Justice Department Announces Tribal Consultations to Consider Legislative Proposals to Preserve Tribal Sovereignty and Address the Balance of Jurisdiction in Indian Country

The Justice Department announced today it will hold Tribal consultations around its consideration of legislative proposals to address the balance of jurisdiction in Indian country that was upended by the Supreme Court’s 2022 decision in Oklahoma v. Castro-Huerta.

Indian country is a legal term that generally describes Tribal reservations, lands, communities, and allotments that fall under the jurisdiction of the United States.

Until two years ago, there was a long-held understanding, shared by the federal government and Tribes, that a law passed by Congress, the General Crimes Act, limited a state’s authority to prosecute some crimes committed in Indian country, namely those crimes committed by non-Indian defendants against Indian victims. Those crimes could be prosecuted only by federal or Tribal authorities. In Castro-Huerta, the Supreme Court rejected that understanding.

Instead, the Supreme Court ruled that the General Crimes Act does not limit a state’s inherent jurisdiction to prosecute non-Indian defendants who commit crimes against Indian victims in Indian country. In other words, based on the Supreme Court’s decision, the federal government, states, and Tribes now have concurrent jurisdiction to prosecute these types of crimes throughout the United States.

Because the Supreme Court’s decision was based on the language in a statute, Congress, exercising its constitutional plenary power over Indian affairs, could pass legislation restoring the previous balance of jurisdiction in Indian country.

“The Department of Justice is committed to working with Native communities to advance our shared goal of Tribal safety while respecting and uplifting Tribal sovereignty,” said Attorney General Merrick B. Garland. “These upcoming consultations are consistent with the Department’s longstanding practice of working collaboratively with our Tribal partners to promote safe communities throughout Indian country.”

The Justice Department and the Department of the Interior (DOI) held joint listening sessions on Sept. 26-27, 2022, to discuss with Tribal representatives the implications of the Castro-Huerta decision and the impact on Tribal communities. More than 500 Tribal leaders and other Tribal representatives participated in these discussions. Several clear themes emerged, including a view from Tribes that the Castro-Huerta decision diminished Tribal sovereignty, injected confusion into a complex legal and operational landscape, and presented long-term implications for state interference in Tribal affairs. A common view emerged that legislation and clarifying federal guidance were in order.

Several Tribes also reported that Castro-Huerta has negatively impacted their cross-deputization, cross-jurisdictional, and other cooperative law enforcement agreements with states, which prior to Castro-Huerta were an important part of successful law enforcement and criminal justice schemes on many reservations.

Based on those listening sessions, other feedback, and experience over the past two years, the Justice Department is now considering whether to support a legislative proposal to restore the previous balance of jurisdiction in Indian country and, if so, what form that legislation should take. Two draft proposals are presented for Tribal review and consideration.

Both proposals make clear that states lack jurisdiction over crimes within Indian country committed by or against Indians, unless expressly authorized by federal statute. Both proposals also state that unless otherwise authorized by federal statute, states must, before exercising such jurisdiction, (1) ensure compliance with the procedures for obtaining Tribal consent of the impacted Indian Tribe, and (2) where applicable, comply with a procedure to amend the state constitution or laws

The Department is releasing a framing paper, which will be available on the Department’s Tribal Justice and Safety website and includes additional background and the two legislative proposals.  The Justice Department plans to hold consultations in January 2025.