The NCSL Blog


By Lisa Soronen

In Oklahoma v. Castro-Huerta, the U.S. Supreme Court will decide whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country.

Supreme CourtPer the Major Crimes Act, the federal government has exclusive authority to prosecute certain felonies committed by Indians in Indian country. The General Crimes Act provides the federal government with the authority to prosecute general federal criminal law violations where either the defendant or the victim was an Indian and the other party was not.

The Supreme Court has never decided whether the General Crimes Act also precludes state prosecutions of crimes committed by non-Indians against Indians in Indian country.

In McGirt v. Oklahoma (2019), the court held that historical Creek territory in Oklahoma constituted Indian country for purposes of the Major Crimes Act, meaning the state has no authority to prosecute such crimes committed by Indians in Indian country.

After McGirt, in Bosse v. Statethe Oklahoma Court of Criminal Appeals held that the “clear language” of the General Crimes Act preempts state prosecutions for crimes committed by non-Indians against Indians in Indian country.

In Oklahoma v. Castro-Huerta, Victor Castro-Huerta, who is non-Indian, was convicted in state court of child neglect occurring in Indian country (per McGirt) against his step-daughter, who is Indian. Relying on Bosse, the Oklahoma Court of Criminal Appeals concluded Oklahoma lacked jurisdiction to prosecute this case.

The General Crimes Act states, “[e]xcept as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States . . . shall extend to the Indian country.” 

Oklahoma argues that “[n]othing in that text acts to relieve a state of its prosecutorial authority over non-Indians in Indian country. As the court has explained, the phrase ‘sole and exclusive jurisdiction’ is used to ‘describe the laws of the United States’ that extend to Indian country; it does not concern the discrete question of who has prosecutorial authority within Indian country."

The phrase ‘except as otherwise expressly provided by law,’ in turn, refers to federal laws that exempt Indian country from the reach of federal criminal law in certain circumstances. It does not mean, as the Court of Criminal Appeals concluded in Bosse, that state criminal law does not apply in Indian country unless Congress expressly provides for that result.”

Castro-Huerta disagrees with Oklahoma regarding the meaning of the phrase “sole and exclusive jurisdiction.” He argues that it “indicates that Congress understood Indian country to parallel federal enclaves, where the federal government ‘exercise[s] exclusive’ jurisdiction and state criminal laws are inapplicable.”

Oklahoma also asked the Supreme Court to revisit its holding in McGirt, but the court declined. The court’s decision in this case will impact state authority to prosecute non-Indians who commit crimes against Indians in Indian country in any state, not just Oklahoma.

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.