Court Upholds State Prosecution on Tribal Lands

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court this week ruled in Oklahoma v. Castro-Huerta that States have authority to prosecute crimes committed by non-Native Americans against Native Americans on Tribal lands. The ruling deals a sharp blow to tribal sovereignty and expands the power of the States in Indian country.

The Court's reasoning amounts to this: (1) States have sovereign authority--in particular, the power to enforce State law--within their borders; (2) Indian country exists within States; (3) therefore, absent congressional override, States have the power to enforce State law against non-Native Americans in Indian country. (The Court held that Congress did not override, or preempt, this power.)

The ruling upholds a State-court conviction of Victor Manuel Castro-Huerta for child neglect of his step-daughter (a member of the Cherokee Tribe) on Cherokee land.

The ruling drew a lengthy dissent by Justice Gorsuch, joined by Justice Breyer, Sotomayor, and Kagan. Justice Gorsuch carefully traced the history and status of Indian country and tribal sovereignty under the Constitution, demonstrating "a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise." He also took sharp aim at Oklahoma's cynical efforts to encroach on tribal sovereignty, and at the nature of the case itself:

Really, though, this case has less to do with where Mr. Castro-Huerta serves his time and much more to do with Oklahoma's effort to gain a legal foothold for its wish to exercise jurisdiction over crimes involving tribal members on tribal lands. To succeed, Oklahoma must disavow adverse rulings from its own courts; disregard its 1991 recognition that it lacks legal authority to try cases of this sort; and ignore fundamental principles of tribal sovereignty, a treaty, the Oklahoma Enabling Act, its own state constitution, and Public Law 280. Oklahoma must pursue a proposition so novel and so unlikely that in over two centuries not a single State has successfully attempted it in this Court. Incredibly, too, the defense of tribal interests against the State's gambit falls to a non-Indian criminal defendant. The real party in interest here isn't Mr. Castro-Huerta but the Cherokee, a Tribe of 400,000 members with its own government. Yet the Cherokee have no voice as parties in these proceedings; they and other Tribes are relegated to the filing of amicus briefs.