Carefully Curated Snippets: Oklahoma v. Castro-Huerta

By: Ashleigh Fixico

On June 29, 2022, the Supreme Court of the United States failed to uphold the integrity of the judiciary when it decided Oklahoma v. Castro-Huerta. [1] Instead of relying on long-established rules that provided clear answers to the question at issue, the Court chose “carefully curated snippets” to justify the answer it wanted. [Dissent at 28-29] The Court determined Oklahoma has a strong sovereign interest in protecting public safety within its borders; therefore, it should have jurisdiction on tribal lands located within the state. [1 at 20]. However, the Court reached that determination by ignoring policy and precedent that has long established that tribal nations thrive when states are barred from infringing on their sovereignty.

In 2015, the State of Oklahoma charged Victor Castro-Huerta, a non-Indian living in Tulsa, with child neglect. The victim, his five-year-old stepdaughter, is a citizen of the Cherokee Nation of Oklahoma. Oklahoma convicted Castro-Huerta and sentenced him to 35 years imprisonment. While his state appeal was pending, the Supreme Court of the United States decided McGirt v. Oklahoma, which held the Muscogee (Creek) Nation Reservation had not been disestablished. [2] This meant that Tulsa, where Castro-Huerta committed a crime against an Indian, fell within Indian country. Castro-Huerta appealed his conviction arguing the federal government had exclusive jurisdiction over crimes committed by non-Indians in Indian country. The Oklahoma Court of Criminal Appeals agreed and vacated his conviction. Oklahoma petitioned for a writ of certiorari asking the Court to decide whether a state has authority to prosecute non-Indian offenses committed against Indians in Indian country. The Court concluded that, because Indian country is part of a state’s territory, states have jurisdiction to prosecute non-Indian crimes in Indian country unless preempted by federal law. [See 1 2-4].

First, the Court determined states have concurrent jurisdiction in Indian country as it pertains to non-Indians based on the presumption that states have jurisdiction over its territorial boundaries unless preempted by federal law. [1] To reach this presumption, the Court had to declare Worcester v. Georgia, 31 U.S. 515 (1832), overruled. In Worcester, the Supreme Court declared tribal nations are distinct communities in which state laws can have no force without tribal consent, treaty authorization, or congressional authority. [3] Since that decision, tribal nations, the federal government, and states have understood the rule to be that states have no jurisdiction on tribal lands unless and until they obtain tribal consent, congressional authorization, or some other authority. However, the Castro-Huerta Court determined the Constitution and precedent established that Indian country is part of a state’s territory subject to its criminal jurisdiction unless preempted. [1] The Court relied on the Constitution despite the glaring fact that tribal nations are extra-constitutional and pre-constitutional; therefore, the Constitution cannot define the limits of tribal sovereignty. Instead, the Constitution vests Congress, through the Indian Commerce Clause, with the power to govern Indian affairs. The Court also relied on precedent it thought showed the Worcester rule had been overruled, but the Court’s reliance was misplaced. The Court relied on cases from the mid-1800s and early 1900s to show it had consistently held Indian country to be part of the surrounding state. [1] However, these cases were only helpful if the Court ignored the context in which the cases were decided and ignored the underlying facts that distinguished Castro-Huerta’s case from those cited. [Dissent at 29] Despite the “mountain of statutes and precedents making plain that Oklahoma possesses no authority to prosecute crimes against tribal members on tribal reservations,” the Court determined states do have authority in Indian country as it pertains to non-Indians. [Dissent at 29]

After finding states have jurisdiction in Indian country, the Court had to determine whether Oklahoma’s criminal jurisdiction over non-Indians on tribal lands had been preempted. [1] The Court applied what is commonly referred to as the “Bracker Balancing Test” to determine whether the exercise of state jurisdiction would unlawfully infringe on tribal self-government; thereby, preempting state jurisdiction in Indian country. [1] The Bracker test considers tribal, federal, and state interests in regulating the activity or conduct at issue. Prior to Castro-Huerta, the test began with the Worcester presumption that states do not have authority in Indian country without preemption, tribal consent, or congressional authorization. This required states to prove they had such a compelling interest in the activity to be regulated in Indian country that their interest overcame the presumption against state authority. However, the Court, having ruled Worcester had given way to “closer analysis”, began with the presumption that states have jurisdiction in Indian country unless preempted. This shifted the burden to the tribal nation and federal government to show the state’s actions would unlawfully infringe on tribal self-government. Here, the Court held Oklahoma’s exercise of jurisdiction would not unlawfully infringe on tribal self-government and is therefore permitted. The Court found federal interests in protecting Native victims would be supplemented, not supplanted, by state jurisdiction. [1]  In fact, the Court reasoned that concurrent jurisdiction would further federal interests by facilitating effective law enforcement on tribal lands. However, the Court failed to acknowledge that states exercising criminal jurisdiction on tribal lands have not decreased the rates of violence against Native women and children. [4 at 10] In fact, many states exercising criminal jurisdiction in Indian country fail to provide sufficient funding to local law enforcement serving tribal lands, which decreases responsiveness and effectiveness. [4 at 10] Moreover, the Court found Oklahoma’s interest in ensuring public safety and criminal justice for all victims within its territory to be especially strong. [1] Again, the Court failed to acknowledge that Oklahoma has not adequately addressed violence against Native victims. For example, the Urban Indian Health Institute found Oklahoma is ranked #10 for states with the highest number of Missing and Murdered Indigenous Women and Girls cases. [5] Oklahoma’s interests may be strong, but its efforts so far are not.

The Court relied on its own bizarre understanding of federal Indian law to determine states have criminal jurisdiction on tribal lands unless preempted by federal law. The Court declared precedent that has been relied upon by the federal government, Congress, and tribal nations for 190 years dead without any textual support besides the string of words it picked from cases that said what it wanted. With its “carefully curated snippets,” the U.S. Supreme Court failed to uphold and promote the integrity of the judiciary—potentially signaling a new era of federal Indian law.

Ashleigh N. Fixico is a citizen of the Muscogee (Creek) Nation from Seminole, Oklahoma. She is a 2L and is the President of the Native American Law Student Association (NALSA). Most recently, Ashleigh clerked with the Native American Rights Fund in Boulder, Colorado. Ashleigh is dedicated to enhancing tribal economic development and fostering greater tribal self-determination. Her personal interests include spending time with her four-legged son Joxie, trying new things, and cooking for her family.