Background & Facts
Victor Manuel Castro-Huerta, a non-Indian, was convicted in Oklahoma state court of child neglect of his Cherokee stepdaughter. The crime occurred within the Cherokee Reservation, which had been confirmed as Indian Country by the McGirt decision. Castro-Huerta argued that under longstanding federal Indian law, only the federal government — not Oklahoma — could prosecute crimes by a non-Indian against an Indian victim in Indian Country.
The case was Oklahoma's vehicle for trying to reclaim some of the criminal jurisdiction it had lost in McGirt. Oklahoma argued that the federal government and the state had concurrent jurisdiction over crimes by non-Indians against Indians in Indian Country.
In a 5-4 decision authored by Justice Kavanaugh, the Court agreed with Oklahoma — partially walking back McGirt's logic.
The Court's Holding
The majority held that the federal government and Oklahoma have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian Country. The decision was widely criticized by tribal-law scholars as a rupture in the foundational principle that state authority does not reach Indian Country absent express congressional authorization.
Why ATN Cites the Dissent — Not the Majority:
Justice Gorsuch's dissent (joined by Breyer, Sotomayor, and Kagan) is the most powerful modern judicial articulation of tribal sovereignty principles in the entire Supreme Court canon. Four sitting justices declared that tribal consent and explicit congressional authorization are the ONLY legitimate bases for state jurisdiction in Indian Country. This is one vote away from being the law — and ATN should brief it as if it were.
Key Language — Gorsuch Dissent
"Where this Court once stood firm, today it wilts. After the Trail of Tears, the Cherokee, Chickasaw, Choctaw, Creek, and Seminole Nations were promised a permanent home in the West. But this Court has ruled, time and again, that those promises remain enforceable... Today, the Court rules for Oklahoma. In doing so, the Court announces that, when it comes to crimes by non-Indians against tribal members within tribal reservations, Oklahoma may 'partner' with the federal government to enforce state law... One can only hope the political branches and future courts will do their duty to honor this Nation's promises even as we have failed today to do our own."
"For 200 years, Native American Tribes have been recognized as sovereign nations, with the right to govern themselves and their territories. Their sovereignty is not a gift from any government but the inheritance of an older sovereignty that predated the United States."
"Tribes retain their sovereignty unless and until Congress ordains otherwise. And under our precedents, this Court will not lightly assume that Congress has done so."
How ATN Should Use Castro-Huerta
The Castro-Huerta majority is bad law for tribes — but it does not undermine the consent argument against P.L. 280. In fact, it accidentally strengthens it. Castro-Huerta is about concurrent state criminal jurisdiction over crimes by non-Indians against Indians. P.L. 280 is about imposed state jurisdiction over Indians themselves, without consent. These are different problems with different doctrinal answers.
Strategic uses:
- 1. Distinguish Castro-Huerta narrowly. Its holding is limited to non-Indian-on-Indian crimes; it says nothing about state jurisdiction over Indians themselves.
- 2. Cite the dissent constantly. Four sitting justices articulated the consent-based view. In any litigation likely to reach SCOTUS in the next decade, the dissent's framework is one vote away from being the majority.
- 3. Use the dissent's language in briefs. Gorsuch's framing of tribal sovereignty as "older sovereignty that predated the United States" is the most powerful articulation of the inherent sovereignty principle in modern Supreme Court writing.
- 4. Note the dissent's specific reference to P.L. 280. Gorsuch identified P.L. 280 as the mechanism Congress created when it actually wanted to grant states jurisdiction — proving that absent such an explicit grant, no jurisdiction exists. This implicitly reaffirms that P.L. 280 is the only basis for California's claimed authority, and if P.L. 280 is invalid for lack of consent, that authority disappears.
- 5. Watch Berger's law-review work. Bethany Berger's "Castro-Huerta's Constitutional Mistakes" (Stan. L. Rev. Online 2025) is academic ammunition for any future challenge.
Related Cases
- McGirt v. Oklahoma (2020) — The decision Castro-Huerta partially walked back
- Worcester v. Georgia (1832) — Original source Gorsuch's dissent invokes
- Haaland v. Brackeen (2023) — Companion 2023 decision favoring tribes