(Slip Opinion) OCTOBER TERM, 2021 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

OKLAHOMA v. CASTRO-HUERTA 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF 

OKLAHOMA 

No. 21–429. Argued April 27, 2022—Decided June 29, 2022 

In 2015, respondent Victor Manuel Castro-Huerta was charged by the 

State of Oklahoma for child neglect. Castro-Huerta was convicted in 

state court and sentenced to 35 years of imprisonment. While CastroHuerta’s state-court appeal was pending, this Court decided McGirt v. 

Oklahoma, 591 U. S. ___. There, the Court held that the Creek Nation’s reservation in eastern Oklahoma had never been properly disestablished and therefore remained “Indian country.” Id., at ___. In 

light of McGirt, the eastern part of Oklahoma, including Tulsa, is recognized as Indian country. Following this development, CastroHuerta argued that the Federal Government had exclusive jurisdiction

to prosecute him (a non-Indian) for a crime committed against his stepdaughter (a Cherokee Indian) in Tulsa (Indian country), and that the 

State therefore lacked jurisdiction to prosecute him. The Oklahoma 

Court of Criminal Appeals agreed and vacated his conviction. This 

Court granted certiorari to determine the extent of a State’s jurisdiction to prosecute crimes committed by non-Indians against Indians in

Indian country. 

Held: The Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in

Indian country. Pp. 4–25.

(a) The jurisdictional dispute in this case arises because Oklahoma’s

territory includes Indian country. In the early Republic, the Federal 

Government sometimes treated Indian country as separate from state 

territory. See Worcester v. Georgia, 6 Pet. 515. But that view has long 

since been abandoned. Organized Village of Kake v. Egan, 369 U. S. 

60, 72. And the Court has specifically held that States have jurisdiction to prosecute crimes committed by non-Indians against non-Indians in Indian country. United States v. McBratney, 104 U. S. 621; see 
 

 

 

 

2 OKLAHOMA v. CASTRO-HUERTA 

Syllabus 

also Draper v. United States, 164 U. S. 240, 244–247. Accordingly,

States have jurisdiction to prosecute crimes committed in Indian country unless preempted. Pp. 4–6.

(b) Under Court precedent, a State’s jurisdiction in Indian country

may be preempted by federal law under ordinary principles of federal

preemption, or when the exercise of state jurisdiction would unlawfully infringe on tribal self-government. Neither serves to preempt

state jurisdiction in this case. Pp. 6–20.

(1) Castro-Huerta points to two federal laws—the General Crimes 

Act and Public Law 280—that, in his view, preempt Oklahoma’s authority to prosecute crimes committed by non-Indians against Indians

in Indian country. Neither statute, however, preempts the State’s jurisdiction. Pp. 7–18.

(i) The General Crimes Act does not preempt state authority to

prosecute Castro-Huerta’s crime. It provides that “the general laws of 

the United States as to the punishment of offenses committed . . . 

within the sole and exclusive jurisdiction of the United States . . . shall 

extend to the Indian country.” 18 U. S. C. §1152. By its terms, the Act 

simply “extend[s]” the federal laws that apply on federal enclaves to

Indian country. The Act does not say that Indian country is equivalent 

to a federal enclave for jurisdictional purposes, that federal jurisdiction is exclusive in Indian country, or that state jurisdiction is 

preempted in Indian country.

 Castro-Huerta claims that the General Crimes Act does indeed 

make Indian country the jurisdictional equivalent of a federal enclave. 

Castro-Huerta is wrong as a matter of text and precedent.

Pointing to the history of territorial separation and Congress’s reenactment of the General Crimes Act after this Court suggested in dicta

in Williams v. United States, 327 U. S. 711, 714, that States lack jurisdiction over crimes committed by non-Indians against Indians in Indian country, Castro-Huerta argues that Congress implicitly intended

for the Act to provide the Federal Government with exclusive jurisdiction over crimes committed by non-Indians against Indians in Indian 

country. But the text of the Act says no such thing; the idea of territorial separation has long since been abandoned; and the reenactment 

canon cannot be invoked to override clear statutory language of the

kind present in the General Crimes Act. Castro-Huerta notes that the 

Court has repeated the Williams dicta on subsequent occasions, but 

even repeated dicta does not constitute precedent and does not alter

the plain text of the General Crimes Act. Pp. 7–16.

(ii) Castro-Huerta’s attempt to invoke Public Law 280, 67 Stat.

588, is also unpersuasive. That law affirmatively grants certain States 

(and allows other States to acquire) broad jurisdiction to prosecute

state-law offenses committed by or against Indians in Indian country. 
 

Cite as: 597 U. S. ____ (2022) 3 

Syllabus 

18 U. S. C. §1162; 25 U. S. C. §1321. Castro-Huerta contends that the 

law’s enactment in 1953 would have been pointless surplusage if 

States already had concurrent jurisdiction over crimes committed by 

non-Indians against Indians in Indian country. But Public Law 280 

contains no language preempting state jurisdiction. And Public Law 

280 encompasses far more than just non-Indian on Indian crimes. 

Thus, resolution of the narrow jurisdictional issue here does not negate 

the significance of Public Law 280. Pp. 16–18.

(2) The test articulated in White Mountain Apache Tribe v. 

Bracker, 448 U. S. 136, does not bar the State from prosecuting crimes 

committed by non-Indians against Indians in Indian country. There, 

the Court held that even when federal law does not preempt state jurisdiction under ordinary preemption analysis, preemption may still

occur if the exercise of state jurisdiction would unlawfully infringe

upon tribal self-government. Id., at 142–143. Under Bracker’s balancing test, the Court considers tribal interests, federal interests, and 

state interests. Id., at 145. Here, the exercise of state jurisdiction

would not infringe on tribal self-government. And because a State’s 

jurisdiction is concurrent with federal jurisdiction, a state prosecution

would not preclude an earlier or later federal prosecution. Finally, the

State has a strong sovereign interest in ensuring public safety and 

criminal justice within its territory, including an interest in protecting 

both Indian and non-Indian crime victims. Pp. 18–20.

(c) This Court has long held that Indian country is part of a State, 

not separate from it. Under the Constitution, States have jurisdiction

to prosecute crimes within their territory except when preempted by 

federal law or by principles of tribal self-government. The default is 

that States have criminal jurisdiction in Indian country unless that

jurisdiction is preempted. And that jurisdiction has not been 

preempted here. Pp. 21–25. 

Reversed and remanded. 

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and THOMAS, ALITO, and BARRETT, JJ., joined. GORSUCH, J., filed a 

dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., 

joined. 
 

 

 

_________________ 

_________________ 

Cite as: 597 U. S. ____ (2022) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that 

corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 21–429 

OKLAHOMA, PETITIONER v. VICTOR MANUEL 

CASTRO-HUERTA 

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL 

APPEALS OF OKLAHOMA 

[June 29, 2022] 

JUSTICE KAVANAUGH delivered the opinion of the Court. 

This case presents a jurisdictional question about the 

prosecution of crimes committed by non-Indians against Indians in Indian country: Under current federal law, does 

the Federal Government have exclusive jurisdiction to prosecute those crimes? Or do the Federal Government and the 

State have concurrent jurisdiction to prosecute those 

crimes? We conclude that the Federal Government and the 

State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. 

I 

In 2015, Victor Manuel Castro-Huerta lived in Tulsa, Oklahoma, with his wife and their several children, including

Castro-Huerta’s then-5-year-old stepdaughter, who is a 

Cherokee Indian. The stepdaughter has cerebral palsy and

is legally blind. One day in 2015, Castro-Huerta’s sister-inlaw was in the house and noticed that the young girl was 

sick. After a 911 call, the girl was rushed to a Tulsa hospital in critical condition. Dehydrated, emaciated, and covered in lice and excrement, she weighed only 19 pounds. Investigators later found her bed filled with bedbugs and 
 

2 OKLAHOMA v. CASTRO-HUERTA 

Opinion of the Court 

cockroaches. 

When questioned, Castro-Huerta admitted that he had 

severely undernourished his stepdaughter during the preceding month. The State of Oklahoma criminally charged 

both Castro-Huerta and his wife for child neglect. Both 

were convicted. Castro-Huerta was sentenced to 35 years

of imprisonment, with the possibility of parole. This case 

concerns the State’s prosecution of Castro-Huerta. 

After Castro-Huerta was convicted and while his appeal 

was pending in state court, this Court decided McGirt v. 

Oklahoma, 591 U. S. ___ (2020). In McGirt, the Court held 

that Congress had never properly disestablished the Creek 

Nation’s reservation in eastern Oklahoma. As a result, the 

Court concluded that the Creek Reservation remained “Indian country.” Id., at ___–___, ___, ___ (slip op., at 1–3, 17, 

28). The status of that part of Oklahoma as Indian country 

meant that different jurisdictional rules might apply for the 

prosecution of criminal offenses in that area. See 18 

U. S. C. §§1151–1153. Based on McGirt’s reasoning, the 

Oklahoma Court of Criminal Appeals later recognized that

several other Indian reservations in Oklahoma had likewise never been properly disestablished. See, e.g., State 

ex rel. Matloff v. Wallace, 2021 OK CR 21, ¶15, 497 P. 3d 

686, 689 (reaffirming recognition of the Cherokee, Choctaw,

and Chickasaw Reservations); Grayson v. State, 2021 OK 

CR 8, ¶10, 485 P. 3d 250, 254 (Seminole Reservation). 

In light of McGirt and the follow-on cases, the eastern 

part of Oklahoma, including Tulsa, is now recognized as Indian country. About two million people live there, and the 

vast majority are not Indians. 

The classification of eastern Oklahoma as Indian country 

has raised urgent questions about which government or

governments have jurisdiction to prosecute crimes committed there. This case is an example: a crime committed in 

what is now recognized as Indian country (Tulsa) by a non-
Cite as: 597 U. S. ____ (2022) 3 

Opinion of the Court 

Indian (Castro-Huerta) against an Indian (his stepdaughter). All agree that the Federal Government has jurisdiction to prosecute crimes committed by non-Indians against 

Indians in Indian country. The question is whether the 

Federal Government’s jurisdiction is exclusive, or whether 

the State also has concurrent jurisdiction with the Federal

Government. 

In the wake of McGirt, Castro-Huerta argued that the 

Federal Government’s jurisdiction to prosecute crimes committed by a non-Indian against an Indian in Indian country 

is exclusive and that the State therefore lacked jurisdiction 

to prosecute him. The Oklahoma Court of Criminal Appeals agreed with Castro-Huerta. Relying on an earlier Oklahoma decision holding that the federal General Crimes 

Act grants the Federal Government exclusive jurisdiction, 

the court ruled that the State did not have concurrent jurisdiction to prosecute crimes committed by non-Indians 

against Indians in Indian country. The court therefore vacated Castro-Huerta’s conviction. No. F–2017–1203 (Apr. 

29, 2021); see also Bosse v. State, 2021 OK CR 3, 484 P. 3d 

286; Roth v. State, 2021 OK CR 27, 499 P. 3d 23. 

While Castro-Huerta’s state appellate proceedings were

ongoing, a federal grand jury in Oklahoma indicted CastroHuerta for the same conduct. Castro-Huerta accepted a

plea agreement for a 7-year sentence followed by removal

from the United States. (Castro-Huerta is not a U. S. citizen and is unlawfully in the United States.) In other words, 

putting aside parole possibilities, Castro-Huerta in effect

received a 28-year reduction of his sentence as a result of 

McGirt. 

Castro-Huerta’s case exemplifies a now-familiar pattern

in Oklahoma in the wake of McGirt. The Oklahoma courts 

have reversed numerous state convictions on that same jurisdictional ground. After having their state convictions reversed, some non-Indian criminals have received lighter 
 

4 OKLAHOMA v. CASTRO-HUERTA 

Opinion of the Court 

sentences in plea deals negotiated with the Federal Government. Others have simply gone free. Going forward, the 

State estimates that it will have to transfer prosecutorial

responsibility for more than 18,000 cases per year to the

Federal and Tribal Governments. All of this has created a 

significant challenge for the Federal Government and for 

the people of Oklahoma. At the end of fiscal year 2021, the

U. S. Department of Justice was opening only 22% and 31% 

of all felony referrals in the Eastern and Northern Districts

of Oklahoma. Dept. of Justice, U. S. Attorneys, Fiscal Year 

2023 Congressional Justification 46. And the Department 

recently acknowledged that “many people may not be held 

accountable for their criminal conduct due to resource constraints.” Ibid. 

In light of the sudden significance of this jurisdictional 

question for public safety and the criminal justice system in 

Oklahoma, this Court granted certiorari to decide whether 

a State has concurrent jurisdiction with the Federal Government to prosecute crimes committed by non-Indians 

against Indians in Indian country. 595 U. S. ___ (2022).1 

II 

The jurisdictional dispute in this case arises because Oklahoma’s territory includes Indian country. Federal law defines “Indian country” to include, among other things, “all 

land within the limits of any Indian reservation under the 

jurisdiction of the United States Government.” 18 U. S. C. 

§1151.

To begin with, the Constitution allows a State to exercise

jurisdiction in Indian country. 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 

—————— 1Both the United States and the Cherokee Nation, along with several

other Tribes, filed amicus briefs in this case articulating their views on 

the legal questions before the Court. 
 

 

Cite as: 597 U. S. ____ (2022) 5 

Opinion of the Court 

matter of state sovereignty, a State has jurisdiction over all

of its territory, including Indian country. See U. S. Const., 

Amdt. 10. As this Court has phrased it, a State is generally 

“entitled to the sovereignty and jurisdiction over all the territory within her limits.” Lessee of Pollard v. Hagan, 3 How. 

212, 228 (1845).

In the early years of the Republic, the Federal Government sometimes treated Indian country as separate from

state territory—in the same way that, for example, New 

Jersey is separate from New York. Most prominently, in 

the 1832 decision in Worcester v. Georgia, 6 Pet. 515, 561, 

this Court held that Georgia state law had no force in the

Cherokee Nation because the Cherokee Nation “is a distinct 

community occupying its own territory.”

But the “general notion drawn from Chief Justice Marshall’s opinion in Worcester v. Georgia” “has yielded to 

closer analysis.” Organized Village of Kake v. Egan, 369 

U. S. 60, 72 (1962). “By 1880 the Court no longer viewed

reservations as distinct nations.” Ibid. Since the latter half 

of the 1800s, the Court has consistently and explicitly held 

that Indian reservations are “part of the surrounding State”

and subject to the State’s jurisdiction “except as forbidden 

by federal law.” Ibid. 

To take a few examples: In 1859, the Court stated: 

States retain “the power of a sovereign over their persons 

and property, so far as” “necessary to preserve the peace of

the Commonwealth.” New York ex rel. Cutler v. Dibble, 21 

How. 366, 370 (1859). 

In 1930: “[R]eservations are part of the State within

which they lie and her laws, civil and criminal, have the 

same force therein as elsewhere within her limits, save that 

they can have only restricted application to the Indian 

wards.” Surplus Trading Co. v. Cook, 281 U. S. 647, 651 

(1930).

In 1946: “[I]n the absence of a limiting treaty obligation 
 

 

6 OKLAHOMA v. CASTRO-HUERTA 

Opinion of the Court 

or Congressional enactment each state ha[s] a right to exercise jurisdiction over Indian reservations within its 

boundaries.” New York ex rel. Ray v. Martin, 326 U. S. 496, 

499 (1946).

In 1992: “This Court’s more recent cases have recognized 

the rights of States, absent a congressional prohibition, to

exercise criminal (and, implicitly, civil) jurisdiction over 

non-Indians located on reservation lands.” County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 

502 U. S. 251, 257–258 (1992). 

And as recently as 2001: “State sovereignty does not end 

at a reservation’s border.” Nevada v. Hicks, 533 U. S. 353, 

361 (2001).

In accord with that overarching jurisdictional principle 

dating back to the 1800s, States have jurisdiction to prosecute crimes committed in Indian country unless preempted.

In the leading case in the criminal context—the McBratney 

case from 1882—this Court held that States have jurisdiction to prosecute crimes committed by non-Indians against 

non-Indians in Indian country. United States v. McBratney, 

104 U. S. 621, 623–624 (1882). The Court stated that Colorado had “criminal jurisdiction” over crimes by non-Indians 

against non-Indians “throughout the whole of the territory

within its limits, including the Ute Reservation.” Id., at 

624. Several years later, the Court similarly decided that 

Montana had criminal jurisdiction over crimes by non-Indians against non-Indians in Indian country within that 

State. Draper v. United States, 164 U. S. 240, 244–247 

(1896). The McBratney principle remains good law.

In short, the Court’s precedents establish that Indian 

country is part of a State’s territory and that, unless

preempted, States have jurisdiction over crimes committed 

in Indian country. 

III 

The central question that we must decide, therefore, is 
Cite as: 597 U. S. ____ (2022) 7 

Opinion of the Court 

whether the State’s authority to prosecute crimes committed by non-Indians against Indians in Indian country has

been preempted. U. S. Const., Art. VI. 

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.

In Part III–A, we consider whether state authority to

prosecute crimes committed by non-Indians against Indians in Indian country is preempted by federal law under 

ordinary principles of preemption. In Part III–B, we consider whether principles of tribal self-government preclude

the exercise of state jurisdiction over crimes committed by

non-Indians against Indians in Indian country. 

A 

Castro-Huerta points to two federal laws that, in his 

view, preempt Oklahoma’s authority to prosecute crimes 

committed by non-Indians against Indians in Indian country: (i) the General Crimes Act, which grants the Federal 

Government jurisdiction to prosecute crimes in Indian

country, 18 U. S. C. §1152; and (ii) Public Law 280, which 

grants States, or authorizes States to acquire, certain additional jurisdiction over crimes committed in Indian country, 

67 Stat. 588; see 18 U. S. C. §1162; 25 U. S. C. §1321. Neither statute preempts preexisting or otherwise lawfully assumed state authority to prosecute crimes committed by

non-Indians against Indians in Indian country. 

1 

As relevant here, the General Crimes Act provides: “Except 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 juris-
 

8 OKLAHOMA v. CASTRO-HUERTA 

Opinion of the Court 

diction of the United States, except the District of Columbia, shall extend to the Indian country.” 18 U. S. C. §1152. 

By its terms, the Act does not preempt the State’s authority to prosecute non-Indians who commit crimes against Indians in Indian country. The text of the Act simply “extend[s]” federal law to Indian country, leaving untouched

the background principle of state jurisdiction over crimes 

committed within the State, including in Indian country. 

Ibid. 

The Act also specifies the body of federal criminal law 

that extends to Indian country—namely, “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.” Ibid. Those cross-referenced 

“general laws” are the federal laws that apply in federal enclaves such as military bases and national parks. Ibid. 

Importantly, however, the 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.2 The 

General Crimes Act does not preempt state authority to

prosecute Castro-Huerta’s crime. 

To overcome the text, Castro-Huerta offers several counterarguments. None is persuasive. 

—————— 2To the extent that a State lacks prosecutorial authority over crimes 

committed by Indians in Indian country (a question not before us), that

would not be a result of the General Crimes Act. Instead, it would be the 

result of a separate principle of federal law that, as discussed below, precludes state interference with tribal self-government. See Part III–B, 

infra; White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 142–143, 

145 (1980); McClanahan v. Arizona Tax Comm’n, 411 U. S. 164, 171−172 

(1973). 
 

Cite as: 597 U. S. ____ (2022) 9 

Opinion of the Court 

First, Castro-Huerta advances what he describes as a textual argument. He contends that the text of the General 

Crimes Act makes Indian country the jurisdictional equivalent of a federal enclave. To begin, he points out that the

Federal Government has exclusive jurisdiction to prosecute

crimes committed in federal enclaves such as military bases

and national parks. And then Castro-Huerta asserts that 

the General Crimes Act in effect equates federal enclaves

and Indian country. Therefore, according to Castro-Huerta,

it follows that the Federal Government also has exclusive 

jurisdiction to prosecute crimes committed in Indian country.

Castro-Huerta’s syllogism is wrong as a textual matter.

The Act simply borrows the body of federal criminal law 

that applies in federal enclaves and extends it to Indian 

country. The Act does not purport to equate Indian country 

and federal enclaves for jurisdictional purposes. Moreover, 

it is not enough to speculate, as Castro-Huerta does, that 

Congress might have implicitly intended a jurisdictional 

parallel between Indian country and federal enclaves. 

Castro-Huerta’s argument also directly contradicts this

Court’s precedents. As far back as 1891, the Court stated 

that the phrase “sole and exclusive jurisdiction” in the General Crimes Act is “only used in the description of the laws

which are extended” to Indian country, not “to the jurisdiction extended over the Indian country.” In re Wilson, 140 

U. S. 575, 578 (1891). The Court repeated that analysis in

1913, concluding that the phrase “sole and exclusive jurisdiction” is “used in order to describe the laws of the United 

States which by that section are extended to the Indian 

country.” Donnelly v. United States, 228 U. S. 243, 268 

(1913).

Stated otherwise, the General Crimes Act provides that 

the federal criminal laws that apply to federal enclaves also 

apply in Indian country. But the extension of those federal 

laws to Indian country does not silently erase preexisting 
 

10 OKLAHOMA v. CASTRO-HUERTA 

Opinion of the Court 

or otherwise lawfully assumed state jurisdiction to prosecute crimes committed by non-Indians in Indian country.

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. See 

McBratney, 104 U. S., at 623–624; Draper, 164 U. S., at 

242–246. Those holdings, too, contravene Castro-Huerta’s 

argument regarding the General Crimes Act.

In advancing his enclave argument, Castro-Huerta also

tries to analogize the text of the General Crimes Act to the

text of the Major Crimes Act. He asserts that the Major

Crimes Act grants the Federal Government exclusive jurisdiction to prosecute certain major crimes committed by Indians in Indian country. But the Major Crimes Act contains

substantially different language than the General Crimes 

Act. Unlike the General Crimes Act, the Major Crimes Act

says that defendants in Indian country “shall be subject to 

the same law” as defendants in federal enclaves. See 18 

U. S. C. §1153 (“Any Indian who commits against the person or property of another Indian or other person any of ” 

certain major offenses “shall be subject to the same law and

penalties as all other persons committing any of the above

offenses, within the exclusive jurisdiction of the United

States”). So even assuming that the text of the Major 

Crimes Act provides for exclusive federal jurisdiction over 

major crimes committed by Indians in Indian country, see, 

e.g., United States v. John, 437 U. S. 634, 651, and n. 22 

(1978); Negonsott v. Samuels, 507 U. S. 99, 103 (1993), that 

conclusion does not translate to the differently worded General Crimes Act. 

In short, the General Crimes Act does not treat Indian 
Cite as: 597 U. S. ____ (2022) 11 

Opinion of the Court 

country as the equivalent of a federal enclave for jurisdictional purposes. Nor does the Act make federal jurisdiction 

exclusive or preempt state law in Indian country. 

Second, Castro-Huerta contends that, regardless of the 

statutory text, Congress implicitly intended for the General 

Crimes Act to provide the Federal Government with exclusive jurisdiction over crimes committed by non-Indians

against Indians in Indian country.

The fundamental problem with Castro-Huerta’s implicit

intent argument is that the text of the General Crimes Act

says no such thing. Congress expresses its intentions

through statutory text passed by both Houses and signed 

by the President (or passed over a Presidential veto). As 

this Court has repeatedly stated, the text of a law controls

over purported legislative intentions unmoored from any 

statutory text. The Court may not “replace the actual text

with speculation as to Congress’ intent.” Magwood v. Patterson, 561 U. S. 320, 334 (2010). Rather, the Court “will 

presume more modestly” that “the legislature says what it 

means and means what it says.” Henson v. Santander Consumer USA Inc., 582 U. S. 79, ___ (2017) (slip op., at 10) 

(internal quotation marks and alterations omitted); see, 

e.g., McGirt, 591 U. S., at ___ (slip op., at 12) (“[W]ishes are 

not laws”); Virginia Uranium, Inc. v. Warren, 587 U. S. ___, 

___ (2019) (lead opinion) (slip op., at 14) (The Supremacy

Clause cannot “be deployed” “to elevate abstract and unenacted legislative desires above state law”); Alexander v. 

Sandoval, 532 U. S. 275, 287–288 (2001) (The Court does 

not give “dispositive weight to the expectations that the enacting Congress had formed in light of the contemporary legal context,” because we “begin (and find that we can end) 

our search for Congress’s intent with . . . text and structure” 

(internal quotation marks omitted)); Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 

164, 173 (1994) (“[T]he text of the statute controls our decision”). 
 

12 OKLAHOMA v. CASTRO-HUERTA 

Opinion of the Court 

To buttress his implicit intent argument, Castro-Huerta

seizes on the history of the General Crimes Act. At the time 

of the Act’s earliest iterations in 1817 and 1834, Indian 

country was separate from the States. Therefore, at that 

time, state law did not apply in Indian country—in the 

same way that New York law would not ordinarily have applied in New Jersey. But territorial separation—not jurisdictional preemption by the General Crimes Act—was the 

reason that state authority did not extend to Indian country 

at that time. 

Because Congress operated under a different territorial

paradigm in 1817 and 1834, it had no reason at that time 

to consider whether to preempt preexisting or lawfully assumed state criminal authority in Indian country. For present purposes, the fundamental point is that the text of the

General Crimes Act does not preempt state law. And this 

Court does not “rewrite a constitutionally valid statutory

text under the banner of speculation about what Congress

might have done had it faced a question that . . . it never 

faced.” Henson, 582 U. S., at ___ (slip op., at 9). The history

of territorial separation during the early years of the Republic is not a license or excuse to rewrite the text of the

General Crimes Act. 

As noted above, the Worcester-era understanding of Indian country as separate from the State was abandoned 

later in the 1800s. After that change, Indian country in

each State became part of that State’s territory. But Congress did not alter the General Crimes Act to make federal 

criminal jurisdiction exclusive in Indian country. To this 

day, the text of the General Crimes Act still does not make

federal jurisdiction exclusive or preempt state jurisdiction.

In 1882, in McBratney, moreover, this Court held that 

States have jurisdiction to prosecute at least some crimes

committed in Indian country. Since 1882, therefore, Congress has been specifically aware that state criminal laws

apply to some extent in Indian country. Yet since then, 
 

Cite as: 597 U. S. ____ (2022) 13 

Opinion of the Court 

Congress has never enacted new legislation that would render federal jurisdiction exclusive or preempt state jurisdiction over crimes committed by non-Indians in Indian country. Additionally, in 1979, the Office of Legal Counsel 

stated that this Court had not resolved the specific issue of

state jurisdiction over crimes committed by non-Indians 

against Indians in Indian country, and that the issue was

not settled. 3 Op. OLC 111, 117–119 (1979). Yet Congress

still did not act to make federal jurisdiction exclusive or to 

preempt state jurisdiction.

On a different tack, Castro-Huerta invokes the reenactment canon. Castro-Huerta points out that, in 1948, Congress recodified the General Crimes Act. Two years before

that recodification, this Court suggested in dicta that States

lack jurisdiction over crimes committed by non-Indians 

against Indians in Indian country. See Williams v. United 

States, 327 U. S. 711, 714 (1946). Castro-Huerta contends 

that the 1948 Congress therefore intended to ratify the Williams dicta. 

Castro-Huerta’s reenactment-canon argument is misplaced. First of all, the reenactment canon does not override clear statutory language of the kind present in the 

General Crimes Act. See BP p.l.c. v. Mayor and City Council of Baltimore, 593 U. S. ___, ___ (2021) (slip op., at 11).

In addition, the canon does not apply to dicta. See Jama v. 

Immigration and Customs Enforcement, 543 U. S. 335, 349, 

351, n. 12 (2005). The Court’s statements in Williams were 

pure dicta. Indeed, the Williams dicta did not even purport 

to interpret the text of the General Crimes Act. Dicta that 

does not analyze the relevant statutory provision cannot be

said to have resolved the statute’s meaning. Moreover, any 

inference from Congress’s 1948 recodification is especially

weak because that recodification was not specific to the

General Crimes Act, but instead was simply a general recodification of all federal criminal laws. This Court has pre-
 

14 OKLAHOMA v. CASTRO-HUERTA 

Opinion of the Court 

viously explained that “the function” of the 1948 recodification “was generally limited to that of consolidation and codification.” Muniz v. Hoffman, 422 U. S. 454, 474 (1975) (internal quotation marks omitted). This Court does not infer 

that Congress, “in revising and consolidating the laws, intended to change their policy, unless such an intention be

clearly expressed.” Id., at 470 (internal quotation marks 

omitted).

For many reasons, then, we cannot conclude that Congress, by recodifying the entire Federal Criminal Code in 

1948, silently ratified a few sentences of dicta from Williams. The reenactment canon does not apply in this case. 

Third, Castro-Huerta contends that the Court has repeated the 1946 Williams dicta on several subsequent occasions. But the Court’s dicta, even if repeated, does not constitute precedent and does not alter the plain text of the

General Crimes Act, which was the law passed by Congress

and signed by the President. See National Collegiate Athletic Assn. v. Alston, 594 U. S. ___, ___ (2021) (slip op., at 

21).3 

—————— 3 In addition to citing Williams and later cases, Castro-Huerta also 

cites the earlier 1913 decision in Donnelly v. United States, 228 U. S. 243. 

According to Castro-Huerta, Donnelly determined that States may not

exercise jurisdiction in Indian country over crimes by or against Indians. 

Castro-Huerta is wrong. In Donnelly, the Court simply concluded that 

although States have exclusive jurisdiction over crimes committed by 

non-Indians against non-Indians in Indian country, States do not have 

similarly “undivided authority” over crimes committed by or against Indians in Indian country. Id., at 271–272 (emphasis added). In other 

words, the Federal Government also maintains jurisdiction under the 

General Crimes Act over crimes by or against Indians in Indian country

because of the Federal Government’s interest in protecting and defending tribes. See ibid. (citing United States v. Kagama, 118 U. S. 375 

(1886)). Donnelly did not address the distinct question we confront here: 

whether States have concurrent jurisdiction with the Federal Government over non-Indians who commit crimes against Indians in Indian 

country. If anything, Donnelly’s rejection of the argument that the State 

had “undivided” authority, without the Court’s saying more, suggests 
 

 

Cite as: 597 U. S. ____ (2022) 15 

Opinion of the Court 

Moreover, there is a good explanation for why the Court’s

previous comments on this issue came only in the form of

tangential dicta. The question of whether States have concurrent jurisdiction over crimes committed by non-Indians

against Indians in Indian country did not previously matter 

all that much and did not warrant this Court’s review. 

Through congressional grants of authority in Public Law 

280 or state-specific statutes, some States with substantial 

Indian populations have long possessed broad jurisdiction

to prosecute a vast array of crimes in Indian country (including crimes by Indians). See Brief for National Congress 

of American Indians as Amicus Curiae 20, and n. 2. Indeed, 

Castro-Huerta notes that “21 States have jurisdiction over

crimes ‘by or against’ Indians in some Indian country.”

Brief for Respondent 7. So the General Crimes Act question—namely, whether that Act preempts inherent state

prosecutorial authority in Indian country—was not relevant in those States. 

In any event, this Court never considered the General 

Crimes Act preemption question. As the Office of Legal

Counsel put it, “many courts, without carefully considering 

the question, have assumed that Federal jurisdictio[n]

whenever it obtains is exclusive. We nevertheless believe 

that it is a matter that should not be regarded as settled

before it has been fully explored by the courts.” 3 Op. OLC,

at 117. This case is the first time that the matter has been 

fully explored by this Court.

Until the Court’s decision in McGirt two years ago, this 

—————— 

that the Court thought that the State had concurrent authority with the 

Federal Government in Indian country, unless otherwise preempted. 

The Court’s subsequent decision in United States v. Ramsey, 271 U. S. 

467 (1926), likewise considered whether the Federal Government’s “authority” to prosecute crimes committed by or against Indians “was ended

by the grant of statehood.” Id., at 469. The Court held that federal authority was not “ended” by statehood. Ibid. But the Court did not say 

that States lacked concurrent jurisdiction. 
 

 

 

 

16 OKLAHOMA v. CASTRO-HUERTA 

Opinion of the Court 

question likewise did not matter much in Oklahoma. Most 

everyone in Oklahoma previously understood that the State

included almost no Indian country. McGirt, 590 U. S., at 

___–___ (ROBERTS, C. J., dissenting) (slip op., at 31–32). 

But after McGirt, about 43% of Oklahoma—including 

Tulsa—is now considered Indian country. Therefore, the 

question of whether the State of Oklahoma retains concurrent jurisdiction to prosecute non-Indian on Indian crimes

in Indian country has suddenly assumed immense importance. The jurisdictional question has now been called.

In light of the newfound significance of the question, it is

necessary and appropriate for this Court to take its first

hard look at the text and structure of the General Crimes 

Act, rather than relying on scattered dicta about a question

that, until now, was relatively insignificant in the real 

world. 

After independently examining the question, we have 

concluded that the General Crimes Act does not preempt

state jurisdiction over crimes committed by non-Indians 

against Indians in Indian country. 

2 

Castro-Huerta next invokes Public Law 280 as a source 

of preemption. That argument is similarly unpersuasive.

Public Law 280 affirmatively grants certain States broad

jurisdiction to prosecute state-law offenses committed by or

against Indians in Indian country. See 18 U. S. C. §1162.

(Other States may opt in, with tribal consent. 25 U. S. C. 

§1321.) But Public Law 280 does not preempt any preexisting or otherwise lawfully assumed jurisdiction that States

possess to prosecute crimes in Indian country. Indeed, the 

Court has already concluded as much: “Nothing in the language or legislative history of Pub. L. 280 indicates that it 

was meant to divest States of pre-existing and otherwise 

lawfully assumed jurisdiction.” Three Affiliated Tribes of 

Fort Berthold Reservation v. Wold Engineering, P. C., 467 
Cite as: 597 U. S. ____ (2022) 17 

Opinion of the Court 

U. S. 138, 150 (1984). The Court’s definitive statement in 

Three Affiliated Tribes about Public Law 280 applies to both

civil and criminal jurisdiction. And the Court’s statement 

follows ineluctably from the statutory text: Public Law 280 

contains no language that preempts States’ civil or criminal 

jurisdiction.

Castro-Huerta separately contends that the enactment of 

Public Law 280 in 1953 would have been pointless surplusage if States already had concurrent jurisdiction over 

crimes committed by non-Indians against Indians in Indian 

country. So he says that, as of 1953, Congress must have

assumed that States did not already have concurrent jurisdiction over those crimes. To begin with, assumptions are

not laws, and the fact remains that Public Law 280 contains 

no language preempting state jurisdiction, as the Court already held in Three Affiliated Tribes. Apart from that, Public Law 280 encompasses far more than just non-Indian on

Indian crimes (the issue here). Public Law 280 also grants 

States jurisdiction over crimes committed by Indians. See 

Conference of Western Attorneys General, American Indian 

Law Deskbook §4.6, p. 250–251 (2021 ed.); cf. Negonsott, 

507 U. S., at 105–107. Absent Public Law 280, state jurisdiction over those Indian-defendant crimes could implicate

principles of tribal self-government. See White Mountain 

Apache Tribe v. Bracker, 448 U. S. 136, 142–143 (1980); 

Part III–B, infra. So our resolution of the narrow jurisdictional issue in this case does not negate the significance of

Public Law 280 in affording States broad criminal jurisdiction over other crimes committed in Indian country, such as

crimes committed by Indians.4 

—————— 4Castro-Huerta also points to several state-specific grants of jurisdiction from 1940 through 1948. See Act of July 2, 1948, ch. 809, 62 Stat. 

1224 (New York); Act of June 30, 1948, ch. 759, 62 Stat. 1161 (Iowa); Act

of May 31, 1946, ch. 279, 60 Stat. 229 (North Dakota); Act of June 8, 

1940, ch. 276, 54 Stat. 249 (Kansas). Those statutes operate similarly to 

Public Law 280. 
 

18 OKLAHOMA v. CASTRO-HUERTA 

Opinion of the Court 

In any event, to the extent that there is any overlap (or 

even complete overlap) between Public Law 280’s jurisdictional grant and some of the States’ preexisting jurisdiction 

with respect to crimes committed in Indian country, it made 

good sense for Congress in 1953 to explicitly grant such authority in Public Law 280. The scope of the States’ authority had not previously been resolved by this Court, except 

in cases such as McBratney and Draper with respect to nonIndian on non-Indian crimes. Congressional action in the 

face of such legal uncertainty cannot reasonably be characterized as unnecessary surplusage. See Nielsen v. Preap, 

586 U. S. ___, ___–___ (2019) (slip op., at 20–21). And finally, even if there is some surplusage, the Court has stated

that “[r]edundancy is not a silver bullet” when interpreting 

statutes. Rimini Street, Inc. v. Oracle USA, Inc., 586 U. S. 

___, ___ (2019) (slip op., at 11). 

In sum, Public Law 280 does not preempt state authority 

to prosecute crimes committed by non-Indians against Indians in Indian country. 

B 

Applying what has been referred to as the Bracker balancing test, this Court has recognized that even when federal law does not preempt state jurisdiction under ordinary 

preemption analysis, preemption may still occur if the exercise of state jurisdiction would unlawfully infringe upon

tribal self-government. See Bracker, 448 U. S., at 142–143; 

see also New Mexico v. Mescalero Apache Tribe, 462 U. S. 

324, 333–335 (1983). Under the Bracker balancing test, the 

Court considers tribal interests, federal interests, and state 

interests. 448 U. S., at 145.5 

—————— 5The dissent suggests that we should not reach Bracker because Congress has already spoken to the issue and preempted state jurisdiction. 

Post, at 30−32 (opinion of GORSUCH, J.). As already discussed, Congress 

did not preempt the State’s jurisdiction over crimes committed by nonIndians against Indians in Indian country. Therefore, we proceed to 
 

Cite as: 597 U. S. ____ (2022) 19 

Opinion of the Court 

 Here, Bracker does not bar the State from prosecuting 

crimes committed by non-Indians against Indians in Indian 

country. 

First, the exercise of state jurisdiction here would not infringe on tribal self-government. In particular, a state prosecution of a crime committed by a non-Indian against an 

Indian would not deprive the tribe of any of its prosecutorial

authority. That is because, with exceptions not invoked 

here, Indian tribes lack criminal jurisdiction to prosecute 

crimes committed by non-Indians such as Castro-Huerta,

even when non-Indians commit crimes against Indians in 

Indian country. See Oliphant v. Suquamish Tribe, 435 

U. S. 191, 195 (1978).

Moreover, a state prosecution of a non-Indian does not 

involve the exercise of state power over any Indian or over 

any tribe. The only parties to the criminal case are the 

State and the non-Indian defendant. Therefore, as has 

been recognized, any tribal self-government “justification

for preemption of state jurisdiction” would be “problematic.”

American Indian Law Deskbook §4.8, at 260; see Three Affiliated Tribes, 467 U. S., at 148; see also Hicks, 533 U. S., 

at 364; McBratney, 104 U. S., at 623–624; Draper, 164 U. S., 

at 242–243.6 

Second, a state prosecution of a non-Indian likewise

would not harm the federal interest in protecting Indian

victims. State prosecution would supplement federal authority, not supplant federal authority. As the United 

—————— 

Bracker balancing to determine whether the exercise of state jurisdiction

would unlawfully infringe on tribal self-government. 6To the extent that some tribes might have a policy preference for federal jurisdiction or tribal jurisdiction, but not state jurisdiction, over 

crimes committed by non-Indians in Indian country, that policy preference does not factor into the Bracker analysis. 

Furthermore, this case does not involve the converse situation of a 

State’s prosecution of crimes committed by an Indian against a non-Indian in Indian country. We express no view on state jurisdiction over a 

criminal case of that kind. 
 

 

20 OKLAHOMA v. CASTRO-HUERTA 

Opinion of the Court 

States has explained in the past, “recognition of concurrent 

state jurisdiction” could “facilitate effective law enforcement on the Reservation, and thereby further the federal

and tribal interests in protecting Indians and their property 

against the actions of non-Indians.” Brief for United States 

as Amicus Curiae in Arizona v. Flint, O. T. 1988, No. 603, 

p. 6. The situation might be different if state jurisdiction 

ousted federal jurisdiction. But because the State’s jurisdiction would be concurrent with federal jurisdiction, a

state prosecution would not preclude an earlier or later federal prosecution and would not harm the federal interest in 

protecting Indian victims. 

Third, the State has a strong sovereign interest in ensuring public safety and criminal justice within its territory,

and in protecting all crime victims. See Dibble, 21 How., at 

370. The State also has a strong interest in ensuring that

criminal offenders—especially violent offenders—are appropriately punished and do not harm others in the State. 

The State’s interest in protecting crime victims includes 

both Indian and non-Indian victims. If his victim were a 

non-Indian, Castro-Huerta could be prosecuted by the 

State, as he acknowledges. But because his victim is an 

Indian, Castro-Huerta says that he is free from state prosecution. Castro-Huerta’s argument would require this

Court to treat Indian victims as second-class citizens. We 

decline to do so.7 

—————— 7Castro-Huerta notes that many tribes were enemies of States in the 

1700s and 1800s. The theory appears to be that States (unlike the Federal Government) cannot be trusted to fairly and aggressively prosecute 

crimes committed by non-Indians against Indians in 2022. That theory 

is misplaced for at least two reasons. First, the State’s jurisdiction would 

simply be concurrent with, not exclusive of, the Federal Government’s. 

If concurrent state jurisdiction somehow poses a problem, Congress can 

seek to alter it. Second, many tribes were also opposed to the Federal 

Government at least as late as the Civil War. Indeed, some of those 

tribes, including the Cherokees, held black slaves and entered into treaties with the Confederate government. A. Gibson, Native Americans and 
 

 

Cite as: 597 U. S. ____ (2022) 21 

Opinion of the Court 

IV 

The dissent emphasizes the history of mistreatment of 

American Indians. But that history does not resolve the 

legal questions presented in this case. Those questions are:

(i) whether Indian country is part of a State or instead is

separate and independent from a State; and (ii) if Indian

country is part of a State, whether the State has concurrent

jurisdiction with the Federal Government to prosecute

crimes committed by non-Indians against Indians in Indian 

country.

The answers to those questions are straightforward. On 

the first question, as explained above, this Court has repeatedly ruled that Indian country is part of a State, not 

separate from a State. By contrast, the dissent lifts up the 

1832 decision in Worcester v. Georgia as a proper exposition

of Indian law. But this Court long ago made clear that 

Worcester rested on a mistaken understanding of the relationship between Indian country and the States. The Court 

has stated that the “general notion drawn from Chief Justice Marshall’s opinion in Worcester v. Georgia” “has yielded 

to closer analysis”: “By 1880 the Court no longer viewed

reservations as distinct nations. On the contrary, it was 

said that a reservation was in many cases a part of the surrounding State or Territory, and subject to its jurisdiction

except as forbidden by federal law.” Organized Village of 

Kake, 369 U. S., at 72. 

Because Indian country is part of a State, not separate 

—————— 

the Civil War, 9 Am. Indian Q. 4, 385, 388 (1985); 1 F. Cohen, Handbook 

of Federal Indian Law §4.07(1)(a), p. 289 (2012); see McGirt v. Oklahoma, 591 U. S. ___, ___−___ (2020) (ROBERTS, C. J., dissenting) (slip op., 

at 3−4); Cherokee Nation v. Nash, 267 F. Supp. 3d 86, 89−90 (DC 2017).

In any event, it is not evident why the pre-Civil War history of tribal

discord with States—unconnected from any statutory text—should disable States from exercising jurisdiction in 2022 to ensure that crime victims in state territory are protected under the State’s laws. 
 

22 OKLAHOMA v. CASTRO-HUERTA 

Opinion of the Court 

from a State, the second question here—the question regarding the State’s jurisdiction to prosecute CastroHuerta—is also straightforward. Under the Constitution, 

States have jurisdiction to prosecute crimes within their

territory except when preempted (in a manner consistent 

with the Constitution) by federal law or by principles of 

tribal self-government. As we have explained, no federal

law preempts the State’s exercise of jurisdiction over crimes 

committed by non-Indians against Indians in Indian country. And principles of tribal self-government likewise do not 

preempt state jurisdiction here.

As a corollary to its argument that Indian country is inherently separate from States, the dissent contends that 

Congress must affirmatively authorize States to exercise 

jurisdiction in Indian country, even jurisdiction to prosecute crimes committed by non-Indians. But under the Constitution and this Court’s precedents, the default is that 

States may exercise criminal jurisdiction within their territory. See Amdt. 10. States do not need a permission slip 

from Congress to exercise their sovereign authority. In 

other words, the default is that States have criminal jurisdiction in Indian country unless that jurisdiction is 

preempted. In the dissent’s view, by contrast, the default is 

that States do not have criminal jurisdiction in Indian country unless Congress specifically provides it. The dissent’s 

view is inconsistent with the Constitution’s structure, the 

States’ inherent sovereignty, and the Court’s precedents. 

Straying further afield, the dissent seizes on treaties

from the 1800s. Post, at 18−20, and n. 4 (opinion of 

GORSUCH, J.).8 But those treaties do not preclude state jurisdiction here. The dissent relies heavily on the 1835 

Treaty of New Echota, which stated that Indian country 

—————— 8Congress “abolished treatymaking with the Indian nations in 1871 

and has itself subjected the tribes to substantial bodies of state and federal law.” County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 257 (1992) (citation omitted). 
 

 

 

 

Cite as: 597 U. S. ____ (2022) 23 

Opinion of the Court 

was separate from States, and which the dissent says was

preserved in relevant part by the 1866 Treaty. See Treaty

with the Cherokee (New Echota), Art. 5, Dec. 29, 1835, 7 

Stat. 481; Treaty with the Cherokee, July 19, 1866, 14 Stat. 

709. But history and legal development did not end in 1866.

Some early treaties may have been consistent with the 

Worcester-era theory of separateness. But as relevant here, 

those treaties have been supplanted: Specific to Oklahoma,

those treaties, in relevant part, were formally supplanted

no later than the 1906 Act enabling Oklahoma’s statehood.

See Oklahoma Enabling Act, ch. 3335, 34 Stat. 267. As this 

Court has previously concluded, “admission of a State into 

the Union” “necessarily repeals the provisions of any prior 

statute, or of any existing treaty” that is inconsistent with 

the State’s exercise of criminal jurisdiction “throughout the 

whole of the territory within its limits,” including Indian

country, unless the enabling act says otherwise “by express 

words.” McBratney, 104 U. S., at 623−624; see Draper, 164 

U. S., at 242–246. The Oklahoma Enabling Act contains no

such express exception. Therefore, at least since Oklahoma’s statehood in the early 1900s, Indian country has

been part of the territory of Oklahoma. 

The dissent responds that the language of the 1906 statute enabling Oklahoma’s statehood itself established a jurisdictional division between the State and Indian country.

See post, at 20–22 (discussing the Oklahoma Enabling Act).

That argument is mistaken. This Court long ago explained

that interpreting a statehood act to divest a State of jurisdiction over Indian country “wholly situated within [its] geographical boundaries” would undermine “the very nature 

of the equality conferred on the State by virtue of its admission into the Union.” Draper, 164 U. S., at 242–243. So the 

Court requires clear statutory language “to create an exception” to that “rule.” Id., at 244. To reiterate, the Oklahoma 

Enabling Act contains no such clear language. Indeed, the 

Court has interpreted similar statutory language in other 
 

24 OKLAHOMA v. CASTRO-HUERTA 

Opinion of the Court 

state enabling acts not to displace state jurisdiction. See 

id., at 243–247; Organized Village of Kake, 369 U. S., at 67– 

71. In Organized Village of Kake, the Court specifically addressed several state enabling acts, including the Oklahoma Enabling Act, and stated that statutory language reserving jurisdiction and control to the United States was 

meant to preserve federal jurisdiction to the extent that it

existed before statehood, not to make federal jurisdiction

exclusive. Id., at 67–70. Consistent with that precedent,

today’s decision recognizes that the Federal Government

and the State have concurrent jurisdiction over crimes committed by non-Indians against Indians in Indian country.9 

The dissent incorrectly seeks to characterize various aspects of the Court’s decision as dicta. To be clear, the Court 

today holds that Indian country within a State’s territory is

part of a State, not separate from a State. Therefore, a 

State has jurisdiction to prosecute crimes committed in Indian country unless state jurisdiction is preempted. With 

respect to crimes committed by non-Indians against Indians in Indian country, the Court today further holds that

the General Crimes Act does not preempt the State’s authority to prosecute; that Public Law 280 does not preempt 

—————— 9The dissent characterizes the Court’s opinion in several ways that are 

not accurate. Post, at 38−41. For example, the dissent suggests that 

States may not exercise jurisdiction over crimes committed by Indians

against non-Indians in Indian country—the reverse of the scenario in 

this case. To reiterate, we do not take a position on that question. See 

supra, at 19, n. 6. 

The dissent also hints that the jurisdictional holding of the Court in 

this case may apply only in Oklahoma. That is incorrect. The Court’s 

holding is an interpretation of federal law, which applies throughout the

United States: Unless preempted, States may exercise jurisdiction to 

prosecute crimes committed by non-Indians against Indians in Indian 

country.

Finally, the statutory definition of Indian country includes “all Indian

allotments, the Indian titles to which have not been extinguished.” See 

18 U. S. C. §1151. Therefore, States may prosecute crimes committed by

non-Indians against Indians in those allotments. 
Cite as: 597 U. S. ____ (2022) 25 

Opinion of the Court 

the State’s authority to prosecute; that no principle of tribal 

self-government preempts the State’s authority to prosecute; that the cited treaties do not preempt Oklahoma’s authority to prosecute; and that the Oklahoma Enabling Act 

does not preempt Oklahoma’s authority to prosecute (indeed, it solidifies the State’s presumptive sovereign authority to prosecute). Comments in the dissenting opinion suggesting anything otherwise “are just that: comments in a 

dissenting opinion.” Railroad Retirement Bd. v. Fritz, 449 

U. S. 166, 177, n. 10 (1980). 

From start to finish, the dissent employs extraordinary

rhetoric in articulating its deeply held policy views about 

what Indian law should be. The dissent goes so far as to 

draft a proposed statute for Congress. But this Court’s 

proper role under Article III of the Constitution is to declare

what the law is, not what we think the law should be. The 

dissent’s views about the jurisdictional question presented

in this case are contrary to this Court’s precedents and to

the laws enacted by Congress. 

* * * 

We conclude that the Federal Government and the State 

have concurrent jurisdiction to prosecute crimes committed

by non-Indians against Indians in Indian country. We 

therefore reverse the judgment of the Oklahoma Court of 

Criminal Appeals and remand the case for further proceedings not inconsistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 597 U. S. ____ (2022) 1 

GORSUCH, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 21–429 

OKLAHOMA, PETITIONER v. VICTOR MANUEL 

CASTRO-HUERTA 

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL 

APPEALS OF OKLAHOMA 

[June 29, 2022] 

JUSTICE GORSUCH, with whom JUSTICE BREYER, JUSTICE 

SOTOMAYOR, and JUSTICE KAGAN join, dissenting. 

In 1831, Georgia arrested Samuel Worcester, a white

missionary, for preaching to the Cherokee on tribal lands 

without a license. Really, the prosecution was a show of 

force—an attempt by the State to demonstrate its authority

over tribal lands. Speaking for this Court, Chief Justice

Marshall refused to endorse Georgia’s ploy because the

State enjoyed no lawful right to govern the territory of a

separate sovereign. See Worcester v. Georgia, 6 Pet. 515, 

561 (1832). The Court’s decision was deeply unpopular, and 

both Georgia and President Jackson flouted it. But in time, 

Worcester came to be recognized as one of this Court’s finer 

hours. The decision established a foundational rule that 

would persist for over 200 years: Native American Tribes 

retain their sovereignty unless and until Congress ordains

otherwise. Worcester proved that, even in the “[c]ourts of 

the conqueror,” the rule of law meant something. Johnson’s 

Lessee v. McIntosh, 8 Wheat. 543, 588 (1823). 

Where this Court once stood firm, today it wilts. After 

the Cherokee’s exile to what became Oklahoma, the federal 

government promised the Tribe that it would remain forever free from interference by state authorities. Only the 

Tribe or the federal government could punish crimes by or

against tribal members on tribal lands. At various points 
 

2 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

in its history, Oklahoma has chafed at this limitation. Now, 

the State seeks to claim for itself the power to try crimes by

non-Indians against tribal members within the Cherokee 

Reservation. Where our predecessors refused to participate

in one State’s unlawful power grab at the expense of the

Cherokee, today’s Court accedes to another’s. Respectfully,

I dissent. 

I 

A 

Long before our Republic, the Cherokee controlled much

of what is now Georgia, North Carolina, South Carolina,

and Tennessee. See 1 G. Litton, History of Oklahoma at the

Golden Anniversary of Statehood 91 (1957) (Litton). The 

Cherokee were a “distinct, independent political communit[y],” who “retain[ed] their original” sovereign right to 

“regulat[e] their internal and social relations.” Santa Clara 

Pueblo v. Martinez, 436 U. S. 49, 55 (1978) (internal quotation marks omitted).

As colonists settled coastal areas near Cherokee territory, the Tribe proved a valuable trading partner—and a 

military threat. See W. Echo-Hawk, In the Court of the 

Conqueror 89 (2010). Recognizing this, Great Britain

signed a treaty with the Cherokee in 1730. See 1 Litton 92. 

As was true of “tributary” and “feudatory states” in Europe,

the Cherokee did not cease to be “sovereign and independent” under this arrangement, but retained the right to govern their internal affairs. E. de Vattel, Law of Nations 60– 

61 (1805); see Worcester, 6 Pet., at 561. Meanwhile, under 

British law the crown possessed “centraliz[ed]” authority

over diplomacy with Tribes to the exclusion of colonial governments. See C. Berkey, United States–Indian Relations: 

The Constitutional Basis, in Exiled in the Land of the Free 

192 (H. Lyons ed. 1992). 

Ultimately, the American Revolution replaced that legal

framework with a similar one. When the delegates drafted 
 

 

Cite as: 597 U. S. ____ (2022) 3 

GORSUCH, J., dissenting 

the Articles of Confederation, they debated whether the national or state authorities should manage Indian affairs. 

See 6 Journals of the Continental Congress, 1774–1789, pp. 

1077–1079 (W. Ford ed. 1906). The resulting compromise 

proved unworkable. The Articles granted Congress the 

“sole and exclusive right and power of . . . regulating the 

trade and managing all affairs with the Indians.” Art. IX. 

But the Articles undermined that assignment by further 

providing that “the legislative right of any state[,] within its 

own limits,” could not be “infringed or violated.” Ibid. Together, these provisions led to battles between national and 

state governments over who could oversee relations with 

various Tribes. See G. Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L. J. 1012, 1033–1035 (2015) 

(Ablavsky). James Madison later complained that the Articles’ division of authority over Indian affairs had “endeavored to accomplish [an] impossibilit[y]; to reconcile a partial 

sovereignty in the Union, with complete sovereignty in the 

States.” The Federalist No. 42, p. 269 (C. Rossiter ed. 1961).

When the framers convened to draft a new Constitution, 

this problem was among those they sought to resolve. To 

that end, they gave the federal government “broad general 

powers” over Indian affairs. United States v. Lara, 541 

U. S. 193, 200 (2004). The Constitution afforded Congress

authority to make war and negotiate treaties with the

Tribes. See Art. I, § 8; Art. VI, cl. 2. It barred States from 

doing either of these things. See Art. I, § 10. And the Constitution granted Congress the power to “regulate Commerce . . . with the Indian Tribes.” Art. I, § 8, cl. 3. Nor did 

the Constitution replicate the Articles’ carveout for state 

power over Tribes within their borders. Madison praised 

this change, contending that the new federal government 

would be “very properly unfettered” from this prior “limitatio[n].” The Federalist No. 42, at 268. Antifederalist Abraham Yates agreed (but bemoaned) that the Constitution “totally surrender[ed] into the hands of Congress the 
 

 

4 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

management and regulation of the Indian affairs.” Letter 

to the Citizens of the State of New York (June 13–14, 1788),

in 20 Documentary History of the Ratification of the Constitution 1153, 1158 (J. Kaminski et al. eds. 2004). 

Consistent with that view, “the Washington Administration insisted that the federal government enjoyed exclusive 

constitutional authority” over tribal relations. Ablavsky

1019. The new Administration understood, too, that Tribes 

remained otherwise free to govern their internal affairs

without state interference. See id., at 1041–1042, 1065– 

1067. In a letter to the Governor of Pennsylvania, President Washington stated curtly that “the United States . . . 

posses[es] the only authority of regulating an intercourse 

with [the Indians], and redressing their grievances.” Letter 

to T. Mifflin (Sept. 4, 1790), in 6 Papers of George Washington: Presidential Series 396 (D. Twohig ed. 1996). Even 

Thomas Jefferson, the great defender of the States’ powers,

agreed that “under the present Constitution” no “State 

[has] a right to Treat with the Indians without the consent 

of the General Government.” Letter to H. Knox (Aug. 10,

1791), in 22 Papers of Thomas Jefferson 27 (C. Cullen, E.

Sheridan, & R Lester eds. 1986).

Nor was this view confined to the Executive Branch. Congress quickly exercised its new constitutional authority. In 

1790, it enacted the first Indian Trade and Intercourse Act, 

which pervasively regulated commercial and social exchanges among Indians and non-Indians. Ch. 33, 1 Stat. 

137. Congress also provided for federal jurisdiction over

crimes by non-Indians against Indians on tribal lands. 

§§ 5–6, id., at 138. States, too, recognized their lack of authority. See Ablavsky 1019, 1043. In 1789, South Carolina 

Governor Charles Pinckney acknowledged to Washington 

that “the sole management of India[n] affairs is now committed” to “the general Government.” Letter to G. Washington (Dec. 14), in 4 Papers of George Washington: Presidential Series 401, 404 (D. Twohig ed. 1993). Initially, even 
 

 

Cite as: 597 U. S. ____ (2022) 5 

GORSUCH, J., dissenting 

Georgia took the same view. See Letter from Georgia 

House of Representatives to Governor Edward Telfair

(June 10, 1790), in 3 Documentary History of the Ratification of the Constitution: Delaware, New Jersey, Georgia,

and Connecticut 178 (M. Jensen ed. 1978) (Microform Supp.

Doc. No. 50).

It was against this background that Chief Justice Marshall faced Worcester. After gold was discovered in Cherokee territory in the 1820s, Georgia’s Legislature enacted 

laws designed to “seize [the] whole Cherokee country, parcel it out among the neighboring counties of the state . . . 

abolish [the Tribe’s] institutions and its laws, and annihilate its political existence.” Worcester, 6 Pet., at 542. Like 

Oklahoma today, Georgia also purported to extend its criminal laws to Cherokee lands. See ibid.; see also S. Breyer,

The Cherokee Indians and the Supreme Court, 87 The 

Georgia Historical Q. 408, 416–418 (2003) (Breyer). In refusing to sanction Georgia’s power grab, this Court explained that the State’s “assertion of jurisdiction over the

Cherokee nation” was “void,” because under our Constitution only the federal government possessed the power to

manage relations with the Tribe. Worcester, 6 Pet., at 542, 

561–562. 

B 

Two years later, and exercising its authority to regulate 

tribal affairs in the shadow of Worcester, Congress adopted 

the General Crimes Act of 1834 (GCA). That law extended 

federal criminal jurisdiction to tribal lands for certain 

crimes and, in doing so, served two apparent purposes.

First, as a “courtesy” to the Tribes, the law represented a

promise by the federal government “to punish crimes . . . 

committed . . . by and against our own [non-Indian] citizens.” H. Rep. No. 474, 23d Cong., 1st Sess., 13 (1834) (H.

Rep. No. 474). That jurisdictional arrangement was also 
 

 

6 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

consistent with, and even seemingly compelled by, the federal government’s treaties with various Tribes. See F. Cohen, Handbook of Federal Indian Law 731 (N. Newton et al. 

eds. 2005) (Cohen); R. Clinton, Development of Criminal

Jurisdiction Over Indian Lands: The Historical Perspective, 17 Ariz. L. Rev. 951, 958–962 (1975) (Clinton). Second, 

because Worcester held that States lacked criminal jurisdiction on tribal lands, Congress sought to ensure a federal forum for crimes committed by and against non-Indians. See 

H. Rep. No. 474, at 13. Otherwise, Congress understood,

non-Indian settlers would be subject to tribal jurisdiction

alone. See id., at 13, 18; R. Barsh & J. Henderson, The Betrayal, Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark, 63 Minn. L. Rev. 609, 625–626 (1979).

Congress reenacted the GCA in 1948 with minor amendments, but it remains in force today more or less in its original form. See 18 U. S. C. § 1152 (1946 ed., Supp. II).

Shortly after it adopted the GCA, the Senate ratified the 

Treaty of New Echota with the Cherokee in 1836. After the 

Tribe’s removal from Georgia, the United States promised 

the Cherokee that they would enjoy a new home in the West 

where they could “establish . . . a government of their 

choice.” Treaty with the Cherokee, Preamble, Dec. 29, 

1835, 7 Stat. 478. Acknowledging the Tribe’s past “difficulties . . . under the jurisdiction and laws of the State Governments,” the treaty also pledged that the Tribe would remain

forever free from “State sovereignties.” Ibid.; see Art. 5, id., 

at 481. These promises constituted an “indemnity,” guaranteed by “the faith of the nation,” that “[t]he United States

and the Indian tribes [would be] the sole parties” with

power on new western reservations like the Cherokee’s. 

H. Rep. No. 474, at 18 (emphasis in original). 

Over time, Congress revised some of these arrangements. 

In 1885, dissatisfied with how the Sioux Tribe responded to

the murder of a tribal member, Congress adopted the Major 
Cite as: 597 U. S. ____ (2022) 7 

GORSUCH, J., dissenting 

Crimes Act (MCA). See R. Anderson, S. Krakoff, & B. Berger, American Indian Law: Cases and Commentary 90–96 

(4th ed. 2008) (Anderson). There, Congress directed that, 

moving forward, only the federal government, not the 

Tribes, could prosecute certain serious offenses by tribal 

members on tribal lands. See 18 U. S. C. § 1153(a). On its 

own initiative, this Court then went a step further. Relying

on language in certain laws admitting specific States to the

Union, the Court held that States were now entitled to prosecute crimes by non-Indians against non-Indians on tribal

lands. See United States v. McBratney, 104 U. S. 621, 623 

(1882); Draper v. United States, 164 U. S. 240, 243, 247 

(1896). Through all these developments, however, at least 

one promise remained: States could play no role in the prosecution of crimes by or against Native Americans on tribal

lands. See Williams v. Lee, 358 U. S. 217, 220 (1959). 

In 1906, Congress reaffirmed this promise to the Cherokee in Oklahoma. As a condition of its admission to the 

Union, Congress required Oklahoma to “declare that [it]

forever disclaim[s] all right and title in or to . . . all lands 

lying within [the State’s] limits owned or held by any Indian, tribe, or nation.” 34 Stat. 270. Instead, Congress provided that tribal lands would “remain subject to the jurisdiction, disposal, and control of the United States.” Ibid. 

As if the point wasn’t clear enough, Congress further provided that “nothing contained in the [new Oklahoma state] 

constitution shall be construed to . . . limit or affect the authority of the Government of the United States . . . respecting [the State’s] Indians . . . which it would have been competent to make if this Act had never been passed.” Id., at 

267–268. The following year, Oklahoma adopted a State

Constitution consistent with Congress’s instructions. Art. 

I, § 3; see also Clinton 961. 

In the years that followed, certain States sought arrangements different from Oklahoma’s. And once more, Congress intervened. In 1940, Kansas asked for and received 
 

 

 

8 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

permission from Congress to exercise jurisdiction over

crimes “by or against Indians” on tribal lands. 18 U. S. C. 

§ 3243. Through the rest of the decade, Congress experimented with similar laws for New York, Iowa, and North 

Dakota.1 Then, in 1953, Congress adopted Public Law 280.

That statute granted five additional States criminal “jurisdiction over offenses . . . by or against Indians” and established procedures by which further States could secure the

same authority. See ch. 505, § 2, 67 Stat. 588. Ultimately,

however, some of these arrangements proved unpopular.

Not only with affected Tribes. See C. Goldberg-Ambrose, 

Public Law 280 and the Problem of Lawlessness in California Indian Country, 44 UCLA L. Rev. 1405, 1406–1407 

(1997) (Goldberg-Ambrose). These arrangements also

proved unpopular with certain States that viewed their new 

law enforcement responsibilities on tribal lands as unfunded federal mandates. See Anderson 436. A few States 

even renounced their Public Law 280 jurisdiction. See Cohen 579. 

By 1968, the federal government came to conclude that,

“as a matter of justice and as a matter of enlightened social

policy,” the “time ha[d] come to break decisively with the 

past and to create the conditions for a new era in which the

Indian future is determined by Indian acts and Indian decisions.” Richard M. Nixon, Special Message on Indian Affairs (July 8, 1970). Consistent with that vision, Congress 

amended Public Law 280 to require tribal consent before 

any State could assume jurisdiction over crimes by or

against Indians on tribal lands. Act of Apr. 11, 1968, § 401, 

82 Stat. 78, § 406, id., at 80 (25 U. S. C. §§ 1321(a), 1326).

Recognizing that certain States’ enabling acts barred state 

—————— 1See Act of July 2, 1948, ch. 809, 62 Stat. 1224 (25 U. S. C. § 232) (New

York); Act of June 30, 1948, ch. 759, 62 Stat. 1161 (Iowa), repealed, Act 

of Dec. 11, 2018, Pub. L. 115–301, 132 Stat. 4395; Act of May 31, 1946,

ch. 279, 60 Stat. 229 (North Dakota). 
 

 

 

Cite as: 597 U. S. ____ (2022) 9 

GORSUCH, J., dissenting 

authority on tribal lands and required States to adopt constitutional provisions guaranteeing as much, Congress also 

authorized States to “amend, where necessary, their State 

constitution or . . . statutes.” § 404, 82 Stat. 79 (25 U. S. C. 

§ 1324). In doing so, however, Congress emphasized that 

affected States could not assume jurisdiction to prosecute 

offenses by or against tribal members on tribal lands until 

they “appropriately amended their State constitution or

statutes.” Ibid. To date, Oklahoma has not amended its 

state constitutional provisions disclaiming jurisdiction over

tribal lands. Nor has Oklahoma sought or obtained tribal

consent to the exercise of its jurisdiction. See The Honorable E. Kelly Haney, 22 Okla. Op. Atty. Gen. No. 90–32, 72, 

1991 WL 567868, *1 (Mar. 1, 1991) (Haney). Thus, Oklahoma has remained, in Congress’s words, a State “not having jurisdiction over criminal offenses committed by or 

against Indians in the areas of Indian country situated 

within” its borders. 25 U. S. C. § 1321(a). 

C 

Rather than seek tribal consent pursuant to Public Law

280 or persuade Congress to adopt a state-specific statute 

authorizing it to prosecute crimes by or against tribal members on tribal lands, Oklahoma has chosen a different path.

In the decades following statehood, many settlers engaged

in schemes to seize Indian lands and mineral rights by subterfuge. See A. Debo, And Still the Waters Run 92–125 

(1940) (Debo). These schemes resulted in “the bulk of the 

landed wealth of the Indians” ending up in the hands of the 

new settlers. See ibid.; see also id., at 181–202. State officials and courts were sometimes complicit in the process.

See id., at 182–183, 185, 195–196. For years, too, Oklahoma courts asserted the power to hear criminal cases involving Native Americans on lands allotted to and owned

by tribal members despite the contrary commands of the 

Oklahoma Enabling Act and the State’s own constitution. 
 

 

10 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

The State only disavowed that practice in 1991, after defeats in state and federal court. See Haney, 1991 WL 

567868, *1–*3; see also State v. Klindt, 782 P. 2d 401, 404 

(Okla. Crim. App. 1989); Ross v. Neff, 905 F. 2d 1349, 1353 

(CA10 1990). 

Still, it seems old habits die slowly. Even after renouncing the power to try criminal cases involving Native Americans on allotted tribal lands, Oklahoma continued to claim 

the power to prosecute crimes by or against Native Americans within tribal reservations. The State did so on the theory that at some (unspecified) point in the past, Congress 

had disestablished those reservations. In McGirt v. Oklahoma, this Court rejected that argument in a case involving

the Muscogee (Creek) Tribe. 591 U. S. ___, ___ (2020) (slip 

op., at 1). We explained that Congress had never disestablished the Creek Reservation. Nor were we willing to usurp

Congress’s authority and disestablish that reservation by a

lawless act of judicial fiat. See id., at ___ (slip op., at 42). 

Accordingly, only federal and tribal authorities were lawfully entitled to try crimes by or against Native Americans

within the Tribe’s reservation. Ibid. Following McGirt, Oklahoma’s courts recognized that what held true for the 

Creek also held true for the Cherokee: Congress had never

disestablished its reservation and, accordingly, the State 

lacked authority to try offenses by or against tribal members within the Cherokee Reservation. See Spears v. State, 

2021 OK CR 7, ¶¶ 10–14, 485 P. 3d 873, 876–877.

Once more, Oklahoma could have responded to this development by asking Congress for state-specific legislation

authorizing it to exercise criminal jurisdiction on tribal 

lands, as Kansas and various other States have done. The 

State could have employed the procedures of Public Law 

280 to amend its own laws and obtain tribal consent. Instead, Oklahoma responded with a media and litigation 

campaign seeking to portray reservations within its State—

where federal and tribal authorities may prosecute crimes 
 

Cite as: 597 U. S. ____ (2022) 11 

GORSUCH, J., dissenting 

by and against tribal members and Oklahoma can pursue 

cases involving only non-Indians—as lawless dystopias. 

See Brief for Cherokee Nation et al. as Amici Curiae 18 

(Cherokee Brief ) (“The State’s tale of a criminal dystopia in

eastern Oklahoma is just that: A tale”). 

That effort culminated in this case. In it, Oklahoma has 

pursued alternative lines of argument. First, the State has 

asked this Court to revisit McGirt and unilaterally eliminate all reservations in Oklahoma. Second, the State has 

argued that it enjoys a previously unrecognized “inherent” 

authority to try crimes within reservation boundaries by 

non-Indians against tribal members—a claim Oklahoma’s 

own courts have rejected. See Bosse v. State, 2021 OK CR 

3, 484 P. 3d 286, 294–295. 

Ultimately, this Court declined to entertain the State’s

first argument but agreed to review the second. Nominally,

the question comes to us in a case involving Victor CastroHuerta, a non-Indian who abused his Cherokee stepdaughter within the Tribe’s reservation. Initially, a state court

convicted him for a state crime. After McGirt, the Oklahoma Court of Criminal Appeals determined that his conviction was invalid because only federal and tribal officials

possess authority to prosecute crimes by or against Native

Americans on the Cherokee Reservation. See App. to Pet.

for Cert. 4a. The federal government swiftly reindicted Mr. 

Castro-Huerta, and a federal court again found him guilty.

Now before us, Oklahoma seeks to undo Mr. CastroHuerta’s federal conviction and have him transferred from 

federal prison to a state facility to resume his state sentence. 

Really, though, this case has less to do with where Mr. 

Castro-Huerta serves his time and much more to do with 

Oklahoma’s effort to gain a legal foothold for its wish to exercise jurisdiction over crimes involving tribal members on 

tribal lands. To succeed, Oklahoma must disavow adverse 

rulings from its own courts; disregard its 1991 recognition 
 

 

12 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

that it lacks legal authority to try cases of this sort; and

ignore fundamental principles of tribal sovereignty, a 

treaty, the Oklahoma Enabling Act, its own state constitution, and Public Law 280. Oklahoma must pursue a proposition so novel and so unlikely that in over two centuries 

not a single State has successfully attempted it in this 

Court. Incredibly, too, the defense of tribal interests

against the State’s gambit falls to a non-Indian criminal defendant. The real party in interest here isn’t Mr. CastroHuerta but the Cherokee, a Tribe of 400,000 members with 

its own government. Yet the Cherokee have no voice as parties in these proceedings; they and other Tribes are relegated to the filing of amicus briefs. 

II 

A 

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 “exercise jurisdiction.” Ante, at 4. But this 

declaration comes as if by oracle, without any sense of the 

history recounted above and unattached to any colorable legal authority. Truly, a more ahistorical and mistaken 

statement of Indian law would be hard to fathom. 

The source of the Court’s error is foundational. Through

most of its opinion, the Court proceeds on the premise that 

Oklahoma possesses “inherent” sovereign power to prosecute crimes on tribal reservations until and unless Congress “preempt[s]” that authority. Ante, at 5–18. The Court 

emphasizes that States normally wield broad police powers

within their borders absent some preemptive federal law.

See ante, at 4–6; see also Virginia Uranium, Inc. v. Warren, 

587 U. S. ___, ___ (2019) (lead opinion) (slip op., at 12). 

But the effort to wedge Tribes into that paradigm is a category error. Tribes are not private organizations within 
 

 

Cite as: 597 U. S. ____ (2022) 13 

GORSUCH, J., dissenting 

state boundaries. Their reservations are not glorified private campgrounds. Tribes are sovereigns. And the preemption rule applicable to them is exactly the opposite of the 

normal rule. Tribal sovereignty means that the criminal 

laws of the States “can have no force” on tribal members 

within tribal bounds unless and until Congress clearly ordains otherwise. Worcester, 6 Pet., at 561. After all, the 

power to punish crimes by or against one’s own citizens 

within one’s own territory to the exclusion of other authorities is and has always been among the most essential attributes of sovereignty. See, e.g., Wilson v. Girard, 354 

U. S. 524, 529 (1957) (per curiam) (“A sovereign nation has 

exclusive jurisdiction to punish offenses against its laws

committed within its borders”); see also Schooner Exchange 

v. McFaddon, 7 Cranch 116, 136 (1812); E. de Vattel, Law

of Nations 81–82 (1835 ed.).

Nor is this “‘notion,’” ante, at 5, some discarded artifact 

of a bygone era. To be sure, Washington, Jefferson, Marshall, and so many others at the Nation’s founding appreciated the sovereign status of Native American Tribes. See 

Part I–A, supra. But this Court’s own cases have consistently reaffirmed the point. Just weeks ago, the Court held

that federal prosecutors did not violate the Double Jeopardy Clause based on the essential premise that tribal criminal law is the product of a “separate sovereig[n]” exercising 

its own “retained sovereignty.” Denezpi v. United States, 

596 U. S. ___, ___ (2022) (slip op., at 6) (internal quotation 

marks omitted). Recently, too, this Court confirmed that

Tribes enjoy sovereign immunity from suit. See Michigan 

v. Bay Mills Indian Community, 572 U. S. 782, 788–789 

(2014). Throughout our history, “the basic policy of Worcester” that Tribes are separate sovereigns “has remained.” 

Williams v. Lee, 358 U. S., at 219.2 

—————— 2See also Ysleta del Sur Pueblo v. Texas, 596 U. S. ___, ___ (2022) (slip 
 

 

14 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

Because Tribes are sovereigns, this Court has consistently recognized that the usual “standards of pre-emption”

are “unhelpful.” White Mountain Apache Tribe v. Bracker, 

448 U. S. 136, 143 (1980); see also Cotton Petroleum Corp. 

v. New Mexico, 490 U. S. 163, 176 (1989); Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 

425 U. S. 463, 475–476 (1976); McClanahan v. Arizona Tax 

Comm’n, 411 U. S. 164, 170–172 (1973). In typical preemption cases, courts “start with the assumption” that Congress

has not displaced state authority. Rice v. Santa Fe Elevator 

Corp., 331 U. S. 218, 230 (1947). But when a State tries to 

regulate tribal affairs, the same “backdrop” does not apply

because Tribes have a “claim to sovereignty [that] long predates that of our own Government.” McClanahan, 411 

U. S., at 172; see also Bracker, 448 U. S., at 143. So instead 

of searching for an Act of Congress displacing state authority, our cases require a search for federal legislation conferring state authority: “[U]nless and until Congress acts, the

tribes retain their historic sovereign authority.” Bay Mills 

Indian Community, 572 U. S., at 788 (internal quotation 

marks omitted); see United States v. Cooley, 593 U. S. ___, 

___–___ (2021) (slip op., at 3–4) (instructing courts to ask if

a “treaty or statute has explicitly divested Indian tribes of 

the . . . authority at issue”); Anderson 317. What is more, 

courts must “tread lightly” before concluding Congress has 

abrogated tribal sovereignty in favor of state authority. 

Santa Clara Pueblo, 436 U. S., at 60. Any ambiguities in 

—————— 

op., at 1); United States v. Cooley, 593 U. S. ___, ___–___ (2021) (slip op., 

at 3–4); Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of 

Okla., 498 U. S. 505, 509 (1991); United States v. Wheeler, 435 U. S. 313, 

322–323 (1978); Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978); 

United States v. Mazurie, 419 U. S. 544, 557 (1975); Talton v. Mayes, 163 

U. S. 376, 383–384 (1896); United States v. Kagama, 118 U. S. 375, 381– 

382 (1886); Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831). 
Cite as: 597 U. S. ____ (2022) 15 

GORSUCH, J., dissenting 

Congress’s work must be resolved in favor of tribal sovereignty and against state power. See ibid.; see also Cotton 

Petroleum, 490 U. S., at 177. And, if anything, these rules 

bear special force in the criminal context, which lies at the 

heart of tribal sovereignty and in which Congress “has provided a nearly comprehensive set of statutes allocating

criminal jurisdiction” among federal, tribal, and state authorities. Cohen 527.3 

B 

From 1834 to 1968, Congress adopted a series of laws governing criminal jurisdiction on tribal lands. Those laws are 

many, detailed, and clear. Each operates against the backdrop understanding that Tribes are sovereign and that in

our constitutional order only Congress may displace their 

authority. Nor does anything in Congress’s work begin to

confer on Oklahoma the authority it seeks. 

1 

Start with the GCA, first adopted by Congress in 1834 

—————— 3 In the civil context, Congress has not always provided comprehensive 

rules allocating jurisdiction. See Cohen 527. In light of that fact, this 

Court has, in “exception[al]” cases, id., at 524, allowed certain state laws 

to apply on tribal lands without express congressional approval, see, e.g., 

Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 

154–159 (1980). But even in the civil context this Court has proceeded

against the backdrop of tribal sovereignty, followed the presumption

against state authority, sought to abide its own repeated admonitions to

tread cautiously, and generally refused to consider competing state interests. See, e.g., White Mountain Apache Tribe v. Bracker, 448 U. S. 

136, 143–144 (1980); Cohen 520–525. So, for example, in Confederated 

Tribes, this Court allowed the application of a state civil law only on a 

showing that the State sought to regulate market activities with primarily off-reservation effects and “in which the Tribes ha[d no] significant 

interest.” 447 U. S., at 152. Meanwhile, in Bracker this Court refused 

to permit a State to apply its civil tax laws on tribal lands even though 

Congress had not expressly prohibited the State from doing so. 448 U. S., 

at 143. 
 

16 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

and most recently reenacted in 1948. The GCA provides: 

“Except 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, except the District of Columbia, shall extend to Indian Country. 

This section shall not extend to offenses committed by

one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of 

the tribe, or to any case where, by treaty stipulations, the 

exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.” 18 U. S. C. 

§ 1152. 

As recounted above, Congress adopted the GCA in the aftermath of Worcester’s holding that the federal government

alone may regulate tribal affairs and States do not possess

inherent authority to apply their criminal laws on tribal

lands. Responding to that decision, Congress did not choose 

to exercise its authority to allow state jurisdiction on tribal 

lands. Far from it. Congress chose only to extend federal 

law to tribal lands—and even then only for certain crimes 

involving non-Indian settlers. Otherwise, Congress recognized, those settlers might be subject to tribal criminal jurisdiction alone. See Part I–B, supra. Several features of 

the law confirm this understanding. Take just three. 

First, the GCA compares “Indian country” to “place[s] 

within the sole and exclusive jurisdiction of the United 

States.” § 1152. The latter category refers to federal enclaves like national parks and military bases that the Constitution places under exclusive federal control. See Art. I, 

§ 8, cl. 17; United States v. Cowboy, 694 F. 2d 1228, 1234 

(CA10 1982); see also Ex parte Crow Dog, 109 U. S. 556, 567 
Cite as: 597 U. S. ____ (2022) 17 

GORSUCH, J., dissenting 

(1883). And state laws generally do not apply in federal enclaves. See, e.g., Fort Leavenworth R. Co. v. Lowe, 114 U. S. 

525, 532–533 (1885). Rather than unambiguously endow

States with any sort of prosecutorial authority on tribal

lands, the GCA thus makes plain that tribal lands are to be

treated like federal enclaves subject to federal, not state, 

control. 

Second, the GCA provides that the “general laws of the 

United States as to the punishment of offenses” shall apply 

on tribal lands. § 1152. Again, nothing here purports to 

extend state criminal laws to tribal lands. Quite the contrary. It would hardly make sense to apply federal general 

criminal law—to address all crimes ranging from murder to

jaywalking—if state general criminal law already did the 

job. Traditionally, this Court does not assume multiple 

“sets of [general] criminal laws” apply to those subject to 

federal protection. Lewis v. United States, 523 U. S. 155, 

163 (1998). Instead, when Congress converts an area into

a federal enclave, we usually presume later-enacted state

law “does not apply.” Parker Drilling Management Services, Ltd. v. Newton, 587 U. S. ___, ___ (2019) (slip op., 

at 9).

Third, after applying the federal government’s general

criminal laws to tribal lands, the GCA carves out some exceptions. It provides that federal law “shall not extend” to

crimes involving only Indians, crimes by Indians where the

perpetrator “has been punished by the local law of the

tribe,” or where a treaty grants a Tribe exclusive jurisdiction. § 1152. These exceptions ensure that the federal government does not meddle in cases most likely to implicate 

tribal sovereignty. And it defies the imagination to think 

Congress would have taken such care to limit federal authority over these most sensitive cases while (somewhere, 

somehow) leaving States, so often the Tribes’ “deadliest 

enemies,” to enjoy free rein. United States v. Kagama, 118 

U. S. 375, 384 (1886). 
 

18 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

2 

When Congress enacted the MCA in 1885, it proceeded 

once more against the “backdrop” rule that only tribal criminal law applies on tribal lands, that States enjoy no inherent authority to prosecute cases on tribal lands, and that 

only Congress may displace tribal power. Nor, once more, 

did Congress’s new legislation purport to allow States to 

prosecute crimes on tribal lands. In response to concerns 

with how tribal authorities were handling major crimes 

committed by tribal members, in the MCA Congress took a 

step beyond the GCA and instructed that, in the future, the 

federal government would have “exclusive jurisdiction” to

prosecute certain crimes by Indian defendants on tribal

lands. 18 U. S. C. § 1153(a); see also Part I–B, supra. Here 

again, Congress’s work hardly would have been necessary 

or made sense if States already possessed jurisdiction to try

crimes by or against Indians on tribal reservations. Plainly,

Congress’s “purpose” in adopting the MCA was to answer 

the “objection” that major crimes by tribal members on

tribal lands would otherwise be subject to prosecution by 

tribal authorities alone. See Kagama, 118 U. S., at 383– 

385. 

3 

Consider next the Treaty of New Echota and the Oklahoma Enabling Act. In 1835, the United States entered into 

a treaty with the Cherokee. In that treaty, the Nation 

promised that, within a new reservation in what was to become Oklahoma, the Tribe would enjoy the right to govern

itself and remain forever free from “State sovereignties”

and “the jurisdiction of any State.” Treaty with the Cherokee, Preamble, 7 Stat. 478. This Court has instructed that 

tribal treaties must be interpreted as they “would naturally

be understood by the Indians” at ratification. Herrera v. 

Wyoming, 587 U. S. ___, ___ (2019) (slip op., at 19) (internal 
 

Cite as: 597 U. S. ____ (2022) 19 

GORSUCH, J., dissenting 

quotation marks omitted). And having just lost their traditional homelands to Georgia, who can doubt that the Cherokee understood this promise as a guarantee that they 

would retain their sovereign authority over crimes by or 

against tribal members subject only to federal, not state, 

law? That was certainly the contemporaneous understanding of the House Committee on Indian Affairs, which observed that “[t]he United States and the Indian tribes 

[would be] the sole parties” with power over new reservations in the West. H. Rep. No. 474, at 18; see also Part I– 

B, supra. This Court has long shared the same view. “By

treaties and statutes,” the Court has said, “the right of the 

Cherokee [N]ation to exist as an autonomous body, subject 

always to the paramount authority of the United States,

has been recognized.” Talton v. Mayes, 163 U. S. 376, 379– 

380 (1896).4 

—————— 4 In a fleeting aside, the Court suggests that the treaty was “supplanted” by the Oklahoma Enabling Act in 1906, which endowed the 

State with “inherent” authority to try crimes by or against tribal members on tribal lands. Ante, at 22–23. But the Court cites no proof for its 

ipse dixit, nor could it. As we shall see, Congress took pains to abide its

treaty promises when it adopted the Oklahoma Enabling Act and has 

never revoked them. Nor may this Court abrogate treaties or statutes 

by wishing them away in passing remarks. In a Nation governed by the 

rule of law, not men (or willful judges), only Congress may withdraw this 

Nation’s treaty promises or revise its written laws. See McGirt v. Oklahoma, 591 U. S. ___, ___ (2020) (slip op., at 7). Even on its own terms, 

too, the Court’s discussion of the treaty turns out to be dicta. In the end, 

the Court abandons any suggestion that, with its admission to the Union, 

the Cherokee’s treaties somehow evaporated and Oklahoma gained an 

“inherent” right to prosecute crimes by or against tribal members on 

tribal lands. Instead, the Court resorts to a case-specific “balancing test” 

that acknowledges state law may not apply on tribal lands even in the 

absence of a preemptive statute. See Part III–A, infra. 

In the course of its dicta on the treaty, the Court highlights still two

other irrelevant facts—that the Cherokee engaged in treaties with the 

Confederacy during the Civil War and that “Congress abolished treatymaking with the Indian nations in 1871.” Ante, at 21, n. 7, 22, n. 8 
 

 

 

 

20 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

In 1906, Congress sought to deliver on its treaty promises 

when it adopted the Oklahoma Enabling Act. That law 

paved the way for the new State’s admission to the Union. 

But in doing so, Congress took care to require Oklahoma to

“agree and declare” that it would “forever disclaim all right 

and title in or to . . . all lands lying within [the State’s] limits owned or held by any Indian, tribe, or nation.” 34 Stat. 

270. Instead of granting the State some new power to prosecute crimes by or against tribal members, Congress insisted that tribal lands “shall be and remain subject to the 

jurisdiction, disposal, and control of the United States.” 

Ibid. Oklahoma complied with Congress’s instructions by

adopting both of these commitments verbatim in its Constitution. Art. I, § 3. 

Underscoring the nature of this arrangement, the Enabling Act further provided that “nothing contained in the 

—————— 

(internal quotation marks omitted). In truth, while some members of the 

Tribe did side with the Confederacy, others fought for the Union. See 1 

Litton 222, 224, 239. Regardless, after the Civil War the federal government punished the entire Tribe by stripping some of its lands in the 1866

Treaty of Washington. See id., at 245. But that pact did not terminate 

the government’s other existing treaty promises. To the contrary, the 

new treaty expressly confirmed that “[a]ll provisions of treaties, heretofore ratified . . . and not inconsistent with the provisions of this treaty, 

are hereby reaffirmed.” Treaty with the Cherokee, Art. XXXI, 14 Stat. 

806. As for the 1871 statute the Court cites, it makes plain that “nothing

herein contained shall be construed to invalidate or impair the obligation

of any treaty heretofore lawfully made and ratified with any . . . Indian 

nation or tribe.” 16 Stat. 566. Recognizing as much, this Court in 1896

expressly recognized that the Tribe’s “guarantee of self-government” in

the Treaty of New Echota remained in force. Talton, 163 U. S., at 380. 

In the years since, this Court and others have recognized the continuing 

vitality of various aspects of the treaty too. See, e.g., Choctaw Nation v. 

Oklahoma, 397 U. S. 620, 628 (1970); EEOC v. Cherokee Nation, 871 

F. 2d 937, 938 (CA10 1989). And in this very case, the federal government has confirmed that the Nation’s treaties continue to “protect” the 

Tribe. See Tr. of Oral Arg. 121. 
 

 

Cite as: 597 U. S. ____ (2022) 21 

GORSUCH, J., dissenting 

[Oklahoma] constitution shall be construed . . . to limit or 

affect the authority of the Government of the United States

to make any law or regulation respecting such Indians, 

their lands, property, or other rights by treaties, agreement, law, or otherwise, which it would have been competent to make if this Act had never been passed.” 34 Stat. 

267–268 (emphasis added). Prior to statehood, too, no one 

could have questioned Congress’s exclusive authority to

regulate tribal lands and affairs in the Oklahoma territory.

See, e.g., U. S. Const., Art. IV; Kagama, 118 U. S., at 380 

(citing federal government’s “exclusive sovereignty” over

federal territories); Simms v. Simms, 175 U. S. 162, 168 

(1899) (“In the Territories of the United States, Congress 

has the entire dominion and sovereignty, . . . Federal and 

state”); Harjo v. Kleppe, 420 F. Supp. 1110, 1121 (DC 1976) 

(federal courts had pre-statehood jurisdiction); Clinton

960–962. The Oklahoma Enabling Act and the commitments it demanded in the new Oklahoma Constitution 

sought to maintain this status quo.

Recognizing the point, this Court has explained that, “[i]n

passing the enabling act for the admission of the State of 

Oklahoma . . . Congress was careful to preserve the authority of the Government of the United States over the Indians, 

their lands and property, which it had prior to the passage 

of the act.” Tiger v. Western Investment Co., 221 U. S. 286, 

309 (1911) (emphasis added). This Court has explained,

too, that the “grant of statehood” to Oklahoma did nothing 

to disturb “the long-settled rule” that the “guardianship of 

the United States” over Native American Tribes in Oklahoma “has not been abandoned.” United States v. Ramsey, 

271 U. S. 467, 469 (1926). Instead, this Court has acknowledged, the federal government’s “authority in respect of

crimes committed by or against Indians continued after the

admission of the state as it was before.” Ibid. In fact, the 

Court has long interpreted nearly identical language in the 
 

 

 

 

22 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

Arizona Enabling Act—enacted close in time to its Oklahoma counterpart—as reinforcing the traditional rule “that

the States lac[k] jurisdiction” on tribal lands over crimes by

or against Native Americans. McClanahan, 411 U. S., at 

175; see also Warren Trading Post Co. v. Arizona Tax 

Comm’n, 380 U. S. 685, 687, n. 3 (1965).5 

4 

The few occasions on which Congress has even arguably 

authorized the application of state criminal law on tribal 

reservations still do not come anywhere near granting Oklahoma the power it seeks. In the late 1800s, this Court in 

—————— 5 In places, the Court seems to suggest that the Oklahoma Enabling

Act endowed the State with “inherent” jurisdiction to try any crime committed within its borders. See ante, at 22–23. But in the end the Court 

abandons any suggestion that with statehood Oklahoma gained an inherent right to try cases involving tribal members within tribal bounds.

See Part III–A, infra. So, once more, the Court’s discussion of the Oklahoma Enabling Act turns out to be dicta future litigants are free to correct. Much correction is warranted. Not only does the Court fail to quote, 

let alone offer any analysis of, the relevant statutory text. Its suggestion 

that the Oklahoma Enabling Act granted the State criminal jurisdiction

over tribal lands would require us to suppose that Congress abrogated

two treaties with the Cherokee without ever saying so—an interpretation that would grossly defy our Nation’s promises and this Court’s obligation to read congressional work as a harmonious whole. Reading the

Oklahoma Enabling Act in line with the Court’s ill-considered dicta 

would also defy this Court’s longstanding precedents in Tiger, Ramsey, 

and McClanahan. Of course, the Court tries to invoke McBratney and 

Draper as contrary authority. But as we will see in a moment, both cases 

carefully reiterated the rule that statehood does not imply the right to

try crimes on tribal lands by or against tribal members. The Court also 

cites Organized Village of Kake v. Egan, 369 U. S. 60 (1962). But that 

case involved Alaska’s Anti-Fish-Trap Conservation Law, not the Oklahoma Enabling Act. Admittedly, Egan quotes comments from a 1954 

legislative committee hearing about the Alaska Enabling Act in which a

few participants also happened to express views on the meaning of the 

Oklahoma Enabling Act, passed almost 50 years earlier. See id., at 71. 

But surely this Court cannot think a few stray post-enactment legislative

comments, “unmoored from any statutory text,” ante, at 11, control over 

the statutory terms or our more specific precedents. 
 

Cite as: 597 U. S. ____ (2022) 23 

GORSUCH, J., dissenting 

McBratney and Draper held that federal statutes admitting 

certain States to the Union effectively meant those States

could now prosecute crimes on tribal lands involving only

non-Indians. Yet, as aggressive as these decisions were, 

they took care to safeguard the rule that a State’s admission 

to the Union does not convey with it the power to punish 

“crimes committed by or against Indians.” McBratney, 104 

U. S., at 624; Draper, 164 U. S., at 247. Indeed, soon after 

Oklahoma became a State, this Court explained that the 

“grant of statehood” may have endowed Oklahoma with authority to try crimes “not committed by or against Indians,”

but with statehood did not come any authority to try

“crimes by or against Indians” on tribal lands. Ramsey, 271 

U. S., at 469; see also n. 5, supra; Donnelly v. United States, 

228 U. S. 243, 271 (1913); Williams v. Lee, 358 U. S., at 220; 

Cohen 506–509. The decision whether and when this arrangement should “cease” “rest[ed] with Congress alone.” 

Ramsey, 271 U. S., at 469. 

The truth is, Congress has authorized the application of 

state criminal law on tribal lands for offenses committed by

or against Native Americans only in very limited circumstances. The most notable examples can be found in Public 

Law 280 and related statutes. In 1940, Kansas successfully

lobbied Congress for criminal jurisdiction in Indian country. Nearly identical laws for North Dakota, Iowa, and New 

York followed close behind. Then in 1953, Congress 

adopted Public Law 280 in which it authorized five States

to exercise criminal jurisdiction on tribal lands and established procedures for additional States to assume similar 

authority. In 1968, Congress amended Public Law 280.

Now, before a State like Oklahoma may try crimes by or 

against Native Americans arising on tribal lands, it must

take action to amend any state law disclaiming that authority; then, the State must seek and obtain tribal consent to 

any extension of state jurisdiction. See Part I–B, supra; 

Clinton 958–962. Unless a State takes these steps, it does 
 

24 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

“not hav[e] jurisdiction.” 25 U. S. C. §§ 1321(a), 1323(b).6 

5 

The Court’s suggestion that Oklahoma enjoys “inherent” 

authority to try crimes against Native Americans within

the Cherokee Reservation makes a mockery of all of Congress’s work from 1834 to 1968. The GCA and MCA? On 

the Court’s account, Congress foolishly extended federal

criminal law to tribal lands on a mistaken assumption that 

only tribal law would otherwise apply. Unknown to anyone

until today, state law applied all along. The treaty, the Oklahoma Enabling Act, and the provision in Oklahoma’s constitution that Congress insisted upon as a condition of 

statehood? The Court effectively ignores them. The Kansas 

Act and its sibling statutes? On the Court’s account, they

were needless too. Congress’s instruction in Public Law 280

that States may not exercise jurisdiction over crimes by or

against tribal members on tribal lands until they amend 

contrary state law and obtain tribal consent? Once more, it 

seems the Court thinks Congress was hopelessly misguided.

Through it all, the Court makes no effort to grapple with

the backdrop rule of tribal sovereignty. The Court proceeds

oblivious to the rule that only a clear act of Congress may

impose constraints on tribal sovereignty. The Court ignores 

the fact that Congress has never come close to subjecting

the Cherokee to state criminal jurisdiction over crimes

against tribal members within the Tribe’s reservation. The 

Court even disregards our precedents recognizing that the 

—————— 6The Court observes that Public Law 280 and related statutes did 

more than just grant States jurisdiction over crimes by non-Indians 

against Indians on tribal lands—“the issue here.” Ante, at 17. Congress 

also granted “States . . . jurisdiction over crimes committed by Indians.” 

Ibid. (emphasis in original). But that observation fails to answer the fact 

that, under the Court’s view, a major portion of all these laws is surplusage—and none of them was necessary if States really enjoyed “inherent” 

criminal jurisdiction on tribal lands from the start. 
 

 

Cite as: 597 U. S. ____ (2022) 25 

GORSUCH, J., dissenting 

“grant of statehood” to Oklahoma did not endow the State

with any power to try “crimes committed by or against Indians” on tribal lands but reserved that authority to the federal government and Tribes alone. Ramsey, 271 U. S., at 

469; see also Tiger, 221 U. S., at 309. From start to finish, 

the Court defies our duty to interpret Congress’s laws and

our own prior work “harmoniously” as “part of an entire corpus juris.” A. Scalia & B. Garner, Reading Law 252 (2012); 

see also Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 

184–185 (1988). 

C 

Putting aside these astonishing errors, Congress’s work

and this Court’s precedents yield three clear principles that 

firmly resolve this case. First, tribal sovereign authority 

excludes the operation of other sovereigns’ criminal laws 

unless and until Congress ordains otherwise. Second, while 

Congress has extended a good deal of federal criminal law 

to tribal lands, in Oklahoma it has authorized the State to 

prosecute crimes by or against Native Americans within

tribal boundaries only if it satisfies certain requirements. 

Under Public Law 280, the State must remove state-law 

barriers to jurisdiction and obtain tribal consent. Third, because Oklahoma has done neither of these things, it lacks 

the authority it seeks to try crimes against tribal members 

within a tribal reservation. Until today, all this settled law

was well appreciated by this Court, the Executive Branch,

and even Oklahoma. 

Consider first our own precedents and those of other 

courts. In 1946 in Williams v. United States, this Court recognized that, while States “may have jurisdiction over offenses committed on th[e] reservation between persons who

are not Indians, the laws and courts of the United States, 

rather than those of [the States], have jurisdiction over offenses committed there . . . by one who is not an Indian

against one who is an Indian.” 327 U. S. 711, 714 (footnote 
 

 

26 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

omitted). In Williams v. Lee, issued in 1959, this Court was 

clear again: “[I]f the crime was by or against an Indian,

tribal jurisdiction or that expressly conferred on other

courts by Congress has remained exclusive.” 358 U. S., at 

220. As early as 1926, this Court made the same point

while speaking directly to Oklahoma. Ramsey, 271 U. S., 

at 469–470. It is a point our cases have continued to make

in recent years.7 It is a point a host of other courts—including state courts issuing decisions contrary to their own interests—have acknowledged too.8 

The Executive Branch has likewise understood the States 

to lack authority to try crimes by or against Indians in Indian country absent congressional authorization. Not only

did the Washington Administration recognize as much. See 

Part I–A, supra. The same view has persisted throughout 

the Nation’s history. In 1940, the Acting Secretary of the

Interior advised Congress that state criminal jurisdiction

extends “only to situations where both the offender and the 

victim” are non-Indians. S. Rep. No. 1523, 76th Cong., 3d 

Sess., 2 (Vol. 2). A few decades later, the Solicitor General 

made a similar representation to this Court. See Brief for 

United States as Amicus Curiae in Arizona v. Flint, O. T. 

—————— 7See, e.g., United States v. Bryant, 579 U. S. 140, 146 (2016); Nevada 

v. Hicks, 533 U. S. 353, 365 (2001); Solem v. Bartlett, 465 U. S. 463, 465, 

n. 2 (1984); Washington v. Confederated Bands and Tribes of Yakima 

Nation, 439 U. S. 463, 470–471 (1979); McClanahan v. Arizona Tax 

Comm’n, 411 U. S. 164, 170–171 (1973). 8See, e.g., State v. Cungtion, 969 N. W. 2d 501, 504–505 (Iowa 2022); 

State v. Sebastian, 243 Conn. 115, 128, and n. 21, 701 A. 2d 13, 22, and 

n. 21 (1997); State v. Larson, 455 N. W. 2d 600, 600–601 (S. D. 1990); 

State v. Flint, 157 Ariz. 227, 228, 756 P. 2d 324, 324–325 (App. 1988); 

State v. Greenwalt, 204 Mont. 196, 204–205, 663 P. 2d 1178, 1182–1183 

(1983); State v. Warner, 71 N. M. 418, 421–422, 379 P. 2d 66, 68–69 

(1963); State v. Kuntz, 66 N. W. 2d 531, 532 (N. D. 1954); State v. Jackson, 218 Minn. 429, 430, 16 N. W. 2d 752, 754–755 (1944); see also United 

States v. Langford, 641 F. 3d 1195, 1199 (CA10 2011); United States v. 

Bruce, 394 F. 3d 1215, 1221 (CA9 2005). 
 

 

Cite as: 597 U. S. ____ (2022) 27 

GORSUCH, J., dissenting 

1988, No. 88–603, p. 3 (Flint Amicus Brief ). In McGirt, the 

federal government once more acknowledged that States

cannot prosecute crimes by or against tribal members

within still-extant tribal reservations. See Brief for United 

States as Amicus Curiae in McGirt v. Oklahoma, O. T. 2019, 

No. 18–9526, p. 38. In this case, the government has espoused the same view yet again. See Brief for United States 

as Amicus Curiae 4; see also Dept. of Justice, Criminal Resource Manual 685 (updated Jan. 22, 2020).9 

In the past, even Oklahoma has more or less conceded the

point. The last time Oklahoma was before us, it asked this 

Court to usurp congressional authority and disestablish the

Creek Reservation because, otherwise, the State “would not 

have jurisdiction over” “crimes committed against Indians”

within its boundaries. See Tr. of Oral Arg. in McGirt v. Oklahoma, No. 18–9526, O. T. 2019, p. 54; see also McGirt, 591 

U. S., at ___–___ (slip op., at 37–38). In 1991, Oklahoma’s 

attorney general formally resolved that major “[c]rimes

committed by or against Indians . . . are under the exclusive 

province of the United States,” while Tribes retain exclusive

jurisdiction over “minor crimes committed by Indians.” 

Haney, 22 Okla. Opp. Atty. Gen. 71, 1991 WL 567868, *3.

And Oklahoma’s own courts have recently taken the same 

position even in the face of vehement opposition from the 

State’s executive branch. See, e.g., Spears, 485 P. 3d, at 

875, 877. 

—————— 9As sometimes happens when the government considers a legal question over centuries, differing views have occasionally popped up. In 1979, 

the Office of Legal Counsel opined—with little analysis—that States

might be able to exercise concurrent criminal jurisdiction on tribal lands,

though it conceded the question was “exceedingly difficult.” 3 Op. OLC

111, 117, 120. This kind of surface-level, hedged analysis is hardly robust evidence. In any event, the Executive Branch reverted to its traditional position in short order. That makes the Court’s repeated reliance 

on this isolated opinion—and its failure to acknowledge the mountain of 

contradictory evidence—especially bewildering. See ante, at 12–16. 
 

 

 

28 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

D 

Against all this evidence, what is the Court’s reply? It 

acknowledges that, at the Nation’s founding, tribal sovereignty precluded States from prosecuting crimes on tribal 

lands by or against tribal members without congressional

authorization. See ante, at 5. But the Court suggests this 

traditional “‘notion’” flipped 180 degrees sometime in “the

latter half of the 1800s.” Ante, at 5, 21. Since then, the 

Court says, Oklahoma has enjoyed the “inherent” power to

try at least crimes by non-Indians against tribal members 

on tribal reservations until and unless Congress preempts

state authority.

But exactly when and how did this change happen? The 

Court never explains. Instead, the Court seeks to cast 

blame for its ruling on a grab bag of decisions issued by our 

predecessors. But the failure of that effort is transparent. 

Start with McBratney, which the Court describes as our 

“leading case in the criminal context.” Ante, at 6. There, as 

we have seen, the Court said that States admitted to the 

Union may gain the right to prosecute cases involving only 

non-Indians on tribal lands, but they do not gain any inherent right to punish “crimes committed by or against Indians” on tribal lands. McBratney, 104 U. S., at 624. The 

Court’s reliance on Draper fares no better, for that case issued a similar disclaimer. See 164 U. S., at 247. Tellingly,

not even Oklahoma thinks McBratney and Draper compel a 

ruling in its favor. See Brief for Petitioner 12. And if anything, the Court’s invocation of Donnelly, 228 U. S. 243, is 

more baffling still. Ante, at 14, n. 3. There, the Court once 

more reaffirmed the rule that “offenses committed by or

against Indians” on tribal lands remain subject to federal,

not state, jurisdiction. Donnelly, 228 U. S., at 271; see also 

Ramsey, 271 U. S., at 469. 

That leaves the Court to assemble a string of carefully

curated snippets—a clause here, a sentence there—from six 
 

Cite as: 597 U. S. ____ (2022) 29 

GORSUCH, J., dissenting 

decisions out of the galaxy of this Court’s Indian law jurisprudence. Ante, at 5–6. But this collection of cases is no 

more at fault for the Court’s decision than the last. Organized Village of Kake v. Egan—which the Court seems to 

think is some magic bullet, see ante, at 5, 14, n. 2, 21, 22– 

24—addressed the prosaic question whether Alaska could 

apply its fishing laws on lands owned by a native Alaska

tribal corporation. 369 U. S. 60, 61–63 (1962); see also n. 5, 

supra. Subsequently, the Court cabined that case to circumstances “dealing with Indians who have left or never 

inhabited reservations set aside for their exclusive use or 

who do not possess the usual accoutrements of tribal selfgovernment.” McClanahan, 411 U. S., at 167–168. Meanwhile, New York ex rel. Cutler v. Dibble allowed New York 

to use civil proceedings to eject non-Indian trespassers on 

Indian lands. 21 How. 366, 369–371 (1859). In Surplus 

Trading Co. v. Cook, the crime at issue did not take place

on tribal lands but on a “supply station of the United

States” sold by Arkansas to the federal government. 281 

U. S. 647, 649 (1930). In New York ex rel. Ray v. Martin, 

this Court merely reaffirmed McBratney and held that 

States could exercise jurisdiction over crimes involving only

non-Indians. 326 U. S. 496, 499–500 (1946). Both County 

of Yakima v. Confederated Tribes and Bands of Yakima Nation and Nevada v. Hicks issued holdings about state civil

jurisdiction, not criminal jurisdiction striking at the heart

of tribal sovereignty. See 502 U. S. 251, 256–258, 270 

(1992); 533 U. S. 353, 361, 363, 374 (2001). 

In the end, the Court cannot fault our predecessors for

today’s decision. The blame belongs only with this Court 

here and now. Standing before us is a mountain of statutes

and precedents making plain that Oklahoma possesses no

authority to prosecute crimes against tribal members on 

tribal reservations until it amends its laws and wins tribal 

consent. This Court may choose to ignore Congress’s statutes and the Nation’s treaties, but it has no power to negate 
 

30 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

them. The Court may choose to disregard our precedents, 

but it does not purport to overrule a single one. As a result, 

today’s decision surely marks an embarrassing new entry 

into the anticanon of Indian law. But its mistakes need 

not—and should not—be repeated. 

III 

Doubtless for some of these reasons, even the Court 

ultimately abandons its suggestion that Oklahoma is

“inherent[ly]” free to prosecute crimes by non-Indians 

against tribal members on a tribal reservation absent a

federal statute “preempt[ing]” its authority. Ante, at 15. In 

the end, the Court admits that tribal sovereignty can 

require the exclusion of state authority even absent a 

preemptive federal statute. Ante, at 18. But then, after 

correcting course, the Court veers off once more. To 

determine whether tribal sovereignty displaces state

authority in a case involving a non-Indian defendant and 

an Indian victim on a reservation in Oklahoma, the Court 

resorts to a “Bracker balancing” test. Ibid. Applying that

test, the Court concludes that Oklahoma’s interests in this 

case outweigh those of the Cherokee. All this, too, is 

mistaken root and branch. 

A 

Begin with the most fundamental problem. The Court 

invokes what it calls the “Bracker balancing” test with no

more appreciation of that decision’s history and context 

than it displays in its initial suggestion that the usual rules

of preemption apply to Tribes. The Court tells us nothing 

about Bracker itself, its reasoning, or its limits. Perhaps

understandably so, for Bracker never purported to claim for

this Court the raw power to “balance” away tribal

sovereignty in favor of state criminal jurisdiction over 

crimes by or against tribal members—let alone ordain a 

wholly different set of jurisdictional rules than Congress 
Cite as: 597 U. S. ____ (2022) 31 

GORSUCH, J., dissenting 

already has. 

Bracker involved a relatively minor civil dispute. Arizona 

sought to tax vehicles used by the White Mountain Apache 

Tribe in logging operations on tribal lands. See Bracker, 

448 U. S., at 138–140. The Tribe opposed the effort,

pointing to a federal law that regulated tribal logging but

did not say anything about preempting the State’s vehicle 

tax. See id., at 141, 145. The Court began by recognizing 

that the usual rules of preemption are not “properly 

applied” to Tribes. Id., at 143. Instead, the Court started 

with the traditional “‘backdrop’” presumption that States

lack jurisdiction in Indian country. Ibid. And the Court 

explained that any ambiguities about the scope of federal

law must be “construed generously” in favor of the Tribes 

as sovereigns. Id., at 143–144. With these rules in mind, 

the Court proceeded to turn back the State’s tax based on a

“particularized inquiry into the nature of the state, federal,

and tribal interests at stake.” Id., at 145. The Court judged

that “traditional notions of [tribal] sovereignty,” the federal 

government’s “policy of promoting tribal self-sufficiency,”

and the rule requiring it to resolve “[a]mbiguities” in favor 

of the Tribe trumped any competing state interest. Id., at 

143–144, 151. 

Nothing in any of this gets the Court close to where it

wishes to go. If Arizona had to proceed against the

traditional “backdrop” rule excluding state jurisdiction,

Oklahoma must. And if Arizona could not overcome that 

backdrop rule because it could not point to clear federal

statutory language authorizing its comparatively minor

civil tax, it is unfathomable how Oklahoma might overcome 

that rule here. The State has pointed—and can point—to

nothing in Congress’s work granting it the power to try

crimes against tribal members on a tribal reservation. In 

Bracker, the Court found it instructive that Congress had 

“comprehensive[ly]” regulated “the harvesting of Indian

timber,” even if it had not spoken directly to the question of 
 

 

32 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

vehicle taxes. Id., at 145–146, 148. Here, Congress has not 

only pervasively regulated criminal jurisdiction in Indian 

country, it has spoken to the very situation we face: States 

like Oklahoma may exercise jurisdiction over crimes within 

tribal boundaries by or against tribal members only with

tribal consent. 

The simple truth is Bracker supplies zero authority for 

this Court’s course today. If Congress has not always “been 

specific about the allocation of civil jurisdiction in Indian

country,” the same can hardly be said about the allocation 

of criminal authority. Cohen 527. Congress “has provided

a nearly comprehensive set of statutes allocating criminal

jurisdiction.” Ibid. In doing so, Congress has already

“balanced” competing tribal, state, and federal interests—

and its balance demands tribal consent. Exactly nothing in 

Bracker permits us to ignore Congress’s directive. 

B 

Plainly, the Court’s balancing-test game is not one we 

should be playing in this case. But what if we did? Suppose 

this Court could (somehow) ignore Congress’s decision to 

allow States like Oklahoma to exercise criminal jurisdiction

in cases like ours only with tribal consent. Suppose we

could (somehow) replace that rule with one of our own 

creation. Even proceeding on that stunning premise, it is

far from obvious how the Court arrives at its preferred

result. 

In reweighing competing state and tribal interests for 

itself, the Court stresses two points. First, the Court 

suggests that its balance is designed to “help” Native 

Americans. Ante, at 20 (suggesting that Indians would be

“second-class citizens” without this Court’s intervention);

Tr. of Oral Arg. 66 (suggesting state jurisdiction is designed 

to “help” tribal members). Second, the Court says state 

jurisdiction is needed on the Cherokee Reservation today 

because “in the wake of McGirt” some defendants “have 
 

Cite as: 597 U. S. ____ (2022) 33 

GORSUCH, J., dissenting 

simply gone free.” Ante, at 3–4. On both counts, however, 

the Court conspicuously loads the dice. 

1 

Start with the assertion that allowing state prosecutions 

in cases like ours will “help” Indians. The old paternalist 

overtones are hard to ignore. Yes, under the laws Congress

has ordained Oklahoma may acquire jurisdiction over 

crimes by or against tribal members only with tribal 

consent. But to date, the Cherokee have misguidedly

shown no interest in state jursidiction. Thanks to their 

misjudgment, they have rendered themselves “second-class

citizens.” Ante, at 20. So, the argument goes, five unelected 

judges in Washington must now make the “right” choice for

the Tribe. To state the Court’s staggering argument should 

be enough to refute it.

Nor does the Court even pause to consider some of the

reasons why the Cherokee might not be so eager to invite

state prosecutions in cases like ours. Maybe the Cherokee 

have so far withheld their consent because, throughout the

Nation’s history, state governments have sometimes proven 

less than reliable sources of justice for Indian victims. As 

early as 1795, George Washington observed that “a Jury on 

the frontiers” considering a crime by a non-Indian against 

an Indian could “hardly be got to listen to a charge, much 

less to convict a culprit.” Letter to E. Pendleton (Jan. 22),

in 17 Papers of George Washington: Presidential Series 

424, 426 (D. Hoth & C. Ebel eds. 2013). Undoubtedly, too,

Georgia once proved among the Cherokee’s “deadliest

enemies.” Kagama, 118 U. S., at 384. 

Maybe the Cherokee also have in mind experiences

particular to Oklahoma. Following statehood, settlers

embarked on elaborate schemes to deprive Indians of their 

lands, rents, and mineral rights. “Many young allottees 

were virtually kidnaped just before they reached their

majority”; some were “induced to sign deeds at midnight on 
 

 

 

 

 

34 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

the morning they became of age.” Debo 197–198. Others 

were subjected to predatory guardianships; state judges 

even “reward[ed] their supporters [with] guardianship

appointments.” Id., at 183. Oklahoma’s courts also 

sometimes sanctioned the “legalized robbery” of these 

Native American children “through the probate courts.” 

Id., at 182. Even almost a century on, the federal

government warned of “the possibility of prejudice [against 

Native Americans] in state courts.” Flint Amicus Brief 5. 

Whatever may have happened in the past, it seems the

Court can imagine only a bright new day ahead. Moving

forward, the Court cheerily promises, more prosecuting 

authorities can only “help.” Three sets of prosecutors—

federal, tribal, and state—are sure to prove better than two.

But again it’s not hard to imagine reasons why the 

Cherokee might see things differently. If more sets of 

prosecutors are always better, why not allow Texas to

enforce its laws in California? Few sovereigns or their

citizens would see that as an improvement. Yet it seems 

the Court cannot grasp why the Tribe may not.

The Court also neglects to consider actual experience

with concurrent state jurisdiction on tribal lands. 

According to a group of former United States Attorneys, in

practice concurrent jurisdiction has sometimes “create[d] a

pass-the-buck dynamic . . . with the end result being fewer 

police and more crime.” Brief for Former United States 

Attorneys et al. as Amici Curiae 13; see also C. Goldberg,

Public Law 280: The Limits of State Jurisdiction Over 

Reservation Indians, 22 UCLA L. Rev. 535, 552, and n. 92 

(1975); Goldberg-Ambrose 1423. Federal authorities may 

reduce their involvement when state authorities are 

present. In turn, some States may not wish to devote the

resources required and may view the responsibility as an 

unfunded federal mandate. Thanks to realities like these, 

“[a]lmost as soon as Congress began granting States 

[criminal] jurisdiction” through Public Law 280, “affected 
Cite as: 597 U. S. ____ (2022) 35 

GORSUCH, J., dissenting 

Tribal Nations began seeking retrocession and repeal.” 

Brief for National Indigenous Women’s Resource Center et 

al. as Amici Curiae 12. Recently, a bipartisan congressional

commission agreed that more state criminal jurisdiction in 

Indian country is often not a good policy choice. See Indian 

Law and Order Commission, A Roadmap for Making Native

America Safer: Report to the President and Congress of the

United States xi, xiv, 11–15 (Nov. 2013). Still, none of this 

finds its way into the Court’s cost-benefit analysis. 

2 

Instead, the Court marches on. The second “factor” it 

weighs in its “balance”—and the only history it seems 

interested in consulting—concerns Oklahoma’s account of 

its experiences in the last two years since McGirt. Adopting

the State’s representations wholesale, the Court says that 

decision has posed Oklahoma with law-and-order 

“challenge[s].” Ante, at 4. To support its thesis, the Court

cites the State’s unsubstantiated “estimat[e]” that McGirt 

has forced it to “transfer prosecutorial responsibility for 

more than 18,000 cases per year to” federal and tribal

authorities. Ibid. Apparently on the belief that the transfer 

of cases from state to federal prosecutors equates to an

eruption of chaos and criminality, the Court remarks 

casually that traditional limitations on state prosecutorial 

authority on tribal lands were “insignificant in the real

world” before McGirt. Ante, at 16. 

But what does this prove? Put aside for the moment 

questions about the accuracy of Oklahoma’s statistics and

what the number of cases transferred from state to federal 

prosecutors may or may not mean for law and order. See 

Tr. of Oral Arg. 26 (questioning whether the State’s 

“figures” might be “grossly exaggerated”). Taking the

Court’s account at face value, it might amount to a reason

for Oklahoma to lobby the Cherokee to consent to state 

jurisdiction. It might be a reason for the State to petition 
 

36 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

Congress to revise criminal jurisdictional arrangements in

the State even without tribal consent. But it is no act of 

statutory or constitutional interpretation. It is a policy 

argument through and through.

Nor is the Court’s policy argument exactly complete in its 

assessment of the costs and benefits. When this Court 

issued McGirt, it expressly acknowledged that cases 

involving crimes by or against tribal members within 

reservation boundaries would have to be transferred from 

state to tribal or federal authorities. 591 U. S., at ___–___ 

(slip op., at 36–42). This Court anticipated, too, that this

process would require a period of readjustment. But, the 

Court recognized, all this was necessary only because 

Oklahoma had long overreached its authority on tribal 

reservations and defied legally binding congressional 

promises. See ibid. 

Notably, too, neither the tribal nor the federal authorities

on the receiving end of this new workload think the “costs”

of this period of readjustment begin to justify the Court’s 

course. For their part, Tribes in Oklahoma have hired more 

police officers, prosecutors, and judges. See Cherokee Brief 

10–11. Based on that investment, Oklahoma’s Tribes have 

begun to prosecute substantially more cases than they once

did. See id., at 12–13. And they have also shown a 

willingness to work with Oklahoma, having signed

hundreds of cross-deputization agreements allowing local

law enforcement to collaborate with tribal police. Id., at 15– 

16, and n. 39. Even Oklahoma’s amici concede these 

agreements have proved “an important tool” for law 

enforcement. Brief for Oklahoma District Attorneys 

Association et al. as Amici Curiae 14. 

Both of the federal government’s elected branches have

also responded, if not in the way this Court happens to

prefer. Instead of forcing state criminal jurisdiction onto 

Tribes, Congress has chosen to allocate additional funds for

law enforcement in Oklahoma. See, e.g., Consolidated 
 

Cite as: 597 U. S. ____ (2022) 37 

GORSUCH, J., dissenting 

Appropriations Act, H. R. 2471, 117th Cong., 2d Sess., 78

(2022). Meanwhile, the Solicitor General has offered the 

Executive Branch’s judgment that McGirt’s “practical

consequences” do not justify this Court’s intervention, 

explaining that the Department of Justice is “working

diligently with tribal and State partners” in Oklahoma. See 

Brief for United States as Amicus Curiae 32. 

There is even more evidence cutting against the Court’s

dystopian tale. According to a recent United States

Attorney in Oklahoma, “the sky isn’t falling” and 

“partnerships between tribal law enforcement and state

law enforcement” are strong. A. Herrera, Trent Shores 

Reflects on His Time as U. S. Attorney, Remains 

Committed to Justice for Indian Country, KOSU-NPR (Feb. 

24, 2021), www.kosu.org/politics/2021-02-24/trent-shoresreflects-on-his-time-as-u-s-attorney-remains-committed-tojustice-for-indian-country. A Federal Bureau of 

Investigation special agent in charge of Oklahoma has 

stated that violent crimes “‘are being pursued as heavily as

they were in the past, and in some cases, maybe even

stronger.’” A. Brothers, Oklahoma Special Agent Says FBI 

Faces Challenges in 3 Categories, News on 6 (Feb. 14,

2022), https://www.newson6.com/story/620b261bf8cd4a07e

5cb845b/oklahoma-special-agent-says-fbi-faces-challengesin-3-categories. And the Tribes—those most affected by all 

this supposed lawlessness within their reservations—tell

us that, after a period of adjustment, federal prosecutors

are now pursuing lower level offenses vigorously too. See 

Brief for Muscogee (Creek) Nation as Amicus Curiae on Pet. 

for Cert. 11–12, and nn. 21–22 (collecting indictments). The 

federal government has made a similar representation to

this Court. Tr. of Oral Arg. 118. Nor is it any secret that 

those convicted of federal crimes generally receive longer 

sentences than individuals convicted of similar state 

offenses. See, e.g., Bureau of Justice Statistics, Felony

Sentences in State Courts, 2006—Statistical Tables 9 
 

38 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

(2009) (Table 1.6).

In recounting all this, I do not profess certainty about the

optimal law enforcement arrangements in Oklahoma. I do 

not pretend to know all the relevant facts, let alone how to 

balance each of them in this complex picture. Nor do I claim 

to know what weight to give historical wrongs or future 

hopes. I offer the preceding observations only to illustrate 

the one thing I am sure of: This Court has no business 

usurping congressional decisions about the appropriate

balance between federal, tribal, and state interests. If the 

Court’s ruling today sounds like a legislative committee 

report touting the benefits of some newly proposed bill, 

that’s because it is exactly that. And given that a ninemember court is a poor substitute for the people’s elected 

representatives, it is no surprise that the Court’s costbenefit analysis is radically incomplete. The Court’s 

decision is not a judicial interpretation of the law’s

meaning; it is the pastiche of a legislative process. 

C 

As unsound as the Court’s decision is, it would be a 

mistake to overlook its limits. In the end, the Court admits 

that tribal sovereignty can displace state authority even

without a preemptive statute. See Part III–A, supra. To be 

sure, the Court proceeds to disparage a federal statute 

requiring Oklahoma to obtain tribal consent before trying

any crime involving an Indian victim within the Cherokee

Reservation. But look at what the Court leaves unresolved. 

The Court does not pass on Public Law 280’s provision that

States “shall not” be entitled to assume jurisdiction on

tribal lands until they “appropriately amen[d]” state laws 

disclaiming authority over tribal reservations. 25 U. S. C. 

§ 1324. The Court gestures toward the Cherokee’s treaties 

and the Oklahoma Enabling Act, but ultimately abandons 

any argument that those treaties were lawfully abrogated 

or that the Oklahoma Enabling Act endowed Oklahoma 
 

 

Cite as: 597 U. S. ____ (2022) 39 

GORSUCH, J., dissenting 

with inherent authority to try cases involving Native 

Americans within tribal bounds. See ante, at 18. Nor does 

the Court address the relevant text of those treaties or the 

Enabling Act—let alone come to terms with our precedents

holding that Oklahoma’s “grant of statehood” did not 

include the power to try “crimes committed by or against

Indians” on tribal lands. Ramsey, 271 U. S., at 469; see also 

Tiger, 221 U. S., at 309. Nothing in today’s decision could 

or does begin to preclude the Cherokee or other Tribes from 

pressing arguments along any of these lines in future cases. 

The unamended Oklahoma Constitution and other state 

statutes and judicial decisions may stand as independent 

barriers to the assumption of state jurisdiction as a matter

of state law too. 

The Court’s decision is limited in still other important 

ways. Most significantly, the Court leaves undisturbed the

ancient rule that States cannot prosecute crimes by Native 

Americans on tribal lands without clear congressional

authorization—for that would touch the heart of “tribal 

self-government.” Ante, at 17. At least that rule (and

maybe others) can never be balanced away. Indeed, the 

Court’s ruling today rests in significant part on the fact that

Tribes currently lack criminal jurisdiction over non-Indians 

who commit crimes on tribal lands—a factor that obviously

does not apply to cases involving Native American 

defendants. Ante, at 19. 

Additionally, nothing in the “Bracker balancing” test the

Court employs foreordains today’s grim result for different

Tribes in different States. Bracker instructs courts to focus 

on the “specific context” at issue, taking cognizance of the 

particular circumstances of the Tribe in question, including

all relevant treaties and statutes. 448 U. S., at 145. Nor 

are Tribes and their treaties “fungible.” S. Prakash, 

Against Tribal Fungibility, 89 Cornell L. Rev. 1069, 1071–

1072 (2004). There are nearly 600 federally recognized 

Indian Tribes across the country. See Anderson 3. Some of 
 

 

 

40 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

their treaties appear to promise tribal freedom from state

criminal jurisdiction in express terms. See, e.g., Treaty

with the Navajo, Art. I, June 1868, 15 Stat. 667 

(guaranteeing that those who commit crimes against tribal 

members will be “arrested and punished according to the

laws of the United States”). Any analysis true to Bracker 

must take cognizance of all of this. Any such analysis must

recognize, too, that the standards of preemption applicable 

“in other areas of the law” are “unhelpful” when it comes to 

Tribes. Bracker, 448 U. S., at 143. Instead, courts must 

proceed against the “‘backdrop’” of tribal sovereignty, ibid., 

with an “assumption that the States have no power to

regulate the affairs of Indians on a reservation” or other 

tribal lands, Williams, 358 U. S., at 219–220. To overcome 

that backdrop assumption, a clear congressional statement 

is required and any ambiguities must be “construed 

generously” in favor of the Tribes. Bracker, 448 U. S., at 

143–144; see also Cotton Petroleum, 490 U. S., at 177–178. 

The Court today may ignore a clear jurisdictional rule 

prescribed by statute and choose to apply its own balancing 

test instead. The Court may misapply that balancing test 

in an effort to address one State’s professed “law and order” 

concerns. In the process, the Court may even risk

unsettling longstanding and clear jurisdictional rules

nationwide. But in the end, any faithful application of 

Bracker to other Tribes in other States should only confirm 

the soundness of the traditional rule that state authorities 

may not try crimes like this one absent congressional

authorization.10 

—————— 10 In a final drive-by flourish, the Court asserts that its “jurisdictional

holding[s]” today apply “throughout the United States.” For emphasis,

the Court repeats the point in a footnote. Ante, at 24, n. 8, 25. But not 

only does the Court acknowledge that Congress may preempt state jurisdiction over crimes like this one. See ante, at 6. The truth is, in this case 

involving one Tribe in one State the Court does not purport to evaluate 
 

 

Cite as: 597 U. S. ____ (2022) 41 

GORSUCH, J., dissenting 

Nor must Congress stand by as this Court sows needless

confusion across the country. Even the Court acknowledges

that Congress can undo its decision and preempt state authority at any time. Ante, at 6. And Congress could do exactly that with a simple amendment to Public Law 280. It 

might say: A State lacks criminal jurisdiction over crimes 

by or against Indians in Indian Country, unless the State 

complies with the procedures to obtain tribal consent outlined in 25 U. S. C. § 1321, and, where necessary, amends 

its constitution or statutes pursuant to 25 U. S. C. § 1324.

Of course, that reminder of the obvious should hardly be 

necessary. But thanks to this Court’s egregious misappropriation of legislative authority, “the ball is back in Congress’ court.” Ledbetter v. Goodyear Tire & Rubber Co., 550 

U. S. 618, 661 (2007) (Ginsburg, J., dissenting). 

* 

In the 1830s, this Court struggled to keep our Nation’s

promises to the Cherokee. Justice Story celebrated the 

—————— 

the (many) treaties, federal statutes, precedents, and state laws that 

may preclude state jurisdiction on specific tribal lands around the country. Nor are we legislators entitled to pass new laws of general applicability, but a court charged with resolving cases and controversies involving particular parties who are entitled to make their own arguments in

their own cases. The very precedent the Court invokes as authority to

reach its decision today recognizes as much—and demands future courts

conduct any analysis sensitive to the “specific context” of each Tribe, its 

treaties, and relevant laws. Bracker, 448 U. S., at 145. For that matter, 

even when it comes to the Cherokee the Court leaves much unanswered. 

The Court does not confront the relevant text of the Cherokee’s treaties, 

the Oklahoma Enabling Act, or the relevant portions of our precedents 

interpreting both. And the Court does not mention the terms of Public 

Law 280 that require Oklahoma to amend its laws before asserting jurisdiction. Even more than all that, the Court ultimately retreats from 

its claim that statehood confers an “inherent” right to prosecute crimes 

by non-Indians against tribal members on tribal lands. It rests instead 

on a “balancing test” that makes anything it does say about the “inherent” right of States to try cases within Indian country dicta through and 

through. 
 

 

42 OKLAHOMA v. CASTRO-HUERTA 

GORSUCH, J., dissenting 

decision in Worcester: “‘[T]hanks be to God, the Court can 

wash [its] hands clean of the iniquity of oppressing the

Indians and disregarding their rights.’” Breyer 420. “‘The 

Court had done its duty,’” even if Georgia refused to do its 

own. Ibid. Today, the tables turn. Oklahoma’s courts 

exercised the fortitude to stand athwart their own State’s 

lawless disregard of the Cherokee’s sovereignty. Now, at 

the bidding of Oklahoma’s executive branch, this Court 

unravels those lower-court decisions, defies Congress’s

statutes requiring tribal consent, offers its own consent in 

place of the Tribe’s, and allows Oklahoma to intrude on a 

feature of tribal sovereignty recognized since the founding.

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.