In the criminaljurisdiction context, federal statutes have preempted most aspects of state criminal jurisdiction in Indian country since 1790,

though the federal government can reauthorize states to assert

jurisdiction.” Id. cmt. a. “Except to the extent that Congress has

provided otherwise, the Indian Country Crimes Act [18 U.S.C. §

1152] preempts state criminal jurisdiction over offenses committed by a non-Indian against an Indian in Indian country.” Id.

cmt. d.

6

Petitioner’s reliance on the ordinary police powers

of States over conduct in their territory, see Pet. Br.

15-23, is of no help: relations with Indians in Indian

country are different. Except where Congress has

“expressly provided” that a State has jurisdiction,

“criminal offenses by or against Indians are subject

only to federal or tribal laws.” Yakima Indian Nation,

439 U.S. at 470-71.

II. FEDERAL CRIMINAL LAW PRINCIPLES REINFORCE THE HEIGHTENED NEED FOR CONGRESS

TO SPEAK CLEARLY TO AUTHORIZE STATE PROSECUTION

Deeply rooted principles of criminal law and separation of powers confirm that only the clear directive

of Congress can authorize the jurisdiction that Oklahoma seeks to exercise over crimes against Indians in

Indian country.

A. Criminal Liability’s Distinct Characteristics Confirm Why Congress Must Speak Clearly To

Broaden Oklahoma’s Prosecutorial Authority

The authority to define criminal law must be exercised with clarity by legislatures, not by courts exercising common law powers. Petitioner’s inversion of

this principle and invitation to the Court to extend

state power over Indian country crimes involving Indians without congressional consent runs counter to

those principles.

1. Democratic principles justify a clear-statement

rule for all extensions of criminal authority. Criminal

prosecution and punishment represents the apex of

governmental power over an individual. Criminal

prosecution is “the means by which the [S]tate assumes the power to remove liberty and even life.” Ra-

7

chel E. Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 995 (2006). The criminal process involves a “direct intrusion on personal

liberties.” Duro v. Reina, 495 U.S. 676, 688 (1990).

Not only does the State assert, and through conviction

acquire, the power to deprive an individual of freedom,

but the criminal law has the power to impose a lifelong “stigma” of social opprobrium. Breed v. Jones,

421 U.S. 519, 530 (1975). These dramatic consequences necessitate heightened protections against

arbitrary action.

In our form of government, the decision about

whether a government may impose these consequences must flow from the people’s representatives—not the executive or the courts. Prosecutors

decide to bring charges and courts and juries adjudicate them. But the legal authority to impose the criminal process must come from legislatures. See United

States v. Bass, 404 U.S. 336, 348 (1971) (“[B]ecause of

the seriousness of criminal penalties,” “legislatures

and not courts should define criminal activity.”). And

the same principles explain why Congress must speak

clearly to empower states to exercise jurisdiction over

crimes involving Indians in Indian country. The intrusion on personal liberty by exposure to the criminal process of separate sovereigns demands that Congress speak clearly to authorize that result.

2. Fundamental principles of notice protected by

due process further underscore Congress’s obligation

to speak clearly to alter the balance of prosecutorial

power over Indian country crimes. Due process principles dictate that only through clear legislative pronouncements may the federal-state-tribal division of

prosecutorial power in Indian country be altered. Any

8

other approach would deprive individuals in Indian

country interacting with Indians of the notice to

which they are constitutionally entitled before they

are subject to state criminal law.

This Court has long held that people should not

“be held criminally responsible for conduct” that they

“could not reasonably understand to be proscribed.”

United States v. Lanier, 520 U.S. 259, 265 (1997) (quotation omitted); see Bouie v. City of Columbia, 378 U.S.

347, 350-51 (1964) (“The basic principle that a criminal statute must give fair warning of the conduct that

makes it a crime has often been recognized by this

Court.”). That notice principle should extend to cases

in which a different sovereign seeks to impose its laws

on an individual. “[A] crime under one sovereign’s

laws is not ‘the same offence’ as a crime under the

laws of another sovereign.” Gamble v. United States,

139 S. Ct. 1960, 1964 (2019); see Heath v. Alabama,

474 U.S. 82, 92 (1985); United States v. Wheeler, 435

U.S. 313 (1978). Fair notice that a State may apply

its law is particularly vital where, as here, an individual could potentially be exposed to the penal provisions of multiple jurisdictions with different laws,

punishments, and procedures.

Notice principles reinforce Congress’s obligation to

speak clearly here. If the Court were to act alone to

enlarge Oklahoma’s prosecutorial authority over

crimes involving Indians in Indian country, that

would severely undercut the fair warning guaranteed

by the Due Process Clause. Thousands of individuals

would suddenly be vulnerable to criminal liability nowhere authorized by federal statutes governing Indian country.

9

3. Principles of statutory construction governing

penal laws lead to the same conclusion: Oklahoma’s

claim of jurisdiction requires clear congressional authorization. This Court follows the “common-law tradition” and “general injunction” that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” United States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978) (quotation omitted).

Under that tradition, “when choice has to be made between two readings” of a criminal law, this Court requires Congress to speak “in language that is clear

and definite” before it “choose[s] the harsher alternative.” Jones v. United States, 529 U.S. 848, 858 (2000)

(quotation omitted). In other words, the rule of lenity

“teach[es] that ambiguities about the breadth of a

criminal statute should be resolved in the defendant’s

favor.” United States v. Davis, 139 S. Ct. 2319, 2333

(2019).

That interpretive canon operates to assuage “the

instinctive distaste against men languishing in prison

unless the lawmaker has clearly said they should.”

Bass, 404 U.S. at 348 (quotation omitted). It vindicates the fundamental principle that no one should be

subject to “criminal liability” without “fair warning.”

Crandon v. United States, 494 U.S. 152, 158 (1990).

And it reinforces the separation of powers: lenity

“safeguard[s]” the legislature’s “power to punish” by

“preventing judges from intentionally or inadvertently exploiting ‘doubtful’ statutory ‘expressions’ to

enforce their own sensibilities.” Wooden v. United

States, 142 S. Ct. 1063, 1083 (2022) (Gorsuch, J., concurring in judgment); see also section II.B., infra.

The rule of lenity thus “places the weight of inertia

upon the party that can best induce Congress to speak

10

more clearly,” which forces “the government to seek

any clarifying changes to the law rather than impose

the costs of ambiguity on presumptively free persons.”

Wooden, 142 S. Ct. at 1083 (Gorsuch, J., concurring).

And that keeps the power of punishment firmly “in

the legislative, not in the judicial department.”

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95

(1820).

The rule of lenity, like the other principles discussed above, requires that Congress speak clearly to

expand state jurisdiction over crimes involving Indians in Indian country. Oklahoma is hardly powerless

to request congressional action to expand its authority in the wake of McGirt. The States are well situated to present their policy arguments for expanded

authority to Congress. Thus, even if judicial reluctance to “enlarge” Oklahoma’s criminal jurisdiction in

the present context “carries its costs,” the solution is

that “the legislature’s cumbersome processes will

have to be reengaged.” Wooden, 142 S. Ct. at 1083

(Gorsuch, J., concurring). That is as it should be in a

democracy, where the boundaries of criminal punishment should be clearly delineated by law, not judicial

interpretation.

B. Separation Of Powers Principles Underscore Why

Congress Must Speak Clearly In Order To Alter

Criminal Jurisdiction Within Indian Country

Requiring that Congress speak clearly in conferring state criminal jurisdiction over crimes involving

Indians in Indian country also accords with separation-of-powers principles. Defining crime and regulating Indian country are the exclusive prerogatives

of the legislative branch, and this case lies at the intersection of those fonts of congressional power.

11

1. The allocation of “powers among three independent branches … serves not only to make Government accountable but also to secure individual liberty.” Boumediene v. Bush, 553 U.S. 723, 742 (2008).

The “Court consistently has given voice to, and has

reaffirmed, the central judgment of the Framers of

the Constitution that, within our political scheme, the

separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.” Mistretta v. United States, 488 U.S. 361, 380

(1989) (collecting cases); see id. (“No political truth is

certainly of greater intrinsic value or is stamped with

the authority of more enlightened patrons of liberty.”

(quoting Federalist No. 47, p. 324 (Madison) (J. Cooke

ed. 1961))).

This design preserves liberty because, among

other things, it vests the power to make criminal law

solely in Congress. By reserving all “legislative Powers” to Congress, U.S. Const. Art. I, § 1, the Constitution ensures that “national laws restricting liberty”

are not enacted without “the assent of the people’s

representatives and thus input from the country’s

‘many parts, interests and classes.’” Wooden, 142 S.

Ct. at 1083 (Gorsuch, J., concurring) (quoting Federalist No. 51, at 324 (Madison)); see also Davis, 139 S.

Ct. at 2325 (“Only the people’s elected representatives

in the legislature are authorized to ‘make an act a

crime.’” (quoting United States v. Hudson, 11 U.S. (7

Cranch) 32, 34 (1812))). When a “court exceeds its

own authority by imposing … punishments not authorized by Congress, it violates … the constitutional

principle of separation of powers in a manner that

trenches particularly harshly on individual liberty.”

Whalen v. United States, 445 U.S. 684, 689 (1980). In

12

sum “[f]ederal crimes are defined by Congress, not the

courts.” Lanier, 520 U.S. at 267 n.6.

Here, the same principle dictates that this Court

reject Oklahoma’s common law claim of authority to

define, prosecute, and punish crimes involving Indians in Indian country. Ordinarily, the rule requiring

Congress to define crimes applies when the federal

government itself is proscribing and punishing conduct. But here, the consequences of Oklahoma’s position—inviting judicial recognition of criminal proscriptions that Congress has not authorized—would

visit the same consequences on individuals as if the

federal courts themselves created criminal liability.

While the agency of punishment would be the State

(rather than the federal government), the courts’

usurpation of Congress’s prerogative to determine

whether criminal punishment is appropriate would be

no less.

2. Congress has an equally strong prerogative in

managing Indian affairs. “[T]he Constitution grants

Congress broad general powers to legislate in respect

to Indian tribes, powers that” this Court has “consistently described as plenary and exclusive.” United

States v. Lara, 541 U.S. 193, 200 (2004) (internal quotation marks omitted); accord United States v. Cooley,

141 S. Ct. 1638, 1643 (2021) (“In all cases, tribal authority remains subject to the plenary authority of

Congress.”); Negonsott v. Samuels, 507 U.S. 99, 103

(1993) (“Congress has plenary authority to alter these

[criminal] jurisdictional guideposts.”); United States

v. Mazurie, 419 U.S. 544, 554 n.11 (1975) (referring to

“Congress’ exclusive constitutional authority to deal

with Indian tribes.”). Subject to constitutional limits,

those powers include the authority to define which

13

sovereign has jurisdiction over Indian matters,

whether the sovereign is the federal government, see

Blackfeather v. United States, 190 U.S. 368, 372

(1903), the States, see Yakima Indian Nation, 439

U.S. at 470-71, or the tribes, see Oliphant v.

Suquamish Indian Tribe, 435 U.S. 191, 212 (1978).

And because “[t]he moral obligations of the government toward the Indians . . . are for Congress alone to

recognize, … the courts can exercise only such jurisdiction over the subject as Congress may confer upon

them.” Blackfeather, 190 U.S. at 372.

In construing statutes that govern Indian affairs,

as with those that define criminal law, this Court

looks to “clear indications of legislative intent.” Santa

Clara Pueblo v. Martinez, 436 U.S. 49, 60 (1978). Legislative clarity is particularly critical where the law at

issue threatens to “impair[]” longstanding “tribal sovereignty.” Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9,

18 (1987). As a general matter, this Court has said,

tribes lack “inherent jurisdiction” to prosecute non-Indians even when the crimes are committed in Indian

Country against Indians. See Oliphant, 435 U.S. at

212. But Congress may provide otherwise. See 25

U.S.C. § 1304(b)(1) (“recogniz[ing] and affirm[ing]”

“inherent powers of [a participating] tribe … to exercise special domestic violence criminal jurisdiction

over all persons”); see also, e.g., Consolidated Appropriations Act (Mar. 15, 2022) (recognizing Tribes’

criminal jurisdiction over non-Indians in Indian country). Thus, in considering the boundaries of state authority, strong tribal and congressional interests are

at stake. See Martinez, 436 U.S. at 60. “To justify …

a departure” from “the general policy of the govern-

14

ment towards the Indians, as declared in many statutes and treaties … requires a clear expression of the

intention of Congress.” Ex parte Crow Dog, 109 U.S.

556, 572 (1883); see also LaPlante, 480 U.S. at 18.

3. For more than a century, this Court has faithfully construed statutes defining criminal jurisdiction

in Indian country by looking to clear indications of

legislative intent—even when doing so arguably deepens the jurisdictional complexity inherent in this area

of the law. See Negonsott, 507 U.S. at 102. This case

warrants the same restraint.

In United States v. Pelican, for instance, the Court

confronted whether the federal government had jurisdiction to prosecute a non-Indian for murder of an Indian on an Indian allotment. 232 U.S. 442, 444

(1914). The question arose as a result of the Dawes

Act and subsequent legislation that enacted the nowrepudiated policy of parceling native lands “into

smaller lots owned by individual tribe members,”

McGirt, 140 S. Ct. at 2463, then extending to those

members “the laws, both civil and criminal, of the

State or Territory in which they may reside,” General

Allotment Act of 1887, Pub. L. No. 49-105, § 6, 24

Stat. 388, 390. In upholding the challenged prosecution, the Court recognized that it was thereby sanctioning “Federal jurisdiction over hundreds of allotments scattered through territory other portions of

which were open to white settlement.” Pelican, 232

U.S. at 449-50. But it found that result to be compelled because “Congress expressly so provided.” Id.

The Court reaffirmed this reasoning several years

later in United States v. Ramsey, 271 U.S. 467, 47172 (1926), when it upheld federal jurisdiction over a

non-Indian-on-Indian murder on a different type of

15

allotment. Echoing Pelican, the Court explained that

“[s]ince Congress possesses the broad power of legislating for the protection of the Indians wherever they

may be within the territory of the United States, the

question presented is not one of power but wholly one

of statutory construction.” Id. at 471.

Cases analyzing the Kansas Act and Public Law

280 evidence the same fidelity to clear congressional

design—and underscore the striking absence of clear

congressional support for petitioner’s position. See

Kansas Act of 1940, Pub. L. No. 76-565, 54 Stat. 249;

Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588.

In construing the Kansas Act, which was “the first

major grant of jurisdiction to a State over offenses involving Indians committed in Indian country,” the

Court emphasized that “Congress has plenary authority to alter these jurisdictional guideposts.” Negonsott, 507 U.S. at 103. As for Public Law 280, this

Court has so often had occasion to review the preconditions for state assumption of criminal and civil jurisdiction (which Oklahoma has never satisfied) that

it has developed a “principle that the procedural requirements of Pub.L. 280 must be strictly followed.”

Yakima Indian Nation, 439 U.S. at 484 (citing Kennerly v. District Court of Montana, 400 U.S. 423, 427

(1971); McClanahan v. Arizona State Tax Comm'n,

411 U.S. 164, 180 (1973)); cf. Bryan, 426 U.S. at 390

(rejecting assertion of state power, in civil context, on

basis that, had Congress “intended to confer upon the

States” specified powers through Public Law 280, “it

would have expressly said so”).

In sum, this Court has consistently recognized

that the boundaries of criminal jurisdiction in Indian

country must be set by clear directives of Congress.

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Where express direction is lacking, as it is here, it is

for Congress—not courts—to decide what authority

“should … be authorized to try non-Indians” for “nonIndian crime on today’s reservations.” Oliphant, 435

U.S. at 212. Oklahoma’s attempt to upend “the careful balance of interests struck by the lawmakers,”

Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020), should

be rejected.

C. These Principles Make The Extension Of McBratney And Bracker Particularly Inappropriate In

This Context

Oklahoma relies on two lines of case law—both

arising in starkly different contexts—in an attempt to

expand its jurisdiction in the absence of clear statutory support. Neither of these lines of cases helps it.

1. First, Oklahoma cites United States v. McBratney, 104 U.S. 621 (1882), and Draper v. United States,

164 U.S. 240 (1896), for the proposition that States

may “exercise criminal jurisdiction over non-Indians

in Indian country.” Pet. Br. 12. But as the State

acknowledges, the Court’s holdings in McBratney and

Draper were “limited to crimes committed against

non-Indians,” id. (emphasis added), making them inapplicable here. Oklahoma attempts to work around

this fact by suggesting that the “reasoning” of the

cases “sweeps more broadly and supports the exercise

of jurisdiction” over crimes committed by non-Indians

against Indians, too. Id. But the State overreads the

McBratney and Draper decisions. As this Court has

concluded, those decisions do not authorize jurisdiction over crimes that involve Indians.

McBratney—on which Draper relied—was rooted

in part in the belief that a crime committed by a nonIndian against a non-Indian does not affect Indians

17

and that Congress therefore would not have intended

to provide for exclusive federal jurisdiction over such

crimes when they occur in Indian country. McBratney, 104 U.S. at 621, 624 (emphasizing that both the

perpetrator and victim were non-Indians, and that

the case “present[ed] no question … as to … the protection of the Indians in their improvements”); see

also Cohen’s Handbook of Federal Indian Law

§ 9.03(1). This reasoning in no way extends to cases

involving crimes committed against Indians—which

inherently affect Indians. Indeed, in Donnelly v.

United States, 228 U.S. 243 (1913)—in a passage the

State quotes—this Court reiterated that “offenses

committed by or against Indians are not within the

principle of the McBratney and Draper cases.” Pet.

Br. 26 (citing Donnelly, 228 U.S. at 271). In light of

the federal criminal law and separation-of-powers

principles that animate Congress’s need to speak

clearly to expand criminal exposure, no good reason

exists for the Court to broaden Oklahoma’s criminal

jurisdiction by extending McBratney to a context that

does not implicate its concerns about inherent state

authority over non-Indians.

2. Second, these same animating principles make

it particularly inappropriate for the Court to extend

the Bracker test to this context. In an alternative argument to its claim of inherent territorial authority,

Oklahoma relies on White Mountain Apache Tribe v.

Bracker, 448 U.S. 136 (1980), and related cases for the

proposition that the Court has “bless[ed] state regulation of conduct by non-Indians in Indian country”

based on a judicial balancing test. Pet. Br. 14.

Bracker involved Arizona’s asserted imposition of

18

state taxes on a non-Indian contractor. Bracker determined that a “particularized inquiry into the nature of the state, federal, and tribal interests at stake”

is necessary to decide whether a State may exercise

that type of authority in Indian country. Bracker, 448

U.S. at 145. But again, Oklahoma itself acknowledges that this line of cases arises in an entirely different context—that governing civil liability. Pet. Br.

41. And, once again, the State’s attempt to import

what works in the civil context to the criminal context

falls short.

The State asserts that “there is no valid basis to

treat the criminal context differently” from the civil

context, Pet. Br. 14, but of course there is. Criminal

liability implicates unique liberty, notice, and lenity

concerns, and the extension of criminal liability is a

distinctly legislative prerogative. See sections II.A-B.,

supra. Those bedrock principles cut against importing a judicial balancing test that allows courts to define the scope of state regulatory authority in Indian

country.

Nor would applying a Bracker-like balancing test

make any sense here. In Bracker, the Court applied

the balancing test in the context of an “examin[ation

of] the language of the relevant federal treaties and

statutes.” Bracker, 448 U.S. at 144. At its core, then,

the Bracker balancing test is meant to assess Congress’s intent with respect to the bounds of federal,

tribal, and state jurisdiction. Indeed, “[t]he right of

tribal self-government is ultimately dependent on and

subject to the broad power of Congress.” Id. at 143.

But a balancing test is neither necessary nor appropriate in the criminal context, where Congress has

19

never evinced intent to confer on Oklahoma jurisdiction over crimes against Indians in Indian country.

This Court should not supply that jurisdiction by a judicial weighing of conflicting policies to ascertain the

scope of federal preemption. Rather, it should adhere

to the background principles of both Indian-country

criminal jurisdiction and criminal law itself that a

clear statement from Congress is required before a

State may assert criminal authority over crimes involving Indians in Indian country.

CONCLUSION

For the foregoing reasons, the Court should adhere

to the longstanding rule that only the clear pronouncement of Congress may expand the reach of

criminal law. Because Congress has never authorized

the jurisdiction Oklahoma seeks, the judgment of the

Oklahoma Court of Criminal Appeals should be affirmed.

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Respectfully submitted.

MICHAEL R. DREEBEN

ELENA ZARABOZO

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20036

(202) 383-5300

YERS

mdreeben@omm.com

1201 Speedway Blvd.

Tucson, AZ 85721

BRANTON NESTOR

bbergman@email.ariO’MELVENY & MYERS LLP

zona.edu

610 Newport Center Drive

17th Floor

MELISSA C. CASSEL

O’MELVENY & MYERS LLP Newport Beach, CA 92660

Two Embarcadero Center

BRUCE PETTIG

28th Floor

San Francisco, CA 94111 O’MELVENY & MYERS LLP

7 Times Square

New York, NY 10036

BARBARA E. BERGMAN

Co-Chair, Amicus Curiae

Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAW-

April 4, 2022