Should the state of Oklahoma have jurisdiction over non-Indians who commit crimes on reservations? That’s the question the U.S. Supreme Court is considering. There’s a federal law already on the books that would allow the state to have this right. So why is the case before the Court?
In their opening arguments in Oklahoma v. Castro-Huerta, the State’s legal counsel brought up two federal statutes that they say give Oklahoma the authority to prosecute crimes involving non-Indians in Indian Country.
"The state has inherent sovereign authority to punish crimes committed within its borders," said Kannon Shanmugam, the state of Oklahoma's litigator in the case.
He went on to cite two statutes that he says give the state that authority in his opening arguments.
"And no federal law preempts an authority as to crimes committed by non-Indians. Respondent relies on two statutes, the General Crimes Act and Public Law 280," he said.
Public Law 280 is also commonly known as PL 280. It was passed in 1953 and mandated concurrent criminal jurisdiction with local Tribes for six states, and it permitted other states to opt in to a similar arrangement. Oklahoma did not.
Justice Clarence Thomas asked the state why this is suddenly an issue during oral arguments in April.
"These reservations have been around a long time," said Thomas during the April arguments. "And why is it now after so many years that we are getting the first case involving jurisdiction over non-Indians committing crimes against Indians?"
Shanmugam responded that the state had full jurisdiction over Indians and non-Indians alike until 2020 when the Supreme Court ruled in McGirt v. Oklahoma. That decision eventually returned more than 40 percent of the state to tribal reservation status for the purpose of criminal prosecution.
Maggie Blackhawk — Fond du Lac Band of Lake Superior Ojibwe — is Professor of Law at NYU. She said that if the case gets decided in Oklahoma's favor, it would be a sea change for the rest of the states.
She said PL280 was optional for many states, including Oklahoma.
"In addition to the few states declared as 'mandatory,' PL 280 allowed the rest of the states to opt in if they wanted to," said Blackhawk.
"And thereby allowing those states to decide whether or not it was important enough to them to take on that responsibility-in part, because there was no federal money behind the additional jurisdiction and, in part, because many states wanted to seek tribal approval before opting-in."
Iowa opted into Public Law 280 and took on joint criminal jurisdiction with the Meskwaki Tribe in 1967. But in 2015, the state legislature passed a resolution calling on Congress to repeal the statute, saying it was outdated because the tribe had a police force that could take responsibility.
Blackhawk points out that having the Supreme Court declare that all states have jurisdiction over crimes committed against Native people would undo all the nuanced legislative bargaining and compromise undertaken by the Congress and state legislatures.
"But if the court mandates jurisdiction over these crimes by judicial fiat nationwide, that undoes not only the work of Congress, but the work of the states themselves and all of their own legislative decision-making to opt in to jurisdiction or not — to repeal conferrals of jurisdiction or not," she explained.
Blackhawk says that for a mandatory version of Public Law 280 for all states to be successful, Congress would need to provide funding. If not, she and many others around the country are wondering if Oklahoma will be saddling them with an unfunded mandate.
