Oklahoma v. Castro-Huerta ( 2022 )

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
OKLAHOMA v. CASTRO-HUERTA
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF
OKLAHOMA
No. 21–429. Argued April 27, 2022—Decided June 29, 2022
In 2015, respondent Victor Manuel Castro-Huerta was charged by the
State of Oklahoma for child neglect. Castro-Huerta was convicted in
state court and sentenced to 35 years of imprisonment. While Castro-
Huerta’s state-court appeal was pending, this Court decided McGirt v.
Oklahoma, 591 U. S. ___. There, the Court held that the Creek Na-
tion’s reservation in eastern Oklahoma had never been properly dises-
tablished and therefore remained “Indian country.” Id., at ___. In
light of McGirt, the eastern part of Oklahoma, including Tulsa, is rec-
ognized as Indian country. Following this development, Castro-
Huerta argued that the Federal Government had exclusive jurisdiction
to prosecute him (a non-Indian) for a crime committed against his step-
daughter (a Cherokee Indian) in Tulsa (Indian country), and that the
State therefore lacked jurisdiction to prosecute him. The Oklahoma
Court of Criminal Appeals agreed and vacated his conviction. This
Court granted certiorari to determine the extent of a State’s jurisdic-
tion to prosecute crimes committed by non-Indians against Indians in
Indian country.
Held: The Federal Government and the State have concurrent jurisdic-
tion to prosecute crimes committed by non-Indians against Indians in
Indian country. Pp. 4–25.
(a) The jurisdictional dispute in this case arises because Oklahoma’s
territory includes Indian country. In the early Republic, the Federal
Government sometimes treated Indian country as separate from state
territory. See Worcester v. Georgia, 6 Pet. 515. But that view has long
since been abandoned. Organized Village of Kake v. Egan, 369 U. S.
60, 72. And the Court has specifically held that States have jurisdic-
tion to prosecute crimes committed by non-Indians against non-Indi-
ans in Indian country. United States v. McBratney, 104 U. S. 621; see
2 OKLAHOMA v. CASTRO-HUERTA
Syllabus
also Draper v. United States, 164 U. S. 240, 244–247. Accordingly,
States have jurisdiction to prosecute crimes committed in Indian coun-
try unless preempted. Pp. 4–6.
(b) Under Court precedent, a State’s jurisdiction in Indian country
may be preempted by federal law under ordinary principles of federal
preemption, or when the exercise of state jurisdiction would unlaw-
fully infringe on tribal self-government. Neither serves to preempt
state jurisdiction in this case. Pp. 6–20.
(1) Castro-Huerta points to two federal laws—the General Crimes
Act and Public Law 280—that, in his view, preempt Oklahoma’s au-
thority to prosecute crimes committed by non-Indians against Indians
in Indian country. Neither statute, however, preempts the State’s ju-
risdiction. Pp. 7–18.
(i) The General Crimes Act does not preempt state authority to
prosecute Castro-Huerta’s crime. It provides that “the general laws of
the United States as to the punishment of offenses committed . . .
within the sole and exclusive jurisdiction of the United States . . . shall
extend to the Indian country.” 18 U. S. C. §1152. By its terms, the Act
simply “extend[s]” the federal laws that apply on federal enclaves to
Indian country. The Act does not say that Indian country is equivalent
to a federal enclave for jurisdictional purposes, that federal jurisdic-
tion is exclusive in Indian country, or that state jurisdiction is
preempted in Indian country.
Castro-Huerta claims that the General Crimes Act does indeed
make Indian country the jurisdictional equivalent of a federal enclave.
Castro-Huerta is wrong as a matter of text and precedent.
Pointing to the history of territorial separation and Congress’s reen-
actment of the General Crimes Act after this Court suggested in dicta
in Williams v. United States, 327 U. S. 711, 714, that States lack juris-
diction over crimes committed by non-Indians against Indians in In-
dian country, Castro-Huerta argues that Congress implicitly intended
for the Act to provide the Federal Government with exclusive jurisdic-
tion over crimes committed by non-Indians against Indians in Indian
country. But the text of the Act says no such thing; the idea of territo-
rial separation has long since been abandoned; and the reenactment
canon cannot be invoked to override clear statutory language of the
kind present in the General Crimes Act. Castro-Huerta notes that the
Court has repeated the Williams dicta on subsequent occasions, but
even repeated dicta does not constitute precedent and does not alter
the plain text of the General Crimes Act. Pp. 7–16.
(ii) Castro-Huerta’s attempt to invoke Public Law 280, 67 Stat.
588, is also unpersuasive. That law affirmatively grants certain States
(and allows other States to acquire) broad jurisdiction to prosecute
state-law offenses committed by or against Indians in Indian country.
Cite as: 597 U. S. ____ (2022) 3
Syllabus
18 U. S. C. §1162; 25 U. S. C. §1321. Castro-Huerta contends that the
law’s enactment in 1953 would have been pointless surplusage if
States already had concurrent jurisdiction over crimes committed by
non-Indians against Indians in Indian country. But Public Law 280
contains no language preempting state jurisdiction. And Public Law
280 encompasses far more than just non-Indian on Indian crimes.
Thus, resolution of the narrow jurisdictional issue here does not negate
the significance of Public Law 280. Pp. 16–18.
(2) The test articulated in White Mountain Apache Tribe v.
Bracker, 448 U. S. 136, does not bar the State from prosecuting crimes
committed by non-Indians against Indians in Indian country. There,
the Court held that even when federal law does not preempt state ju-
risdiction under ordinary preemption analysis, preemption may still
occur if the exercise of state jurisdiction would unlawfully infringe
upon tribal self-government. Id., at 142–143. Under Bracker’s balanc-
ing test, the Court considers tribal interests, federal interests, and
state interests. Id., at 145. Here, the exercise of state jurisdiction
would not infringe on tribal self-government. And because a State’s
jurisdiction is concurrent with federal jurisdiction, a state prosecution
would not preclude an earlier or later federal prosecution. Finally, the
State has a strong sovereign interest in ensuring public safety and
criminal justice within its territory, including an interest in protecting
both Indian and non-Indian crime victims. Pp. 18–20.
(c) This Court has long held that Indian country is part of a State,
not separate from it. Under the Constitution, States have jurisdiction
to prosecute crimes within their territory except when preempted by
federal law or by principles of tribal self-government. The default is
that States have criminal jurisdiction in Indian country unless that
jurisdiction is preempted. And that jurisdiction has not been
preempted here. Pp. 21–25.
Reversed and remanded.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, and BARRETT, JJ., joined. GORSUCH, J., filed a
dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ.,
joined.
Cite as: 597 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–429
_________________
OKLAHOMA, PETITIONER v. VICTOR MANUEL
CASTRO-HUERTA
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF OKLAHOMA
[June 29, 2022]
JUSTICE KAVANAUGH delivered the opinion of the Court.
This case presents a jurisdictional question about the
prosecution of crimes committed by non-Indians against In-
dians in Indian country: Under current federal law, does
the Federal Government have exclusive jurisdiction to pros-
ecute those crimes? Or do the Federal Government and the
State have concurrent jurisdiction to prosecute those
crimes? We conclude that the Federal Government and the
State have concurrent jurisdiction to prosecute crimes com-
mitted by non-Indians against Indians in Indian country.
I
In 2015, Victor Manuel Castro-Huerta lived in Tulsa, Ok-
lahoma, with his wife and their several children, including
Castro-Huerta’s then-5-year-old stepdaughter, who is a
Cherokee Indian. The stepdaughter has cerebral palsy and
is legally blind. One day in 2015, Castro-Huerta’s sister-in-
law was in the house and noticed that the young girl was
sick. After a 911 call, the girl was rushed to a Tulsa hospi-
tal in critical condition. Dehydrated, emaciated, and cov-
ered in lice and excrement, she weighed only 19 pounds. In-
vestigators later found her bed filled with bedbugs and
2 OKLAHOMA v. CASTRO-HUERTA
Opinion of the Court
cockroaches.
When questioned, Castro-Huerta admitted that he had
severely undernourished his stepdaughter during the pre-
ceding month. The State of Oklahoma criminally charged
both Castro-Huerta and his wife for child neglect. Both
were convicted. Castro-Huerta was sentenced to 35 years
of imprisonment, with the possibility of parole. This case
concerns the State’s prosecution of Castro-Huerta.
After Castro-Huerta was convicted and while his appeal
was pending in state court, this Court decided McGirt v.
Oklahoma, 591 U. S. ___ (2020). In McGirt, the Court held
that Congress had never properly disestablished the Creek
Nation’s reservation in eastern Oklahoma. As a result, the
Court concluded that the Creek Reservation remained “In-
dian country.” Id., at ___–___, ___, ___ (slip op., at 1–3, 17,
28). The status of that part of Oklahoma as Indian country
meant that different jurisdictional rules might apply for the
prosecution of criminal offenses in that area. See 18
U. S. C. §§1151–1153. Based on McGirt’s reasoning, the
Oklahoma Court of Criminal Appeals later recognized that
several other Indian reservations in Oklahoma had like-
wise never been properly disestablished. See, e.g., State
ex rel. Matloff v. Wallace, 2021 OK CR 21, ¶15, 497 P. 3d
686, 689 (reaffirming recognition of the Cherokee, Choctaw,
and Chickasaw Reservations); Grayson v. State, 2021 OK
CR 8, ¶10, 485 P. 3d 250, 254 (Seminole Reservation).
In light of McGirt and the follow-on cases, the eastern
part of Oklahoma, including Tulsa, is now recognized as In-
dian country. About two million people live there, and the
vast majority are not Indians.
The classification of eastern Oklahoma as Indian country
has raised urgent questions about which government or
governments have jurisdiction to prosecute crimes commit-
ted there. This case is an example: a crime committed in
what is now recognized as Indian country (Tulsa) by a non-
Cite as: 597 U. S. ____ (2022) 3
Opinion of the Court
Indian (Castro-Huerta) against an Indian (his stepdaugh-
ter). All agree that the Federal Government has jurisdic-
tion to prosecute crimes committed by non-Indians against
Indians in Indian country. The question is whether the
Federal Government’s jurisdiction is exclusive, or whether
the State also has concurrent jurisdiction with the Federal
Government.
In the wake of McGirt, Castro-Huerta argued that the
Federal Government’s jurisdiction to prosecute crimes com-
mitted by a non-Indian against an Indian in Indian country
is exclusive and that the State therefore lacked jurisdiction
to prosecute him. The Oklahoma Court of Criminal Ap-
peals agreed with Castro-Huerta. Relying on an earlier Ok-
lahoma decision holding that the federal General Crimes
Act grants the Federal Government exclusive jurisdiction,
the court ruled that the State did not have concurrent ju-
risdiction to prosecute crimes committed by non-Indians
against Indians in Indian country. The court therefore va-
cated Castro-Huerta’s conviction. No. F–2017–1203 (Apr.
29, 2021); see also Bosse v. State, 2021 OK CR 3, 484 P. 3d
286; Roth v. State, 2021 OK CR 27, 499 P. 3d 23.
While Castro-Huerta’s state appellate proceedings were
ongoing, a federal grand jury in Oklahoma indicted Castro-
Huerta for the same conduct. Castro-Huerta accepted a
plea agreement for a 7-year sentence followed by removal
from the United States. (Castro-Huerta is not a U. S. citi-
zen and is unlawfully in the United States.) In other words,
putting aside parole possibilities, Castro-Huerta in effect
received a 28-year reduction of his sentence as a result of
McGirt.
Castro-Huerta’s case exemplifies a now-familiar pattern
in Oklahoma in the wake of McGirt. The Oklahoma courts
have reversed numerous state convictions on that same ju-
risdictional ground. After having their state convictions re-
versed, some non-Indian criminals have received lighter
4 OKLAHOMA v. CASTRO-HUERTA
Opinion of the Court
sentences in plea deals negotiated with the Federal Govern-
ment. Others have simply gone free. Going forward, the
State estimates that it will have to transfer prosecutorial
responsibility for more than 18,000 cases per year to the
Federal and Tribal Governments. All of this has created a
significant challenge for the Federal Government and for
the people of Oklahoma. At the end of fiscal year 2021, the
U. S. Department of Justice was opening only 22% and 31%
of all felony referrals in the Eastern and Northern Districts
of Oklahoma. Dept. of Justice, U. S. Attorneys, Fiscal Year
2023 Congressional Justification 46. And the Department
recently acknowledged that “many people may not be held
accountable for their criminal conduct due to resource con-
straints.” Ibid.In light of the sudden significance of this jurisdictional
question for public safety and the criminal justice system in
Oklahoma, this Court granted certiorari to decide whether
a State has concurrent jurisdiction with the Federal Gov-
ernment to prosecute crimes committed by non-Indians
against Indians in Indian country. 595 U. S. ___ (2022).1
II
The jurisdictional dispute in this case arises because Ok-
lahoma’s territory includes Indian country. Federal law de-
fines “Indian country” to include, among other things, “all
land within the limits of any Indian reservation under the
jurisdiction of the United States Government.” 18 U. S. C.
§1151.
To begin with, the Constitution allows a State to exercise
jurisdiction in Indian country. Indian country is part of the
State, not separate from the State. To be sure, under this
Court’s precedents, federal law may preempt that state ju-
risdiction in certain circumstances. But otherwise, as a
——————
1 Both the United States and the Cherokee Nation, along with several
other Tribes, filed amicus briefs in this case articulating their views on
the legal questions before the Court.
Cite as: 597 U. S. ____ (2022) 5
Opinion of the Court
matter of state sovereignty, a State has jurisdiction over all
of its territory, including Indian country. See U. S. Const.,
Amdt. 10. As this Court has phrased it, a State is generally
“entitled to the sovereignty and jurisdiction over all the ter-
ritory within her limits.” Lessee of Pollard v. Hagan, 3 How.
212, 228 (1845).
In the early years of the Republic, the Federal Govern-
ment sometimes treated Indian country as separate from
state territory—in the same way that, for example, New
Jersey is separate from New York. Most prominently, in
the 1832 decision in Worcester v. Georgia, 6 Pet. 515, 561,
this Court held that Georgia state law had no force in the
Cherokee Nation because the Cherokee Nation “is a distinct
community occupying its own territory.”
But the “general notion drawn from Chief Justice Mar-
shall’s opinion in Worcester v. Georgia” “has yielded to
closer analysis.” Organized Village of Kake v. Egan, 369
U. S. 60, 72 (1962). “By 1880 the Court no longer viewed
reservations as distinct nations.” Ibid. Since the latter half
of the 1800s, the Court has consistently and explicitly held
that Indian reservations are “part of the surrounding State”
and subject to the State’s jurisdiction “except as forbidden
by federal law.” Ibid.To take a few examples: In 1859, the Court stated:
States retain “the power of a sovereign over their persons
and property, so far as” “necessary to preserve the peace of
the Commonwealth.” New York ex rel. Cutler v. Dibble, 21
How. 366, 370 (1859).
In 1930: “[R]eservations are part of the State within
which they lie and her laws, civil and criminal, have the
same force therein as elsewhere within her limits, save that
they can have only restricted application to the Indian
wards.” Surplus Trading Co. v. Cook, 281 U. S. 647, 651
(1930).
In 1946: “[I]n the absence of a limiting treaty obligation
6 OKLAHOMA v. CASTRO-HUERTA
Opinion of the Court
or Congressional enactment each state ha[s] a right to ex-
ercise jurisdiction over Indian reservations within its
boundaries.” New York ex rel. Ray v. Martin, 326 U. S. 496,
499 (1946).
In 1992: “This Court’s more recent cases have recognized
the rights of States, absent a congressional prohibition, to
exercise criminal (and, implicitly, civil) jurisdiction over
non-Indians located on reservation lands.” County of Ya-
kima v. Confederated Tribes and Bands of Yakima Nation,
502 U. S. 251, 257–258 (1992).
And as recently as 2001: “State sovereignty does not end
at a reservation’s border.” Nevada v. Hicks, 533 U. S. 353,
361 (2001).
In accord with that overarching jurisdictional principle
dating back to the 1800s, States have jurisdiction to prose-
cute crimes committed in Indian country unless preempted.
In the leading case in the criminal context—the McBratney
case from 1882—this Court held that States have jurisdic-
tion to prosecute crimes committed by non-Indians against
non-Indians in Indian country. United States v. McBratney,
104 U. S. 621, 623–624 (1882). The Court stated that Colo-
rado had “criminal jurisdiction” over crimes by non-Indians
against non-Indians “throughout the whole of the territory
within its limits, including the Ute Reservation.” Id., at
624. Several years later, the Court similarly decided that
Montana had criminal jurisdiction over crimes by non-Indi-
ans against non-Indians in Indian country within that
State. Draper v. United States, 164 U. S. 240, 244–247
(1896). The McBratney principle remains good law.
In short, the Court’s precedents establish that Indian
country is part of a State’s territory and that, unless
preempted, States have jurisdiction over crimes committed
in Indian country.
III
The central question that we must decide, therefore, is
Cite as: 597 U. S. ____ (2022) 7
Opinion of the Court
whether the State’s authority to prosecute crimes commit-
ted by non-Indians against Indians in Indian country has
been preempted. U. S. Const., Art. VI.
Under the Court’s precedents, as we will explain, a
State’s jurisdiction in Indian country may be preempted
(i) by federal law under ordinary principles of federal
preemption, or (ii) when the exercise of state jurisdiction
would unlawfully infringe on tribal self-government.
In Part III–A, we consider whether state authority to
prosecute crimes committed by non-Indians against Indi-
ans in Indian country is preempted by federal law under
ordinary principles of preemption. In Part III–B, we con-
sider whether principles of tribal self-government preclude
the exercise of state jurisdiction over crimes committed by
non-Indians against Indians in Indian country.
A
Castro-Huerta points to two federal laws that, in his
view, preempt Oklahoma’s authority to prosecute crimes
committed by non-Indians against Indians in Indian coun-
try: (i) the General Crimes Act, which grants the Federal
Government jurisdiction to prosecute crimes in Indian
country, 18 U. S. C. §1152; and (ii) Public Law 280, which
grants States, or authorizes States to acquire, certain addi-
tional jurisdiction over crimes committed in Indian country,
67 Stat. 588; see 18 U. S. C. §1162; 25 U. S. C. §1321. Nei-
ther statute preempts preexisting or otherwise lawfully as-
sumed state authority to prosecute crimes committed by
non-Indians against Indians in Indian country.
1
As relevant here, the General Crimes Act provides: “Ex-
cept 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 juris-
8 OKLAHOMA v. CASTRO-HUERTA
Opinion of the Court
diction of the United States, except the District of Colum-
bia, shall extend to the Indian country.” 18 U. S. C. §1152.
By its terms, the Act does not preempt the State’s author-
ity to prosecute non-Indians who commit crimes against In-
dians in Indian country. The text of the Act simply “ex-
tend[s]” federal law to Indian country, leaving untouched
the background principle of state jurisdiction over crimes
committed within the State, including in Indian country.
Ibid.The Act also specifies the body of federal criminal law
that extends to Indian country—namely, “the general laws
of the United States as to the punishment of offenses com-
mitted in any place within the sole and exclusive jurisdic-
tion of the United States.” Ibid. Those cross-referenced
“general laws” are the federal laws that apply in federal en-
claves such as military bases and national parks. Ibid.Importantly, however, the General Crimes Act does not
say that Indian country is equivalent to a federal enclave
for jurisdictional purposes. Nor does the Act say that fed-
eral jurisdiction is exclusive in Indian country, or that state
jurisdiction is preempted in Indian country.
Under the General Crimes Act, therefore, both the Fed-
eral Government and the State have concurrent jurisdiction
to prosecute crimes committed in Indian country.2 The
General Crimes Act does not preempt state authority to
prosecute Castro-Huerta’s crime.
To overcome the text, Castro-Huerta offers several coun-
terarguments. None is persuasive.
——————
2 To the extent that a State lacks prosecutorial authority over crimes
committed by Indians in Indian country (a question not before us), that
would not be a result of the General Crimes Act. Instead, it would be the
result of a separate principle of federal law that, as discussed below, pre-
cludes state interference with tribal self-government. See Part III–B,
infra; White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 142–143,
145 (1980); McClanahan v. Arizona Tax Comm’n, 411 U. S. 164, 171−172
(1973).
Cite as: 597 U. S. ____ (2022) 9
Opinion of the Court
First, Castro-Huerta advances what he describes as a tex-
tual argument. He contends that the text of the General
Crimes Act makes Indian country the jurisdictional equiv-
alent of a federal enclave. To begin, he points out that the
Federal Government has exclusive jurisdiction to prosecute
crimes committed in federal enclaves such as military bases
and national parks. And then Castro-Huerta asserts that
the General Crimes Act in effect equates federal enclaves
and Indian country. Therefore, according to Castro-Huerta,
it follows that the Federal Government also has exclusive
jurisdiction to prosecute crimes committed in Indian coun-
try.
Castro-Huerta’s syllogism is wrong as a textual matter.
The Act simply borrows the body of federal criminal law
that applies in federal enclaves and extends it to Indian
country. The Act does not purport to equate Indian country
and federal enclaves for jurisdictional purposes. Moreover,
it is not enough to speculate, as Castro-Huerta does, that
Congress might have implicitly intended a jurisdictional
parallel between Indian country and federal enclaves.
Castro-Huerta’s argument also directly contradicts this
Court’s precedents. As far back as 1891, the Court stated
that the phrase “sole and exclusive jurisdiction” in the Gen-
eral Crimes Act is “only used in the description of the laws
which are extended” to Indian country, not “to the jurisdic-
tion extended over the Indian country.” In re Wilson, 140
U. S. 575, 578 (1891). The Court repeated that analysis in
1913, concluding that the phrase “sole and exclusive juris-
diction” is “used in order to describe the laws of the United
States which by that section are extended to the Indian
country.” Donnelly v. United States, 228 U. S. 243, 268
(1913).
Stated otherwise, the General Crimes Act provides that
the federal criminal laws that apply to federal enclaves also
apply in Indian country. But the extension of those federal
laws to Indian country does not silently erase preexisting
10 OKLAHOMA v. CASTRO-HUERTA
Opinion of the Court
or otherwise lawfully assumed state jurisdiction to prose-
cute crimes committed by non-Indians in Indian country.
Moreover, if Castro-Huerta’s interpretation of the Gen-
eral Crimes Act were correct, then the Act would preclude
States from prosecuting any crimes in Indian country—pre-
sumably even those crimes committed by non-Indians
against non-Indians—just as States ordinarily cannot pros-
ecute crimes committed in federal enclaves. But this Court
has long held that States may prosecute crimes committed
by non-Indians against non-Indians in Indian country. See
McBratney, 104 U. S., at 623–624; Draper, 164 U. S., at242–246. Those holdings, too, contravene Castro-Huerta’s
argument regarding the General Crimes Act.
In advancing his enclave argument, Castro-Huerta also
tries to analogize the text of the General Crimes Act to the
text of the Major Crimes Act. He asserts that the Major
Crimes Act grants the Federal Government exclusive juris-
diction to prosecute certain major crimes committed by In-
dians in Indian country. But the Major Crimes Act contains
substantially different language than the General Crimes
Act. Unlike the General Crimes Act, the Major Crimes Act
says that defendants in Indian country “shall be subject to
the same law” as defendants in federal enclaves. See 18
U. S. C. §1153 (“Any Indian who commits against the per-
son or property of another Indian or other person any of ”
certain major offenses “shall be subject to the same law and
penalties as all other persons committing any of the above
offenses, within the exclusive jurisdiction of the United
States”). So even assuming that the text of the Major
Crimes Act provides for exclusive federal jurisdiction over
major crimes committed by Indians in Indian country, see,
e.g., United States v. John, 437 U. S. 634, 651, and n. 22
(1978); Negonsott v. Samuels, 507 U. S. 99, 103 (1993), that
conclusion does not translate to the differently worded Gen-
eral Crimes Act.
In short, the General Crimes Act does not treat Indian
Cite as: 597 U. S. ____ (2022) 11
Opinion of the Court
country as the equivalent of a federal enclave for jurisdic-
tional purposes. Nor does the Act make federal jurisdiction
exclusive or preempt state law in Indian country.
Second, Castro-Huerta contends that, regardless of the
statutory text, Congress implicitly intended for the General
Crimes Act to provide the Federal Government with exclu-
sive jurisdiction over crimes committed by non-Indians
against Indians in Indian country.
The fundamental problem with Castro-Huerta’s implicit
intent argument is that the text of the General Crimes Act
says no such thing. Congress expresses its intentions
through statutory text passed by both Houses and signed
by the President (or passed over a Presidential veto). As
this Court has repeatedly stated, the text of a law controls
over purported legislative intentions unmoored from any
statutory text. The Court may not “replace the actual text
with speculation as to Congress’ intent.” Magwood v. Pat-
terson, 561 U. S. 320, 334 (2010). Rather, the Court “will
presume more modestly” that “the legislature says what it
means and means what it says.” Henson v. Santander Con-
sumer USA Inc., 582 U. S. 79, ___ (2017) (slip op., at 10)
(internal quotation marks and alterations omitted); see,
e.g., McGirt, 591 U. S., at ___ (slip op., at 12) (“[W]ishes are
not laws”); Virginia Uranium, Inc. v. Warren, 587 U. S. ___,
___ (2019) (lead opinion) (slip op., at 14) (The Supremacy
Clause cannot “be deployed” “to elevate abstract and unen-
acted legislative desires above state law”); Alexander v.
Sandoval, 532 U. S. 275, 287–288 (2001) (The Court does
not give “dispositive weight to the expectations that the en-
acting Congress had formed in light of the contemporary le-
gal context,” because we “begin (and find that we can end)
our search for Congress’s intent with . . . text and structure”
(internal quotation marks omitted)); Central Bank of Den-
ver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S.
164, 173 (1994) (“[T]he text of the statute controls our deci-
sion”).
12 OKLAHOMA v. CASTRO-HUERTA
Opinion of the Court
To buttress his implicit intent argument, Castro-Huerta
seizes on the history of the General Crimes Act. At the time
of the Act’s earliest iterations in 1817 and 1834, Indian
country was separate from the States. Therefore, at that
time, state law did not apply in Indian country—in the
same way that New York law would not ordinarily have ap-
plied in New Jersey. But territorial separation—not juris-
dictional preemption by the General Crimes Act—was the
reason that state authority did not extend to Indian country
at that time.
Because Congress operated under a different territorial
paradigm in 1817 and 1834, it had no reason at that time
to consider whether to preempt preexisting or lawfully as-
sumed state criminal authority in Indian country. For pre-
sent purposes, the fundamental point is that the text of the
General Crimes Act does not preempt state law. And this
Court does not “rewrite a constitutionally valid statutory
text under the banner of speculation about what Congress
might have done had it faced a question that . . . it never
faced.” Henson, 582 U. S., at ___ (slip op., at 9). The history
of territorial separation during the early years of the Re-
public is not a license or excuse to rewrite the text of the
General Crimes Act.
As noted above, the Worcester-era understanding of In-
dian country as separate from the State was abandoned
later in the 1800s. After that change, Indian country in
each State became part of that State’s territory. But Con-
gress did not alter the General Crimes Act to make federal
criminal jurisdiction exclusive in Indian country. To this
day, the text of the General Crimes Act still does not make
federal jurisdiction exclusive or preempt state jurisdiction.
In 1882, in McBratney, moreover, this Court held that
States have jurisdiction to prosecute at least some crimes
committed in Indian country. Since 1882, therefore, Con-
gress has been specifically aware that state criminal laws
apply to some extent in Indian country. Yet since then,
Cite as: 597 U. S. ____ (2022) 13
Opinion of the Court
Congress has never enacted new legislation that would ren-
der federal jurisdiction exclusive or preempt state jurisdic-
tion over crimes committed by non-Indians in Indian coun-
try. Additionally, in 1979, the Office of Legal Counsel
stated that this Court had not resolved the specific issue of
state jurisdiction over crimes committed by non-Indians
against Indians in Indian country, and that the issue was
not settled. 3 Op. OLC 111, 117–119 (1979). Yet Congress
still did not act to make federal jurisdiction exclusive or to
preempt state jurisdiction.
On a different tack, Castro-Huerta invokes the reenact-
ment canon. Castro-Huerta points out that, in 1948, Con-
gress recodified the General Crimes Act. Two years before
that recodification, this Court suggested in dicta that States
lack jurisdiction over crimes committed by non-Indians
against Indians in Indian country. See Williams v. United
States, 327 U. S. 711, 714 (1946). Castro-Huerta contends
that the 1948 Congress therefore intended to ratify the Wil-
liams dicta.
Castro-Huerta’s reenactment-canon argument is mis-
placed. First of all, the reenactment canon does not over-
ride clear statutory language of the kind present in the
General Crimes Act. See BP p.l.c. v. Mayor and City Coun-
cil of Baltimore, 593 U. S. ___, ___ (2021) (slip op., at 11).
In addition, the canon does not apply to dicta. See Jama v.
Immigration and Customs Enforcement, 543 U. S. 335, 349,
351, n. 12 (2005). The Court’s statements in Williams were
pure dicta. Indeed, the Williams dicta did not even purport
to interpret the text of the General Crimes Act. Dicta that
does not analyze the relevant statutory provision cannot be
said to have resolved the statute’s meaning. Moreover, any
inference from Congress’s 1948 recodification is especially
weak because that recodification was not specific to the
General Crimes Act, but instead was simply a general re-
codification of all federal criminal laws. This Court has pre-
14 OKLAHOMA v. CASTRO-HUERTA
Opinion of the Court
viously explained that “the function” of the 1948 recodifica-
tion “was generally limited to that of consolidation and cod-
ification.” Muniz v. Hoffman, 422 U. S. 454, 474 (1975) (in-
ternal quotation marks omitted). This Court does not infer
that Congress, “in revising and consolidating the laws, in-
tended to change their policy, unless such an intention be
clearly expressed.” Id., at 470 (internal quotation marks
omitted).
For many reasons, then, we cannot conclude that Con-
gress, by recodifying the entire Federal Criminal Code in
1948, silently ratified a few sentences of dicta from Wil-
liams. The reenactment canon does not apply in this case.
Third, Castro-Huerta contends that the Court has re-
peated the 1946 Williams dicta on several subsequent occa-
sions. But the Court’s dicta, even if repeated, does not con-
stitute precedent and does not alter the plain text of the
General Crimes Act, which was the law passed by Congress
and signed by the President. See National Collegiate Ath-
letic Assn. v. Alston, 594 U. S. ___, ___ (2021) (slip op., at
21).3
——————
3 In addition to citing Williams and later cases, Castro-Huerta also
cites the earlier 1913 decision in Donnelly v. United States, 228 U. S. 243.
According to Castro-Huerta, Donnelly determined that States may not
exercise jurisdiction in Indian country over crimes by or against Indians.
Castro-Huerta is wrong. In Donnelly, the Court simply concluded that
although States have exclusive jurisdiction over crimes committed by
non-Indians against non-Indians in Indian country, States do not have
similarly “undivided authority” over crimes committed by or against In-
dians in Indian country. Id., at 271–272 (emphasis added). In other
words, the Federal Government also maintains jurisdiction under the
General Crimes Act over crimes by or against Indians in Indian country
because of the Federal Government’s interest in protecting and defend-
ing tribes. See ibid. (citing United States v. Kagama, 118 U. S. 375(1886)). Donnelly did not address the distinct question we confront here:
whether States have concurrent jurisdiction with the Federal Govern-
ment over non-Indians who commit crimes against Indians in Indian
country. If anything, Donnelly’s rejection of the argument that the State
had “undivided” authority, without the Court’s saying more, suggests
Cite as: 597 U. S. ____ (2022) 15
Opinion of the Court
Moreover, there is a good explanation for why the Court’s
previous comments on this issue came only in the form of
tangential dicta. The question of whether States have con-
current jurisdiction over crimes committed by non-Indians
against Indians in Indian country did not previously matter
all that much and did not warrant this Court’s review.
Through congressional grants of authority in Public Law
280 or state-specific statutes, some States with substantial
Indian populations have long possessed broad jurisdiction
to prosecute a vast array of crimes in Indian country (in-
cluding crimes by Indians). See Brief for National Congress
of American Indians as Amicus Curiae 20, and n. 2. Indeed,
Castro-Huerta notes that “21 States have jurisdiction over
crimes ‘by or against’ Indians in some Indian country.”
Brief for Respondent 7. So the General Crimes Act ques-
tion—namely, whether that Act preempts inherent state
prosecutorial authority in Indian country—was not rele-
vant in those States.
In any event, this Court never considered the General
Crimes Act preemption question. As the Office of Legal
Counsel put it, “many courts, without carefully considering
the question, have assumed that Federal jurisdictio[n]
whenever it obtains is exclusive. We nevertheless believe
that it is a matter that should not be regarded as settled
before it has been fully explored by the courts.” 3 Op. OLC,
at 117. This case is the first time that the matter has been
fully explored by this Court.
Until the Court’s decision in McGirt two years ago, this
——————
that the Court thought that the State had concurrent authority with the
Federal Government in Indian country, unless otherwise preempted.
The Court’s subsequent decision in United States v. Ramsey, 271 U. S.
467 (1926), likewise considered whether the Federal Government’s “au-
thority” to prosecute crimes committed by or against Indians “was ended
by the grant of statehood.” Id., at 469. The Court held that federal au-
thority was not “ended” by statehood. Ibid. But the Court did not say
that States lacked concurrent jurisdiction.
16 OKLAHOMA v. CASTRO-HUERTA
Opinion of the Court
question likewise did not matter much in Oklahoma. Most
everyone in Oklahoma previously understood that the State
included almost no Indian country. McGirt, 590 U. S., at
___–___ (ROBERTS, C. J., dissenting) (slip op., at 31–32).
But after McGirt, about 43% of Oklahoma—including
Tulsa—is now considered Indian country. Therefore, the
question of whether the State of Oklahoma retains concur-
rent jurisdiction to prosecute non-Indian on Indian crimes
in Indian country has suddenly assumed immense im-
portance. The jurisdictional question has now been called.
In light of the newfound significance of the question, it is
necessary and appropriate for this Court to take its first
hard look at the text and structure of the General Crimes
Act, rather than relying on scattered dicta about a question
that, until now, was relatively insignificant in the real
world.
After independently examining the question, we have
concluded that the General Crimes Act does not preempt
state jurisdiction over crimes committed by non-Indians
against Indians in Indian country.
2
Castro-Huerta next invokes Public Law 280 as a source
of preemption. That argument is similarly unpersuasive.
Public Law 280 affirmatively grants certain States broad
jurisdiction to prosecute state-law offenses committed by or
against Indians in Indian country. See 18 U. S. C. §1162.
(Other States may opt in, with tribal consent. 25 U. S. C.
§1321.) But Public Law 280 does not preempt any preexist-
ing or otherwise lawfully assumed jurisdiction that States
possess to prosecute crimes in Indian country. Indeed, the
Court has already concluded as much: “Nothing in the lan-
guage or legislative history of Pub. L. 280 indicates that it
was meant to divest States of pre-existing and otherwise
lawfully assumed jurisdiction.” Three Affiliated Tribes of
Fort Berthold Reservation v. Wold Engineering, P. C., 467
Cite as: 597 U. S. ____ (2022) 17
Opinion of the Court
U. S. 138, 150 (1984). The Court’s definitive statement in
Three Affiliated Tribes about Public Law 280 applies to both
civil and criminal jurisdiction. And the Court’s statement
follows ineluctably from the statutory text: Public Law 280
contains no language that preempts States’ civil or criminal
jurisdiction.
Castro-Huerta separately contends that the enactment of
Public Law 280 in 1953 would have been pointless surplus-
age if States already had concurrent jurisdiction over
crimes committed by non-Indians against Indians in Indian
country. So he says that, as of 1953, Congress must have
assumed that States did not already have concurrent juris-
diction over those crimes. To begin with, assumptions are
not laws, and the fact remains that Public Law 280 contains
no language preempting state jurisdiction, as the Court al-
ready held in Three Affiliated Tribes. Apart from that, Pub-
lic Law 280 encompasses far more than just non-Indian on
Indian crimes (the issue here). Public Law 280 also grants
States jurisdiction over crimes committed by Indians. See
Conference of Western Attorneys General, American Indian
Law Deskbook §4.6, p. 250–251 (2021 ed.); cf. Negonsott,
507 U. S., at 105–107. Absent Public Law 280, state juris-
diction over those Indian-defendant crimes could implicate
principles of tribal self-government. See White Mountain
Apache Tribe v. Bracker, 448 U. S. 136, 142–143 (1980);
Part III–B, infra. So our resolution of the narrow jurisdic-
tional issue in this case does not negate the significance of
Public Law 280 in affording States broad criminal jurisdic-
tion over other crimes committed in Indian country, such as
crimes committed by Indians.4
——————
4 Castro-Huerta also points to several state-specific grants of jurisdic-
tion from 1940 through 1948. See Act of July 2, 1948, ch. 809, 62 Stat.
1224 (New York); Act of June 30, 1948, ch. 759, 62 Stat. 1161 (Iowa); Act
of May 31, 1946, ch. 279, 60 Stat. 229 (North Dakota); Act of June 8,
1940, ch. 276, 54 Stat. 249 (Kansas). Those statutes operate similarly to
Public Law 280.
18 OKLAHOMA v. CASTRO-HUERTA
Opinion of the Court
In any event, to the extent that there is any overlap (or
even complete overlap) between Public Law 280’s jurisdic-
tional grant and some of the States’ preexisting jurisdiction
with respect to crimes committed in Indian country, it made
good sense for Congress in 1953 to explicitly grant such au-
thority in Public Law 280. The scope of the States’ author-
ity had not previously been resolved by this Court, except
in cases such as McBratney and Draper with respect to non-
Indian on non-Indian crimes. Congressional action in the
face of such legal uncertainty cannot reasonably be charac-
terized as unnecessary surplusage. See Nielsen v. Preap,
586 U. S. ___, ___–___ (2019) (slip op., at 20–21). And fi-
nally, even if there is some surplusage, the Court has stated
that “[r]edundancy is not a silver bullet” when interpreting
statutes. Rimini Street, Inc. v. Oracle USA, Inc., 586 U. S.
___, ___ (2019) (slip op., at 11).
In sum, Public Law 280 does not preempt state authority
to prosecute crimes committed by non-Indians against In-
dians in Indian country.
B
Applying what has been referred to as the Bracker bal-
ancing test, this Court has recognized that even when fed-
eral law does not preempt state jurisdiction under ordinary
preemption analysis, preemption may still occur if the ex-
ercise of state jurisdiction would unlawfully infringe upon
tribal self-government. See Bracker, 448 U. S., at 142–143;
see also New Mexico v. Mescalero Apache Tribe, 462 U. S.
324, 333–335 (1983). Under the Bracker balancing test, the
Court considers tribal interests, federal interests, and state
interests. 448 U. S., at 145.5
——————
5 The dissent suggests that we should not reach Bracker because Con-
gress has already spoken to the issue and preempted state jurisdiction.
Post, at 30−32 (opinion of GORSUCH, J.). As already discussed, Congress
did not preempt the State’s jurisdiction over crimes committed by non-
Indians against Indians in Indian country. Therefore, we proceed to
Cite as: 597 U. S. ____ (2022) 19
Opinion of the Court
Here, Bracker does not bar the State from prosecuting
crimes committed by non-Indians against Indians in Indian
country.
First, the exercise of state jurisdiction here would not in-
fringe on tribal self-government. In particular, a state pros-
ecution of a crime committed by a non-Indian against an
Indian would not deprive the tribe of any of its prosecutorial
authority. That is because, with exceptions not invoked
here, Indian tribes lack criminal jurisdiction to prosecute
crimes committed by non-Indians such as Castro-Huerta,
even when non-Indians commit crimes against Indians in
Indian country. See Oliphant v. Suquamish Tribe, 435
U. S. 191, 195 (1978).
Moreover, a state prosecution of a non-Indian does not
involve the exercise of state power over any Indian or over
any tribe. The only parties to the criminal case are the
State and the non-Indian defendant. Therefore, as has
been recognized, any tribal self-government “justification
for preemption of state jurisdiction” would be “problematic.”
American Indian Law Deskbook §4.8, at 260; see Three Af-
filiated Tribes, 467 U. S., at 148; see also Hicks, 533 U. S.,
at 364; McBratney, 104 U. S., at 623–624; Draper, 164 U. S.,
at 242–243.6
Second, a state prosecution of a non-Indian likewise
would not harm the federal interest in protecting Indian
victims. State prosecution would supplement federal au-
thority, not supplant federal authority. As the United
——————
Bracker balancing to determine whether the exercise of state jurisdiction
would unlawfully infringe on tribal self-government.
6 To the extent that some tribes might have a policy preference for fed-
eral jurisdiction or tribal jurisdiction, but not state jurisdiction, over
crimes committed by non-Indians in Indian country, that policy prefer-
ence does not factor into the Bracker analysis.
Furthermore, this case does not involve the converse situation of a
State’s prosecution of crimes committed by an Indian against a non-In-
dian in Indian country. We express no view on state jurisdiction over a
criminal case of that kind.
20 OKLAHOMA v. CASTRO-HUERTA
Opinion of the Court
States has explained in the past, “recognition of concurrent
state jurisdiction” could “facilitate effective law enforce-
ment on the Reservation, and thereby further the federal
and tribal interests in protecting Indians and their property
against the actions of non-Indians.” Brief for United States
as Amicus Curiae in Arizona v. Flint, O. T. 1988, No. 603,
p. 6. The situation might be different if state jurisdiction
ousted federal jurisdiction. But because the State’s juris-
diction would be concurrent with federal jurisdiction, a
state prosecution would not preclude an earlier or later fed-
eral prosecution and would not harm the federal interest in
protecting Indian victims.
Third, the State has a strong sovereign interest in ensur-
ing public safety and criminal justice within its territory,
and in protecting all crime victims. See Dibble, 21 How., at
370. The State also has a strong interest in ensuring that
criminal offenders—especially violent offenders—are ap-
propriately punished and do not harm others in the State.
The State’s interest in protecting crime victims includes
both Indian and non-Indian victims. If his victim were a
non-Indian, Castro-Huerta could be prosecuted by the
State, as he acknowledges. But because his victim is an
Indian, Castro-Huerta says that he is free from state pros-
ecution. Castro-Huerta’s argument would require this
Court to treat Indian victims as second-class citizens. We
decline to do so.7
——————
7 Castro-Huerta notes that many tribes were enemies of States in the
1700s and 1800s. The theory appears to be that States (unlike the Fed-
eral Government) cannot be trusted to fairly and aggressively prosecute
crimes committed by non-Indians against Indians in 2022. That theory
is misplaced for at least two reasons. First, the State’s jurisdiction would
simply be concurrent with, not exclusive of, the Federal Government’s.
If concurrent state jurisdiction somehow poses a problem, Congress can
seek to alter it. Second, many tribes were also opposed to the Federal
Government at least as late as the Civil War. Indeed, some of those
tribes, including the Cherokees, held black slaves and entered into trea-
ties with the Confederate government. A. Gibson, Native Americans and
Cite as: 597 U. S. ____ (2022) 21
Opinion of the Court
IV
The dissent emphasizes the history of mistreatment of
American Indians. But that history does not resolve the
legal questions presented in this case. Those questions are:
(i) whether Indian country is part of a State or instead is
separate and independent from a State; and (ii) if Indian
country is part of a State, whether the State has concurrent
jurisdiction with the Federal Government to prosecute
crimes committed by non-Indians against Indians in Indian
country.
The answers to those questions are straightforward. On
the first question, as explained above, this Court has re-
peatedly ruled that Indian country is part of a State, not
separate from a State. By contrast, the dissent lifts up the
1832 decision in Worcester v. Georgia as a proper exposition
of Indian law. But this Court long ago made clear that
Worcester rested on a mistaken understanding of the rela-
tionship between Indian country and the States. The Court
has stated that the “general notion drawn from Chief Jus-
tice Marshall’s opinion in Worcester v. Georgia” “has yielded
to closer analysis”: “By 1880 the Court no longer viewed
reservations as distinct nations. On the contrary, it was
said that a reservation was in many cases a part of the sur-
rounding State or Territory, and subject to its jurisdiction
except as forbidden by federal law.” Organized Village of
Kake, 369 U. S., at 72.
Because Indian country is part of a State, not separate
——————
the Civil War, 9 Am. Indian Q. 4, 385, 388 (1985); 1 F. Cohen, Handbook
of Federal Indian Law §4.07(1)(a), p. 289 (2012); see McGirt v. Okla-
homa, 591 U. S. ___, ___−___ (2020) (ROBERTS, C. J., dissenting) (slip op.,
at 3−4); Cherokee Nation v. Nash, 267 F. Supp. 3d 86, 89−90 (DC 2017).
In any event, it is not evident why the pre-Civil War history of tribal
discord with States—unconnected from any statutory text—should disa-
ble States from exercising jurisdiction in 2022 to ensure that crime vic-
tims in state territory are protected under the State’s laws.
22 OKLAHOMA v. CASTRO-HUERTA
Opinion of the Court
from a State, the second question here—the question re-
garding the State’s jurisdiction to prosecute Castro-
Huerta—is also straightforward. Under the Constitution,
States have jurisdiction to prosecute crimes within their
territory except when preempted (in a manner consistent
with the Constitution) by federal law or by principles of
tribal self-government. As we have explained, no federal
law preempts the State’s exercise of jurisdiction over crimes
committed by non-Indians against Indians in Indian coun-
try. And principles of tribal self-government likewise do not
preempt state jurisdiction here.
As a corollary to its argument that Indian country is in-
herently separate from States, the dissent contends that
Congress must affirmatively authorize States to exercise
jurisdiction in Indian country, even jurisdiction to prose-
cute crimes committed by non-Indians. But under the Con-
stitution and this Court’s precedents, the default is that
States may exercise criminal jurisdiction within their terri-
tory. See Amdt. 10. States do not need a permission slip
from Congress to exercise their sovereign authority. In
other words, the default is that States have criminal juris-
diction in Indian country unless that jurisdiction is
preempted. In the dissent’s view, by contrast, the default is
that States do not have criminal jurisdiction in Indian coun-
try unless Congress specifically provides it. The dissent’s
view is inconsistent with the Constitution’s structure, the
States’ inherent sovereignty, and the Court’s precedents.
Straying further afield, the dissent seizes on treaties
from the 1800s. Post, at 18−20, and n. 4 (opinion of
GORSUCH, J.).8 But those treaties do not preclude state ju-
risdiction here. The dissent relies heavily on the 1835
Treaty of New Echota, which stated that Indian country
——————
8 Congress “abolished treatymaking with the Indian nations in 1871
and has itself subjected the tribes to substantial bodies of state and fed-
eral law.” County of Yakima v. Confederated Tribes and Bands of Ya-
kima Nation, 502 U. S. 251, 257 (1992) (citation omitted).
Cite as: 597 U. S. ____ (2022) 23
Opinion of the Court
was separate from States, and which the dissent says was
preserved in relevant part by the 1866 Treaty. See Treaty
with the Cherokee (New Echota), Art. 5, Dec. 29, 1835, 7
Stat. 481; Treaty with the Cherokee, July 19, 1866, 14 Stat.
709. But history and legal development did not end in 1866.
Some early treaties may have been consistent with the
Worcester-era theory of separateness. But as relevant here,
those treaties have been supplanted: Specific to Oklahoma,
those treaties, in relevant part, were formally supplanted
no later than the 1906 Act enabling Oklahoma’s statehood.
See Oklahoma Enabling Act, ch. 3335, 34 Stat. 267. As this
Court has previously concluded, “admission of a State into
the Union” “necessarily repeals the provisions of any prior
statute, or of any existing treaty” that is inconsistent with
the State’s exercise of criminal jurisdiction “throughout the
whole of the territory within its limits,” including Indian
country, unless the enabling act says otherwise “by express
words.” McBratney, 104 U. S., at 623−624; see Draper, 164
U. S., at 242–246. The Oklahoma Enabling Act contains no
such express exception. Therefore, at least since Okla-
homa’s statehood in the early 1900s, Indian country has
been part of the territory of Oklahoma.
The dissent responds that the language of the 1906 stat-
ute enabling Oklahoma’s statehood itself established a ju-
risdictional division between the State and Indian country.
See post, at 20–22 (discussing the Oklahoma Enabling Act).
That argument is mistaken. This Court long ago explained
that interpreting a statehood act to divest a State of juris-
diction over Indian country “wholly situated within [its] ge-
ographical boundaries” would undermine “the very nature
of the equality conferred on the State by virtue of its admis-
sion into the Union.” Draper, 164 U. S., at 242–243. So the
Court requires clear statutory language “to create an excep-
tion” to that “rule.” Id., at 244. To reiterate, the Oklahoma
Enabling Act contains no such clear language. Indeed, the
Court has interpreted similar statutory language in other
24 OKLAHOMA v. CASTRO-HUERTA
Opinion of the Court
state enabling acts not to displace state jurisdiction. See
id., at 243–247; Organized Village of Kake, 369 U. S., at 67–
71. In Organized Village of Kake, the Court specifically ad-
dressed several state enabling acts, including the Okla-
homa Enabling Act, and stated that statutory language re-
serving jurisdiction and control to the United States was
meant to preserve federal jurisdiction to the extent that it
existed before statehood, not to make federal jurisdiction
exclusive. Id., at 67–70. Consistent with that precedent,
today’s decision recognizes that the Federal Government
and the State have concurrent jurisdiction over crimes com-
mitted by non-Indians against Indians in Indian country.9
The dissent incorrectly seeks to characterize various as-
pects of the Court’s decision as dicta. To be clear, the Court
today holds that Indian country within a State’s territory is
part of a State, not separate from a State. Therefore, a
State has jurisdiction to prosecute crimes committed in In-
dian country unless state jurisdiction is preempted. With
respect to crimes committed by non-Indians against Indi-
ans in Indian country, the Court today further holds that
the General Crimes Act does not preempt the State’s au-
thority to prosecute; that Public Law 280 does not preempt
——————
9 The dissent characterizes the Court’s opinion in several ways that are
not accurate. Post, at 38−41. For example, the dissent suggests that
States may not exercise jurisdiction over crimes committed by Indians
against non-Indians in Indian country—the reverse of the scenario in
this case. To reiterate, we do not take a position on that question. See
supra, at 19, n. 6.
The dissent also hints that the jurisdictional holding of the Court in
this case may apply only in Oklahoma. That is incorrect. The Court’s
holding is an interpretation of federal law, which applies throughout the
United States: Unless preempted, States may exercise jurisdiction to
prosecute crimes committed by non-Indians against Indians in Indian
country.
Finally, the statutory definition of Indian country includes “all Indian
allotments, the Indian titles to which have not been extinguished.” See
18 U. S. C. §1151. Therefore, States may prosecute crimes committed by
non-Indians against Indians in those allotments.
Cite as: 597 U. S. ____ (2022) 25
Opinion of the Court
the State’s authority to prosecute; that no principle of tribal
self-government preempts the State’s authority to prose-
cute; that the cited treaties do not preempt Oklahoma’s au-
thority to prosecute; and that the Oklahoma Enabling Act
does not preempt Oklahoma’s authority to prosecute (in-
deed, it solidifies the State’s presumptive sovereign author-
ity to prosecute). Comments in the dissenting opinion sug-
gesting anything otherwise “are just that: comments in a
dissenting opinion.” Railroad Retirement Bd. v. Fritz, 449
U. S. 166, 177, n. 10 (1980).
From start to finish, the dissent employs extraordinary
rhetoric in articulating its deeply held policy views about
what Indian law should be. The dissent goes so far as to
draft a proposed statute for Congress. But this Court’s
proper role under Article III of the Constitution is to declare
what the law is, not what we think the law should be. The
dissent’s views about the jurisdictional question presented
in this case are contrary to this Court’s precedents and to
the laws enacted by Congress.
* * *
We conclude that the Federal Government and the State
have concurrent jurisdiction to prosecute crimes committed
by non-Indians against Indians in Indian country. We
therefore reverse the judgment of the Oklahoma Court of
Criminal Appeals and remand the case for further proceed-
ings not inconsistent with this opinion.
It is so ordered.
Cite as: 597 U. S. ____ (2022) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–429
_________________
OKLAHOMA, PETITIONER v. VICTOR MANUEL
CASTRO-HUERTA
ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF OKLAHOMA
[June 29, 2022]
JUSTICE GORSUCH, with whom JUSTICE BREYER, JUSTICE
SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
In 1831, Georgia arrested Samuel Worcester, a white
missionary, for preaching to the Cherokee on tribal lands
without a license. Really, the prosecution was a show of
force—an attempt by the State to demonstrate its authority
over tribal lands. Speaking for this Court, Chief Justice
Marshall refused to endorse Georgia’s ploy because the
State enjoyed no lawful right to govern the territory of a
separate sovereign. See Worcester v. Georgia, 6 Pet. 515,
561 (1832). The Court’s decision was deeply unpopular, and
both Georgia and President Jackson flouted it. But in time,
Worcester came to be recognized as one of this Court’s finer
hours. The decision established a foundational rule that
would persist for over 200 years: Native American Tribes
retain their sovereignty unless and until Congress ordains
otherwise. Worcester proved that, even in the “[c]ourts of
the conqueror,” the rule of law meant something. Johnson’s
Lessee v. McIntosh, 8 Wheat. 543, 588 (1823).
Where this Court once stood firm, today it wilts. After
the Cherokee’s exile to what became Oklahoma, the federal
government promised the Tribe that it would remain for-
ever free from interference by state authorities. Only the
Tribe or the federal government could punish crimes by or
against tribal members on tribal lands. At various points
2 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
in its history, Oklahoma has chafed at this limitation. Now,
the State seeks to claim for itself the power to try crimes by
non-Indians against tribal members within the Cherokee
Reservation. Where our predecessors refused to participate
in one State’s unlawful power grab at the expense of the
Cherokee, today’s Court accedes to another’s. Respectfully,
I dissent.
I
A
Long before our Republic, the Cherokee controlled much
of what is now Georgia, North Carolina, South Carolina,
and Tennessee. See 1 G. Litton, History of Oklahoma at the
Golden Anniversary of Statehood 91 (1957) (Litton). The
Cherokee were a “distinct, independent political commu-
nit[y],” who “retain[ed] their original” sovereign right to
“regulat[e] their internal and social relations.” Santa Clara
Pueblo v. Martinez, 436 U. S. 49, 55 (1978) (internal quota-
tion marks omitted).
As colonists settled coastal areas near Cherokee terri-
tory, the Tribe proved a valuable trading partner—and a
military threat. See W. Echo-Hawk, In the Court of the
Conqueror 89 (2010). Recognizing this, Great Britain
signed a treaty with the Cherokee in 1730. See 1 Litton 92.
As was true of “tributary” and “feudatory states” in Europe,
the Cherokee did not cease to be “sovereign and independ-
ent” under this arrangement, but retained the right to gov-
ern their internal affairs. E. de Vattel, Law of Nations 60–
61 (1805); see Worcester, 6 Pet., at 561. Meanwhile, under
British law the crown possessed “centraliz[ed]” authority
over diplomacy with Tribes to the exclusion of colonial gov-
ernments. See C. Berkey, United States–Indian Relations:
The Constitutional Basis, in Exiled in the Land of the Free
192 (H. Lyons ed. 1992).
Ultimately, the American Revolution replaced that legal
framework with a similar one. When the delegates drafted
Cite as: 597 U. S. ____ (2022) 3
GORSUCH, J., dissenting
the Articles of Confederation, they debated whether the na-
tional or state authorities should manage Indian affairs.
See 6 Journals of the Continental Congress, 1774–1789, pp.
1077–1079 (W. Ford ed. 1906). The resulting compromise
proved unworkable. The Articles granted Congress the
“sole and exclusive right and power of . . . regulating the
trade and managing all affairs with the Indians.” Art. IX.
But the Articles undermined that assignment by further
providing that “the legislative right of any state[,] within its
own limits,” could not be “infringed or violated.” Ibid. To-
gether, these provisions led to battles between national and
state governments over who could oversee relations with
various Tribes. See G. Ablavsky, Beyond the Indian Com-
merce Clause, 124 Yale L. J. 1012, 1033–1035 (2015)
(Ablavsky). James Madison later complained that the Ar-
ticles’ division of authority over Indian affairs had “endeav-
ored to accomplish [an] impossibilit[y]; to reconcile a partial
sovereignty in the Union, with complete sovereignty in the
States.” The Federalist No. 42, p. 269 (C. Rossiter ed. 1961).
When the framers convened to draft a new Constitution,
this problem was among those they sought to resolve. To
that end, they gave the federal government “broad general
powers” over Indian affairs. United States v. Lara, 541
U. S. 193, 200 (2004). The Constitution afforded Congress
authority to make war and negotiate treaties with the
Tribes. See Art. I, § 8; Art. VI, cl. 2. It barred States from
doing either of these things. See Art. I, § 10. And the Con-
stitution granted Congress the power to “regulate Com-
merce . . . with the Indian Tribes.” Art. I, § 8, cl. 3. Nor did
the Constitution replicate the Articles’ carveout for state
power over Tribes within their borders. Madison praised
this change, contending that the new federal government
would be “very properly unfettered” from this prior “limita-
tio[n].” The Federalist No. 42, at 268. Antifederalist Abra-
ham Yates agreed (but bemoaned) that the Constitution “to-
tally surrender[ed] into the hands of Congress the
4 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
management and regulation of the Indian affairs.” Letter
to the Citizens of the State of New York (June 13–14, 1788),
in 20 Documentary History of the Ratification of the Con-
stitution 1153, 1158 (J. Kaminski et al. eds. 2004).
Consistent with that view, “the Washington Administra-
tion insisted that the federal government enjoyed exclusive
constitutional authority” over tribal relations. Ablavsky
1019. The new Administration understood, too, that Tribes
remained otherwise free to govern their internal affairs
without state interference. See id., at 1041–1042, 1065–
1067. In a letter to the Governor of Pennsylvania, Presi-
dent Washington stated curtly that “the United States . . .
posses[es] the only authority of regulating an intercourse
with [the Indians], and redressing their grievances.” Letter
to T. Mifflin (Sept. 4, 1790), in 6 Papers of George Washing-
ton: Presidential Series 396 (D. Twohig ed. 1996). Even
Thomas Jefferson, the great defender of the States’ powers,
agreed that “under the present Constitution” no “State
[has] a right to Treat with the Indians without the consent
of the General Government.” Letter to H. Knox (Aug. 10,
1791), in 22 Papers of Thomas Jefferson 27 (C. Cullen, E.
Sheridan, & R Lester eds. 1986).
Nor was this view confined to the Executive Branch. Con-
gress quickly exercised its new constitutional authority. In
1790, it enacted the first Indian Trade and Intercourse Act,
which pervasively regulated commercial and social ex-
changes among Indians and non-Indians. Ch. 33, 1 Stat.
137. Congress also provided for federal jurisdiction over
crimes by non-Indians against Indians on tribal lands.
§§ 5–6, id., at 138. States, too, recognized their lack of au-
thority. See Ablavsky 1019, 1043. In 1789, South Carolina
Governor Charles Pinckney acknowledged to Washington
that “the sole management of India[n ] affairs is now com-
mitted” to “the general Government.” Letter to G. Wash-
ington (Dec. 14), in 4 Papers of George Washington: Presi-
dential Series 401, 404 (D. Twohig ed. 1993). Initially, even
Cite as: 597 U. S. ____ (2022) 5
GORSUCH, J., dissenting
Georgia took the same view. See Letter from Georgia
House of Representatives to Governor Edward Telfair
(June 10, 1790), in 3 Documentary History of the Ratifica-
tion of the Constitution: Delaware, New Jersey, Georgia,
and Connecticut 178 (M. Jensen ed. 1978) (Microform Supp.
Doc. No. 50).
It was against this background that Chief Justice Mar-
shall faced Worcester. After gold was discovered in Chero-
kee territory in the 1820s, Georgia’s Legislature enacted
laws designed to “seize [the] whole Cherokee country, par-
cel it out among the neighboring counties of the state . . .
abolish [the Tribe’s] institutions and its laws, and annihi-
late its political existence.” Worcester, 6 Pet., at 542. Like
Oklahoma today, Georgia also purported to extend its crim-
inal laws to Cherokee lands. See ibid.; see also S. Breyer,
The Cherokee Indians and the Supreme Court, 87 The
Georgia Historical Q. 408, 416–418 (2003) (Breyer). In re-
fusing to sanction Georgia’s power grab, this Court ex-
plained that the State’s “assertion of jurisdiction over the
Cherokee nation” was “void,” because under our Constitu-
tion only the federal government possessed the power to
manage relations with the Tribe. Worcester, 6 Pet., at 542,
561–562.
B
Two years later, and exercising its authority to regulate
tribal affairs in the shadow of Worcester, Congress adopted
the General Crimes Act of 1834 (GCA). That law extended
federal criminal jurisdiction to tribal lands for certain
crimes and, in doing so, served two apparent purposes.
First, as a “courtesy” to the Tribes, the law represented a
promise by the federal government “to punish crimes . . .
committed . . . by and against our own [non-Indian] citi-
zens.” H. Rep. No. 474, 23d Cong., 1st Sess., 13 (1834) (H.
Rep. No. 474). That jurisdictional arrangement was also
6 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
consistent with, and even seemingly compelled by, the fed-
eral government’s treaties with various Tribes. See F. Co-
hen, Handbook of Federal Indian Law 731 (N. Newton et al.
eds. 2005) (Cohen); R. Clinton, Development of Criminal
Jurisdiction Over Indian Lands: The Historical Perspec-
tive, 17 Ariz. L. Rev. 951, 958–962 (1975) (Clinton). Second,
because Worcester held that States lacked criminal jurisdic-
tion on tribal lands, Congress sought to ensure a federal fo-
rum for crimes committed by and against non-Indians. See
H. Rep. No. 474, at 13. Otherwise, Congress understood,
non-Indian settlers would be subject to tribal jurisdiction
alone. See id., at 13, 18; R. Barsh & J. Henderson, The Be-
trayal, Oliphant v. Suquamish Indian Tribe and the Hunt-
ing of the Snark, 63 Minn. L. Rev. 609, 625–626 (1979).
Congress reenacted the GCA in 1948 with minor amend-
ments, but it remains in force today more or less in its orig-
inal form. See 18 U. S. C. § 1152 (1946 ed., Supp. II).
Shortly after it adopted the GCA, the Senate ratified the
Treaty of New Echota with the Cherokee in 1836. After the
Tribe’s removal from Georgia, the United States promised
the Cherokee that they would enjoy a new home in the West
where they could “establish . . . a government of their
choice.” Treaty with the Cherokee, Preamble, Dec. 29,
1835, 7 Stat. 478. Acknowledging the Tribe’s past “difficul-
ties . . . under the jurisdiction and laws of the State Govern-
ments,” the treaty also pledged that the Tribe would remain
forever free from “State sovereignties.” Ibid.; see Art. 5, id.,
at 481. These promises constituted an “indemnity,” guar-
anteed by “the faith of the nation,” that “[t]he United States
and the Indian tribes [would be] the sole parties” with
power on new western reservations like the Cherokee’s.
H. Rep. No. 474, at 18 (emphasis in original).
Over time, Congress revised some of these arrangements.
In 1885, dissatisfied with how the Sioux Tribe responded to
the murder of a tribal member, Congress adopted the Major
Cite as: 597 U. S. ____ (2022) 7
GORSUCH, J., dissenting
Crimes Act (MCA). See R. Anderson, S. Krakoff, & B. Ber-
ger, American Indian Law: Cases and Commentary 90–96
(4th ed. 2008) (Anderson). There, Congress directed that,
moving forward, only the federal government, not the
Tribes, could prosecute certain serious offenses by tribal
members on tribal lands. See 18 U. S. C. § 1153(a). On its
own initiative, this Court then went a step further. Relying
on language in certain laws admitting specific States to the
Union, the Court held that States were now entitled to pros-
ecute crimes by non-Indians against non-Indians on tribal
lands. See United States v. McBratney, 104 U. S. 621, 623
(1882); Draper v. United States, 164 U. S. 240, 243, 247
(1896). Through all these developments, however, at least
one promise remained: States could play no role in the pros-
ecution of crimes by or against Native Americans on tribal
lands. See Williams v. Lee, 358 U. S. 217, 220 (1959).
In 1906, Congress reaffirmed this promise to the Chero-
kee in Oklahoma. As a condition of its admission to the
Union, Congress required Oklahoma to “declare that [it]
forever disclaim[s] all right and title in or to . . . all lands
lying within [the State’s] limits owned or held by any In-
dian, tribe, or nation.” 34 Stat. 270. Instead, Congress pro-
vided that tribal lands would “remain subject to the juris-
diction, disposal, and control of the United States.” Ibid.As if the point wasn’t clear enough, Congress further pro-
vided that “nothing contained in the [new Oklahoma state]
constitution shall be construed to . . . limit or affect the au-
thority of the Government of the United States . . . respect-
ing [the State’s] Indians . . . which it would have been com-
petent to make if this Act had never been passed.” Id., at
267–268. The following year, Oklahoma adopted a State
Constitution consistent with Congress’s instructions. Art.
I, § 3; see also Clinton 961.
In the years that followed, certain States sought arrange-
ments different from Oklahoma’s. And once more, Con-
gress intervened. In 1940, Kansas asked for and received
8 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
permission from Congress to exercise jurisdiction over
crimes “by or against Indians” on tribal lands. 18 U. S. C.
§ 3243. Through the rest of the decade, Congress experi-
mented with similar laws for New York, Iowa, and North
Dakota.1 Then, in 1953, Congress adopted Public Law 280.
That statute granted five additional States criminal “juris-
diction over offenses . . . by or against Indians” and estab-
lished procedures by which further States could secure the
same authority. See ch. 505, § 2, 67 Stat. 588. Ultimately,
however, some of these arrangements proved unpopular.
Not only with affected Tribes. See C. Goldberg-Ambrose,
Public Law 280 and the Problem of Lawlessness in Califor-
nia Indian Country, 44 UCLA L. Rev. 1405, 1406–1407
(1997) (Goldberg-Ambrose). These arrangements also
proved unpopular with certain States that viewed their new
law enforcement responsibilities on tribal lands as un-
funded federal mandates. See Anderson 436. A few States
even renounced their Public Law 280 jurisdiction. See Co-
hen 579.
By 1968, the federal government came to conclude that,
“as a matter of justice and as a matter of enlightened social
policy,” the “time ha[d] come to break decisively with the
past and to create the conditions for a new era in which the
Indian future is determined by Indian acts and Indian de-
cisions.” Richard M. Nixon, Special Message on Indian Af-
fairs (July 8, 1970). Consistent with that vision, Congress
amended Public Law 280 to require tribal consent before
any State could assume jurisdiction over crimes by or
against Indians on tribal lands. Act of Apr. 11, 1968, § 401,
82 Stat. 78, § 406, id., at 80 (25 U. S. C. §§ 1321(a), 1326).
Recognizing that certain States’ enabling acts barred state
——————
1 See Act of July 2, 1948, ch. 809, 62 Stat. 1224 (25 U. S. C. § 232) (New
York); Act of June 30, 1948, ch. 759, 62 Stat. 1161 (Iowa), repealed, Act
of Dec. 11, 2018, Pub. L. 115–301, 132 Stat. 4395; Act of May 31, 1946,
ch. 279, 60 Stat. 229 (North Dakota).
Cite as: 597 U. S. ____ (2022) 9
GORSUCH, J., dissenting
authority on tribal lands and required States to adopt con-
stitutional provisions guaranteeing as much, Congress also
authorized States to “amend, where necessary, their State
constitution or . . . statutes.” § 404, 82 Stat. 79 (25 U. S. C.
§ 1324). In doing so, however, Congress emphasized that
affected States could not assume jurisdiction to prosecute
offenses by or against tribal members on tribal lands until
they “appropriately amended their State constitution or
statutes.” Ibid. To date, Oklahoma has not amended its
state constitutional provisions disclaiming jurisdiction over
tribal lands. Nor has Oklahoma sought or obtained tribal
consent to the exercise of its jurisdiction. See The Honora-
ble E. Kelly Haney, 22 Okla. Op. Atty. Gen. No. 90–32, 72,
1991 WL 567868, *1 (Mar. 1, 1991) (Haney). Thus, Okla-
homa has remained, in Congress’s words, a State “not hav-
ing jurisdiction over criminal offenses committed by or
against Indians in the areas of Indian country situated
within” its borders. 25 U. S. C. § 1321(a).
C
Rather than seek tribal consent pursuant to Public Law
280 or persuade Congress to adopt a state-specific statute
authorizing it to prosecute crimes by or against tribal mem-
bers on tribal lands, Oklahoma has chosen a different path.
In the decades following statehood, many settlers engaged
in schemes to seize Indian lands and mineral rights by sub-
terfuge. See A. Debo, And Still the Waters Run 92–125
(1940) (Debo). These schemes resulted in “the bulk of the
landed wealth of the Indians” ending up in the hands of the
new settlers. See ibid.; see also id., at 181–202. State offi-
cials and courts were sometimes complicit in the process.
See id., at 182–183, 185, 195–196. For years, too, Okla-
homa courts asserted the power to hear criminal cases in-
volving Native Americans on lands allotted to and owned
by tribal members despite the contrary commands of the
Oklahoma Enabling Act and the State’s own constitution.
10 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
The State only disavowed that practice in 1991, after de-
feats in state and federal court. See Haney, 1991 WL
567868, *1–*3; see also State v. Klindt, 782 P. 2d 401, 404
(Okla. Crim. App. 1989); Ross v. Neff, 905 F. 2d 1349, 1353
(CA10 1990).
Still, it seems old habits die slowly. Even after renounc-
ing the power to try criminal cases involving Native Amer-
icans on allotted tribal lands, Oklahoma continued to claim
the power to prosecute crimes by or against Native Ameri-
cans within tribal reservations. The State did so on the the-
ory that at some (unspecified) point in the past, Congress
had disestablished those reservations. In McGirt v. Okla-
homa, this Court rejected that argument in a case involving
the Muscogee (Creek) Tribe. 591 U. S. ___, ___ (2020) (slip
op., at 1). We explained that Congress had never disestab-
lished the Creek Reservation. Nor were we willing to usurp
Congress’s authority and disestablish that reservation by a
lawless act of judicial fiat. See id., at ___ (slip op., at 42).
Accordingly, only federal and tribal authorities were law-
fully entitled to try crimes by or against Native Americans
within the Tribe’s reservation. Ibid. Following McGirt, Ok-
lahoma’s courts recognized that what held true for the
Creek also held true for the Cherokee: Congress had never
disestablished its reservation and, accordingly, the State
lacked authority to try offenses by or against tribal mem-
bers within the Cherokee Reservation. See Spears v. State,
2021 OK CR 7, ¶¶ 10–14, 485 P. 3d 873, 876–877.
Once more, Oklahoma could have responded to this de-
velopment by asking Congress for state-specific legislation
authorizing it to exercise criminal jurisdiction on tribal
lands, as Kansas and various other States have done. The
State could have employed the procedures of Public Law
280 to amend its own laws and obtain tribal consent. In-
stead, Oklahoma responded with a media and litigation
campaign seeking to portray reservations within its State—
where federal and tribal authorities may prosecute crimes
Cite as: 597 U. S. ____ (2022) 11
GORSUCH, J., dissenting
by and against tribal members and Oklahoma can pursue
cases involving only non-Indians—as lawless dystopias.
See Brief for Cherokee Nation et al. as Amici Curiae 18
(Cherokee Brief ) (“The State’s tale of a criminal dystopia in
eastern Oklahoma is just that: A tale”).
That effort culminated in this case. In it, Oklahoma has
pursued alternative lines of argument. First, the State has
asked this Court to revisit McGirt and unilaterally elimi-
nate all reservations in Oklahoma. Second, the State has
argued that it enjoys a previously unrecognized “inherent”
authority to try crimes within reservation boundaries by
non-Indians against tribal members—a claim Oklahoma’s
own courts have rejected. See Bosse v. State, 2021 OK CR
3, 484 P. 3d 286, 294–295.
Ultimately, this Court declined to entertain the State’s
first argument but agreed to review the second. Nominally,
the question comes to us in a case involving Victor Castro-
Huerta, a non-Indian who abused his Cherokee stepdaugh-
ter within the Tribe’s reservation. Initially, a state court
convicted him for a state crime. After McGirt, the Okla-
homa Court of Criminal Appeals determined that his con-
viction was invalid because only federal and tribal officials
possess authority to prosecute crimes by or against Native
Americans on the Cherokee Reservation. See App. to Pet.
for Cert. 4a. The federal government swiftly reindicted Mr.
Castro-Huerta, and a federal court again found him guilty.
Now before us, Oklahoma seeks to undo Mr. Castro-
Huerta’s federal conviction and have him transferred from
federal prison to a state facility to resume his state sen-
tence.
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 ex-
ercise jurisdiction over crimes involving tribal members on
tribal lands. To succeed, Oklahoma must disavow adverse
rulings from its own courts; disregard its 1991 recognition
12 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
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 constitu-
tion, and Public Law 280. Oklahoma must pursue a propo-
sition 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 de-
fendant. 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 par-
ties in these proceedings; they and other Tribes are rele-
gated to the filing of amicus briefs.
II
A
Today the Court rules for Oklahoma. In doing so, the
Court announces that, when it comes to crimes by non-In-
dians against tribal members within tribal reservations,
Oklahoma may “exercise jurisdiction.” Ante, at 4. But this
declaration comes as if by oracle, without any sense of the
history recounted above and unattached to any colorable le-
gal authority. Truly, a more ahistorical and mistaken
statement of Indian law would be hard to fathom.
The source of the Court’s error is foundational. Through
most of its opinion, the Court proceeds on the premise that
Oklahoma possesses “inherent” sovereign power to prose-
cute crimes on tribal reservations until and unless Con-
gress “preempt[s]” that authority. Ante, at 5–18. The Court
emphasizes that States normally wield broad police powers
within their borders absent some preemptive federal law.
See ante, at 4–6; see also Virginia Uranium, Inc. v. Warren,
587 U. S. ___, ___ (2019) (lead opinion) (slip op., at 12).
But the effort to wedge Tribes into that paradigm is a cat-
egory error. Tribes are not private organizations within
Cite as: 597 U. S. ____ (2022) 13
GORSUCH, J., dissenting
state boundaries. Their reservations are not glorified pri-
vate campgrounds. Tribes are sovereigns. And the preemp-
tion rule applicable to them is exactly the opposite of the
normal rule. Tribal sovereignty means that the criminal
laws of the States “can have no force” on tribal members
within tribal bounds unless and until Congress clearly or-
dains otherwise. Worcester, 6 Pet., at 561. After all, the
power to punish crimes by or against one’s own citizens
within one’s own territory to the exclusion of other author-
ities is and has always been among the most essential at-
tributes of sovereignty. See, e.g., Wilson v. Girard, 354
U. S. 524, 529 (1957) (per curiam) (“A sovereign nation has
exclusive jurisdiction to punish offenses against its laws
committed within its borders”); see also Schooner Exchange
v. McFaddon, 7 Cranch 116, 136 (1812); E. de Vattel, Law
of Nations 81–82 (1835 ed.).
Nor is this “ ‘notion,’ ” ante, at 5, some discarded artifact
of a bygone era. To be sure, Washington, Jefferson, Mar-
shall, and so many others at the Nation’s founding appreci-
ated the sovereign status of Native American Tribes. See
Part I–A, supra. But this Court’s own cases have consist-
ently reaffirmed the point. Just weeks ago, the Court held
that federal prosecutors did not violate the Double Jeop-
ardy Clause based on the essential premise that tribal crim-
inal law is the product of a “separate sovereig[n]” exercising
its own “retained sovereignty.” Denezpi v. United States,
596 U. S. ___, ___ (2022) (slip op., at 6) (internal quotation
marks omitted). Recently, too, this Court confirmed that
Tribes enjoy sovereign immunity from suit. See Michigan
v. Bay Mills Indian Community, 572 U. S. 782, 788–789
(2014). Throughout our history, “the basic policy of Worces-
ter” that Tribes are separate sovereigns “has remained.”
Williams v. Lee, 358 U. S., at 219.2
——————
2 See also Ysleta del Sur Pueblo v. Texas, 596 U. S. ___, ___ (2022) (slip
14 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
Because Tribes are sovereigns, this Court has consist-
ently recognized that the usual “standards of pre-emption”
are “unhelpful.” White Mountain Apache Tribe v. Bracker,
448 U. S. 136, 143 (1980); see also Cotton Petroleum Corp.
v. New Mexico, 490 U. S. 163, 176 (1989); Moe v. Confeder-
ated Salish and Kootenai Tribes of Flathead Reservation,
425 U. S. 463, 475–476 (1976); McClanahan v. Arizona Tax
Comm’n, 411 U. S. 164, 170–172 (1973). In typical preemp-
tion cases, courts “start with the assumption” that Congress
has not displaced state authority. Rice v. Santa Fe Elevator
Corp., 331 U. S. 218, 230 (1947). But when a State tries to
regulate tribal affairs, the same “backdrop” does not apply
because Tribes have a “claim to sovereignty [that] long pre-
dates that of our own Government.” McClanahan, 411
U. S., at 172; see also Bracker, 448 U. S., at 143. So instead
of searching for an Act of Congress displacing state author-
ity, our cases require a search for federal legislation confer-
ring state authority: “[U]nless and until Congress acts, the
tribes retain their historic sovereign authority.” Bay Mills
Indian Community, 572 U. S., at 788 (internal quotation
marks omitted); see United States v. Cooley, 593 U. S. ___,
___–___ (2021) (slip op., at 3–4) (instructing courts to ask if
a “treaty or statute has explicitly divested Indian tribes of
the . . . authority at issue”); Anderson 317. What is more,
courts must “tread lightly” before concluding Congress has
abrogated tribal sovereignty in favor of state authority.
Santa Clara Pueblo, 436 U. S., at 60. Any ambiguities in
——————
op., at 1); United States v. Cooley, 593 U. S. ___, ___–___ (2021) (slip op.,
at 3–4); Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of
Okla., 498 U. S. 505, 509 (1991); United States v. Wheeler, 435 U. S. 313,
322–323 (1978); Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978);
United States v. Mazurie, 419 U. S. 544, 557 (1975); Talton v. Mayes, 163
U. S. 376, 383–384 (1896); United States v. Kagama, 118 U. S. 375, 381–
382 (1886); Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831).
Cite as: 597 U. S. ____ (2022) 15
GORSUCH, J., dissenting
Congress’s work must be resolved in favor of tribal sover-
eignty and against state power. See ibid.; see also Cotton
Petroleum, 490 U. S., at 177. And, if anything, these rules
bear special force in the criminal context, which lies at the
heart of tribal sovereignty and in which Congress “has pro-
vided a nearly comprehensive set of statutes allocating
criminal jurisdiction” among federal, tribal, and state au-
thorities. Cohen 527.3
B
From 1834 to 1968, Congress adopted a series of laws gov-
erning criminal jurisdiction on tribal lands. Those laws are
many, detailed, and clear. Each operates against the back-
drop understanding that Tribes are sovereign and that in
our constitutional order only Congress may displace their
authority. Nor does anything in Congress’s work begin to
confer on Oklahoma the authority it seeks.
1
Start with the GCA, first adopted by Congress in 1834
——————
3 In the civil context, Congress has not always provided comprehensive
rules allocating jurisdiction. See Cohen 527. In light of that fact, this
Court has, in “exception[al]” cases, id., at 524, allowed certain state laws
to apply on tribal lands without express congressional approval, see, e.g.,
Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134,
154–159 (1980). But even in the civil context this Court has proceeded
against the backdrop of tribal sovereignty, followed the presumption
against state authority, sought to abide its own repeated admonitions to
tread cautiously, and generally refused to consider competing state in-
terests. See, e.g., White Mountain Apache Tribe v. Bracker, 448 U. S.
136, 143–144 (1980); Cohen 520–525. So, for example, in Confederated
Tribes, this Court allowed the application of a state civil law only on a
showing that the State sought to regulate market activities with primar-
ily off-reservation effects and “in which the Tribes ha[d no] significant
interest.” 447 U. S., at 152. Meanwhile, in Bracker this Court refused
to permit a State to apply its civil tax laws on tribal lands even though
Congress had not expressly prohibited the State from doing so. 448 U. S.,
at 143.
16 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
and most recently reenacted in 1948. The GCA 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 ex-
clusive jurisdiction of the United States, except the Dis-
trict of Columbia, shall extend to Indian Country.
This section shall not extend to offenses committed by
one Indian against the person or property of another In-
dian, nor to any Indian committing any offense in the In-
dian country who has been punished by the local law of
the tribe, or to any case where, by treaty stipulations, the
exclusive jurisdiction over such offenses is or may be se-
cured to the Indian tribes respectively.” 18 U. S. C.
§ 1152.
As recounted above, Congress adopted the GCA in the af-
termath of Worcester’s holding that the federal government
alone may regulate tribal affairs and States do not possess
inherent authority to apply their criminal laws on tribal
lands. Responding to that decision, Congress did not choose
to exercise its authority to allow state jurisdiction on tribal
lands. Far from it. Congress chose only to extend federal
law to tribal lands—and even then only for certain crimes
involving non-Indian settlers. Otherwise, Congress recog-
nized, those settlers might be subject to tribal criminal ju-
risdiction alone. See Part I–B, supra. Several features of
the law confirm this understanding. Take just three.
First, the GCA compares “Indian country” to “place[s]
within the sole and exclusive jurisdiction of the United
States.” § 1152. The latter category refers to federal en-
claves like national parks and military bases that the Con-
stitution places under exclusive federal control. See Art. I,
§ 8, cl. 17; United States v. Cowboy, 694 F. 2d 1228, 1234
(CA10 1982); see also Ex parte Crow Dog, 109 U. S. 556, 567
Cite as: 597 U. S. ____ (2022) 17
GORSUCH, J., dissenting
(1883). And state laws generally do not apply in federal en-
claves. See, e.g., Fort Leavenworth R. Co. v. Lowe, 114 U. S.
525, 532–533 (1885). Rather than unambiguously endow
States with any sort of prosecutorial authority on tribal
lands, the GCA thus makes plain that tribal lands are to be
treated like federal enclaves subject to federal, not state,
control.
Second, the GCA provides that the “general laws of the
United States as to the punishment of offenses” shall apply
on tribal lands. § 1152. Again, nothing here purports to
extend state criminal laws to tribal lands. Quite the con-
trary. It would hardly make sense to apply federal general
criminal law—to address all crimes ranging from murder to
jaywalking—if state general criminal law already did the
job. Traditionally, this Court does not assume multiple
“sets of [general] criminal laws” apply to those subject to
federal protection. Lewis v. United States, 523 U. S. 155,
163 (1998). Instead, when Congress converts an area into
a federal enclave, we usually presume later-enacted state
law “does not apply.” Parker Drilling Management Ser-
vices, Ltd. v. Newton, 587 U. S. ___, ___ (2019) (slip op.,
at 9).
Third, after applying the federal government’s general
criminal laws to tribal lands, the GCA carves out some ex-
ceptions. It provides that federal law “shall not extend” to
crimes involving only Indians, crimes by Indians where the
perpetrator “has been punished by the local law of the
tribe,” or where a treaty grants a Tribe exclusive jurisdic-
tion. § 1152. These exceptions ensure that the federal gov-
ernment does not meddle in cases most likely to implicate
tribal sovereignty. And it defies the imagination to think
Congress would have taken such care to limit federal au-
thority over these most sensitive cases while (somewhere,
somehow) leaving States, so often the Tribes’ “deadliest
enemies,” to enjoy free rein. United States v. Kagama, 118
U. S. 375, 384 (1886).
18 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
2
When Congress enacted the MCA in 1885, it proceeded
once more against the “backdrop” rule that only tribal crim-
inal law applies on tribal lands, that States enjoy no inher-
ent authority to prosecute cases on tribal lands, and that
only Congress may displace tribal power. Nor, once more,
did Congress’s new legislation purport to allow States to
prosecute crimes on tribal lands. In response to concerns
with how tribal authorities were handling major crimes
committed by tribal members, in the MCA Congress took a
step beyond the GCA and instructed that, in the future, the
federal government would have “exclusive jurisdiction” to
prosecute certain crimes by Indian defendants on tribal
lands. 18 U. S. C. § 1153(a); see also Part I–B, supra. Here
again, Congress’s work hardly would have been necessary
or made sense if States already possessed jurisdiction to try
crimes by or against Indians on tribal reservations. Plainly,
Congress’s “purpose” in adopting the MCA was to answer
the “objection” that major crimes by tribal members on
tribal lands would otherwise be subject to prosecution by
tribal authorities alone. See Kagama, 118 U. S., at 383–
385.
3
Consider next the Treaty of New Echota and the Okla-
homa Enabling Act. In 1835, the United States entered into
a treaty with the Cherokee. In that treaty, the Nation
promised that, within a new reservation in what was to be-
come Oklahoma, the Tribe would enjoy the right to govern
itself and remain forever free from “State sovereignties”
and “the jurisdiction of any State.” Treaty with the Chero-
kee, Preamble, 7 Stat. 478. This Court has instructed that
tribal treaties must be interpreted as they “would naturally
be understood by the Indians” at ratification. Herrera v.
Wyoming, 587 U. S. ___, ___ (2019) (slip op., at 19) (internal
Cite as: 597 U. S. ____ (2022) 19
GORSUCH, J., dissenting
quotation marks omitted). And having just lost their tradi-
tional homelands to Georgia, who can doubt that the Cher-
okee understood this promise as a guarantee that they
would retain their sovereign authority over crimes by or
against tribal members subject only to federal, not state,
law? That was certainly the contemporaneous understand-
ing of the House Committee on Indian Affairs, which ob-
served that “[t]he United States and the Indian tribes
[would be] the sole parties” with power over new reserva-
tions in the West. H. Rep. No. 474, at 18; see also Part I–
B, supra. This Court has long shared the same view. “By
treaties and statutes,” the Court has said, “the right of the
Cherokee [N]ation to exist as an autonomous body, subject
always to the paramount authority of the United States,
has been recognized.” Talton v. Mayes, 163 U. S. 376, 379–
380 (1896).4
——————
4 In a fleeting aside, the Court suggests that the treaty was “sup-
planted” by the Oklahoma Enabling Act in 1906, which endowed the
State with “inherent” authority to try crimes by or against tribal mem-
bers on tribal lands. Ante, at 22–23. But the Court cites no proof for its
ipse dixit, nor could it. As we shall see, Congress took pains to abide its
treaty promises when it adopted the Oklahoma Enabling Act and has
never revoked them. Nor may this Court abrogate treaties or statutes
by wishing them away in passing remarks. In a Nation governed by the
rule of law, not men (or willful judges), only Congress may withdraw this
Nation’s treaty promises or revise its written laws. See McGirt v. Okla-
homa, 591 U. S. ___, ___ (2020) (slip op., at 7). Even on its own terms,
too, the Court’s discussion of the treaty turns out to be dicta. In the end,
the Court abandons any suggestion that, with its admission to the Union,
the Cherokee’s treaties somehow evaporated and Oklahoma gained an
“inherent” right to prosecute crimes by or against tribal members on
tribal lands. Instead, the Court resorts to a case-specific “balancing test”
that acknowledges state law may not apply on tribal lands even in the
absence of a preemptive statute. See Part III–A, infra.
In the course of its dicta on the treaty, the Court highlights still two
other irrelevant facts—that the Cherokee engaged in treaties with the
Confederacy during the Civil War and that “Congress abolished trea-
tymaking with the Indian nations in 1871.” Ante, at 21, n. 7, 22, n. 8
20 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
In 1906, Congress sought to deliver on its treaty promises
when it adopted the Oklahoma Enabling Act. That law
paved the way for the new State’s admission to the Union.
But in doing so, Congress took care to require Oklahoma to
“agree and declare” that it would “forever disclaim all right
and title in or to . . . all lands lying within [the State’s] lim-
its owned or held by any Indian, tribe, or nation.” 34 Stat.
270. Instead of granting the State some new power to pros-
ecute crimes by or against tribal members, Congress in-
sisted that tribal lands “shall be and remain subject to the
jurisdiction, disposal, and control of the United States.”
Ibid. Oklahoma complied with Congress’s instructions by
adopting both of these commitments verbatim in its Consti-
tution. Art. I, § 3.
Underscoring the nature of this arrangement, the Ena-
bling Act further provided that “nothing contained in the
——————
(internal quotation marks omitted). In truth, while some members of the
Tribe did side with the Confederacy, others fought for the Union. See 1
Litton 222, 224, 239. Regardless, after the Civil War the federal govern-
ment punished the entire Tribe by stripping some of its lands in the 1866
Treaty of Washington. See id., at 245. But that pact did not terminate
the government’s other existing treaty promises. To the contrary, the
new treaty expressly confirmed that “[a]ll provisions of treaties, hereto-
fore ratified . . . and not inconsistent with the provisions of this treaty,
are hereby reaffirmed.” Treaty with the Cherokee, Art. XXXI, 14 Stat.
806. As for the 1871 statute the Court cites, it makes plain that “nothing
herein contained shall be construed to invalidate or impair the obligation
of any treaty heretofore lawfully made and ratified with any . . . Indian
nation or tribe.” 16 Stat. 566. Recognizing as much, this Court in 1896
expressly recognized that the Tribe’s “guarantee of self-government” in
the Treaty of New Echota remained in force. Talton, 163 U. S., at 380.
In the years since, this Court and others have recognized the continuing
vitality of various aspects of the treaty too. See, e.g., Choctaw Nation v.
Oklahoma, 397 U. S. 620, 628 (1970); EEOC v. Cherokee Nation, 871
F. 2d 937, 938 (CA10 1989). And in this very case, the federal govern-
ment has confirmed that the Nation’s treaties continue to “protect” the
Tribe. See Tr. of Oral Arg. 121.
Cite as: 597 U. S. ____ (2022) 21
GORSUCH, J., dissenting
[Oklahoma] constitution shall be construed . . . to limit or
affect the authority of the Government of the United States
to make any law or regulation respecting such Indians,
their lands, property, or other rights by treaties, agree-
ment, law, or otherwise, which it would have been compe-
tent to make if this Act had never been passed.” 34 Stat.
267–268 (emphasis added). Prior to statehood, too, no one
could have questioned Congress’s exclusive authority to
regulate tribal lands and affairs in the Oklahoma territory.
See, e.g., U. S. Const., Art. IV; Kagama, 118 U. S., at 380
(citing federal government’s “exclusive sovereignty” over
federal territories); Simms v. Simms, 175 U. S. 162, 168
(1899) (“In the Territories of the United States, Congress
has the entire dominion and sovereignty, . . . Federal and
state”); Harjo v. Kleppe, 420 F. Supp. 1110, 1121 (DC 1976)
(federal courts had pre-statehood jurisdiction); Clinton
960–962. The Oklahoma Enabling Act and the commit-
ments it demanded in the new Oklahoma Constitution
sought to maintain this status quo.
Recognizing the point, this Court has explained that, “[i]n
passing the enabling act for the admission of the State of
Oklahoma . . . Congress was careful to preserve the author-
ity of the Government of the United States over the Indians,
their lands and property, which it had prior to the passage
of the act.” Tiger v. Western Investment Co., 221 U. S. 286,
309 (1911) (emphasis added). This Court has explained,
too, that the “grant of statehood” to Oklahoma did nothing
to disturb “the long-settled rule” that the “guardianship of
the United States” over Native American Tribes in Okla-
homa “has not been abandoned.” United States v. Ramsey,
271 U. S. 467, 469 (1926). Instead, this Court has acknowl-
edged, the federal government’s “authority in respect of
crimes committed by or against Indians continued after the
admission of the state as it was before.” Ibid. In fact, the
Court has long interpreted nearly identical language in the
22 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
Arizona Enabling Act—enacted close in time to its Okla-
homa counterpart—as reinforcing the traditional rule “that
the States lac[k] jurisdiction” on tribal lands over crimes by
or against Native Americans. McClanahan, 411 U. S., at
175; see also Warren Trading Post Co. v. Arizona Tax
Comm’n, 380 U. S. 685, 687, n. 3 (1965).5
4
The few occasions on which Congress has even arguably
authorized the application of state criminal law on tribal
reservations still do not come anywhere near granting Ok-
lahoma the power it seeks. In the late 1800s, this Court in
——————
5 In places, the Court seems to suggest that the Oklahoma Enabling
Act endowed the State with “inherent” jurisdiction to try any crime com-
mitted within its borders. See ante, at 22–23. But in the end the Court
abandons any suggestion that with statehood Oklahoma gained an in-
herent right to try cases involving tribal members within tribal bounds.
See Part III–A, infra. So, once more, the Court’s discussion of the Okla-
homa Enabling Act turns out to be dicta future litigants are free to cor-
rect. Much correction is warranted. Not only does the Court fail to quote,
let alone offer any analysis of, the relevant statutory text. Its suggestion
that the Oklahoma Enabling Act granted the State criminal jurisdiction
over tribal lands would require us to suppose that Congress abrogated
two treaties with the Cherokee without ever saying so—an interpreta-
tion that would grossly defy our Nation’s promises and this Court’s obli-
gation to read congressional work as a harmonious whole. Reading the
Oklahoma Enabling Act in line with the Court’s ill-considered dicta
would also defy this Court’s longstanding precedents in Tiger, Ramsey,
and McClanahan. Of course, the Court tries to invoke McBratney and
Draper as contrary authority. But as we will see in a moment, both cases
carefully reiterated the rule that statehood does not imply the right to
try crimes on tribal lands by or against tribal members. The Court also
cites Organized Village of Kake v. Egan, 369 U. S. 60 (1962). But that
case involved Alaska’s Anti-Fish-Trap Conservation Law, not the Okla-
homa Enabling Act. Admittedly, Egan quotes comments from a 1954
legislative committee hearing about the Alaska Enabling Act in which a
few participants also happened to express views on the meaning of the
Oklahoma Enabling Act, passed almost 50 years earlier. See id., at 71.
But surely this Court cannot think a few stray post-enactment legislative
comments, “unmoored from any statutory text,” ante, at 11, control over
the statutory terms or our more specific precedents.
Cite as: 597 U. S. ____ (2022) 23
GORSUCH, J., dissenting
McBratney and Draper held that federal statutes admitting
certain States to the Union effectively meant those States
could now prosecute crimes on tribal lands involving only
non-Indians. Yet, as aggressive as these decisions were,
they took care to safeguard the rule that a State’s admission
to the Union does not convey with it the power to punish
“crimes committed by or against Indians.” McBratney, 104
U. S., at 624; Draper, 164 U. S., at 247. Indeed, soon after
Oklahoma became a State, this Court explained that the
“grant of statehood” may have endowed Oklahoma with au-
thority to try crimes “not committed by or against Indians,”
but with statehood did not come any authority to try
“crimes by or against Indians” on tribal lands. Ramsey, 271
U. S., at 469; see also n. 5, supra; Donnelly v. United States,
228 U. S. 243, 271 (1913); Williams v. Lee, 358 U. S., at 220;
Cohen 506–509. The decision whether and when this ar-
rangement should “cease” “rest[ed] with Congress alone.”
Ramsey, 271 U. S., at 469.
The truth is, Congress has authorized the application of
state criminal law on tribal lands for offenses committed by
or against Native Americans only in very limited circum-
stances. The most notable examples can be found in Public
Law 280 and related statutes. In 1940, Kansas successfully
lobbied Congress for criminal jurisdiction in Indian coun-
try. Nearly identical laws for North Dakota, Iowa, and New
York followed close behind. Then in 1953, Congress
adopted Public Law 280 in which it authorized five States
to exercise criminal jurisdiction on tribal lands and estab-
lished procedures for additional States to assume similar
authority. In 1968, Congress amended Public Law 280.
Now, before a State like Oklahoma may try crimes by or
against Native Americans arising on tribal lands, it must
take action to amend any state law disclaiming that author-
ity; then, the State must seek and obtain tribal consent to
any extension of state jurisdiction. See Part I–B, supra;
Clinton 958–962. Unless a State takes these steps, it does
24 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
“not hav[e] jurisdiction.” 25 U. S. C. §§ 1321(a), 1323(b).6
5
The Court’s suggestion that Oklahoma enjoys “inherent”
authority to try crimes against Native Americans within
the Cherokee Reservation makes a mockery of all of Con-
gress’s work from 1834 to 1968. The GCA and MCA? On
the Court’s account, Congress foolishly extended federal
criminal law to tribal lands on a mistaken assumption that
only tribal law would otherwise apply. Unknown to anyone
until today, state law applied all along. The treaty, the Ok-
lahoma Enabling Act, and the provision in Oklahoma’s con-
stitution that Congress insisted upon as a condition of
statehood? The Court effectively ignores them. The Kansas
Act and its sibling statutes? On the Court’s account, they
were needless too. Congress’s instruction in Public Law 280
that States may not exercise jurisdiction over crimes by or
against tribal members on tribal lands until they amend
contrary state law and obtain tribal consent? Once more, it
seems the Court thinks Congress was hopelessly mis-
guided.
Through it all, the Court makes no effort to grapple with
the backdrop rule of tribal sovereignty. The Court proceeds
oblivious to the rule that only a clear act of Congress may
impose constraints on tribal sovereignty. The Court ignores
the fact that Congress has never come close to subjecting
the Cherokee to state criminal jurisdiction over crimes
against tribal members within the Tribe’s reservation. The
Court even disregards our precedents recognizing that the
——————
6 The Court observes that Public Law 280 and related statutes did
more than just grant States jurisdiction over crimes by non-Indians
against Indians on tribal lands—“the issue here.” Ante, at 17. Congress
also granted “States . . . jurisdiction over crimes committed by Indians.”
Ibid. (emphasis in original). But that observation fails to answer the fact
that, under the Court’s view, a major portion of all these laws is surplus-
age—and none of them was necessary if States really enjoyed “inherent”
criminal jurisdiction on tribal lands from the start.
Cite as: 597 U. S. ____ (2022) 25
GORSUCH, J., dissenting
“grant of statehood” to Oklahoma did not endow the State
with any power to try “crimes committed by or against In-
dians” on tribal lands but reserved that authority to the fed-
eral government and Tribes alone. Ramsey, 271 U. S., at
469; see also Tiger, 221 U. S., at 309. From start to finish,
the Court defies our duty to interpret Congress’s laws and
our own prior work “harmoniously” as “part of an entire cor-
pus juris.” A. Scalia & B. Garner, Reading Law 252 (2012);
see also Goodyear Atomic Corp. v. Miller, 486 U. S. 174,
184–185 (1988).
C
Putting aside these astonishing errors, Congress’s work
and this Court’s precedents yield three clear principles that
firmly resolve this case. First, tribal sovereign authority
excludes the operation of other sovereigns’ criminal laws
unless and until Congress ordains otherwise. Second, while
Congress has extended a good deal of federal criminal law
to tribal lands, in Oklahoma it has authorized the State to
prosecute crimes by or against Native Americans within
tribal boundaries only if it satisfies certain requirements.
Under Public Law 280, the State must remove state-law
barriers to jurisdiction and obtain tribal consent. Third, be-
cause Oklahoma has done neither of these things, it lacks
the authority it seeks to try crimes against tribal members
within a tribal reservation. Until today, all this settled law
was well appreciated by this Court, the Executive Branch,
and even Oklahoma.
Consider first our own precedents and those of other
courts. In 1946 in Williams v. United States, this Court rec-
ognized that, while States “may have jurisdiction over of-
fenses committed on th[e] reservation between persons who
are not Indians, the laws and courts of the United States,
rather than those of [the States], have jurisdiction over of-
fenses committed there . . . by one who is not an Indian
against one who is an Indian.” 327 U. S. 711, 714 (footnote
26 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
omitted). In Williams v. Lee, issued in 1959, this Court was
clear again: “[I]f the crime was by or against an Indian,
tribal jurisdiction or that expressly conferred on other
courts by Congress has remained exclusive.” 358 U. S., at
220. As early as 1926, this Court made the same point
while speaking directly to Oklahoma. Ramsey, 271 U. S.,
at 469–470. It is a point our cases have continued to make
in recent years.7 It is a point a host of other courts—includ-
ing state courts issuing decisions contrary to their own in-
terests—have acknowledged too.8
The Executive Branch has likewise understood the States
to lack authority to try crimes by or against Indians in In-
dian country absent congressional authorization. Not only
did the Washington Administration recognize as much. See
Part I–A, supra. The same view has persisted throughout
the Nation’s history. In 1940, the Acting Secretary of the
Interior advised Congress that state criminal jurisdiction
extends “only to situations where both the offender and the
victim” are non-Indians. S. Rep. No. 1523, 76th Cong., 3d
Sess., 2 (Vol. 2). A few decades later, the Solicitor General
made a similar representation to this Court. See Brief for
United States as Amicus Curiae in Arizona v. Flint, O. T.
——————
7 See, e.g., United States v. Bryant, 579 U. S. 140, 146 (2016); Nevada
v. Hicks, 533 U. S. 353, 365 (2001); Solem v. Bartlett, 465 U. S. 463, 465,
n. 2 (1984); Washington v. Confederated Bands and Tribes of Yakima
Nation, 439 U. S. 463, 470–471 (1979); McClanahan v. Arizona Tax
Comm’n, 411 U. S. 164, 170–171 (1973).
8 See, e.g., State v. Cungtion, 969 N. W. 2d 501, 504–505 (Iowa 2022);
State v. Sebastian, 243 Conn. 115, 128, and n. 21, 701 A. 2d 13, 22, and
n. 21 (1997); State v. Larson, 455 N. W. 2d 600, 600–601 (S. D. 1990);
State v. Flint, 157 Ariz. 227, 228, 756 P. 2d 324, 324–325 (App. 1988);
State v. Greenwalt, 204 Mont. 196, 204–205, 663 P. 2d 1178, 1182–1183
(1983); State v. Warner, 71 N. M. 418, 421–422, 379 P. 2d 66, 68–69
(1963); State v. Kuntz, 66 N. W. 2d 531, 532 (N. D. 1954); State v. Jack-
son, 218 Minn. 429, 430, 16 N. W. 2d 752, 754–755 (1944); see also United
States v. Langford, 641 F. 3d 1195, 1199 (CA10 2011); United States v.
Bruce, 394 F. 3d 1215, 1221 (CA9 2005).
Cite as: 597 U. S. ____ (2022) 27
GORSUCH, J., dissenting
1988, No. 88–603, p. 3 (Flint Amicus Brief ). In McGirt, the
federal government once more acknowledged that States
cannot prosecute crimes by or against tribal members
within still-extant tribal reservations. See Brief for United
States as Amicus Curiae in McGirt v. Oklahoma, O. T. 2019,
No. 18–9526, p. 38. In this case, the government has es-
poused the same view yet again. See Brief for United States
as Amicus Curiae 4; see also Dept. of Justice, Criminal Re-
source Manual 685 (updated Jan. 22, 2020).9
In the past, even Oklahoma has more or less conceded the
point. The last time Oklahoma was before us, it asked this
Court to usurp congressional authority and disestablish the
Creek Reservation because, otherwise, the State “would not
have jurisdiction over” “crimes committed against Indians”
within its boundaries. See Tr. of Oral Arg. in McGirt v. Ok-
lahoma, No. 18–9526, O. T. 2019, p. 54; see also McGirt, 591
U. S., at ___–___ (slip op., at 37–38). In 1991, Oklahoma’s
attorney general formally resolved that major “[c]rimes
committed by or against Indians . . . are under the exclusive
province of the United States,” while Tribes retain exclusive
jurisdiction over “minor crimes committed by Indians.”
Haney, 22 Okla. Opp. Atty. Gen. 71, 1991 WL 567868, *3.
And Oklahoma’s own courts have recently taken the same
position even in the face of vehement opposition from the
State’s executive branch. See, e.g., Spears, 485 P. 3d, at
875, 877.
——————
9 As sometimes happens when the government considers a legal ques-
tion over centuries, differing views have occasionally popped up. In 1979,
the Office of Legal Counsel opined—with little analysis—that States
might be able to exercise concurrent criminal jurisdiction on tribal lands,
though it conceded the question was “exceedingly difficult.” 3 Op. OLC
111, 117, 120. This kind of surface-level, hedged analysis is hardly ro-
bust evidence. In any event, the Executive Branch reverted to its tradi-
tional position in short order. That makes the Court’s repeated reliance
on this isolated opinion—and its failure to acknowledge the mountain of
contradictory evidence—especially bewildering. See ante, at 12–16.
28 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
D
Against all this evidence, what is the Court’s reply? It
acknowledges that, at the Nation’s founding, tribal sover-
eignty precluded States from prosecuting crimes on tribal
lands by or against tribal members without congressional
authorization. See ante, at 5. But the Court suggests this
traditional “ ‘notion’ ” flipped 180 degrees sometime in “the
latter half of the 1800s.” Ante, at 5, 21. Since then, the
Court says, Oklahoma has enjoyed the “inherent” power to
try at least crimes by non-Indians against tribal members
on tribal reservations until and unless Congress preempts
state authority.
But exactly when and how did this change happen? The
Court never explains. Instead, the Court seeks to cast
blame for its ruling on a grab bag of decisions issued by our
predecessors. But the failure of that effort is transparent.
Start with McBratney, which the Court describes as our
“leading case in the criminal context.” Ante, at 6. There, as
we have seen, the Court said that States admitted to the
Union may gain the right to prosecute cases involving only
non-Indians on tribal lands, but they do not gain any inher-
ent right to punish “crimes committed by or against Indi-
ans” on tribal lands. McBratney, 104 U. S., at 624. The
Court’s reliance on Draper fares no better, for that case is-
sued a similar disclaimer. See 164 U. S., at 247. Tellingly,
not even Oklahoma thinks McBratney and Draper compel a
ruling in its favor. See Brief for Petitioner 12. And if any-
thing, the Court’s invocation of Donnelly, 228 U. S. 243, is
more baffling still. Ante, at 14, n. 3. There, the Court once
more reaffirmed the rule that “offenses committed by or
against Indians” on tribal lands remain subject to federal,
not state, jurisdiction. Donnelly, 228 U. S., at 271; see also
Ramsey, 271 U. S., at 469.
That leaves the Court to assemble a string of carefully
curated snippets—a clause here, a sentence there—from six
Cite as: 597 U. S. ____ (2022) 29
GORSUCH, J., dissenting
decisions out of the galaxy of this Court’s Indian law juris-
prudence. Ante, at 5–6. But this collection of cases is no
more at fault for the Court’s decision than the last. Orga-
nized Village of Kake v. Egan—which the Court seems to
think is some magic bullet, see ante, at 5, 14, n. 2, 21, 22–
24—addressed the prosaic question whether Alaska could
apply its fishing laws on lands owned by a native Alaska
tribal corporation. 369 U. S. 60, 61–63 (1962); see also n. 5,
supra. Subsequently, the Court cabined that case to cir-
cumstances “dealing with Indians who have left or never
inhabited reservations set aside for their exclusive use or
who do not possess the usual accoutrements of tribal self-
government.” McClanahan, 411 U. S., at 167–168. Mean-
while, New York ex rel. Cutler v. Dibble allowed New York
to use civil proceedings to eject non-Indian trespassers on
Indian lands. 21 How. 366, 369–371 (1859). In Surplus
Trading Co. v. Cook, the crime at issue did not take place
on tribal lands but on a “supply station of the United
States” sold by Arkansas to the federal government. 281
U. S. 647, 649 (1930). In New York ex rel. Ray v. Martin,
this Court merely reaffirmed McBratney and held that
States could exercise jurisdiction over crimes involving only
non-Indians. 326 U. S. 496, 499–500 (1946). Both County
of Yakima v. Confederated Tribes and Bands of Yakima Na-
tion and Nevada v. Hicks issued holdings about state civil
jurisdiction, not criminal jurisdiction striking at the heart
of tribal sovereignty. See 502 U. S. 251, 256–258, 270
(1992); 533 U. S. 353, 361, 363, 374 (2001).
In the end, the Court cannot fault our predecessors for
today’s decision. The blame belongs only with this Court
here and now. Standing before us is a mountain of statutes
and precedents making plain that Oklahoma possesses no
authority to prosecute crimes against tribal members on
tribal reservations until it amends its laws and wins tribal
consent. This Court may choose to ignore Congress’s stat-
utes and the Nation’s treaties, but it has no power to negate
30 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
them. The Court may choose to disregard our precedents,
but it does not purport to overrule a single one. As a result,
today’s decision surely marks an embarrassing new entry
into the anticanon of Indian law. But its mistakes need
not—and should not—be repeated.
III
Doubtless for some of these reasons, even the Court
ultimately abandons its suggestion that Oklahoma is
“inherent[ly]” free to prosecute crimes by non-Indians
against tribal members on a tribal reservation absent a
federal statute “preempt[ing]” its authority. Ante, at 15. In
the end, the Court admits that tribal sovereignty can
require the exclusion of state authority even absent a
preemptive federal statute. Ante, at 18. But then, after
correcting course, the Court veers off once more. To
determine whether tribal sovereignty displaces state
authority in a case involving a non-Indian defendant and
an Indian victim on a reservation in Oklahoma, the Court
resorts to a “Bracker balancing” test. Ibid. Applying that
test, the Court concludes that Oklahoma’s interests in this
case outweigh those of the Cherokee. All this, too, is
mistaken root and branch.
A
Begin with the most fundamental problem. The Court
invokes what it calls the “Bracker balancing” test with no
more appreciation of that decision’s history and context
than it displays in its initial suggestion that the usual rules
of preemption apply to Tribes. The Court tells us nothing
about Bracker itself, its reasoning, or its limits. Perhaps
understandably so, for Bracker never purported to claim for
this Court the raw power to “balance” away tribal
sovereignty in favor of state criminal jurisdiction over
crimes by or against tribal members—let alone ordain a
wholly different set of jurisdictional rules than Congress
Cite as: 597 U. S. ____ (2022) 31
GORSUCH, J., dissenting
already has.
Bracker involved a relatively minor civil dispute. Arizona
sought to tax vehicles used by the White Mountain Apache
Tribe in logging operations on tribal lands. See Bracker,
448 U. S., at 138–140. The Tribe opposed the effort,
pointing to a federal law that regulated tribal logging but
did not say anything about preempting the State’s vehicle
tax. See id., at 141, 145. The Court began by recognizing
that the usual rules of preemption are not “properly
applied” to Tribes. Id., at 143. Instead, the Court started
with the traditional “ ‘backdrop’ ” presumption that States
lack jurisdiction in Indian country. Ibid. And the Court
explained that any ambiguities about the scope of federal
law must be “construed generously” in favor of the Tribes
as sovereigns. Id., at 143–144. With these rules in mind,
the Court proceeded to turn back the State’s tax based on a
“particularized inquiry into the nature of the state, federal,
and tribal interests at stake.” Id., at 145. The Court judged
that “traditional notions of [tribal] sovereignty,” the federal
government’s “policy of promoting tribal self-sufficiency,”
and the rule requiring it to resolve “[a]mbiguities” in favor
of the Tribe trumped any competing state interest. Id., at
143–144, 151.
Nothing in any of this gets the Court close to where it
wishes to go. If Arizona had to proceed against the
traditional “backdrop” rule excluding state jurisdiction,
Oklahoma must. And if Arizona could not overcome that
backdrop rule because it could not point to clear federal
statutory language authorizing its comparatively minor
civil tax, it is unfathomable how Oklahoma might overcome
that rule here. The State has pointed—and can point—to
nothing in Congress’s work granting it the power to try
crimes against tribal members on a tribal reservation. In
Bracker, the Court found it instructive that Congress had
“comprehensive[ly]” regulated “the harvesting of Indian
timber,” even if it had not spoken directly to the question of
32 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
vehicle taxes. Id., at 145–146, 148. Here, Congress has not
only pervasively regulated criminal jurisdiction in Indian
country, it has spoken to the very situation we face: States
like Oklahoma may exercise jurisdiction over crimes within
tribal boundaries by or against tribal members only with
tribal consent.
The simple truth is Bracker supplies zero authority for
this Court’s course today. If Congress has not always “been
specific about the allocation of civil jurisdiction in Indian
country,” the same can hardly be said about the allocation
of criminal authority. Cohen 527. Congress “has provided
a nearly comprehensive set of statutes allocating criminal
jurisdiction.” Ibid. In doing so, Congress has already
“balanced” competing tribal, state, and federal interests—
and its balance demands tribal consent. Exactly nothing in
Bracker permits us to ignore Congress’s directive.
B
Plainly, the Court’s balancing-test game is not one we
should be playing in this case. But what if we did? Suppose
this Court could (somehow) ignore Congress’s decision to
allow States like Oklahoma to exercise criminal jurisdiction
in cases like ours only with tribal consent. Suppose we
could (somehow) replace that rule with one of our own
creation. Even proceeding on that stunning premise, it is
far from obvious how the Court arrives at its preferred
result.
In reweighing competing state and tribal interests for
itself, the Court stresses two points. First, the Court
suggests that its balance is designed to “help” Native
Americans. Ante, at 20 (suggesting that Indians would be
“second-class citizens” without this Court’s intervention);
Tr. of Oral Arg. 66 (suggesting state jurisdiction is designed
to “help” tribal members). Second, the Court says state
jurisdiction is needed on the Cherokee Reservation today
because “in the wake of McGirt” some defendants “have
Cite as: 597 U. S. ____ (2022) 33
GORSUCH, J., dissenting
simply gone free.” Ante, at 3–4. On both counts, however,
the Court conspicuously loads the dice.
1
Start with the assertion that allowing state prosecutions
in cases like ours will “help” Indians. The old paternalist
overtones are hard to ignore. Yes, under the laws Congress
has ordained Oklahoma may acquire jurisdiction over
crimes by or against tribal members only with tribal
consent. But to date, the Cherokee have misguidedly
shown no interest in state jursidiction. Thanks to their
misjudgment, they have rendered themselves “second-class
citizens.” Ante, at 20. So, the argument goes, five unelected
judges in Washington must now make the “right” choice for
the Tribe. To state the Court’s staggering argument should
be enough to refute it.
Nor does the Court even pause to consider some of the
reasons why the Cherokee might not be so eager to invite
state prosecutions in cases like ours. Maybe the Cherokee
have so far withheld their consent because, throughout the
Nation’s history, state governments have sometimes proven
less than reliable sources of justice for Indian victims. As
early as 1795, George Washington observed that “a Jury on
the frontiers” considering a crime by a non-Indian against
an Indian could “hardly be got to listen to a charge, much
less to convict a culprit.” Letter to E. Pendleton (Jan. 22),
in 17 Papers of George Washington: Presidential Series
424, 426 (D. Hoth & C. Ebel eds. 2013). Undoubtedly, too,
Georgia once proved among the Cherokee’s “deadliest
enemies.” Kagama, 118 U. S., at 384.
Maybe the Cherokee also have in mind experiences
particular to Oklahoma. Following statehood, settlers
embarked on elaborate schemes to deprive Indians of their
lands, rents, and mineral rights. “Many young allottees
were virtually kidnaped just before they reached their
majority”; some were “induced to sign deeds at midnight on
34 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
the morning they became of age.” Debo 197–198. Others
were subjected to predatory guardianships; state judges
even “reward[ed] their supporters [with] guardianship
appointments.” Id., at 183. Oklahoma’s courts also
sometimes sanctioned the “legalized robbery” of these
Native American children “through the probate courts.”
Id., at 182. Even almost a century on, the federal
government warned of “the possibility of prejudice [against
Native Americans] in state courts.” Flint Amicus Brief 5.
Whatever may have happened in the past, it seems the
Court can imagine only a bright new day ahead. Moving
forward, the Court cheerily promises, more prosecuting
authorities can only “help.” Three sets of prosecutors—
federal, tribal, and state—are sure to prove better than two.
But again it’s not hard to imagine reasons why the
Cherokee might see things differently. If more sets of
prosecutors are always better, why not allow Texas to
enforce its laws in California? Few sovereigns or their
citizens would see that as an improvement. Yet it seems
the Court cannot grasp why the Tribe may not.
The Court also neglects to consider actual experience
with concurrent state jurisdiction on tribal lands.
According to a group of former United States Attorneys, in
practice concurrent jurisdiction has sometimes “create[d] a
pass-the-buck dynamic . . . with the end result being fewer
police and more crime.” Brief for Former United States
Attorneys et al. as Amici Curiae 13; see also C. Goldberg,
Public Law 280: The Limits of State Jurisdiction Over
Reservation Indians, 22 UCLA L. Rev. 535, 552, and n. 92
(1975); Goldberg-Ambrose 1423. Federal authorities may
reduce their involvement when state authorities are
present. In turn, some States may not wish to devote the
resources required and may view the responsibility as an
unfunded federal mandate. Thanks to realities like these,
“[a]lmost as soon as Congress began granting States
[criminal] jurisdiction” through Public Law 280, “affected
Cite as: 597 U. S. ____ (2022) 35
GORSUCH, J., dissenting
Tribal Nations began seeking retrocession and repeal.”
Brief for National Indigenous Women’s Resource Center et
al. as Amici Curiae 12. Recently, a bipartisan congressional
commission agreed that more state criminal jurisdiction in
Indian country is often not a good policy choice. See Indian
Law and Order Commission, A Roadmap for Making Native
America Safer: Report to the President and Congress of the
United States xi, xiv, 11–15 (Nov. 2013). Still, none of this
finds its way into the Court’s cost-benefit analysis.
2
Instead, the Court marches on. The second “factor” it
weighs in its “balance”—and the only history it seems
interested in consulting—concerns Oklahoma’s account of
its experiences in the last two years since McGirt. Adopting
the State’s representations wholesale, the Court says that
decision has posed Oklahoma with law-and-order
“challenge[s].” Ante, at 4. To support its thesis, the Court
cites the State’s unsubstantiated “estimat[e]” that McGirt
has forced it to “transfer prosecutorial responsibility for
more than 18,000 cases per year to” federal and tribal
authorities. Ibid. Apparently on the belief that the transfer
of cases from state to federal prosecutors equates to an
eruption of chaos and criminality, the Court remarks
casually that traditional limitations on state prosecutorial
authority on tribal lands were “insignificant in the real
world” before McGirt. Ante, at 16.
But what does this prove? Put aside for the moment
questions about the accuracy of Oklahoma’s statistics and
what the number of cases transferred from state to federal
prosecutors may or may not mean for law and order. See
Tr. of Oral Arg. 26 (questioning whether the State’s
“figures” might be “grossly exaggerated”). Taking the
Court’s account at face value, it might amount to a reason
for Oklahoma to lobby the Cherokee to consent to state
jurisdiction. It might be a reason for the State to petition
36 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
Congress to revise criminal jurisdictional arrangements in
the State even without tribal consent. But it is no act of
statutory or constitutional interpretation. It is a policy
argument through and through.
Nor is the Court’s policy argument exactly complete in its
assessment of the costs and benefits. When this Court
issued McGirt, it expressly acknowledged that cases
involving crimes by or against tribal members within
reservation boundaries would have to be transferred from
state to tribal or federal authorities. 591 U. S., at ___–___
(slip op., at 36–42). This Court anticipated, too, that this
process would require a period of readjustment. But, the
Court recognized, all this was necessary only because
Oklahoma had long overreached its authority on tribal
reservations and defied legally binding congressional
promises. See ibid.Notably, too, neither the tribal nor the federal authorities
on the receiving end of this new workload think the “costs”
of this period of readjustment begin to justify the Court’s
course. For their part, Tribes in Oklahoma have hired more
police officers, prosecutors, and judges. See Cherokee Brief
10–11. Based on that investment, Oklahoma’s Tribes have
begun to prosecute substantially more cases than they once
did. See id., at 12–13. And they have also shown a
willingness to work with Oklahoma, having signed
hundreds of cross-deputization agreements allowing local
law enforcement to collaborate with tribal police. Id., at 15–
16, and n. 39. Even Oklahoma’s amici concede these
agreements have proved “an important tool” for law
enforcement. Brief for Oklahoma District Attorneys
Association et al. as Amici Curiae 14.
Both of the federal government’s elected branches have
also responded, if not in the way this Court happens to
prefer. Instead of forcing state criminal jurisdiction onto
Tribes, Congress has chosen to allocate additional funds for
law enforcement in Oklahoma. See, e.g., Consolidated
Cite as: 597 U. S. ____ (2022) 37
GORSUCH, J., dissenting
Appropriations Act, H. R. 2471, 117th Cong., 2d Sess., 78
(2022). Meanwhile, the Solicitor General has offered the
Executive Branch’s judgment that McGirt’s “practical
consequences” do not justify this Court’s intervention,
explaining that the Department of Justice is “working
diligently with tribal and State partners” in Oklahoma. See
Brief for United States as Amicus Curiae 32.
There is even more evidence cutting against the Court’s
dystopian tale. According to a recent United States
Attorney in Oklahoma, “the sky isn’t falling” and
“partnerships between tribal law enforcement and state
law enforcement” are strong. A. Herrera, Trent Shores
Reflects on His Time as U. S. Attorney, Remains
Committed to Justice for Indian Country, KOSU-NPR (Feb.
24, 2021), www.kosu.org/politics/2021-02-24/trent-shores-
reflects-on-his-time-as-u-s-attorney-remains-committed-to-
justice-for-indian-country. A Federal Bureau of
Investigation special agent in charge of Oklahoma has
stated that violent crimes “ ‘are being pursued as heavily as
they were in the past, and in some cases, maybe even
stronger.’ ” A. Brothers, Oklahoma Special Agent Says FBI
Faces Challenges in 3 Categories, News on 6 (Feb. 14,
2022), https://www.newson6.com/story/620b261bf8cd4a07e
5cb845b/oklahoma-special-agent-says-fbi-faces-challenges-
in-3-categories. And the Tribes—those most affected by all
this supposed lawlessness within their reservations—tell
us that, after a period of adjustment, federal prosecutors
are now pursuing lower level offenses vigorously too. See
Brief for Muscogee (Creek) Nation as Amicus Curiae on Pet.
for Cert. 11–12, and nn. 21–22 (collecting indictments). The
federal government has made a similar representation to
this Court. Tr. of Oral Arg. 118. Nor is it any secret that
those convicted of federal crimes generally receive longer
sentences than individuals convicted of similar state
offenses. See, e.g., Bureau of Justice Statistics, Felony
Sentences in State Courts, 2006—Statistical Tables 9
38 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
(2009) (Table 1.6).
In recounting all this, I do not profess certainty about the
optimal law enforcement arrangements in Oklahoma. I do
not pretend to know all the relevant facts, let alone how to
balance each of them in this complex picture. Nor do I claim
to know what weight to give historical wrongs or future
hopes. I offer the preceding observations only to illustrate
the one thing I am sure of: This Court has no business
usurping congressional decisions about the appropriate
balance between federal, tribal, and state interests. If the
Court’s ruling today sounds like a legislative committee
report touting the benefits of some newly proposed bill,
that’s because it is exactly that. And given that a nine-
member court is a poor substitute for the people’s elected
representatives, it is no surprise that the Court’s cost-
benefit analysis is radically incomplete. The Court’s
decision is not a judicial interpretation of the law’s
meaning; it is the pastiche of a legislative process.
C
As unsound as the Court’s decision is, it would be a
mistake to overlook its limits. In the end, the Court admits
that tribal sovereignty can displace state authority even
without a preemptive statute. See Part III–A, supra. To be
sure, the Court proceeds to disparage a federal statute
requiring Oklahoma to obtain tribal consent before trying
any crime involving an Indian victim within the Cherokee
Reservation. But look at what the Court leaves unresolved.
The Court does not pass on Public Law 280’s provision that
States “shall not” be entitled to assume jurisdiction on
tribal lands until they “appropriately amen[d ]” state laws
disclaiming authority over tribal reservations. 25 U. S. C.
§ 1324. The Court gestures toward the Cherokee’s treaties
and the Oklahoma Enabling Act, but ultimately abandons
any argument that those treaties were lawfully abrogated
or that the Oklahoma Enabling Act endowed Oklahoma
Cite as: 597 U. S. ____ (2022) 39
GORSUCH, J., dissenting
with inherent authority to try cases involving Native
Americans within tribal bounds. See ante, at 18. Nor does
the Court address the relevant text of those treaties or the
Enabling Act—let alone come to terms with our precedents
holding that Oklahoma’s “grant of statehood” did not
include the power to try “crimes committed by or against
Indians” on tribal lands. Ramsey, 271 U. S., at 469; see also
Tiger, 221 U. S., at 309. Nothing in today’s decision could
or does begin to preclude the Cherokee or other Tribes from
pressing arguments along any of these lines in future cases.
The unamended Oklahoma Constitution and other state
statutes and judicial decisions may stand as independent
barriers to the assumption of state jurisdiction as a matter
of state law too.
The Court’s decision is limited in still other important
ways. Most significantly, the Court leaves undisturbed the
ancient rule that States cannot prosecute crimes by Native
Americans on tribal lands without clear congressional
authorization—for that would touch the heart of “tribal
self-government.” Ante, at 17. At least that rule (and
maybe others) can never be balanced away. Indeed, the
Court’s ruling today rests in significant part on the fact that
Tribes currently lack criminal jurisdiction over non-Indians
who commit crimes on tribal lands—a factor that obviously
does not apply to cases involving Native American
defendants. Ante, at 19.
Additionally, nothing in the “Bracker balancing” test the
Court employs foreordains today’s grim result for different
Tribes in different States. Bracker instructs courts to focus
on the “specific context” at issue, taking cognizance of the
particular circumstances of the Tribe in question, including
all relevant treaties and statutes. 448 U. S., at 145. Nor
are Tribes and their treaties “fungible.” S. Prakash,
Against Tribal Fungibility, 89 Cornell L. Rev. 1069, 1071–
1072 (2004). There are nearly 600 federally recognized
Indian Tribes across the country. See Anderson 3. Some of
40 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
their treaties appear to promise tribal freedom from state
criminal jurisdiction in express terms. See, e.g., Treaty
with the Navajo, Art. I, June 1868, 15 Stat. 667(guaranteeing that those who commit crimes against tribal
members will be “arrested and punished according to the
laws of the United States”). Any analysis true to Bracker
must take cognizance of all of this. Any such analysis must
recognize, too, that the standards of preemption applicable
“in other areas of the law” are “unhelpful” when it comes to
Tribes. Bracker, 448 U. S., at 143. Instead, courts must
proceed against the “ ‘backdrop’ ” of tribal sovereignty, ibid.,
with an “assumption that the States have no power to
regulate the affairs of Indians on a reservation” or other
tribal lands, Williams, 358 U. S., at 219–220. To overcome
that backdrop assumption, a clear congressional statement
is required and any ambiguities must be “construed
generously” in favor of the Tribes. Bracker, 448 U. S., at143–144; see also Cotton Petroleum, 490 U. S., at 177–178.
The Court today may ignore a clear jurisdictional rule
prescribed by statute and choose to apply its own balancing
test instead. The Court may misapply that balancing test
in an effort to address one State’s professed “law and order”
concerns. In the process, the Court may even risk
unsettling longstanding and clear jurisdictional rules
nationwide. But in the end, any faithful application of
Bracker to other Tribes in other States should only confirm
the soundness of the traditional rule that state authorities
may not try crimes like this one absent congressional
authorization.10
——————
10 In a final drive-by flourish, the Court asserts that its “jurisdictional
holding[s]” today apply “throughout the United States.” For emphasis,
the Court repeats the point in a footnote. Ante, at 24, n. 8, 25. But not
only does the Court acknowledge that Congress may preempt state juris-
diction over crimes like this one. See ante, at 6. The truth is, in this case
involving one Tribe in one State the Court does not purport to evaluate
Cite as: 597 U. S. ____ (2022) 41
GORSUCH, J., dissenting
Nor must Congress stand by as this Court sows needless
confusion across the country. Even the Court acknowledges
that Congress can undo its decision and preempt state au-
thority at any time. Ante, at 6. And Congress could do ex-
actly that with a simple amendment to Public Law 280. It
might say: A State lacks criminal jurisdiction over crimes
by or against Indians in Indian Country, unless the State
complies with the procedures to obtain tribal consent out-
lined in 25 U. S. C. § 1321, and, where necessary, amends
its constitution or statutes pursuant to 25 U. S. C. § 1324.
Of course, that reminder of the obvious should hardly be
necessary. But thanks to this Court’s egregious misappro-
priation of legislative authority, “the ball is back in Con-
gress’ court.” Ledbetter v. Goodyear Tire & Rubber Co., 550
U. S. 618, 661 (2007) (Ginsburg, J., dissenting).
*
In the 1830s, this Court struggled to keep our Nation’s
promises to the Cherokee. Justice Story celebrated the
——————
the (many) treaties, federal statutes, precedents, and state laws that
may preclude state jurisdiction on specific tribal lands around the coun-
try. Nor are we legislators entitled to pass new laws of general applica-
bility, but a court charged with resolving cases and controversies involv-
ing particular parties who are entitled to make their own arguments in
their own cases. The very precedent the Court invokes as authority to
reach its decision today recognizes as much—and demands future courts
conduct any analysis sensitive to the “specific context” of each Tribe, its
treaties, and relevant laws. Bracker, 448 U. S., at 145. For that matter,
even when it comes to the Cherokee the Court leaves much unanswered.
The Court does not confront the relevant text of the Cherokee’s treaties,
the Oklahoma Enabling Act, or the relevant portions of our precedents
interpreting both. And the Court does not mention the terms of Public
Law 280 that require Oklahoma to amend its laws before asserting ju-
risdiction. Even more than all that, the Court ultimately retreats from
its claim that statehood confers an “inherent” right to prosecute crimes
by non-Indians against tribal members on tribal lands. It rests instead
on a “balancing test” that makes anything it does say about the “inher-
ent” right of States to try cases within Indian country dicta through and
through.
42 OKLAHOMA v. CASTRO-HUERTA
GORSUCH, J., dissenting
decision in Worcester: “ ‘[T]hanks be to God, the Court can
wash [its] hands clean of the iniquity of oppressing the
Indians and disregarding their rights.’ ” Breyer 420. “ ‘The
Court had done its duty,’ ” even if Georgia refused to do its
own. Ibid. Today, the tables turn. Oklahoma’s courts
exercised the fortitude to stand athwart their own State’s
lawless disregard of the Cherokee’s sovereignty. Now, at
the bidding of Oklahoma’s executive branch, this Court
unravels those lower-court decisions, defies Congress’s
statutes requiring tribal consent, offers its own consent in
place of the Tribe’s, and allows Oklahoma to intrude on a
feature of tribal sovereignty recognized since the founding.
One can only hope the political branches and future courts
will do their duty to honor this Nation’s promises even as
we have failed today to do our own.