Amicus Curiae Brief — Oklahoma, Petitioner v. Victor Manuel Castro-Huerta
Supreme Court briefApr 4, 2022
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No. 21-429
In the Supreme Court of the United States
STATE OF OKLAHOMA, PETITIONER
v.
VICTOR MANUEL CASTRO-HUERTA
ON WRIT OF CERTIORARI
TO THE OKLAHOMA COURT OF CRIMINAL APPEALS
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
TODD KIM
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ERICA L. ROSS
Assistant to the Solicitor
General
JAMES A. MAYSONETT
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the State of Oklahoma has jurisdiction, concurrent with the United States, to prosecute nonIndians for crimes against Indians committed in Indian
country.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 1
Summary of argument ................................................................. 4
Argument:
Unless Congress provides otherwise, the federal
government’s criminal jurisdiction over offenses
committed by non-Indians against Indians in Indian
country is exclusive of state jurisdiction ............................... 7
A. Section 1152’s text and history demonstrate that
the federal government has exclusive jurisdiction
over crimes by non-Indians against Indians in
Indian country.................................................................. 8
B. Congress has consistently acted on and confirmed
the understanding that States lack jurisdiction
over offenses committed by non-Indians against
Indians in Indian country ............................................. 20
C. This Court has long recognized that States do
not generally have jurisdiction over offenses by
non-Indians against Indians in Indian country .......... 23
D. The State’s remaining arguments lack merit ............. 29
Conclusion ................................................................................... 33
TABLE OF AUTHORITIES
Cases:
Arizona v. Flint, 492 U.S. 911 (1989) .................................. 23
Bosse v. State:
484 P.3d 286 (Okla. Crim. App.), mandate stayed,
141 S. Ct. 2696 (2021), cert. dismissed,
141 S. Ct. 2891 (2021) .................................................. 4
499 P.3d 23 (Okla. Crim. App. 2021), cert. denied,
142 S. Ct. 1136 (2022) .................................................. 4
(III)
IV
Cases—Continued:
Page
Cotton Petroleum Corp. v. New Mexico,
490 U.S. 163 (1989).............................................................. 31
County of Oneida v. Oneida Indian Nation of New
York State, 470 U.S. 226 (1985) ......................................... 12
County of Yakima v. Confederated Tribes & Bands
of the Yakima Indian Nation, 502 U.S. 251 (1992) ........ 28
Donnelly v. United States, 228 U.S. 243 (1913) ... 9, 11, 18, 19
Draper v. United States, 164 U.S. 240 (1896) ..................... 18
Duro v. Reina, 495 U.S. 676 (1990) ........................................ 3
Fort Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885) .......... 9
Kennerly v. District Court of the Ninth Judicial
Dist., 400 U.S. 423 (1971) ................................................... 31
McClanahan v. Arizona State Tax Comm’n,
411 U.S. 164 (1973).............................................................. 25
McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) ............. passim
Negonsott v. Samuels, 507 U.S. 99 (1993) ........... 2, 10, 20, 21
Nevada v. Hicks, 533 U.S. 353 (2001) ...................... 25, 27, 31
New Mexico v. Mescalero Apache Tribe,
462 U.S. 324 (1983).............................................................. 31
New York ex rel. Cutler v. Dibble,
62 U.S. (21 How.) 366 (1859) .............................................. 17
New York ex rel. Ray v. Martin,
326 U.S. 496 (1946).................................................. 15, 17, 28
Oliphant v. Suquamish Indian Tribe,
435 U.S. 191 (1978).................................................. 13, 14, 32
Oneida Indian Nation of New York v. County of
Oneida, 414 U.S. 661 (1974) ............................................... 17
Rice v. Olson, 324 U.S. 786 (1945) ........................................ 11
Roth v. State, 499 P.3d 23 (Okla. Crim. App. 2021),
petition for cert. pending, No. 21-914
(f iled Dec. 15, 2021) .............................................................. 4
V
Cases—Continued:
Page
Seymour v. Superintendent of Washington State
Penitentiary, 368 U.S. 351 (1962) ..................................... 10
Sharp v. Murphy, 140 S. Ct. 2412 (2020) ............................ 10
Solem v. Bartlett, 465 U.S. 463 (1984) ............................. 3, 25
State v. Cungtion, 969 N.W.2d 501 (Iowa 2022) ................. 30
State v. Flint, 756 P.2d 324 (Ariz. App. 1988),
cert. denied, 492 U.S. 911 (1989) ....................................... 30
State v. Greenwalt, 663 P.2d 1178 (Mont. 1983) ................. 30
State v. Jackson, 16 N.W.2d 752 (Minn. 1944).................... 30
State v. Kuntz, 66 N.W.2d 531 (N.D. 1954) ......................... 30
State v. Larson, 455 N.W.2d 600 (S.D. 1990) ...................... 30
State v. McAlhaney, 17 S.E.2d 352 (N.C. 1941) ................. 30
State v. Nobles, 818 S.E. 2d 129 (N.C. Ct. App. 2018) ....... 30
State v. Reber, 171 P.3d 406 (Utah 2007) ............................ 30
State v. Sebastian, 701 A.2d 13 (Conn. 1997),
cert. denied, 522 U.S. 1077 (1998) ..................................... 30
State v. Warner, 379 P.2d 66 (N.M. 1963) ........................... 30
State v. Youpee, 61 P.2d 832 (Mont. 1936) .......................... 30
Three Affiliated Tribes of the Fort Berthold
Reservation v. Wold Engineering, P. C.,
476 U.S. 877 (1986)........................................................ 22, 23
United States v. Antelope, 430 U.S. 641 (1977) .................. 18
United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005) ....... 30
United States v. Bryant, 579 U.S. 140 (2016) ......... 25, 26, 27
United States v. Cisna, 25 F. Cas. 422
(C.C.D. Ohio 1835) .............................................................. 17
United States v. Haymond, 139 S. Ct. 2369 (2019) ............ 33
United States v. John, 437 U.S. 634 (1978) ......................... 10
United States v. Kagama, 118 U.S. 375 (1886) ....... 11, 18, 20
United States v. Langford, 641 F.3d 1195
(10th Cir. 2011) .................................................................... 30
VI
Cases—Continued:
Page
United States v. Lara, 541 U.S. 193 (2004) ......................... 12
United States v. McBratney,
104 U.S. 621 (1881).............................................. 9, 17, 18, 19
United States v. Ramsey, 271 U.S. 467 (1926) ............. 18, 20
United States v. Wheeler, 435 U.S. 313 (1978).................... 18
Washington v. Confederated Bands & Tribes of the
Yakima Indian Nation, 439 U.S. 463 (1979) ................... 25
White Mountain Apache Tribe v. Bracker,
448 U.S. 136 (1980).............................................................. 31
Williams v. Lee, 358 U.S. 217 (1959) ............10, 24, 25, 26, 31
Williams v. United States, 327 U.S. 711 (1946) ........... 24, 26
Wilson, In re, 140 U.S. 575 (1891) ....................................... 11
Wisconsin Cent. Ltd. v. United States,
138 S. Ct. 2067 (2018) ........................................................... 8
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ........... 5, 16
Constitution, treaties, and statutes:
U.S. Const. Art. I, § 8, Cl. 17 .................................................. 9
Treaty of Perpetual Friendship, Cession and Limits,
U.S.-Choctaw Tribe, Sept. 27, 1830, 7 Stat. 333:
art. VI, 7 Stat. 334 ........................................................... 13
art. VII, 7 Stat. 334.......................................................... 13
Treaty with the Chayenne Tribe art. 5, July 6, 1825,
7 Stat. 256 ............................................................................ 13
Treaty with the Cherokees, Nov. 28, 1785, 7 Stat. 18:
art. III, 7 Stat. 19 ............................................................ 11
art. VII, 7 Stat. 19 ........................................................... 11
Treaty with the Chippewas, Ottawas,
Pottawatimies, Wyandots, and Shawanoese,
Nov. 25, 1808, 7 Stat. 112 ................................................ 12
art. V, 7 Stat. 113 ............................................................. 12
VII
Treaties and statutes—Continued:
Page
Treaty with the Florida Tribes of Indians art. III,
Sept. 18, 1823, 7 Stat. 224................................................... 12
Treaty with the Ioways art. IV, Aug. 4, 1824,
7 Stat. 231 ............................................................................ 12
Treaty with the Kickapoos art. 9, July 30, 1819,
7 Stat. 201 ............................................................................ 13
Act of Mar. 1, 1793, ch. 19, 1 Stat. 329:
§ 4, 1 Stat. 329 .................................................................. 14
§ 10, 1 Stat. 331 ................................................................ 14
Act of May 19, 1796, ch. 30, 1 Stat. 469:
§ 4, 1 Stat. 470 .................................................................. 14
§ 15, 1 Stat. 473 ................................................................ 14
Act of Mar. 3, 1799, ch. 46, 1 Stat. 743:
§ 4, 1 Stat. 744-745 ........................................................... 14
§ 15, 1 Stat. 747-748 ......................................................... 14
Act of Mar. 30, 1802, ch. 13, 2 Stat. 139:
§ 4, 2 Stat. 141 .................................................................. 14
§ 6, 2 Stat. 142 .................................................................. 14
§ 15, 2 Stat. 144 ................................................................ 14
Act of Mar. 3, 1817, ch. 92, 3 Stat. 383:
§ 1, 3 Stat. 383 .................................................................. 14
§ 2, 3 Stat. 383 .................................................................. 15
Act of Mar. 27, 1854, ch. 26, § 3, 10 Stat. 270 ...................... 15
Act of June 8, 1940, ch. 276, 54 Stat. 249
(18 U.S.C. 3243)............................................................. 20, 21
Act of May 31, 1946, ch. 279, 60 Stat. 229 ............................ 21
Act of June 25, 1948, ch. 645, § 1152, 62 Stat. 757 .............. 15
Act of June 30, 1948, ch. 759, 62 Stat. 1161 ......................... 21
Act of July 2, 1948, ch. 809, 62 Stat. 1224
(25 U.S.C. 232)..................................................................... 21
Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 ................. 6, 22, 23
VIII
Statutes—Continued:
Page
§ 2, 67 Stat. 588-589 ......................................................... 22
§ 6, 57 Stat. 590 .................................................................. 8
§ 7, 67 Stat. 590 ................................................................ 23
Act of Dec. 11, 2018, Pub. L. No. 115-301,
132 Stat. 4395 ...................................................................... 21
Civil Rights Act of 1968, Pub. L. No. 90-284,
82 Stat. 73:
§ 401(a), 82 Stat. 78 (25 U.S.C. 1321(a)) ........................ 23
§ 403(b), 82 Stat. 79 (25 U.S.C. 1323(b)) ........................ 23
25 U.S.C. 1322 .................................................................. 23
General Crimes Act, 18 U.S.C. 1152 ........................... passim
Indian Major Crimes Act, ch. 341, § 9, 23 Stat. 385
(18 U.S.C. 1153)..................................................................... 2
Indian Trade and Intercourse Act, ch. 33, 1 Stat. 137 ....... 13
§ 5, 1 Stat. 138 .................................................................. 14
§ 6, 1 Stat. 138 .................................................................. 14
Trade and Intercourse Act of 1834, ch. 161, 4 Stat.
733 ........................................................................................ 15
§ 25, 4 Stat. 733 ................................................................ 15
Rev. Stat. (1875):
§ 2145 ................................................................................ 15
§ 2146 ................................................................................ 15
Rev. Stat. § 2145 (1878) ......................................................... 11
18 U.S.C. 2 ................................................................................ 4
18 U.S.C. 13 .............................................................................. 4
18 U.S.C. 1151 .......................................................................... 4
18 U.S.C. 1151(a)-(c) ................................................................ 1
18 U.S.C. 1153 ........................................................ 9, 10, 27, 31
18 U.S.C. 1153(a) ............................................................... 9, 10
18 U.S.C. 1162 ........................................................................ 22
18 U.S.C. 1162(a) ............................................................. 22, 23
IX
Statutes—Continued:
Page
Okla. Stat. Ann. (West 2015):
tit. 21 § 843.5(C) ................................................................. 4
tit. 57 § 332.7 .................................................................... 33
Miscellaneous:
Articles of Confederation and Perpetual Union,
art. IX................................................................................... 11
Felix S. Cohen, Handbook of Federal Indian Law
(1942) .................................................................................... 30
Cohen’s Handbook of Federal Indian Law
(Nell Jessup Newton ed., 2012 ed.) ................. 12, 13, 14, 31
H.R. Rep. No. 1999, 76th Cong., 3d Sess. (1940) ................ 21
H.R. Rep. No. 2345, 80th Cong., 2d Sess. (1948) ................ 22
H.R. Rep. No. 2355, 80th Cong., 2d Sess. (1948) ................ 22
Memorandum Opinion for the Deputy Attorney
General, 3 Op. O.L.C. 111 (1979) ....................................... 33
7 Op. Atty. Gen. (1855) .......................................................... 17
Francis Paul Prucha, American Indian Policy in
the Formative Years: The Indian Trade and
Intercourse Acts, 1790-1834 (1962) ............................. 12, 16
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 252 (2012) .................. 29
The Federalist No. 42 (C. Rossiter ed. 1961)...................... 12
U.S. Dep’t of Justice:
Criminal Resource Manual
(updated Jan. 22, 2020).............................................. 33
United States Attorneys’ Manual (1985) ..................... 33
In the Supreme Court of the United States
No. 21-429
STATE OF OKLAHOMA, PETITIONER
v.
VICTOR MANUEL CASTRO-HUERTA
ON WRIT OF CERTIORARI
TO THE OKLAHOMA COURT OF CRIMINAL APPEALS
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES
This case concerns whether, absent specific statutory authorization by Congress, a State has jurisdiction,
concurrent with the United States, over crimes committed by non-Indians against Indians in Indian country.
The United States has a substantial interest in the allocation of criminal jurisdiction in Indian country.
STATEMENT
1. Federal law defines “Indian country” to include
“all land within the limits of any Indian reservation under the jurisdiction of the United States Government,
notwithstanding the issuance of any patent”; “all dependent Indian communities within the borders of the
United States”; and “all Indian allotments, the Indian
titles to which have not been extinguished.” 18 U.S.C.
1151(a)-(c). “Criminal jurisdiction over offenses committed in ‘Indian country’ ‘is governed by a complex
(1)
2
patchwork of federal, state, and tribal law.’ ” Negonsott
v. Samuels, 507 U.S. 99, 102 (1993) (citations omitted).
Offenses by one Indian against another Indian “typically are subject to the jurisdiction of the concerned Indian tribe,” ibid.; except that the Indian Major Crimes
Act (Major Crimes Act), ch. 341, § 9, 23 Stat. 385
(18 U.S.C. 1153), grants the United States jurisdiction,
concurrent with Tribes, over certain serious offenses
when an Indian is the perpetrator, even if the victim is
an Indian. Federal jurisdiction under the Major Crimes
Act is exclusive of state jurisdiction. See, e.g., Negonsott, 507 U.S. at 103.
Unless Congress has determined otherwise, the federal government also exercises criminal jurisdiction
over crimes committed in Indian county where either
the victim or the perpetrator is an Indian. See 18 U.S.C.
1152. The first paragraph of Section 1152 provides:
Except as otherwise expressly provided by law, the
general laws of the United States as to the punishment of offenses committed in any place within the
sole and exclusive jurisdiction of the United States,
except the District of Columbia, shall extend to the
Indian country.
Ibid.
The second paragraph of Section 1152 exempts from
that provision’s coverage “offenses committed by one
Indian against the person or property of another Indian”; offenses committed by an Indian “who has been
punished by the local law of the tribe”; and “any case
where, by treaty stipulations, the exclusive jurisdiction
over such offenses is or may be secured to the Indian
tribes respectively.” 18 U.S.C. 1152.
State jurisdiction within Indian country is generally
“limited to crimes by non-Indians against non-Indians,
3
* * * and victimless crimes by non-Indians.” Solem v.
Bartlett, 465 U.S. 463, 465 n.2 (1984) (citation omitted);
see, e.g., Duro v. Reina, 495 U.S. 676, 680 n.1 (1990).
2. In 2017, respondent was convicted in state court
of criminal child neglect of his five-year-old stepdaughter. Pet. App. 1a; Pet. Br. 9. On appeal, respondent
contended that the State lacked jurisdiction over his
crime because he is a non-Indian, his stepdaughter is an
Indian, and the crime occurred in Indian country. Pet.
App. 9a.
While respondent’s appeal was pending, this Court
held in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), that
Congress never disestablished the Muscogee (Creek)
Nation’s reservation in eastern Oklahoma. Id. at 2468.
The Oklahoma Court of Criminal Appeals (OCCA) then
remanded respondent’s case for an evidentiary hearing
to determine whether respondent’s victim was an Indian and whether the crime occurred in Indian country.
Pet. App. 9a-10a. On remand, the parties “stipulated as
to the Indian status” of the victim, and the trial court
determined that respondent’s crime occurred within the
historic boundaries of the Cherokee reservation, which
Congress had never “explicitly erased or disestablished.” Id. at 11a, 18a.
The OCCA then vacated respondent’s state conviction. Pet. App. 1a-4a. The OCCA agreed that Congress
had never disestablished the Cherokee Nation’s reservation. Id. at 3a. Thus, “[f ]or purposes of federal criminal law, the land upon which” respondent committed
his crime is “Indian country.” Ibid.
The OCCA rejected the State’s argument that it had
jurisdiction, concurrent with the United States’ jurisdiction under Section 1152, over crimes by non-Indians
against Indians in Indian country. Pet. App. 4a. The
4
OCCA relied on its decision in Bosse v. State, 484 P.3d
286 (2021), which had determined that “[a]bsent any
law, compact, or treaty” altering the default rules, “federal and tribal governments have jurisdiction over
crimes committed by or against Indians in Indian Country, and state jurisdiction over those crimes is
preempted by federal law.” Pet. App. 39a; see id. at
36a-39a. 1 The OCCA later stayed its mandate. Id. at
21a.
3. While the state court proceedings were ongoing,
a federal grand jury in the Northern District of Oklahoma indicted respondent on, inter alia, one count of
child neglect in Indian country, in violation of 18 U.S.C.
2, 13, 1151, and 1152, and Okla. Stat. Ann. tit. 21
§ 843.5(C) (West Supp. 2015). Indictment at 2, 20-cr255, D. Ct. Doc. 2 (Nov. 2, 2020). Respondent has
agreed to plead guilty to that charge. Plea Agreement,
20-cr-255, D. Ct. Doc. 52 (Oct. 15, 2021).
SUMMARY OF ARGUMENT
Absent specific congressional authorization, the
United States’ criminal jurisdiction over offenses committed by non-Indians against Indians in Indian country is exclusive of state jurisdiction.
Bosse concerned post-conviction proceedings; the OCCA later
determined that McGirt does not apply retroactively to cases on
post-conviction review and withdrew the Bosse decision on that
ground, see Bosse v. State, 499 P.3d 771, 774-775 (2021), cert. denied,
142 S. Ct. 1136 (2022). The OCCA subsequently reaffirmed its holding that the federal government has exclusive jurisdiction over
crimes by non-Indians against Indians in Indian country. Roth v.
State, 499 P.3d 23 (2021), petition for cert. pending, No. 21-914 (filed
Dec. 15, 2021). The OCCA’s withdrawn decision in Bosse is included
in the petition appendix. Pet. App. 22a-51a.
1
5
A. The text of 18 U.S.C. 1152 and the historical context of its enactment make clear that where it applies,
Section 1152 provides federal criminal jurisdiction that
is exclusive of state jurisdiction. Section 1152, often
called the General Crimes Act, “extend[s]” to Indian
country “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.”
18 U.S.C. 1152. Congress thus provided a direct parallel between Indian country and federal enclaves, where
federal jurisdiction is exclusive of state jurisdiction.
And this Court has interpreted similar language in the
Major Crimes Act to confer federal criminal jurisdiction
that is exclusive of state jurisdiction.
The historical contexts in which Section 1152 and its
predecessors were enacted strongly support the conclusion that States lack jurisdiction over crimes by non-Indians against Indians in Indian country. Section 1152
traces its roots to early treaties in which the federal
government promised to protect Indians from nonIndian incursions, including through federal criminal
jurisdiction. Those promises formed the backdrop for
early legislation providing for federal control—including
federal criminal jurisdiction—over relations between
Indians and non-Indians. And Congress enacted substantially the current language of Section 1152 just two
years after this Court held in Worcester v. Georgia,
31 U.S. (6 Pet.) 515 (1832), that the State of Georgia
lacked authority to punish non-Indians for crimes committed in Indian country. In that historical context, that
provision would have been understood to provide for exclusive federal criminal jurisdiction.
While this Court subsequently held that statehood
implicitly repealed the General Crimes Act’s grant of
6
federal jurisdiction over crimes between non-Indians,
and conferred that jurisdiction on the States, the Court
has held that Section 1152 continues to apply to offenses
by non-Indians against Indians. Because Section 1152
has not been repealed as to those offenses, Section
1152’s federal criminal jurisdiction remains exclusive of
state jurisdiction in the absence of specific legislation
providing otherwise.
B. Congress has consistently acted on that understanding. Beginning in 1940, Congress enacted several
statutes granting particular States the concurrent jurisdiction that Oklahoma argues all States already possessed. Congress’s enactment of Public Law 280, Act of
Aug. 15, 1953, ch. 505, 67 Stat. 588, which conferred
criminal jurisdiction over crimes by or against Indians
on certain States and permitted others to “assum[e]”
such jurisdiction, id. at 590, further indicates that federal jurisdiction is otherwise exclusive.
C. This Court has likewise repeatedly stated that
federal jurisdiction over offenses committed by nonIndians against Indians in Indian country is generally
exclusive of state jurisdiction. Although those statements were technically dicta, each was well-considered
and served an important purpose in the opinion of the
Court. And Congress’s State-specific conferral of jurisdiction in particular statutes alternated with this
Court’s statements, further demonstrating the shared
understanding that States generally lack jurisdiction
over criminal offenses by non-Indians against Indians
in Indian country.
D. Oklahoma’s contrary arguments cannot overcome
the text and history of Section 1152 and the long-held
understanding of Congress, this Court, and lower
courts.
Oklahoma relies on general preemption
7
principles that govern in other areas, but here a specific
statute, Section 1152, makes clear that Congress has
provided for exclusive federal jurisdiction over crimes
by non-Indians against Indians in Indian country. And
this Court has explained that preemption principles applicable in other contexts do not apply to matters affecting Indians in Indian country, particularly where, as in
the criminal-law context, Congress has pervasively legislated.
The State also emphasizes the practical consequences of the long-established jurisdictional rule in
Oklahoma following this Court’s decision in McGirt v.
Oklahoma, 140 S. Ct. 2452 (2020). But federal authorities are working diligently to prosecute offenders who
do not fall within state jurisdiction based on that decision. And if Congress views McGirt as warranting expanded state or tribal jurisdiction in Oklahoma, it may
confer such jurisdiction by statute—just as it has conferred specific criminal jurisdiction on other States before. This Court should not upend the well-established
understanding of criminal jurisdiction in Indian country, which governs throughout the Nation.
ARGUMENT
UNLESS CONGRESS PROVIDES OTHERWISE, THE
FEDERAL GOVERNMENT’S CRIMINAL JURISDICTION
OVER OFFENSES COMMITTED BY NON-INDIANS
AGAINST INDIANS IN INDIAN COUNTRY IS EXCLUSIVE
OF STATE JURISDICTION
The OCCA correctly held that absent a more specific
statutory provision conferring jurisdiction on a State,
the United States’ jurisdiction under Section 1152 over
crimes by non-Indians against Indians in Indian country is exclusive of state jurisdiction.
8
A. Section 1152’s Text And History Demonstrate That The
Federal Government Has Exclusive Jurisdiction Over
Crimes By Non-Indians Against Indians In Indian
Country
Section 1152’s text strongly indicates that absent a
more specific statutory provision, the federal government’s jurisdiction over crimes by non-Indians against
Indians in Indian country is exclusive. That is particularly true when understood in historical context. “[A]t
the time Congress enacted” the relevant language, it
would have been understood to foreclose state jurisdiction. Wisconsin Cent. Ltd. v. United States, 138 S. Ct.
2067, 2070 (2018) (citation omitted).
1. The first paragraph of Section 1152 states that
“[e]xcept as otherwise expressly provided by law, the
general laws of the United States as to the punishment
of offenses committed in any place within the sole and
exclusive jurisdiction of the United States, except the
District of Columbia, shall extend to the Indian country.” 18 U.S.C. 1152. The second paragraph exempts
certain offenses, including those committed by one Indian against the person or property of another Indian,
which are left exclusively to tribal jurisdiction, with the
exception of “major crimes” by Indians that are subject
to federal jurisdiction under Section 1153.
As discussed in more detail below, see pp. 17-19, infra, this Court held in United States v. McBratney,
104 U.S. 621 (1881), that federal jurisdiction under what
is now Section 1152 is limited in one further respect.
McBratney held that an Act of Congress admitting a
new State to the Union implicitly repealed federal jurisdiction over crimes by non-Indians against non-Indians
in Indian country and conferred that jurisdiction on the
State. Id. at 623-624. The Court has subsequently
9
confirmed that notwithstanding McBratney, Section
1152 continues to provide federal jurisdiction over
crimes by non-Indians against Indians in Indian country. See Donnelly v. United States, 228 U.S. 243 (1913).
And the text of Section 1152 indicates that where Section 1152 applies, federal jurisdiction is exclusive of
state jurisdiction.
By its terms, Section 1152 applies to Indian country
the federal laws that apply to crimes committed within
the “sole and exclusive jurisdiction of the United
States.” 18 U.S.C. 1152. The quoted phrase indicates
that Congress intended a parallel between Indian country and the federal enclaves over which Congress may
“exercise exclusive Legislation,” U.S. Const. Art. I, § 8,
Cl. 17. Because state laws are generally inapplicable in
such areas, see, e.g., Fort Leavenworth R.R. v. Lowe,
114 U.S. 525, 532-533 (1885), the text of Section 1152
indicates that Congress intended state criminal laws to
be generally inapplicable in Indian country as well.
This Court’s interpretation of the Major Crimes
Act’s similar text reinforces that conclusion. Section
1153(a) provides that “[a]ny Indian who commits” certain enumerated offenses within Indian country “shall
be subject to the same law and penalties as all other
persons committing any of the [specified] offenses,
within the exclusive jurisdiction of the United States.”
18 U.S.C. 1153(a) (emphasis added). As this Court explained in Negonsott v. Samuels, 507 U.S. 99 (1993),
“the text of § 1153 * * * and [the Court’s] cases make
clear [that] federal jurisdiction over the offenses covered by the Indian Major Crimes Act is ‘exclusive’ of
state jurisdiction.” Id. at 103; see, e.g., United States v.
John, 437 U.S. 634, 651 & nn.21-22 (1978); Seymour v.
10
Superintendent of Washington State Penitentiary,
368 U.S. 351, 359 (1962); Williams v. Lee, 358 U.S. 217,
220 n.5 (1959). Indeed, the Major Crimes Act’s exclusivity was the premise of this Court’s decision in McGirt
v. Oklahoma, 140 S. Ct. 2452 (2020), which invalidated
an Indian defendant’s state murder conviction on the
ground that the crime occurred in Indian country,
where the State lacks jurisdiction over such crimes.
As Oklahoma observes, Section 1152’s reference to
“the sole and exclusive jurisdiction of the United
States” could be read to describe only the law to be applied, and not to incorporate the exclusive force of that
federal jurisdiction as extended over Indian country.
Pet. Br. 24 (citation omitted). But the State does not
contest that Section 1152 grants exclusive federal jurisdiction over crimes by Indians against non-Indians.
And the State’s argument could likewise be made regarding the “exclusive jurisdiction” language in Section
1153. Cf. U.S. Supp. Amicus Br. at 20-21, Sharp v. Murphy, 140 S. Ct. 2412 (2020) (No. 17-1107) (per curiam).
It is nonetheless settled that federal jurisdiction under
Section 1153 is exclusive of state jurisdiction. Section
1152’s parallel text indicates that the same rule should
apply to crimes by non-Indians against Indians. 2
Oklahoma observes (Pet. Br. 24) that in In re Wilson, 140 U.S.
575 (1891), the Court stated that the words “ ‘sole and exclusive’ ” in
the predecessor to Section 1152 “do not apply to the jurisdiction extended over the Indian country, but are only used in the description
of the laws which are extended to it.” Id. at 578. The Court made
that statement in discussing what is now the second paragraph of
the provision, which then (as now) provided that the first paragraph
does not extend to certain offenses within tribal jurisdiction. See
18 U.S.C. 1152; Rev. Stat. § 2145 (1878); Wilson, 140 U.S. at 578.
Neither Wilson’s statement, nor Donnelly’s reference to it, see
228 U.S. at 268, suggests that States may exercise criminal
2
11
2. That reading of the text gains significant force
from the historical context surrounding the enactment
of Section 1152 and its predecessors. “The policy of
leaving Indians free from state jurisdiction and control
is deeply rooted in this Nation’s history.” McGirt,
140 S. Ct. at 2476 (quoting Rice v. Olson, 324 U.S. 786,
789 (1945)). That policy reflects that in the early years
of the Republic, “local ill feeling” toward Indians meant
that “the people of the states where they [we]re found
[we]re often their deadliest enemies.” United States v.
Kagama, 118 U.S. 375, 384 (1886).
The Articles of Confederation included a compromise between federal and state authority over Indian
affairs: article IX conferred on the Continental Congress “the sole and exclusive right and power of * * *
regulating the trade and managing all affairs with the
[I]ndians, not members of any of the [S]tates, provided
that the legislative right of any [S]tate within its own
limits be not infringed or violated.” Art. IX. That ambiguous language “fueled * * * disagreement over the
scope of federal and state powers with respect to Indian
affairs.” Cohen’s Handbook of Federal Indian Law
§ 1.02[3], at 19 (Nell Jessup Newton ed., 2012 ed.)
(Cohen); see The Federalist No. 42, at 267-268 (James
Madison) (Clinton Rossiter ed., 1961). The United
States entered into treaties stating that the Tribes were
“under the protection of the United States of America,
and of no other sovereign whosoever,” and providing for
punishment of non-Indians who committed crimes
against Indians. Treaty with the Cherokees, art. III,
Nov. 28, 1785, 7 Stat. 19 (emphasis added); id. art. VII,
7 Stat. 19; see, e.g., Francis Paul Prucha, American
jurisdiction over offenses committed by non-Indians against Indians
in Indian country.
12
Indian Policy in the Formative Years: The Indian
Trade and Intercourse Acts, 1790-1834, at 189 (1962)
(Prucha). States protested that such treaties were “violations of state sovereignty,” and at least one State
signed its own treaty with a small group of Indians, resulting in uprisings as non-Indians moved onto Indian
lands. Cohen § 1.02[3], at 22. “By the mid-1780s,” state
resistance to federal Indian policy and the “resulting
encroachment into Indian territory had le[]d the young
nation to the brink of Indian warfare on several fronts.”
Ibid.
The Constitution addressed these tensions by eliminating all references to state power over Indian affairs
while “grant[ing] Congress broad general powers to
legislate in respect to Indian tribes, powers that [this
Court] ha[s] consistently described as ‘plenary and exclusive.’ ” United States v. Lara, 541 U.S. 193, 200
(2004) (citation omitted). Thus, “[w]ith the adoption of
the Constitution, Indian relations became the exclusive
province of federal law.” County of Oneida v. Oneida
Indian Nation of New York State, 470 U.S. 226, 234
(1985); The Federalist No. 42, at 268.
Congress exercised that exclusive and plenary authority by entering into treaties that provided for exclusive federal protection of Indians. For example, in the
Treaty with the Chippewas, Ottawas, Pottawatimies,
Wyandots, and Shawanoese, Nov. 25, 1808 (Treaty at
Brownstown), 7 Stat. 112, the Tribes “acknowledge[d]
themselves to be under the protection of the United
States, and of no other sovereign.” Art. V, 7 Stat. 113;
see, e.g., Treaty with the Florida Tribes of Indians, art.
III, Sept. 18, 1823, 7 Stat. 224; Treaty with the Ioways,
art. IV, Aug. 4, 1824, 7 Stat. 231; see also Cohen § 1.03[1],
at 26 n.25. Other treaties stated that the United States
13
would “afford” the Indians “protection against all persons whatever.” Treaty with the Kickapoos, art. 9, July
30, 1819, 7 Stat. 201. And “[m]any treaties [specifically]
provided for federal jurisdiction over crimes committed
by non-Indians against Indians, as well as by Indians
against non-Indians.” Cohen § 1.03[1], at 27; see, e.g.,
Treaty of Perpetual Friendship, Cession and Limits,
U.S.-Choctaw Tribe, arts. 6-7, Sept. 27, 1830, 7 Stat. 334;
Treaty with the Chayenne Tribe, art. 5, July 6, 1825,
7 Stat. 255. Treaty promises to exercise federal jurisdiction over non-Indian crimes against Indians were particularly significant given the Tribes’ inability to try nonIndians. See Oliphant v. Suquamish Indian Tribe,
435 U.S. 191, 197-199 & n.8 (1978).
3. Early congressional enactments reflected and
codified the United States’ agreements to protect Indians. Those early enactments, in turn, formed the basis
for Section 1152. See Cohen § 9.02[1][a], at 738.
In 1790, the First Congress enacted the Indian
Trade and Intercourse Act, ch. 33, 1 Stat. 137, which established that the United States, rather than the States,
would exercise basic police and regulatory powers over
interactions between Indians and non-Indians. Most relevant here, that Act provided for federal punishment of
non-Indians who committed crimes against Indians.
Ch. 33, §§ 5-6, 1 Stat. 138. Those provisions reflected
that “punishment of non-Indian offenders under federal
laws was promised in most treaties in force when the
first Trade and Intercourse Act was adopted,” Cohen
§ 1.03[2], at 36, and Congress “assumed federal jurisdiction over offenses by non-Indians against Indians” to
provide “effective protection for the Indians,” Oliphant,
435 U.S. at 201. Similar provisions were included in the
temporary Trade and Intercourse Acts of 1793, 1796,
14
and 1799, as well as the permanent Trade and Intercourse Act of 1802. See Act of Mar. 1, 1793, ch. 19, §§ 4,
10, 1 Stat. 329-330; Act of May 19, 1796, ch. 30, §§ 4, 15,
1 Stat. 470, 473; Act of Mar. 3, 1799, ch. 46, §§ 4, 15,
1 Stat. 744-745, 747; Act of Mar. 30, 1802 (1802 Act),
§§ 4, 6, 15, 2 Stat. 141-142, 144; see generally Cohen
§ 1.03[2], at 36-38.
Congress expanded upon the Trade and Intercourse
Acts in 1817, extending the criminal provisions to include a preliminary version of what later became the
General Crimes Act. See Act of Mar. 3, 1817 (1817 Act),
ch. 92, § 1, 3 Stat. 383. The 1817 Act provided that “if
any Indian, or other person” committed within Indian
country
any crime, offence, or misdemeanor, which, if committed in any place or district of country under the
sole and exclusive jurisdiction of the United States,
would, by the laws of the United States, be punished
with death, or any other punishment, every such offender, on being thereof convicted, shall suffer the
like punishment as is provided by the laws of the
United States for the like offences, if committed
within any place or district of country under the sole
and exclusive jurisdiction of the United States.
Ibid. The 1817 Act provided for trial and punishment in
the federal or territorial courts. § 2, 3 Stat. 383. And it
contained two exceptions that carried forward to Section 1152: federal jurisdiction would not “extend” to
offenses between Indians, or if it conflicted with “any
treaty” between the United States and a Tribe. Ibid.
As this Court has recognized, Section 1152 was enacted in its near-modern form in 1834, as Section 25 of
the Trade and Intercourse Act of 1834 (1834 Act), ch.
15
161, 4 Stat. 733. See New York ex rel. Ray v. Martin,
326 U.S. 496, 500 n.6 (1946). Section 25 stated:
That so much of the laws of the United States as
provides for the punishment of crimes committed
within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the
Indian country: Provided, The same shall not extend to crimes committed by one Indian against the
person or property of another Indian.
4 Stat. 733; see Act of Mar. 27, 1854, ch. 26, § 3, 10 Stat.
270 (providing additional exceptions). Materially similar language was included in Sections 2145 and 2146 of
the Revised Statutes of 1875. And when Congress codified Title 18 in 1948, that language became present-day
Section 1152. Act of June 25, 1948, ch. 645, § 1152, 62
Stat. 757.
Because Section 1152 traces its roots to treaties and
enactments guaranteeing that the United States would
protect Indians to the exclusion of all other sovereigns—
and because Section 1152 extends to Indian country
laws that themselves grant the United States exclusive
jurisdiction—it is properly understood to grant the
United States exclusive criminal jurisdiction over
crimes by non-Indians against Indians. The Trade and
Intercourse Acts sought to give the federal government
responsibility regarding interactions between Tribes,
non-Indians, and States, in order to avoid tensions that
might spark “a long drawn-out Indian war” that could
jeopardize the new Nation. Prucha 44; see id. at 48.
Congress thus would have understood those Acts’ criminal provisions, and the subsequent statutes that derived from them, to exclude state jurisdiction.
4. The 1834 Act’s immediate historical context confirms that understanding. The Act followed just two
16
years after this Court’s seminal decision in Worcester v.
Georgia, 31 U.S. (6 Pet.) 515 (1832), which rejected
Georgia’s efforts to assert jurisdiction over the Cherokee Nation’s original homelands.
In Worcester, the State indicted two non-Indian missionaries for entering the Cherokee Nation in violation
of a Georgia statute. 31 U.S. (6 Pet.) at 529. This Court
held that the State’s “assertion of jurisdiction over the
Cherokee nation”—and, in particular, its attempt to assert jurisdiction over non-Indians living in Indian
country—was “void” because the “Cherokee nation
* * * is a distinct community occupying its own territory * * * in which the laws of Georgia can have no
force.” Id. at 542, 561. Instead, “the whole intercourse
between the United States and this nation, is, by our
constitution and laws, vested in the government of the
United States.” Id. at 561. The Court thus determined
that the State could not exert criminal jurisdiction over
non-Indians for crimes committed within Indian country because relations between the United States and the
Cherokee Nation “are committed exclusively to the government of the union.” Ibid. Coming just two years after Worcester, the federal criminal jurisdiction conferred by the 1834 Act would have been understood as
exclusive of state jurisdiction. 3
Oklahoma suggests (Pet. Br. 18) that “contemporaneous authorities [did not] understand Worcester to preclude all assertions of
state power in Indian country.” But the decision it cites found the
1802 Act inapplicable to one Tribe based on its status. See United
States v. Cisna, 25 F. Cas. 422 (C.C.D. Ohio 1835); see also Resp.
Br. 40-41. And the Opinion of the Attorney General on which Oklahoma relies concerned a tribal court’s civil jurisdiction over nonIndians—not a state court’s criminal jurisdiction over non-Indians
who commit crimes against Indians. 7 Op. Atty. Gen. 174 (1855).
Similarly, while Oklahoma invokes (Pet. Br. 18-19) dictum from this
3
17
5. This Court subsequently held that the classes of
offenses to which Section 1152 applies are limited in a
further respect. But none of this Court’s decisions suggests that where, as here, Section 1152 continues to confer federal criminal jurisdiction, States possess concurrent jurisdiction.
In McBratney, the Court held that crimes committed
by non-Indians against other non-Indians were implicitly excluded from the federal jurisdiction created by
the General Crimes Act in Indian country within a
State. 104 U.S. at 623-624. The Court acknowledged
that such crimes were subject to federal jurisdiction
prior to statehood, but it held that the Act admitting
Colorado to the Union implicitly repealed any prior
statute insofar as it applied to offenses by non-Indians
against non-Indians and vested such jurisdiction in the
State. Ibid.; see Martin, 326 U.S. at 500 & n.5; United
States v. Ramsey, 271 U.S. 467, 469 (1926). The Court
emphasized, however, that McBratney presented no
question “as to the punishment of crimes committed by
or against Indians.” 104 U.S. at 624; accord Draper v.
United States, 164 U.S. 240, 247 (1896); see United
States v. Wheeler, 435 U.S. 313, 325 n.21 (1978); United
States v. Antelope, 430 U.S. 641, 643 n.2 (1977).
In Donnelly v. United States, 228 U.S. 243 (1913),
the Court rejected an attempt to exclude from Section
1152 crimes by non-Indians against Indians—the class
of crimes at issue here. The defendant argued that under McBratney’s rationale, California’s admission to
Court’s decision in New York ex rel. Cutler v. Dibble, 62 U.S. (21
How.) 366 (1859), the Court later explained that Dibble’s dictum is
not “applicable” outside its context, which involved civil ejectment
from tribal lands. Oneida Indian Nation of New York v. County of
Oneida, 414 U.S. 661, 672 n.7 (1974).
18
the Union conferred on the State the “undivided authority to punish crimes committed upon * * * an Indian
reservation, excepting crimes committed by the Indians.” Id. at 271. The Court in Donnelly described
McBratney as holding, in effect, that the “admission of
States qualified the former Federal jurisdiction over Indian country included therein by withdrawing from the
United States and conferring upon the States the control of offenses committed by white people against
whites, in the absence of some law or treaty to the contrary.” Ibid. The Court thus viewed the McBratney
principle as having two aspects: the withdrawal of federal jurisdiction and the conferral of jurisdiction on the
State over crimes by non-Indians against non-Indians.
The Court held, however, that “offenses committed
by or against Indians are not within the principle of
* * * McBratney,” but rather remain within federal jurisdiction. Donnelly, 228 U.S. at 271 (emphasis added).
The Court observed that “[t]his was in effect held[] as
to crimes committed by the Indians” in Kagama,
118 U.S. at 383-384, which sustained federal jurisdiction
under the Major Crimes Act over crimes by Indians in
Indian country on the ground that the Indians are
“wards of the [N]ation” and in need of its protection.
Donnelly, 228 U.S. at 271-272 (emphasis omitted). The
Court in Donnelly concluded that “[t]his same reason
applies—perhaps a fortiori—with respect to crimes
committed by [non-Indians] against the persons or
property of the Indian tribes while occupying reservations set apart for the very purpose of segregating them
from the whites and others not of Indian blood.” Id. at
272.
As Donnelly makes clear, McBratney does not support the contention that where Section 1152 applies,
19
federal jurisdiction is not exclusive. But see Pet. Br. 19.
The basis of the holding in McBratney was not that the
predecessor to Section 1152 remained applicable to
crimes between non-Indians, but that the State nonetheless had acquired concurrent jurisdiction over those
crimes. Rather, the Court held that the Act admitting
Colorado to the Union implicitly repealed any federal
statute that would have applied to crimes involving only
non-Indians, and that the State acquired jurisdiction,
exclusive of the federal government, as a result of that
repeal. McBratney, 104 U.S. at 623-624; see Donnelly,
228 U.S. at 271-272.
McBratney and Donnelly thus confirm that where,
as here, Section 1152 has not been repealed, federal jurisdiction remains exclusive of state jurisdiction. As
McBratney demonstrates, Congress could reasonably
determine that offenses between non-Indians in Indian
country within a State did not directly involve relations
with the Indians, and thus jurisdiction over such crimes
could be transferred to the States without undermining
the historic principle that the federal government maintains the exclusive power and duty to protect Indians.
By contrast, criminal offenses by or against Indians in
Indian country directly implicate relations between Indians and non-Indians—as Congress understood when
enacting the Trade and Intercourse Acts and subsequent legislation. Federal authority over such offenses
therefore “continued after” statehood “as it was before,
* * * in virtue of the long-settled rule that such Indians
are wards of the nation, in respect of whom there is devolved upon the Federal Government ‘the duty of protection and with it the power.’ ” Ramsey, 271 U.S. at 469
(quoting Kagama, 118 U.S. at 384).
20
B. Congress Has Consistently Acted On And Confirmed The
Understanding That States Lack Jurisdiction Over
Offenses Committed By Non-Indians Against Indians In
Indian Country
In the last century, Congress has enacted a number
of statutes granting particular States criminal jurisdiction over crimes by or against Indians in Indian country. Those statutes confirm that, in the absence of affirmative authorization, States lack jurisdiction over offenses committed by non-Indians against Indians in Indian country.
1. Congress passed the first of these Acts, the Kansas Act, in 1940. Act of June 8, 1940, ch. 276, 54 Stat.
249 (18 U.S.C. 3243). The Kansas Act provides that
“[j]urisdiction is conferred on the State of Kansas over
offenses committed by or against Indians on Indian reservations,” but it expressly retains federal jurisdiction
over such offenses. 18 U.S.C. 3243; see Negonsott,
507 U.S. at 105. If Section 1152 already provided concurrent jurisdiction over crimes by non-Indians against
Indians in Indian country, as Oklahoma contends, then
the Kansas Act’s express conferral of that jurisdiction
on the State would have been unnecessary.
Congress viewed the Kansas Act as providing jurisdiction to Kansas in the first instance. The Act is entitled “An Act to confer jurisdiction on the State of Kansas over offenses committed by or against Indians on
Indian reservations.” 54 Stat. 249 (emphasis added;
capitalization altered). A congressional report stated
that under existing law, the States’ authority in Indian
country “extend[ed] in the main only to situations where
both the offender and the victim are white men.” H.R.
Rep. No. 1999, 76th Cong., 3d Sess. 2 (1940). The report
further explained that the creation of tribal courts
21
would not fill the resulting jurisdictional gap because
those courts “may not punish white men for offenses
committed upon Indians.” Id. at 4. Congress thus
clearly understood that Kansas did not already have concurrent jurisdiction over crimes by non-Indians against
Indians. This Court later took the same view, describing
the Kansas Act as “the first major grant of jurisdiction
to a State over offenses involving Indians committed in
Indian country.” Negonsott, 507 U.S. at 103.
Congress acted on the same understanding in 1946
and 1948, when it passed special statutes providing
North Dakota, New York, and Iowa with certain criminal jurisdiction. Once again, the Acts described themselves as “confer[ring] jurisdiction” on the States over
“offenses committed by or against Indians.” Act of July
2, 1948, ch. 809, 62 Stat. 1224 (25 U.S.C. 232) (New
York); see Act of June 30, 1948, ch. 759, 62 Stat. 1161
(conferring jurisdiction on Iowa with regard to one reservation), repealed, Act of Dec. 11, 2018, Pub. L. No.
115-301, 132 Stat. 4395; Act of May 31, 1946, ch. 279,
60 Stat. 229 (same for North Dakota). Congress acted
with respect to New York and Iowa the same year that
it recodified the General Crimes Act as 18 U.S.C. 1152.
The legislative reports on those Acts again reflect the
view that without special legislation, the affected States
would lack criminal jurisdiction over crimes against Indians. See, e.g., H.R. Rep. No. 2345, 80th Cong.,
2d Sess. 1 (1948); H.R. Rep. No. 2355, 80th Cong.,
2d Sess. 1 (1948).
2. Public Law 280, enacted in 1953, rests on that
same understanding. Section 2 of Public Law 280 enacted 18 U.S.C. 1162, which is entitled “State jurisdiction over offenses committed by or against Indians in
the Indian country.”
Ibid. (emphasis omitted).
22
Subsection (a) of Section 1162 now provides that the
listed States (which do not include Oklahoma) “shall
have jurisdiction over offenses committed by or against
Indians” in particular areas of Indian country “to the
same extent that such State * * * has jurisdiction over
offenses committed elsewhere within the State,” and
“the criminal laws of such State * * * shall have the
same force and effect within such Indian country as
they have elsewhere within the State.” 18 U.S.C.
1162(a) (emphasis added). The title and text of Section
1162(a) indicate that it establishes the sole and complete
basis for regulation of state “jurisdiction over offenses
committed by or against Indians in the Indian country”
in the listed States. Ibid.; see Three Affiliated Tribes of
the Fort Berthold Reservation v. Wold Engineering,
P. C., 476 U.S. 877, 884 (1986). If the States already had
jurisdiction over crimes by non-Indians against Indians,
as Oklahoma contends, then Section 1162(a)’s conferral
of jurisdiction on the listed States over offenses
“against Indians” would be superfluous: that phrase is
not necessary to confer jurisdiction over offenses committed against Indians by other Indians, which are covered by the reference to offenses committed “by * * *
Indians.” 18 U.S.C. 1162(a). 4
Oklahoma observes (Pet. Br. 33-34) that this Court has held that
state courts may entertain civil suits by Indians against non-Indians
arising in Indian country regardless of a State’s assumption of jurisdiction under Public Law 280, which provides for the assumption
of jurisdiction “over civil causes of actions between Indians or to
which Indians are parties.” 25 U.S.C. 1322 (emphasis added); see
Three Affiliated Tribes, 467 U.S. at 148-149. The italicized language, however, provides jurisdiction over suits by non-Indians
against Indians. Although it could have been drafted more narrowly, the phrase is not superfluous.
4
23
The conclusion that the listed States did not already
have jurisdiction over offenses by non-Indians “against
Indians” is reinforced by Section 6 of Public Law 280,
which authorized non-listed States to amend their constitutions or statutes to remove any legal impediments
to the “assumption” of jurisdiction that Section 1162(a)
conferred on listed States—i.e., offenses “by or against
Indians” in Indian country. 67 Stat. 590; see McGirt,
140 S. Ct. at 2478 (noting that Oklahoma has not obtained jurisdiction under this provision). And it is likewise supported by Section 7 of Public Law 280, which
granted the consent of the United States to any State
“not having jurisdiction” to “assume” jurisdiction by
legislative action. 67 Stat. 590; see Civil Rights Act of
1968, Pub. L. No. 90-284, §§ 401(a), 403(b), 82 Stat. 78,
79 (25 U.S.C. 1321(a), 1323(b)) (repealing Section 7 and
providing instead that States “not having jurisdiction”
over offenses committed “by or against Indians” may
“assume” such jurisdiction only with the consent of the
Tribe concerned); see also U.S. Br. at 15-17, Arizona v.
Flint, 492 U.S. 911 (1989) (No. 88-603) (Flint Br.) (discussing legislative history of these provisions). Accepting Oklahoma’s argument that States already had such
jurisdiction would negate these specific enactments and
the requirement of tribal consent, as well as certain
States’ decisions not to seek (or to retrocede) that jurisdiction. See Resp. Br. 23-25, 50.
C. This Court Has Long Recognized That States Do Not
Generally Have Jurisdiction Over Offenses By NonIndians Against Indians In Indian Country
This Court has likewise stated on multiple occasions,
albeit in dicta, that federal jurisdiction over offenses
committed by non-Indians against Indians in Indian
country is generally exclusive of state jurisdiction.
24
1. In the first of those cases, Williams v. United
States, 327 U.S. 711 (1946), a non-Indian man was convicted in federal district court of having sexual intercourse with an underage Indian girl on a reservation.
Although no jurisdictional claim was raised, the Court,
in describing the statutory regime under which the nonIndian was prosecuted, stated:
While the laws and courts of the State of Arizona
may have jurisdiction over offenses committed on
th[e] reservation between persons who are not Indians, the laws and courts of the United States, rather
than those of Arizona, have jurisdiction over offenses committed there, as in this case, by one who
is not an Indian against one who is an Indian.
Id. at 714 (emphasis added; footnote omitted).
Subsequently in Williams v. Lee, the Court held that
an Arizona court did not have jurisdiction over a civil
suit brought by a non-Indian against an Indian arising
out of a transaction occurring on the Navajo Reservation, because the exercise of state jurisdiction would undermine the authority of the tribal courts. 358 U.S. at
223. After discussing jurisdictional principles governing
Indian reservations generally and observing that “state
courts have been allowed to try non-Indians who committed crimes against each other on a reservation,” the
Court stated that “if the crime was by or against an Indian, tribal jurisdiction or that expressly conferred on
other courts by Congress has remained exclusive.” Id.
at 220; see id. at 218-221. As a result, “non-Indians committing crimes against Indians are now generally tried
in federal courts.” Id. at 220 n.5.
The Court similarly described the governing jurisdictional principles in Washington v. Confederated
Bands & Tribes of the Yakima Indian Nation, 439 U.S.
25
463 (1979) (Yakima Indian Nation), where it upheld
the manner in which Washington assumed jurisdiction
over Indians and Indian territory pursuant to Public
Law 280. The Court observed that before the State assumed jurisdiction, its law reached into Indian reservations only if it did not infringe on tribal self-government.
“As a practical matter,” the Court explained, this
“meant that criminal offenses by or against Indians
ha[d] been subject only to federal or tribal laws * * *
except where Congress * * * ‘expressly provided that
State laws shall apply.’ ” Id. at 470-471 (quoting
McClanahan v. Arizona State Tax Comm’n, 411 U.S.
164, 170-171 (1973)); see, e.g., Solem, 465 U.S. at 465 n.2,
467 n.8.
In the past two decades, this Court has continued to
discuss the allocation of jurisdiction in Indian country
in similar terms. In Nevada v. Hicks, 533 U.S. 353
(2001), the Court described “Sections 1152 and 1153 of
Title 18” as “giv[ing] United States and tribal criminal
law generally exclusive application” over “crimes committed in Indian country.” Id. at 365 (emphasis omitted). And in United States v. Bryant, 579 U.S. 140
(2016), the Court observed that “[m]ost States lack jurisdiction over crimes committed in Indian country
against Indian victims,” identifying as the exception the
States granted criminal jurisdiction under Public Law
280. Id. at 146.
Most recently, in McGirt, this Court stated that
while the Major Crimes Act “applies only to certain
crimes committed in Indian country by Indian defendants,” Section 1152 “provides that federal law applies to
a broader range of crimes by or against Indians in Indian country.” 140 S. Ct. at 2479. The Court implied
that such jurisdiction was exclusive, explaining that
26
“States are otherwise free to apply their criminal laws
in cases of non-Indian victims and defendants, including within Indian country.” Ibid. (emphasis added); cf.
U.S. Amicus Br. at 38, McGirt, supra (No. 18-9526)
(taking the position that if the Court held that the territory in question constituted a reservation over which
the federal government had jurisdiction, federal jurisdiction over crimes by non-Indians against Indians
would be exclusive).
The statements in those decisions were dicta, insofar
as the Court did not have before it a non-Indian defendant who was charged or convicted in state court. But
contrary to Oklahoma’s suggestion (Pet. Br. 28), those
repeated statements of the governing rule cannot be
dismissed as mere casual asides.
In Williams v. United States and Williams v. Lee,
the statements were part of a thorough and considered
review of jurisdictional principles in Indian country.
Williams, 327 U.S. at 714-715 n.10; Lee, 358 U.S. at 219222. Indeed, because the former case involved the federal prosecution of a non-Indian for a crime against an
Indian, its discussion of the jurisdictional framework
was pertinent to establish the statutory context for the
prosecution. In Yakima Indian Nation, the Court’s observation set the stage for a discussion of Public
Law 280—an enactment that rests on the understanding that States lack criminal jurisdiction over crimes by
or against Indians in the absence of express statutory
authorization. See pp. 21-23, supra. And in Solem, the
Court’s statements of the rule of exclusive federal jurisdiction over crimes by or against Indians explained the
consequences of a holding that a tract of land has reservation status.
27
This Court’s more recent discussions of jurisdiction
over crimes against Indians in Indian country likewise
reflect careful consideration. In Hicks, the Court’s discussion provided the backdrop for its holding that while
“[t]he States’ inherent jurisdiction on reservations can
of course be stripped by Congress”—as it had been under Sections 1152 and 1153—Congress had not proscribed the particular action at issue (state officers’ entering a reservation “to investigate or prosecute violations of state law occurring off reservation”). 533 U.S.
at 365-366. In Bryant, the Court described the “complex patchwork of federal, state, and tribal law governing Indian country,” which “made it difficult to stem the
tide of domestic violence experienced by Native American women” and thus formed the impetus for enactment
of the statute at issue. 579 U.S. at 145 (citation and internal quotation marks omitted). Finally, in McGirt,
the Court addressed the scope of state jurisdiction in
considering Oklahoma’s and the United States’ contention that recognizing a present-day Creek reservation
would “unsettle an untold number of convictions and
frustrate the State’s ability to prosecute crimes in the
future.” 140 S. Ct. at 2479. Those contentions were featured prominently in the briefing and at argument, see,
e.g., U.S. Amicus Br. at 37-39; Tr. 54-55, 64, and the
Court’s opinion gave them significant attention, 140 S. Ct.
at 2479-2480. 5
Oklahoma observes (Pet. Br. 23) that in County of Yakima v.
Confederated Tribes & Bands of the Yakima Indian Nation,
502 U.S. 251 (1992), the Court recognized “the rights of States, absent a congressional prohibition, to exercise criminal (and, implicitly, civil) jurisdiction over non-Indians located on reservation
lands.” Id. at 257-258. In support of that statement, the Court cited
Martin, supra—which held that, under McBratney, New York had
5
28
2. It is significant that Congress’s enactment of the
modern statutory provisions discussed above built on,
and indeed alternated with, this Court’s repeated statements that the States lack jurisdiction over offenses “by
or against Indians” in the absence of express congressional authorization. Thus: (1) Congress enacted the
Kansas Act in 1940, conferring jurisdiction on Kansas
on the understanding that the State was otherwise without jurisdiction over such offenses; (2) this Court expressed the same view in Williams v. United States, in
1946; (3) Congress then acted on that premise when it
provided for certain criminal jurisdiction for North Dakota in 1946 and New York and Iowa in 1948, recodified
the General Crimes Act in 1948, and enacted Public Law
280 in 1953; (4) this Court reiterated the rule of Williams v. United States in Williams v. Lee in 1959;
(5) Congress amended Public Law 280 in 1968; and
(6) this Court again reiterated that view in Yakima Indian Nation in 1979, and on several occasions thereafter. This pattern of congressional enactments and this
Court’s reiterations of the rule of exclusive federal jurisdiction confirms that States lack jurisdiction over offenses committed by non-Indians against Indians
within Indian country absent affirmative statutory authorization. See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 252
(2012) (statutes addressing the same subject should be
interpreted “harmoniously” as “part of an entire corpus
“jurisdiction to punish a murder of one non-Indian committed by
another non-Indian” on a reservation. Martin, 326 U.S. at 498.
County of Yakima’s reference to “criminal * * * jurisdiction,”
502 U.S. at 257, does not address jurisdiction over crimes committed
by non-Indians against Indians.
29
juris”). The Executive Branch, in its briefs over the
years, has taken the same position. See p. 32 n.8, infra.
D. The State’s Remaining Arguments Lack Merit
All three Branches of the federal government have
long acted on the understanding that absent specific
congressional action, States lack jurisdiction over
crimes committed by non-Indians against Indians in Indian country. A number of state courts have reached
the same result, 6 or expressed that view in dicta. 7 And
multiple federal courts of appeals have agreed. See,
e.g., United States v. Langford, 641 F.3d 1195, 1199
(10th Cir. 2011); United States v. Bruce, 394 F.3d 1215,
1221 (9th Cir. 2005); see also Felix S. Cohen, Handbook
of Federal Indian Law 146 (1942) (“The principle that
a state has no criminal jurisdiction over offenses involving Indians committed on an Indian reservation is too
well established to require argument.”). The State’s
See State v. Cungtion, 969 N.W.2d 501 (Iowa 2022); State v. Larson, 455 N.W.2d 600 (S.D. 1990); State v. Flint, 756 P.2d 324 (Ariz.
App. 1988), cert. denied, 492 U.S. 911 (1989); State v. Greenwalt,
663 P.2d 1178 (Mont. 1983); State v. Kuntz, 66 N.W.2d 531 (N.D.
1954).
In State v. McAlhaney, 17 S.E.2d 352 (1941), the Supreme Court
of North Carolina held that the State had jurisdiction over an offense by a non-Indian against an Indian on the Eastern Cherokee
Reservation. That decision predates much of this Court’s relevant
jurisprudence and most of the congressional enactments conferring
jurisdiction on particular States, and it has been called into question, albeit in a different context. See State v. Nobles, 818 S.E. 2d
129, 135 & n.2 (N.C. Ct. App. 2018); see also Flint Br. at 18-19 n.16.
7
See, e.g., State v. Reber, 171 P.3d 406, 407-408 (Utah 2007); State
v. Sebastian, 701 A.2d 13, 22 & n.21 (Conn. 1997), cert. denied,
522 U.S. 1077 (1998); State v. Warner, 379 P.2d 66, 68-69 (N.M.
1963); State v. Jackson, 16 N.W.2d 752, 754 (Minn. 1944); State v.
Youpee, 61 P.2d 832, 835 (Mont. 1936).
6
30
remaining arguments provide a wholly insufficient basis
for altering the well-established statutory allocation of
jurisdiction in Indian country, which governs not just in
Oklahoma but throughout the United States.
1. Oklahoma primarily contends that “a State has inherent authority to prosecute non-Indians who commit
crimes in Indian country within its borders, unless Congress preempts that authority.” Pet. Br. 3; see id. at 1523. But given “the history of tribal sovereignty” and the
federal government’s plenary authority over Indian affairs, “questions of pre-emption in this area are not resolved by reference to standards of pre-emption that
have developed in other areas of the law.” Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 176 (1989);
see, e.g., New Mexico v. Mescalero Apache Tribe,
462 U.S. 324, 333-334 (1983); White Mountain Apache
Tribe v. Bracker, 448 U.S. 136, 143, 150-151 (1980).
“[F]ederal statutes, treaties, and executive orders set[]
aside reservation and trust lands for purposes of tribal
self-government [and] establish a baseline of federal
law disfavoring state jurisdiction.” Cohen § 6.03[2][a],
at 519. In the case of criminal jurisdiction, that baseline
has long been established by 18 U.S.C. 1152 and 1153,
which confer exclusive jurisdiction on the federal government in the absence of an express statutory exception.
Thus, while it is true to an extent today that “[s]tate
sovereignty does not end at a reservation’s border,”
Pet. Br. 23 (brackets in original) (quoting Hicks,
533 U.S. at 361), the “basic policy of Worcester has remained,” and the Court has recognized that “when Congress has wished the States to exercise” jurisdiction in
cases involving Indians, “it has expressly granted them
* * * jurisdiction.” Lee, 358 U.S. at 219, 221; cf.
31
Kennerly v. District Court of the Ninth Judicial Dist.,
400 U.S. 423, 424 n.1, 427 (1971) (per curiam). Here,
Congress has not granted Oklahoma jurisdiction over
offenses committed by non-Indians against Indians in
Indian country; to the contrary, Congress has enacted
statutes specifically addressing such jurisdiction, which
make clear that Oklahoma may not exercise it.
2. Oklahoma observes that the Court’s more “modern cases” have sometimes held that a State’s civil laws
may apply to certain on-reservation conduct based on a
“ ‘particularized inquiry into the nature of the state, federal, and tribal interests at stake.’ ” Pet. Br. 40 (quoting
Bracker, 448 U.S. at 144-145); see id. at 22 (relying on
decisions upholding the application of state civil laws,
largely relating to taxation, to non-Indians in Indian
country). But there is no basis to undertake any such
“particularized inquiry” here in light of the longstanding statutory framework and historic understandings
discussed above.
To the extent any such balancing were relevant, Oklahoma errs in contending (Pet. Br. 42) that the question presented raises “no serious issues of tribal sovereignty.” While tribal courts generally lack authority to
try non-Indians for crimes against Indians, see Oliphant, 435 U.S. at 204, 212, Congress historically regarded exclusive federal jurisdiction over such crimes
as one aspect of the federal government’s duty to protect Indians, which stems in part from early treaties
that themselves reflect the unique nature of Indian nations as domestic dependent sovereigns. This Court
likewise understood the exclusivity of federal and tribal
jurisdiction over non-Indians in Indian country as key
to tribal sovereignty in Worcester. Those historic understandings provide key guidance in determining how
32
Congress, the Tribes, and the public would have understood Section 1152 and its predecessors—and they
would likewise be relevant to any assessment of state,
tribal, and federal interests. 8
3. Finally, although this Court’s decision in McGirt
increased the practical consequences of the question
presented in Oklahoma, that change does not warrant a
reversal of principles long governing criminal jurisdiction in Indian country throughout the Nation. Federal
law enforcement agencies in Oklahoma are working diligently with tribal and State partners to address the increased caseload occasioned by McGirt, including by indicting respondent here. While Oklahoma contends
(Pet. Br. 8-9) that those efforts may result in shorter
federal sentences, it ignores the differences between
The United States explained in Flint that—putting to one side
the origins and history of Indian law and criminal jurisdiction in Indian country in particular—a strong policy argument could be made
in more modern times that concurrent state jurisdiction over crimes
committed by non-Indians against Indians would be consistent with
state, federal, and tribal interests. See Flint Br. at 15-17. Largely
for that reason, the Office of Legal Counsel concluded in 1979 that,
although the question was “exceedingly difficult,” a “substantial
case” could be made that States should not be deprived of jurisdiction over offenses committed by non-Indians against Indians. Memorandum Opinion for the Deputy Attorney General, 3 Op. O.L.C.
111, 117, 120. The United States Attorneys’ Manual took a similar
position. U.S. Dep’t of Justice, United States Attorneys’ Manual
§ 9-20.215 (1985). As the United States explained in Flint, however,
the government subsequently came to a different view upon a thorough reexamination of the issue in light of the statutory text, history, and case law discussed above. The current Justice Manual
thus explains that absent a contrary Act of Congress, federal jurisdiction over crimes committed by non-Indians against Indians in Indian country is exclusive. See U.S. Dep’t of Justice, Criminal Resource Manual 685 (updated Jan. 22, 2020).
8
33
the availability of parole in the state and federal systems. Compare Okla. Stat. Ann. tit. 57, § 332.7 (West
2015) (providing for parole), with United States v. Haymond, 139 S. Ct. 2369, 2382 (2019) (explaining that Congress has “abolish[ed]” federal parole).
More fundamentally, to the extent that Congress
views post-McGirt challenges as warranting the conferral of state or tribal jurisdiction over crimes by nonIndians against Indians in Indian country in Oklahoma,
it may provide for such jurisdiction through targeted
legislation. See Resp. Br. 9, 53. This Court should reject Oklahoma’s invitation to upend the well-established
jurisdictional regime in Indian country—including not
only fee lands within a reservation, but also tribal trust
and restricted lands—throughout the country.
CONCLUSION
The judgment of the Oklahoma Court of Criminal
Appeals should be affirmed.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
TODD KIM
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
ERICA L. ROSS
Assistant to the Solicitor
General
JAMES A. MAYSONETT
Attorney
APRIL 2022
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.