Indian Nations Law Update - July 2022

• Published date: 26 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Sovereign Immunity: Public Sector Government, Gaming
• Law Firm: Godfrey & Kahn S.C.
• Author: Mr John Clancy and Brian Pierson

In Oklahoma v. Castro-Huerta, 2022 WL 2334307 (US 2022), the Supreme Court addressed the General Crimes Act, 18 U.S.C. 1152, which, "[e]xcept as otherwise expressly provided by law," extends the "general laws of the United States" to "the Indian country." The State of Oklahoma prosecuted and convicted Castro-Huerta, a non-Indian residing in Tulsa, for criminal neglect of his step-daughter, a Cherokee Indian. Castro-Huerta challenged his conviction on the ground that, pursuant to the Supreme Court's 2020 holding in McGirt v. Oklahoma, the site of the offense was Indian country, and the state lacked jurisdiction under the General Crimes Act. The Supreme Court disagreed, holding that the state and federal governments had concurrent jurisdiction over offenses committed in Indian country by non-Indians against Indians: "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 jurisdiction in certain circumstances. But otherwise, as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country. ... 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. ... [T]he General Crimes Act does not say that Indian country is equivalent to a federal enclave for jurisdictional purposes. Nor does the Act say that federal jurisdiction is exclusive in Indian country, or that state jurisdiction is preempted in Indian country. ... Under the General Crimes Act, therefore, both the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed in Indian country. The General Crimes Act does not preempt state authority to prosecute Castro-Huerta's crime. ... Moreover, if Castro-Huerta's interpretation of the General Crimes Act were correct, then the Act would preclude States from prosecuting any crimes in Indian country'presumably even those crimes committed by non-Indians against non-Indians'just as States ordinarily cannot prosecute 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." The four dissenting justices, in an opinion by Justice Gorsuch, pointed out that the majority ignored over two hundred years of jurisdictional congressional enactments that were based on the principle that states lacked jurisdiction in Indian country unless expressly granted by Congress.

In Ysleta Del Sur Pueblo v. Texas, 142 S.Ct. 1929 (US 2022), the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act of 1987 (Restoration Act) had the effect of restoring those tribes to recognition. At the same time, the Restoration Act prohibited as a matter of federal law "all gaming activities which are prohibited by the laws of the State of Texas," while cautioning that the Act should not be "construed as a grant of civil or criminal regulatory jurisdiction to the State of Texas." After Congress enacted the Indian Gaming Regulatory Act of 1988 (IGRA), the Ysleta del Sur Pueblo commenced efforts to develop and conduct a gaming enterprise on its reservation, triggering years of litigation with the State of Texas. In 2021, the Fifth Circuit Court of Appeals rejected the Tribe's argument that the IGRA, not the Restoration Act, controlled, but the U.S. Supreme Court, in a 5-4 decision authored by Justice Gorsuch, reversed: "[A] full look at the [Restoration Act's] structure suggests a set of simple and coherent commands. In subsection (a), Congress effectively federalized and applied to tribal lands those state laws that prohibit or absolutely ban a particular gaming activity. In subsection (b), Congress explained that it was not authorizing the application of Texas's gaming regulations on tribal lands. In subsection (c), Congress granted federal courts jurisdiction to entertain claims by Texas that the Tribe has violated subsection (a). Texas's competing interpretation of the law renders individual statutory terms duplicative and whole provisions without work to perform. ... Even if fair questions remain after a look at the ordinary meaning of the statutory terms before us, important contextual clues resolve them. Recall that Congress passed the Act just six months after this Court handed down Cabazon. See Part I-B, supra. In that decision, the Court interpreted Public Law 280 to mean that only 'prohibitory' state gaming laws could be applied on the Indian lands in question, not state 'regulatory' gaming laws. The Court then proceeded to hold that California bingo laws'laws materially identical to the Texas bingo laws before us today'fell on the regulatory side of the ledger. Just like Texas today, California heavily regulated bingo, allowing it only in certain...