A Tangled Web of Jurisdiction: Oklahoma v. Castro-Huerta and the Future of Justice on the Reservation.

• Date: 22 March 2023
• Author: Irwin, Kiera

"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." (1)

I. INTRODUCTION

In 1881, Crow Dog, a Brule Sioux subchief, shot and killed principal chief Spotted Tail within the Brule Sioux Reservation. (2) In accordance with Brule law, Crow Dog and his family agreed to pay restitution to Spotted Tail's family. (3) While the payment may have satisfied tribal members, it was the perfect "test case" for the Bureau of Indian Affairs (BIA) and the U.S. Department of Justice (DOJ) to try to impose American criminal law on tribal members. (4) The Supreme Court rejected the BIA and DOJ's argument, but federal officials were concerned with--what they perceived as--the inadequacy of tribal laws. (5) Just four years later, Congress passed the Major Crimes Act (MCA), which granted the federal government exclusive jurisdiction to prosecute certain serious crimes committed by Indians in Indian Country, starting a complicated division of jurisdiction between the federal government, the state, and Indian tribes. (6) Criminal jurisdiction depends on the Indian status of the perpetrator and the victim, the type of crime committed, and the location of the crime. (7)

In 2020, the Supreme Court's McGirt v. Oklahoma (8) decision created a jurisdictional complication unique to Oklahoma by holding that Congress had never "disestablished" the Creek Reservation, which was approximately nineteen million acres and encompassed the eastern half of the state. (9) This decision led Oklahoma officials to fear that McGirt would overturn hundreds, if not thousands, of state convictions, and that law enforcement and governance in eastern Oklahoma would descend into chaos. (10) In the year following McGirt, the federal government declined most felony referrals in the Eastern and Northern Districts of Oklahoma, and tribal authorities expanded their legal operations to fill in the gaps. (11) Even after the Supreme Court agreed with an Oklahoma appellate court that McGirt did not apply retroactively to cases in which inmates had exhausted their appeals, state officials were unsatisfied with the lingering effects of the ruling. (12)

In the wake of McGirt, the Supreme Court considered the conviction of Victor Manuel Castro-Huerta in Oklahoma v. Castro-Huerta. (13) In 2015, the State of Oklahoma charged Castro-Huerta--a non-Indian man--with child neglect of his Indian stepdaughter and sentenced him to thirty-five years in prison. (14) Because Castro-Huerta committed this crime in what McGirt recognized as Indian Country, the Oklahoma Court of Criminal Appeals vacated his state conviction, and Castro-Huerta accepted a more lenient plea agreement from the federal government of seven years in prison followed by removal from the United States. (15) Castro-Huerta asserted that the federal government had exclusive jurisdiction over the prosecution of crimes committed by non-Indians against Indians in Indian Country and that the state thus lacked jurisdiction to prosecute him. (16) The Court disagreed, holding that the federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian Country. (17)

This Note analyzes how Castro-Huerta affects the relationship between tribes and criminal justice, beginning with a history of tribal sovereignty and the evolution of criminal jurisdiction in Indian Country. (18) Section II.D considers crime statistics in Indian Country and how tribal, state, and federal officials have tried to address the crime epidemic on reservations. (19) Section II.F provides the background to the Castro-Huerta case and explains the majority's holding and reasoning. (20) Next, Part III argues that Castro-Huerta's introduction of more state authority to prosecute in Indian Country will not remedy the crime epidemic and proposes several congressional solutions. (21) Finally, this Note concludes that justice for Indian Country crime victims and perpetrators requires reexamining the jurisdictional scheme and returning authority to Indian tribes, which will repair the damage done to tribal sovereignty by the Court. (22)

II. HISTORY

A. Early Tribal Sovereignty and Justice

1. Tribal Justice Before Colonization

Before colonization, Indian tribes had their own mechanisms for administrating justice and resolving conflict. (23) With complete jurisdiction over all criminal matters and inherent sovereignty, tribal justice systems often employed restorative justice practices, with the extended family responsible for addressing violations of tribal law. (24) These systems were disturbed by colonization; European colonists who believed Indians were intellectually and culturally inferior, did not understand or appreciate Indian justice systems, and went to great lengths to replace tribal law, culture, and notions of justice with their own. (25)

2. Sovereignty During Colonial Times and the Early Founding

Federal Indian policy and the concept of tribal sovereignty developed from early interactions between Indians and European colonists. (26) The British Crown and the colonists dealt with tribal governments and recognized their sovereignty through treaties. (27) While under British rule, colonial governments could only claim Indian land with either Indian consent or a just war against them. (28) The colonists, who encroached on Indian land and sought westward expansion, resented the British Crown's involvement in their affairs with the Indian tribes, who in turn resented the intrusions and continuous mistreatment they faced from the colonists. (29) After the American colonies declared independence, their first attempt at managing relations between the Indians and state citizens--the Articles of Confederation-proved to be inadequate. (30) In addressing the Articles' shortcomings, the Constitution mentioned Indians only three times. (31) The Indian Commerce Clause was the most significant provision that referred to Indians, as it gave Congress the power to regulate commerce with the tribes and would serve as the constitutional basis for federal--rather than state-- authority over Indian affairs. (32)

B. The Foundation of Indian Law

1. The Marshall Trilogy: Recognizing (Limited) Tribal Sovereignty

Since colonization, states have tried to extend their laws to Indian nations and take Indian relations into their own hands. (33) This practice, coupled with increasing demands for land and expansion, made managing Indian affairs difficult for the federal government. (34) The Court addressed three conflicts about the status and sovereignty of the tribes at the beginning of the nineteenth century in Johnson v. M'Intosh, (35) Cherokee Nation v. Georgia (36) and Worcester v. Georgia (the Marshall Trilogy). (37) Authored by Chief Justice John Marshall, these three landmark cases would prove to be fundamental to Indian law jurisprudence and shape the meaning of tribal sovereignty. (38)

Johnson involved a dispute between the descendants of a non-Indian man who purchased land from an Indian tribe and another non-Indian man who purchased the same land from the U.S. government. (39) The Court held that the tribe's conveyance of the land was not valid, reasoning that the United States possessed superior title and the Indian tribes retained a right of occupancy, which only the United States could extinguish. (40) According to the Court, Europeans gained title to the land through "discovery" of the continent and had the "sole right of acquiring the soil from the natives," a right that the United States inherited after declaring independence. (41) Under the Discovery Doctrine--a principle of international law from the Middle Ages--only colonizing Christian nations could hold fee simple title in land. (42) As applied by Chief Justice Marshall, Indian title was limited to a right of occupancy, and tribes owned no land whatsoever. (43) Johnson recognized tribal sovereignty and provided that Indians were a distinct people with a legal right to their land, but the Court emphasized that their sovereignty was limited. (44)

Eight years later in Cherokee Nation, the Cherokee Nation tribe sought an injunction from the Supreme Court to prevent Georgia from implementing laws that attempted to "annihilate the Cherokees as a political society" and seize lands "which have been assured to them by the United States in solemn treaties." (45) Pointing to the Commerce Clause's distinction between Indian nations and foreign nations, the Court ruled that it did not have original jurisdiction over the matter because the Cherokee Nation tribe was a "domestic dependent nation[]." (46) Further, the Court recognized the tribes as distinct nations, which provided the Court with a foundation to protect tribal sovereignty in the future, while continuing to deprive tribes of an adequate forum to pursue treaty violations. (47)

The following year in Worcester, the Supreme Court determined the constitutionality of a Georgia statute that required non-Indians living on Indian land to have a license from the state and take an oath of allegiance to the state. (48) Because of the statute, Georgia juries could convict those in violation of the statute for "residing within the limits of the Cherokee nation without a license," including white missionaries like Samuel Johnson. (49) The Court reversed Worcester's conviction and, for the first time, held that state law had no force in Indian nations. (50) Chief Justice Marshall considered the history of relations with the Indians and concluded that tribal nations were "distinct political communities, having territorial boundaries, within...