OKLAHOMA, Petitioner, v. VICTOR MANUEL CASTRO-HUERTA, Respondent
Interviewer(s): Clarence Thomas, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Amy Coney Barrett, Sonia Sotomayor
Interviewee(s): Kannon K. Shanmugam, Zachary C. Schauf, Edwin S. Kneedler

John G. Roberts, Jr.: We will hear argument this morning in Case 21-429, Oklahoma versus Castro-Huerta. Mr. Shanmugam.

Kannon K. Shanmugam: Thank you, Mr. Chief Justice, and may it please the Court: This case presents a question that has taken on exceptional practical importance in the wake of McGirt.

The question is whether a state has authority to prosecute non-Indians who commit crimes in Indian country, regardless of whether the victim is a non-Indian or an Indian. The answer to that question is yes. The state has inherent sovereign authority to punish crimes committed within its borders, and no federal law preempts that authority as to crimes committed by non-Indians. Respondent relies on two statutes, the General Crimes Act and Public Law 280.

But neither of those statutes says anything about preemption.

As this Court has explained, the General Crimes Act merely incorporates the substantive criminal law that applies in federal enclaves.

It does not go further and address state jurisdiction. And as this Court has also explained, Public Law 280 simply expanded the criminal and civil jurisdiction of qualifying states.

It did not somehow divest all states of preexisting jurisdiction.

The mere fact that some members of Congress may have believed that the states would otherwise have lacked jurisdiction over certain crimes does not give the law preemptive effect. Because this case does not implicate a tribe's right to govern itself and to punish tribal offenders, the Court need not resort to the more flexible balancing approach that it has used elsewhere.

But, here, any balancing weighs heavily in the state's favor.

The state has a paramount interest in ensuring public safety. And concurrent state and federal jurisdiction would only enhance law enforcement in Indian country, especially because the tribes ordinarily lack jurisdiction over non-Indian offenders. The federal government now takes the position that it should have exclusive jurisdiction.

But that position is simply mind-boggling in light of the situation in Oklahoma, where, by the government's own admission, whole categories of crimes are going unprosecuted in the aftermath of McGirt. Because no federal law preempts a state's authority to prosecute crimes committed by non-Indians, the judgment below should be reversed. I welcome the Court's questions.

Clarence Thomas: Counsel, the -- these reservations have been around a long time, and why is it now that -- why, after so many years, that we are getting the first case involving jurisdiction over non-Indians committing crimes against Indians?

Kannon K. Shanmugam: Justice Thomas, only in 2020 did 43 percent of the State of Oklahoma become Indian country.

Before that, there was comparatively little Indian country in the State of Oklahoma, and so this was, frankly, not an issue in Oklahoma and not an issue that arose all that frequently in the rest of the country either. That having been said, to be sure, there are reported cases, mostly from state courts, in which the issue arose at various points over the years.

And notwithstanding this Court's dicta, this has been an open question. Indeed, as recently as the 1980s, the Justice Department took the contrary position on this question. Certainly, as I said at the outset, this issue has taken on acute importance in light of the situation on the ground in Oklahoma.

There are now essentially three times as many people living in Indian country in the United States as a result of this Court's decision in McGirt.

There are now 1.8 million more people living in Indian country.

And our best estimate is that of the cases affected by McGirt, approximately 20 percent of those cases involve this permutation, namely, crimes committed by non-Indians against Indians.

Clarence Thomas: Is there a problem -- and this is just a practical -- a question about practice and practical considerations.

How do you determine whether or not a victim is an Indian? This case involves a little girl with cerebral palsy.

And is there a preliminary jurisdictional question as to whether or not the victim is -- is or is not an Indian?

Kannon K. Shanmugam: There's no dispute about that here, Justice Thomas, but it's not easy.

And I think that one virtue of our position is that it would certainly greatly simplify things for law enforcement because, at least for state law enforcement, the status of the victim would not be the relevant inquiry. The only inquiry would be the status of the offender. But I don't mean to suggest that that's an easy determination.

The City of Tulsa has issued a nine-page checklist for its police officers for the officers to make the jurisdictional determination.

And the question of how to determine who is an Indian for purposes of these jurisdictional rules is itself unsettled.

In fact, it's the subject of a currently pending cert petition by my client, the State of Oklahoma. Courts have looked to factors such as enrollment status, blood quantum, and the like. The Oklahoma courts have applied a totality of circumstances test. And so, certainly, one virtue of our rule is that for state law enforcement, states would have jurisdiction over non-Indian offenders regardless of the status of the victim.

And I would submit that that's consistent with the broader framework that this Court has used for preemption purposes. This Court time and again in this area has defined the tribal interest as the interest in self-governance, an interest that, as I indicated in my opening, incorporates an interest in punishing tribal offenders.

I would refer this Court to its decision in Nevada versus Hicks, among others. And so, under our approach, when that tribal interest is not implicated, the preemption inquiry is much like any other preemption inquiry.

The question is whether, in this Court's words, there is a Congressional prohibition that would limit what is otherwise the state's conceded authority. When one talks about a state's police power, the ability to enforce the state's criminal laws is obviously at the core of that power.

Sonia Sotomayor: Counsel, the core of the power of prosecution at its base is the protection of people, of citizens.

And so Indian tribes have an inherent right to protect members of their tribes and of their community. The state doesn't have the same right. But putting that aside, we keep talking about preemption.

But the thing that has bothered me as I read your brief is you're suggesting something much broader than whether this statute preempts state law. You're suggesting that the federal government doesn't have the power to preempt state law at all.

In your reply brief, you say there's no dispute "that a state has sovereign authority to prosecute crimes throughout its territory unless federal law validly preempts that authority." And, thus, the only question to decide here is whether any federal statute or treaty has such preemptive effect. But your argument doesn't rest on whether there's preemption.

You're saying the equal footing doctrine bars the government from preemption. Is that the position you're taking?

Kannon K. Shanmugam: That is not --

Sonia Sotomayor: And --

Kannon K. Shanmugam: -- our position, Justice.

Sonia Sotomayor: -- and so, if it is not your position and for 200 years we've had, you call it dicta, but a lot of dicta, saying that the General Crimes Act is preempt -- is a preemption of state law, what would justify the federal government -- what do you want, words that say state law is preempted?

Kannon K. Shanmugam: So I think that the --

Sonia Sotomayor: State prosecution is preempted, only federal prosecution is permitted in Indian territory?

Kannon K. Shanmugam: So we are not taking the position that the federal government would lack the ability to preempt, with one caveat, and let me address that and then I will address the other component of your question, which is the relevance of the fact that the Indian is a victim. I think, to be clear about our position here, we recognize that the federal government has quite broad authority to preempt. Our submission to this Court is simply that the federal government did not do so either in the General Crimes Act or in Public Law 280. And the core of our position is that there is simply nothing in the language of either of those statutes that divests the states of jurisdiction. But, to address your point directly, Justice Sotomayor, the only limit on the federal government's ability to preempt is any limit that might exist at the outer bounds on the federal government's exercise of its enumerated powers in this area. And I think that there may come a point, for instance, on the facts presented in McBratney, if -- if the federal government, say, passed a law that preempted state authority over, you know, non-Indian-on-non-Indian crime, maybe there comes a point at which you start to wonder what the source of enumerated authority is.

Neil Gorsuch: Counsel --

Kannon K. Shanmugam: But this case does not present that question.

Neil Gorsuch: -- so, counsel, you -- you start with the premise, as I -- as I understand it, that there's inherent state sovereignty over tribal lands within Oklahoma, right?

Kannon K. Shanmugam: Yes, that's correct.

Neil Gorsuch: Okay.

But then you say, I think, that there is no authority for the state to prosecute in cases involving Indian defendants.

Is that right?

Kannon K. Shanmugam: So our position --

Neil Gorsuch: Do you concede that or not, or -- or is that part of the state's inherent authority too?

Kannon K. Shanmugam: We would concede that with regard to the Major Crimes Act, relying on this Court's decisions in John and Negonsott, which have --

Neil Gorsuch: Sure.

Put aside the Major Crimes Act.

I'm talking about under the GCA, is there preemption, or does Oklahoma now take the extraordinary view -- it didn't in its briefs as I understood it -- that it has inherent sovereign authority even over crimes by Indian defendants within its territory?

Kannon K. Shanmugam: We didn't take a position on that in our briefs, but I would grant you that I think that that would be a much more challenging argument for preemption --

Neil Gorsuch: Why?

Kannon K. Shanmugam: -- for the simple reason --

Neil Gorsuch: Why?

Kannon K. Shanmugam: -- that --

Neil Gorsuch: Because the statute doesn't contain any language about -- no magic words about that either.

So you either have to think that the statute does some implicit work there or, what, resort to some sort of Bracker balancing test? Is that -- is that what you would do?

Kannon K. Shanmugam: I think it's more likely under this Court's precedents to be the latter than the former.

Neil Gorsuch: Okay.

All right. Let's take that.

Kannon K. Shanmugam: So we would take the position --

Neil Gorsuch: Well, no, let's -- let's take that.

No, I want to -- I want to pursue this.

Thank you.

That's helpful. So you admit that the statute is silent with respect to both crimes against Indian victims and by Indian defendants, and you'd have us go to a Bracker balancing test, and you'd say it would be resolved in favor of the tribes when it comes to Indian defendants but not Indian victims. Is that a fair summary?

Kannon K. Shanmugam: The way under this Court's precedents that I think the analysis would work is that once you have an Indian defendant, that obviously does implicate the right to self-governance, the right to punish tribal offenders.

Neil Gorsuch: So it balances --

Kannon K. Shanmugam: But I think this Court --

Neil Gorsuch: -- differently -- it balances differently.

Is that fair to say?

Kannon K. Shanmugam: Correct.

Neil Gorsuch: Okay.

Then -- then --

Kannon K. Shanmugam: The tribal interests would be --

Neil Gorsuch: I got it.

Kannon K. Shanmugam: -- stronger in that context.

Neil Gorsuch: I got it.

Here's my question why, all right? First of all, we've never applied a Bracker balancing test to criminal law so far as I'm aware, so you're asking us to do something new there inconsistent with our precedents so far, right?

Kannon K. Shanmugam: I -- I think that -- the cases on which we rely have applied it in the civil context.

Neil Gorsuch: Okay.

Kannon K. Shanmugam: But they've never drawn a distinction --

Neil Gorsuch: I'll take that as a yes.

All right.

Then who bears the burden of proof in that balancing test?

Kannon K. Shanmugam: Well, I think that the way it would work is the way that it always works on questions of preemption, which is to say it's a matter of law, and I think that the party seeking preemption would make the arguments --

Neil Gorsuch: So the tribes have -- have the burden here, okay.

Kannon K. Shanmugam: Well, the --

Neil Gorsuch: All right.

When we're considering --

Kannon K. Shanmugam: -- the party seeking preemption, Justice Gorsuch --

Neil Gorsuch: Okay.

Kannon K. Shanmugam: -- I think, would -- would -- would bear the burden --

Neil Gorsuch: It's never going to be -- it's not going to be the state.

We can agree on that?

Kannon K. Shanmugam: Well, it -- that's correct.

That is to say that --

Neil Gorsuch: All right.

So it's going to be the tribes, all right, fine. Then -- then I would ask you, why would we not take into account in that balancing test you'd have us do the identity of the victim as going to tribal sovereignty given the history in this country of states abusing Indian victims in their courts? George Washington wrote letters about this at the outset of the -- the nation's history.

In the 1920s, Oklahoma systematically used its state courts to deprive Indians of their -- their property when oil was discovered on their lands.

There's a long history of this. Congress has provided as well a mechanism for tribes who wish to opt in to state concurrent jurisdiction in Public Law 280, so that's available.

We know that.

They've chosen not to.

Should that be something we consider? And then, finally, two more things. We have the treaties, okay, which have been in existence and promising this tribe since before the Trail of Tears that they would not be subject to state jurisdiction precisely because the states were known to be their enemies.

Does that count in -- in your balancing -- your new Bracker balancing test which we've never heretofore applied in criminal law? And then, finally, you say we have to worry about blood quantum when it comes to victims.

Well, wouldn't that also be true when we have to deal with defendants? It's apparently not a worry there.

I don't know why it would be a worry here. So there's a lot for you to chew on.

Kannon K. Shanmugam: I think there were four things in your question, Justice Gorsuch, and I'll do my best --

Neil Gorsuch: At least.

Kannon K. Shanmugam: Let me start with those four, and feel free to add others. First, the tribal interest here.

I think that this Court consistently has defined the tribal interest as the interest in punishing tribal offenders.

When engaging in balancing, the Court has not defined that interest more broadly as an interest in protecting victims. That having been said, obviously, we acknowledge --

Neil Gorsuch: The treaties are irrelevant then?

Kannon K. Shanmugam: Well, I -- I was going to --

Neil Gorsuch: Our history is irrelevant? Oklahoma's history is irrelevant?

Kannon K. Shanmugam: I was going to come to the treaties, but let me say one last thing about the interest, which is that, of course, the tribes have an interest in protecting their members from criminal offenses.

The State of Oklahoma likewise has an interest in protecting all of its citizens, including its tribal citizens, who in Oklahoma have been citizens of the state longer than anywhere else in the nation. But this Court has never recognized that that is sufficient, for instance, to justify tribal jurisdiction, or else Oliphant and Duro, the decisions that hold that tribes ordinarily lack jurisdiction over offenses committed by non-members, would have come out the other way. Now you also mentioned Public Law 280 and the treaties, and I want to come to both of those because those are potential affirmative sources for preemption.

And just to be clear so that we're talking about the same framework, I think the way that the Court would consider offenses committed by Indians is under some sort of balancing framework or some sort of framework that looked at whether the state law interfered with the tribal right to self-governance. Here, because that interest is not implicated, we think that the Court should use a familiar approach to preemption because you're talking about --

Neil Gorsuch: You say it's not --

Kannon K. Shanmugam: -- competing state and federal interests.

Neil Gorsuch: -- you -- you blithely say it's not implicated, and it's easy to say, but you have 200 years of history suggesting otherwise and you have tribes before us saying otherwise and you have former U.S. attorneys saying otherwise. What do we do about that?

Kannon K. Shanmugam: Well, I can't speak to why the tribes have taken the position that they have in this Court.

Neil Gorsuch: Counsel, it's easy enough to say that standing at the podium in Washington, D.C., but the history and the reality is -- should stare us all in the face. There's a reason why they've resisted jurisdiction over crimes against Indian victims. It's not -- it's not just a matter of being contumacious, is it?

Kannon K. Shanmugam: No.

Of course, I'm not saying that they're being contumacious.

But I would say, having spent some time in Oklahoma, that the law enforcement issues are very real. And as recently as earlier this week, you had the principal FBI agent in Oklahoma conceding that there are whole categories of crimes, by our estimation, thousands of crimes, that are going unprosecuted because the federal government, which has sole jurisdiction over this category of cases, simply has been unable to prosecute them.

Stephen G. Breyer: Don't they have --

Kannon K. Shanmugam: So if we're talking --

Stephen G. Breyer: -- representatives in Congress? I mean, if there is crime, particularly, in Oklahoma, can't they ask Congress to provide extra prosecutorial and judicial resources?

Kannon K. Shanmugam: Well --

Stephen G. Breyer: They can have, obviously.

Kannon K. Shanmugam: -- but, Justice --

Stephen G. Breyer: So my real question is this: The -- you talk a lot about Oklahoma, and I can understand the problem in Oklahoma because of our previous case, et cetera.

But aren't there 49 other states? And my impression is that, in general, in the entire country, the general assumption has been -- and they've acted this way for years, decades -- that states cannot prosecute the specific -- you know, the particular crimes, and they don't prosecute the particular crimes when they take place in Indian country.

They're prosecuted in federal court. Now am I right or wrong? I'm not an expert, and you are more of one.

So am I right or wrong about that?

Kannon K. Shanmugam: So states have made efforts from time to time, I'm not going to overstate it, to bring prosecutions of this permutation.

Stephen G. Breyer: I didn't say that.

I said the general assumption throughout the United States of America has been that the states cannot prosecute these crimes but rather -- I won't say there aren't exceptions -- but rather in federal court.

Kannon K. Shanmugam: I think I would quibble slightly, Justice Breyer --

Stephen G. Breyer: Yeah.

Kannon K. Shanmugam: -- and say that I don't know that it was a general assumption.

I think that this has been an open question.

The Justice Department for many years --

Stephen G. Breyer: But how many --

Kannon K. Shanmugam: -- taken the contrary position --

Stephen G. Breyer: -- if you had to guess? I don't know if you looked it up.

Kannon K. Shanmugam: Well --

Stephen G. Breyer: But, if you had to guess, what percentage of crimes committed on Indian reservations that we're talking about here are prosecuted in state court, the crimes that are listed? Which -- what percentage of all those? Would you guess it's more like 1 percent or more like 50 percent?

Kannon K. Shanmugam: I'm guessing that it has historically been a relatively low percentage, but that --

Stephen G. Breyer: Okay.

Okay.

That's all I wanted to know.

Kannon K. Shanmugam: -- is in large part because the denominator is not that large --

Stephen G. Breyer: Yeah, okay.

Kannon K. Shanmugam: -- in Indian country --

Stephen G. Breyer: Right.

Kannon K. Shanmugam: -- outside Oklahoma.

Stephen G. Breyer: Right.

All right. Final part of --

Kannon K. Shanmugam: But I would say in response --

Stephen G. Breyer: -- the question -- okay, you're saying there are not that many, but it's been prosecuted in federal court, not state court. Now, if you win, that assumption, almost general, has -- will be changed throughout the country, is that right? And suddenly the Indian tribes will realize that where they thought crimes on their reservation were being prosecuted in federal court, they will discover that suddenly, in these 49 other states, they can go into state court.

Is that right or wrong? I want to --

Kannon K. Shanmugam: That is -- that is --

Stephen G. Breyer: -- just get my assumptions right.

I'm not making an argument.

Kannon K. Shanmugam: -- that is correct. And let me say a little bit about the --

Stephen G. Breyer: That is right or not right?

Kannon K. Shanmugam: That is correct.

Stephen G. Breyer: Okay.

Kannon K. Shanmugam: And let me say a little bit about that and then about why Congress is not simply going to be able to fix this, which was where your question started.

Stephen G. Breyer: Well, they could provide more prosecutors, is my point.

Kannon K. Shanmugam: And the --

Stephen G. Breyer: They can't --

Kannon K. Shanmugam: -- Justice Department has asked them to do that, but the reality is that the gap in Oklahoma right now is yawning. All we are here asking the Court to do is to provide concurrent jurisdiction for the states with the federal government, which, after all, is outside Indian country, the norm in our federal system. Our submission is that this is not likely as a practical matter to be a significant issue outside the State of Oklahoma.

There's no reason to believe that the federal government is not doing its job of prosecuting crimes in the other 49 states. What we know as representatives of the State of Oklahoma is that that is not happening in the State of Oklahoma.

And you don't have to take --

Sonia Sotomayor: Counsel --

Kannon K. Shanmugam: -- our word for that.

Sonia Sotomayor: -- counsel, but -- but you have a state-specific problem.

At some point, I want you to address where you get your figures from.

And I will lay out there's an article in The Atlantic that suggests that your figures are grossly exaggerated, and I want to give you an opportunity to address that.

But put that question aside. It may be that you and some -- that you're the only state that wants concurrent jurisdiction to fix a state-specific problem. But why should we assume that every other state wants that responsibility? And doesn't conferring jurisdiction on a state or telling it you have concurrent jurisdiction obligate that state in a way to protect its Indian victims? I mean, what you're saying is an unfunded mandate to 49 other states to take on a responsibility that they had a choice to take on and most of them didn't want.

So we have 11 states for which Congress enacted state-specific legislation conferring some jurisdiction.

In Public Law 280, again, states were given the choice, do you want to prosecute these crimes or not? Three more states added onto the 11, so 15 only, given a choice, wanted to do this. We are told by some amici that federal and state authorities have come to agreement in virtually every place outside of Oklahoma as to who's going to do what.

But, once we say states have concurrent jurisdiction, we are forcing the state to do something. You're saying, no, no, no, there's always prosecutorial discretion.

But is that true? They have an obligation to treat their citizens equally.

Having said that, this is not a case -- what you're doing is putting all of those 15 laws conferring different kinds of jurisdiction on those states into question. You're throwing out those 15 agreements and you're saying forget what they say about limiting state jurisdiction or not. States had an inherent power to do this.

Maybe you'll come back and say, well, those are agreements, so they're still bound by them. But now you're creating chaos across the country, 49 other states.

And I am told that the federal government decides whether to put some resources in some places based on what kind of jurisdiction exists with the states and not in others.

All of that is up in the air. So please explain to me why 200 years later we are revisiting an assumption that was made.

You say it was only dicta, it was never decided.

But we have an awful lot of dicta on this issue repeatedly in many, many cases.

Kannon K. Shanmugam: Justice Sotomayor, there's a lot to that question and let me try to cover all of it. First of all, with regard to the statistics, we believe that the statistics that we have offered to the Court are accurate, but you don't have to just take our word for it. To get back to Justice Breyer's question, let's take a look at what the Justice Department has said in its most recent 2023 budget report.

It has said, "The United States Attorneys in Oklahoma are prioritizing violent felonies under the Major Crimes Act.

In fiscal year 2021, the Eastern District of Oklahoma and the Northern District of Oklahoma are opening only 22 percent and 31 percent of all felony referrals.

Enforcement of nonviolent crime is relatively low." And if we want to talk about --

Sonia Sotomayor: Well --

Kannon K. Shanmugam: -- what's been said in --

Sonia Sotomayor: -- most of that is being done by the tribes, isn't it?

Kannon K. Shanmugam: Well, not with --

Sonia Sotomayor: I see a short gap of -- the Atlanta article says, at most, there's a short gap of about a thousand cases, if that.

Kannon K. Shanmugam: We -- we don't agree with that.

It's important to keep in mind that the tribes do not have jurisdiction over this category of cases, with narrow exceptions. And if we're going to litigate what's been said in the press, I would refer the Court to The Wall Street Journal article earlier this week to which I alluded, in which the Special Agent in Charge of the FBI's Oklahoma Field Office said, "The United States Attorney's Office doesn't have the capacity to try" nonviolent felony, my words, "or even any misdemeanor cases." Now I do want to cover the other points that were in your question, which I think are really important. First of all, with regard to supposedly foisting this authority on the states, let's keep in mind the fact that the states do enforce the criminal laws already in Indian country by virtue of the rule first established by this Court in McBratney. When non-Indians commit crimes against non-Indians in Indian country, law enforcement is there, state law enforcement is there, because they have exclusive authority in order to enforce the criminal law.

Neil Gorsuch: Several states have renounced the very kind of authority you'd thrust upon them, though, haven't they?

Kannon K. Shanmugam: Well, it -- it -- it is true that a very small number of states have renounced the additional authority provided under Public Law 280, but that brings me to the Public Law 280 regime, Justice Sotomayor, and there are a couple of things I would say about that. First is just the fundamental oddity of the position on the other side, which is that a statute that by its terms conferred additional jurisdiction should be viewed as ousting all other preexisting jurisdiction. And the reason that we know that that is not the law is because this Court said so in Three Affiliated Tribes I, when in the civil context, it said, "nothing in the language or legislative history of Public Law 280 indicates that it was meant to" -- "to divest states of preexisting and otherwise lawfully assumed jurisdiction." And there's --

Sonia Sotomayor: In a civil case.

Kannon K. Shanmugam: But --

Sonia Sotomayor: They were very clear in saying criminal cases are different from civil cases.

Kannon K. Shanmugam: But the reasoning, Justice Sotomayor, is exactly analogous, and let me explain why. Public Law 280 confers on states essentially plenary civil and criminal jurisdiction, either states that are the mandatory states or states that opt in. And you could make exactly the same argument in the civil context with regard to civil actions brought by Indians against non-Indians.

And yet this Court made that statement in the context of whether or not Public Law 280 should be used to construe a state law as ousting the state of preexisting jurisdiction. Our submission is that Public Law 280 operates perfectly well under our interpretation.

What Public Law 280 does is to confer this broad array of additional jurisdiction, not just plenary civil jurisdiction but, of course, criminal jurisdiction, including jurisdiction over offenses committed by Indians, which appears to have been Congress's principal concern when it enacted Public Law 280. Now, to be sure, the text of Public Law 280 also clarifies that states that participate in or opt into the regime will also have jurisdiction over offenses committed against Indians.

Neil Gorsuch: Let's -- let's talk about that --

Kannon K. Shanmugam: But there's nothing odd about that.

Neil Gorsuch: -- let's talk about for a second.

I'm not so sure. First of all, you -- you -- you agree, though, that in 1948, when Congress passed the GCA, the text of it is consistent with the conclusion that Congress believed the states generally lacked prosecutorial authority over crimes committed by non-Indians against Indians in Indian country, right?

Kannon K. Shanmugam: Some members of Congress plainly believed that because there is evidence in the legislative --

Neil Gorsuch: No, more than that. You agree that the text is consistent with an understanding that Congress thought that, right?

Kannon K. Shanmugam: The text is consistent both with my position and with my friend, Mr. Schauf's position.

Neil Gorsuch: Okay.

If the text is consistent with the opposing position, then let -- Public Law 280, the Kansas Act, the North Dakota Act, the New York Act, the Iowa Act, all adopted in the years immediately preceding and immediately following the GCA, expressly confer criminal jurisdiction on certain states, it just doesn't happen to be Oklahoma, for the very kind of authority at issue here, expressly, right?

Kannon K. Shanmugam: Yes, but at the same time, none of those laws --

Neil Gorsuch: All of that would have been pointless, right?

Kannon K. Shanmugam: No, not at all.

Neil Gorsuch: No need -- no need to say you have state criminal jurisdiction in -- in crimes involving Indian victims.

Kannon K. Shanmugam: It's perfectly reasonable, particularly in Public Law 280, Justice Gorsuch, for Congress to have wanted to clarify that the states had that preexisting jurisdiction.

Neil Gorsuch: So it's belts and suspenders on your view?

Kannon K. Shanmugam: Well, to a certain extent, but I don't think that there's anything strange about that because Congress often passes statutes that do nothing more than codify preexisting legal principles.

Here --

Neil Gorsuch: And how --

Kannon K. Shanmugam: -- Congress was doing --

Neil Gorsuch: -- how about --

Kannon K. Shanmugam: -- so much more.

Neil Gorsuch: -- how about the fact that we have, in my count, 10 cases stretching from 1832 to two years ago saying that it's -- it's -- states don't have this kind of jurisdiction? You call it dicta.

All right.

But even in your very best case, McBratney, Draper, cases you cite and rely on, the Court reiterates that it is not talking about and is not extending jurisdiction over these kinds of cases.

What do we do about that?

Kannon K. Shanmugam: I -- I -- I don't think that's quite correct.

I would recognize, Justice Gorsuch, that by my count, there are six cases, starting with Williams versus United States, in which this Court --

Neil Gorsuch: I don't know.

Mine go back to Worcester.

I think you might be missing a couple.

Kannon K. Shanmugam: I don't think that that's a fair characterization of Worcester because Worcester was simply stating the principle then in effect --

Neil Gorsuch: All right.

We can -- we can quibble over the number, all right? I think your count's a little parsimonious.

But whatever number it is, it's a large number.

And even the cases you rely on most heavily carve this out.

Kannon K. Shanmugam: I don't think that --

Neil Gorsuch: What do we do about that?

Kannon K. Shanmugam: -- I don't think that's correct, and let's go directly to McBratney.

I think that all that the Court said in McBratney was that it was not deciding any question under the provisions of the applicable treaty with regard to crimes committed by or --

Neil Gorsuch: All right.

Kannon K. Shanmugam: -- against Indians. I think the reasoning of McBratney strongly supports our position because McBratney speaks broadly --

Neil Gorsuch: But it carved that question out -- it carved this question out and said it wasn't -- it wasn't going there.

Kannon K. Shanmugam: I don't believe that that is correct.

Neil Gorsuch: All right.

All right.

Kannon K. Shanmugam: I would say that the Court only started to carve out the question in Donnelly.

And I think what happened is --

Neil Gorsuch: Then -- then how about this? How about Oklahoma's own position for the last 30 years, which has taken the position since I understand at least 1990 that that is the correct understanding of the law? That has been the Justice Department's understanding of the law. Don't we normally, when we're thinking about an old statute, give respect to how it's been liquidated and understanded by all three branches of government consistently, maybe the state itself who might have had an admission against interest back when nothing was at stake but now changes its view?

Kannon K. Shanmugam: I think what I would say about the federal government, Justice Gorsuch, is that their position by their own recognition has certainly not been consistent. And I would refer the Court to the 1979 OLC opinion and the government's subsequent statements where the government has suggested that when it comes to the sort of interest balancing that we were discussing earlier, Justice Gorsuch, that that interest weighs in the state's favor.

Neil Gorsuch: Do you care to address your own client's position?

Kannon K. Shanmugam: I'm very happy to address Oklahoma's position.

The practical reality, of course, was that this was not a significant issue --

Neil Gorsuch: Exactly.

Kannon K. Shanmugam: -- before this Court's opinion in McGirt.

Neil Gorsuch: Exactly.

And shouldn't that count for something?

Kannon K. Shanmugam: Well, no, I think that what it should count for is that this has suddenly become a major problem in Oklahoma. And to be clear, the reason that we are here today is because of McGirt.

This was not a significant law enforcement issue in the State of Oklahoma for the reason that the government acknowledged in its earlier briefing in the McGirt line of cases, which is that in Oklahoma there is very little trust or reserved land. Most of the land is fee land, like the land in downtown Tulsa and the other cities in the eastern half of Oklahoma, and, therefore, would not have been thought of as Indian country. Now I think, with regard to Oklahoma, the history, as you are well aware, is somewhat complicated in this regard, because there was a lengthy period of time when the Oklahoma Court of Criminal Appeals, in fact, said that the state had plenary criminal jurisdiction even over Indian country in the state, and the Oklahoma Court of Criminal Appeals eventually reversed that position. And so I think it's very hard to say that there's a lot of data about what the State of Oklahoma was doing.

But I will grant you that I can't point to a prosecution by the State of Oklahoma after 1990.

I would just say that that's consistent with the fact that this was not a significant issue because of the relatively small amount of Indian country. And I do want to --

Elena Kagan: Mr. Shanmugam --

Neil Gorsuch: Please.

John G. Roberts, Jr.: Why don't you wrap up quickly.

And, Justice Kagan, we'll -- Justice Kagan, we'll have your question, and then we'll move on to the next stage.

Elena Kagan: I'm happy to take my turn in order.

John G. Roberts, Jr.: No, go ahead.

Kannon K. Shanmugam: Great.

Go -- go ahead, Justice Kagan.

I wanted to say one more thing in response to Justice Gorsuch, but --

Elena Kagan: Okay.

You'll find a way to fit it in, I'm sure. (Laughter.)

Elena Kagan: I want to talk about the text of the statute for a few minutes and just start with this question: Is there concurrent jurisdiction on federal enclaves?

Kannon K. Shanmugam: No.

Elena Kagan: Yeah.

And, I mean, I look at this text, and, you know, it's not the clearest statute for either side of the table here, but if I ask myself, like, what does this text really mean, and "mean" back when it was written, not today, given the history in which -- from which it emerged, I mean, the idea that this statute did anything other than analogize to federal enclaves in the entire sense, meaning it's the law that -- in which -- in -- in -- in federal enclaves and it's the exclusive law of the federal government, I mean, it just seems to me the more natural reading of the statute in its historical context.

Kannon K. Shanmugam: I don't agree with that, Justice Kagan, and I don't think that the statute is ambiguous, and I assume that we're talking about the General Crimes Act, and I will come to Public Law 280 in a minute. But I think, with regard to the General Crimes Act, what I would say is what this Court said in In re Wilson.

With regard to this phrase, "places within the sole and exclusive jurisdiction of the United States," what the Court said was that phrase does not apply to the jurisdiction extended over the Indian country but is only used in the description of the laws which are extended to --

Elena Kagan: Yeah, I don't think I'm really talking about this as a -- as a matter of parsing the sentence and -- and applying rules of grammar to it.

I think what I'm talking about is the -- the sense of the provision is to say -- the only thing the provision does is to analogize to federal enclaves.

And then the question becomes, what's the law in federal enclaves? And the law in federal enclaves is exclusive federal law. I mean, it's a kind of bizarre thing that Congress would have done, isn't it, to say, well, we're going to have federal enclave law applying and then we're also going to have state law applying? This is not like federal and state law apply in the State of New York or something, right? Because federal enclave law is essentially law that duplicates the kind of subjects in which state law is concerned.

And so you have two bodies of general law operating in the same geographic area. Now that now and that then is -- is kind of odd.

And -- and, like, why would we think that that's what Congress did when it said in this statute look to federal enclaves?

Kannon K. Shanmugam: I -- I don't think that that's odd, Justice Kagan, either as a matter of text or as a matter of history. So, as to the text, our fundamental submission here is that when you look at the structure of that sentence in Section 1152, it provides simply that the general laws of the United States as to the punishment of offenses committed within federal enclaves shall extend to the Indian country. And I think that, as a matter of structure and plain language, that suggests that what you're talking about is the substantive criminal laws of an area that is within the sole and exclusive jurisdiction of the United States, federal enclaves.

Elena Kagan: I -- I mean, I suppose --

Kannon K. Shanmugam: But if you don't --

Elena Kagan: Go ahead.

Kannon K. Shanmugam: If you don't agree with me on that, I would point to the history here.

And this goes really to, I think, Respondent's core argument.

Respondent sets great store by the 1834 enactment of the predecessor to the General Crimes Act. But, of course, in 1834, to the extent that -- that Congress was thinking about the principle of territorial separation from Worcester, the first of the cases to which Justice Gorsuch referred, Congress incorporated that in its definition of Indian country, which is, after all, the trigger for what is now the General Crimes Act, by defining Indian country to exclude territory within the borders of states. So Congress didn't have any occasion to think about the preemption question that's presented here.

That question was effectively moot because the statute only applied to territories outside state borders.

And when you think about our country in 1834, obviously, that was most of the territory west of the Mississippi River for starters. And I would parenthetically note that that is -- that -- that both the text and the history are reasons to distinguish the General Crimes Act from the Major Crimes Act, though I think the right way to think about the Major Crimes Act as a matter of first principles would be to think about it in preemption terms like the way that Justice Gorsuch and I were discussing earlier, and not so much in terms of the text.

Elena Kagan: I mean, I wonder if all of that cuts for you or against you.

I kind of think the latter.

I mean, here you are in the 1830s coming after Worcester with a -- with a sense of the history of states operating against tribes and tribes needing federal protection.

And, you know, to -- to -- to -- as I said, I think that this -- this statute is not grammatically pristine, and Mr. Schauf has an argument and you have an argument. But -- but, given two alternatives, given that history, why we shouldn't read it as essentially saying go do the same thing in Indian country as you do in federal enclaves, rather than go do this completely weird thing where reservations or -- or -- or Indian country is going to have two bodies of general law, including state law of the states that tribes needed protection from the federal government against, I -- I don't know why you would pick your version.

Kannon K. Shanmugam: Well, my first line of response, Justice Kagan, is that this Court has already construed this language in Wilson and again in Donnelly.

Elena Kagan: Well, I don't know if you get to talk about precedent, you know, because you're up here and six times we have said the exact opposite of your position.

And you say, well, it's dicta.

But it's not normal dicta.

It's -- it's in six cases this Court has laid down the jurisdictional rules and has specifically rejected your position. So, you know, in terms of what this Court has said, I'm sorry, but this Court has -- has indicated six times that you're wrong. Congress has indicated that you're wrong given the -- its consistent enactment of statutes that make no sense in light of your position, Public Law 280 and the state-specific ones.

The executive branch has said that you're wrong in all but one decade. You know, you're asking us to do a big lift on the basis of language that, as I say, seems to me more naturally read against you.

Kannon K. Shanmugam: I respectfully disagree with that, Justice Kagan.

And just a couple of additional points. I think, with regard to the issue of dicta, I would say that the -- the statements on this issue, starting with Williams versus United States, are, for lack of a better way of putting it, on the dicta end of the dicta spectrum. You're talking about no more than two sentences in any of those decisions.

Those statements were really not essential in any way to the holdings. I would submit that the statements in Wilson and Donnelly were much more to the core of the questions that the Court was considering. We're talking about cases like Solem and Bryant on the other side, where the Court is simply stating the principle that Respondent is advocating in passing on its way to dealing with very discrete questions, such as diminishment of reservations and the validity of the federal recidivist statute that takes tribal convictions into account. So I do think that, with respect, we're entitled to point to this Court's precedent, not least because this Court's precedent involves interpretation of the two statutes on which Respondent relies. And with regard to Public Law 280, the one thing that I wanted to say in response to Justice Gorsuch, because that is, after all, the other statute on which the other side relies, is that when you start to frame the argument in terms of Public Law 280 occupying the field and the like, that starts to feel like a field preemption argument. And I think Respondent almost goes there in his brief because he relies on cases like Virginia Uranium and Hines, but he doesn't use the words "field preemption," and I would submit that that's for good reason, because Public Law 280 would fall -- fall short -- far short of the standard for field preemption, not least because, as this Court indicated in Three Affiliated Tribes, there's no indication in Public Law 280 that Congress intended to oust the states of preexisting jurisdiction.

John G. Roberts, Jr.: Thank you, counsel.

I have just one question. We've heard a lot about McGirt this morning, and I understand your point that it has sort of upped the ante on the question before us today.

But is there any way in which the analysis in McGirt affects the point you're trying to make, or is it just kind of a background fact?

Kannon K. Shanmugam: The practical realities of McGirt are relevant, Mr. Chief Justice, on this question presented primarily if this Court decides to engage in a balancing of interests, because, in weighing the state's interest and the propriety of concurrent jurisdiction, I think it's entirely appropriate for the Court to take into account what is going on in what is now the largest piece of Indian country by area and population in the United States.

John G. Roberts, Jr.: I mean, in terms of how we analyze the General Crimes Act, how we analyze Worcester against Georgia, the other sort of legal authorities at issue here, McGirt doesn't offer any guidance in that analysis, does it?

Kannon K. Shanmugam: No, these are fundamental familiar preemption questions, and particularly because this case does not implicate the tribal interest in punishing tribal offenders, this is really a case that pits state interests against federal interests. And just to be clear, what the federal government is here saying, and my friend, Mr. Kneedler, will be at the podium shortly to say this, is that the federal government should have exclusive jurisdiction here. And I guess I'm at a loss as to why the federal government would take that position when federal officials, both in statements to the public but also in statements to Congress, is acknowledging this massive prosecutorial gap, thousands of crimes, however you do the statistics, that are going unprosecuted by the federal government in the State of Oklahoma.

John G. Roberts, Jr.: Well, I mean -- so, really, at the end of the day, when you're talking about McGirt, you're really just waving -- waving a bloody shirt.

It doesn't have any direct pertinence on the legal analysis here.

Kannon K. Shanmugam: This is an extraordinary situation, I think, unlike any situation in recent history, where what's going on right now in Oklahoma is a giant law enforcement experiment. You have half -- almost half of an American state now, at least as to this category of crimes, under the exclusive criminal jurisdiction of the federal government, and the federal government is failing in that task.

And I don't think that the Court should blind itself to that. Now, to be sure, the question that is presented here will affect only by the federal government's own estimation around 20 to 25 percent of the crimes affected by this Court's holding in McGirt. And as the Court is well aware, the State of Oklahoma has asked this Court to revisit its earlier decision in McGirt.

That's an extraordinary step, but these are extraordinary circumstances. And I would submit that if the Court decides this question presented against the State of Oklahoma, it's only going to exacerbate what is already an extraordinary situation.

And at that point, the Court may want to revisit its judgment not to reconsider McGirt at this time.

John G. Roberts, Jr.: Thank you. Justice Thomas, anything further? Justice Breyer?

Stephen G. Breyer: I think tell me if you have general thoughts on this.

I mean, the sort of philosophical thing that is occurring to me is that you're sort of winning the game once you -- or not winning it but strengthening your argument once you use this word "preemption." But Indian tribes on Indian land are not states and they are sovereign -- what is it, what's the phrase, sovereign dependent nations? So I don't know quite how that pans out. But the other thing which is more important which I'd love any comments you have on it given your whole experience in many areas of law, can you give me a phrase or a word or a view in your mind of what weight this Court should give to such a fact as virtually unanimous across the country assumption that the law was X? Is it totally irrelevant or is it a little relevant or a lot relevant? How do you think about that in general?

Kannon K. Shanmugam: There are familiar doctrinal frameworks, Justice Breyer, and -- and, by definition, your experience is --

Stephen G. Breyer: I'm asking for your --

Kannon K. Shanmugam: -- broader than mine, but --

Stephen G. Breyer: -- view because you have many cases.

You have much experience in the area.

And -- and I think that's a -- I guess you don't have to answer it, but -- but I would be curious.

Kannon K. Shanmugam: No, I -- I'm happy to answer it directly.

There is a word for it, Justice Breyer, and that word is ordinarily ratification.

In other words, that is the doctrine that this Court ordinarily uses to embed in statutes that might otherwise be silent preexisting understandings from interpretation. But, again, that's another word that you can search Respondent's brief for in vein, and I think that that's for good reason, because if the argument here is ratification --

Stephen G. Breyer: No, I'm not interested in ratification --

Kannon K. Shanmugam: Well, but that is the --

Stephen G. Breyer: -- because we have cases where the law in many, many areas, even leaving Congress out of it, we might think, some might think has been X, but it's argued in front of us, no, even though everyone thought it was X, everyone was wrong.

It was not X. Now, assuming that's the situation, my same question, what weight do we give to the view that everybody did think it was X --

Kannon K. Shanmugam: I'm --

Stephen G. Breyer: -- or nearly everyone?

Kannon K. Shanmugam: -- I'm happy to confront that directly.

So the one thing I think everyone agrees on before this Court is that this is a question of preemption. And I would note that nobody is here arguing that in this context the balancing approach from Bracker or other cases should apply.

I think everyone recognizes that this case involves the familiar approach to preemption where you look to whether or not federal law displaces state authority. Everyone also agrees before this Court that the only relevant source of federal law is statutes because, Justice Sotomayor, there's no argument here that there's any treaty by its terms that has preemptive effect. And so then the question becomes what is there in the statute that preempts, and there's a statutory interpretation component to that. Now we would say that the first and last place you look is to the text of the statutes, and everyone agrees that there's nothing on the face of the statutes with the exception of this potential argument with regard to the phrase "sole and exclusive jurisdiction," that preempts. And if you don't accept that argument, then what you're left arguing is making arguments based on background understandings, and we really have two of those arguments in this case: an argument with regard to the 1834 predecessor to the General Crimes Act that it embedded the principle of territorial separation from Worcester, or an argument that the 1948 recodification, which after all was just the recodification in the United States Code without substantive change, somehow ratified this Court's interpretation in a single sentence of text in its dicta in Williams at a time when the law was unsettled. That would come nowhere near this Court's standard for ratification, which is why I suspect Respondent doesn't affirmatively invoke that doctrine. And I think, with regard to Worcester and the background understanding, this Court has long retreated, as has Congress, from the hard-line view of territorial separation. And if that were not true, then this Court would have to revisit decisions like McBratney, Draper, and, more recently, Nevada versus Hicks, all of which have given the states broad law enforcement authority in Indian country in the criminal context. And so, with respect, I think what you're really left with on the other side is some sort of mosaic theory.

If you take a look at page 28 of the government's brief, the government says, well, there's a pattern of Congressional enactments. But, with all due respect, I think that that's a lot like Justice Gorsuch's steak rub.

It's not entirely clear exactly what the government and Respondent is relying on here in the absence of any --

Elena Kagan: But that's because there's so much.

John G. Roberts, Jr.: Mr. Shanmugam --

Kannon K. Shanmugam: I --

John G. Roberts, Jr.: -- if you -- continue.

Kannon K. Shanmugam: I don't agree with that, Justice Kagan, for the simple reason that when we're talking about Congressional enactments, which, after all, again, is the touchstone because we're talking about a question of preemption, there are really only two options here.

There's either the General Crimes Act itself, or there is Public Law 280 and the accompanying state enactments. And I think that Public Law 280 is the harder of the two for the other side for the simple reason that not only has this Court addressed a nearly identical issue in the civil context in Three Affiliated Tribes, but that is a statute that by its terms only gives states additional jurisdiction, and I think it would be passing strange to construe it as divesting all of the other states of their preexisting jurisdiction.

John G. Roberts, Jr.: Thank you. Justice Alito, anything further?

Samuel A. Alito, Jr.: Well, the -- the Chief Justice asked you about the relevance of the Court's reasoning in McGirt, and there have been questions raising the possibility that dispositive weight should be given here to what some people may have assumed was the answer to the question presented in this case. What weight did the Court give in McGirt to what had been assumed for a period of time about the status of the territory in question in that case?

Kannon K. Shanmugam: Well, I do think that it is slightly ironic that the history of non-prosecution has been cited against the State of Oklahoma when the Court in McGirt didn't attach any weight to the settled understanding for that period of a hundred years about the status of the eastern half of Oklahoma. And just to be clear, I'm not here today to relitigate McGirt.

Our submission is simply that the problems created by McGirt are extraordinary, as this Court -- as some members of this Court predicted at the time of McGirt, and as the federal government in its brief in McGirt said was going to be the case with regard to criminal jurisdiction in particular. And, with respect, I do find it slightly astonishing that in its entire brief the government says nothing about the current state of affairs on the ground in Oklahoma in this area in which it has exclusive jurisdiction.

Perhaps my friend, Mr. Kneedler, will speak to that today.

But, again, it seems to me that is very relevant context as this Court is deciding the question that's before it.

John G. Roberts, Jr.: Justice Sotomayor, anything further? Justice Kagan? Justice Gorsuch, anything further?

Neil Gorsuch: Just to pick up on Justice Kagan's remark, there is so much.

You conceded that the original understanding is consistent -- the language is consistent with an original understanding of the statute, to preempt.

The MCA has very similar, different language that does preempt, this Court's held. We have an entire class of contemporaneous statutes, from the Kansas Act to Public Law 280, that are understood only in light of a preemption view.

We have six to 10 -- we can argue over how many cases -- saying this.

We have all three branches of the federal government contemporaneously understanding it. We have the state's understanding for 30 years. And in -- on the other side of the balance, you're asking us to extend a balancing test from the civil context into the criminal context, which we've never done before. Now I can't think of another statutory case this Court would take up, no matter how much a state might complain about the cost and the expense, and we get those all the time, and reconsider a settled statutory interpretation with that much evidence against you.

This Court stood firm in Worcester and -- with respect to the original meaning of the Constitution and the promises made in treaties to the Cherokee in the 1830s.

Are we -- are we to wilt today because of a social media campaign?

Kannon K. Shanmugam: No, Justice Gorsuch, and let me say two additional things. First of all, with regard to my purported concession, I was simply making the point with regard to Public Law 280 that, to the extent that some members of Congress may have believed that states lacked the jurisdiction over these -- this category of cases, that our interpretation of the statute -- that the statute can be interpreted consistently with that understanding or not but that there's nothing problematic with construing the statute in the way that we suggest. We're not rendering any of the language superfluous.

All we're saying is that Congress reinforced that states that participated in Public Law 280 would have that jurisdiction, a very important thing because, if Congress had not done that, there might have been a negative inference that states in Public Law 280 would lack that jurisdiction, which would have created a jurisdictional gap. We certainly do not think the General -- that the General Crimes Act is ambiguous, and I would refer to my answers to Justice Kagan on that score.

We think that this Court has construed that statute and that it is unambiguous. And then, finally, in response to your question with regard to the history, I think what I would say, without simply rehearsing ground that we've already covered in our brief, is that throughout our history there have been countervailing data points on all of the issues to which you referred.

We've talked about the district court decision in Cisna that came immediately after Worcester; this Court's decision in Dibble, which conferred jurisdiction on states in Indian country as early as 1859; this Court's decision in Martin, which reinforced the principle of McBratney and Draper right around the same time as this Court started suggesting in dicta that the answer to this question might be Respondent's; opinions from the Attorney General as early as the mid-19th Century. And to the extent that the other side points to the original understanding, there is no doubt in the early years of our history that there was a problem, a problem with incursions by non-Indians on Indian country and a raft of treaties that conferred authority on the federal government. But what you don't have is evidence that the federal government -- that the treaties were thereby ousting the states of jurisdiction. The problem might very well have been nonenforcement, but there is no reason to believe, either from the treaties nationwide or the treaties specific to Oklahoma, that those treaties by their terms ousted the state of jurisdiction. And to the extent that the treaties refer to the jurisdiction or even the absolute jurisdiction of the United States, I would point the Court to its decision in Draper and its decision in Egan that have made clear that those provisions should not be construed as ousting states of any or all jurisdiction.

At most, they made clear that title resided in the federal government.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: I understand your argument about the statutory text controlling, which is a very forceful argument.

There's also been some discussion of victims and the policy concerns with victims, so I want to focus on that for a second.

We're talking about non-Indian-on-Indian crime in Indian country, correct?

Kannon K. Shanmugam: Yes.

Brett M. Kavanaugh: Everyone agrees the tribes don't have jurisdiction to prosecute those crimes, correct?

Kannon K. Shanmugam: Yes, with the very narrow exception of certain domestic violence crimes, where Congress has conferred that authority.

Brett M. Kavanaugh: Everyone agrees the federal government does have jurisdiction to prosecute those crimes covered by the GCA, correct?

Kannon K. Shanmugam: Yes.

Brett M. Kavanaugh: Okay.

So the only question here is additional jurisdiction to prosecute those crimes for the states, additional concurrent jurisdiction, correct?

Kannon K. Shanmugam: Yes, that is correct, and we simply do not agree with the submission of the National Congress, NCAI, that state jurisdiction affirmatively undermines public safety.

We think quite to the contrary --

Brett M. Kavanaugh: Right.

Kannon K. Shanmugam: -- that concurrent jurisdiction --

Brett M. Kavanaugh: Because Indian victims right now are not being protected because the federal government doesn't have the resources to prosecute all these crimes.

And this would not be displacing the federal government.

It's additional prosecutors to protect Indian victims against non-Indians, correct?

Kannon K. Shanmugam: That is correct, and notwithstanding this frankly cynical effort to disparage the state's estimates, which are the state's best good-faith estimates as to the prosecutorial gap left by McGirt, the federal government itself recognizes that there is a gap both in terms of the volume of cases and whole categories of nonviolent crimes and even less serious violent crimes that are not being prosecuted.

Brett M. Kavanaugh: And that's not a reason to read the text differently than it reads, but my point in bringing that up is that we also shouldn't think that somehow ruling against you would -- would help -- I don't see how it would help Indian victims.

It's going to hurt Indian victims.

Kannon K. Shanmugam: Well, I think that that's correct, and I do think that that is a reason why this is a much easier case than a case involving Indian defendants because I do think that if you have a case involving Indian defendants, the tribal interest suddenly becomes more significant.

And I think, when it comes to non-Indian perpetrators, it's really hard to see why a bright line should be drawn as to state authority between non-Indian victims and Indian victims.

The state's authority here is at its broadest because we're talking about the state's police power. The federal government has authority, but it's somewhat narrower because that authority requires a relationship with the tribe in order to implicate the federal government's enumerated powers. And I would respectfully submit that the tribe's authority in this area is at its narrowest because it is what the tribe has by means of reserved authority in this context, which has to implicate the right to self-governance, or any authority which has been conferred on the tribes by Congress. And I would submit that one reason why the tribes may be opposing our position is because the tribes themselves would like for Congress to confer this law enforcement authority on them.

John G. Roberts, Jr.: Justice Barrett.

Amy Coney Barrett: I want to give you a chance to answer a question that Justice Gorsuch posed to you earlier, which is about the difficulty of discerning whether the perpetrators are Indians or non-Indians. You pointed out the practical difficulties of discerning whether a victim has been an Indian or a non-Indian and the checklist that the Tulsa police have. Could you address Justice Gorsuch's point?

Kannon K. Shanmugam: Yes.

It's basically the same test, Justice Gorsuch, so there's no reason why the test would be any different. And, again, the way that the Oklahoma courts have approached this is to have it be a sort of totality of circumstances test that looks not only at more objective factors, such as enrollment in the tribe and blood quantum, but also the individual's relationship with the tribe and participation in tribal affairs. And there is disagreement in the lower courts on exactly what that test should be for who is an Indian for purposes of criminal jurisdiction.

Again, this is the subject of a currently pending cert petition by the State of -- of Oklahoma. And so our submission today is simply that that is not an easy inquiry, and it has immediate on-the-ground consequences because, if you are a police officer arriving on the scene in Tulsa -- and I have talked to the Mayor of Tulsa and the chief of police in Tulsa about this very subject -- those officers have to make a jurisdictional determination. And once they make that jurisdictional determination, if they're making it in the course of an investigation, it may determine who responds to the scene of a crime.

Amy Coney Barrett: They would have to make a jurisdictional determination the other way too when they're identifying the status of the perpetrator.

Kannon K. Shanmugam: That's right, but it just makes it all the more complicated for them to have to make both of those determinations. But I certainly don't mean to suggest that even if the Court resolves the question presented in our favor, that's going to make it objectively easy for law enforcement. It may make it easier, but these are very difficult questions that often have to be resolved after perpetrators are taken into custody to determine who's going to prosecute. And the fundamental problem with regard to the question presented today is that when cases are referred to the federal government, the federal government simply doesn't have the resources to prosecute.

Amy Coney Barrett: Well, I guess the -- the deeper reason for my question is I'm wondering whether that jurisdictional inquiry -- I mean, part of your point on the balancing is that the tribal interests are not implicated when we're talking about non-Indian perpetrators and Indian victims in the same way they are for Indian perpetrators. And I'm wondering if there's any possibility for a conflict with those tribal sovereign interests by virtue of the fact that you have to figure out the status of the perpetrator and there might be some dispute about it.

Kannon K. Shanmugam: I -- I -- I -- I suppose that one could make that argument, namely, that tribes should have some degree of ability to define who are their members.

They do that, obviously, to some extent through the enrollment process. I think our submission is that if this Court, rather than using the traditional preemption framework, resorts to balancing, that the unquestioned concern the tribes have about protecting tribal victims shouldn't really tilt the balance in a particular direction on the question presented because, of course, it goes without saying that the State of Oklahoma has the same interest in protecting its own citizens, which include tribal citizens.

Amy Coney Barrett: I -- I'm talking about the tribe's interest in not having the State of Oklahoma prosecute members of the tribe and the difficulty of figuring out the status of the perpetrator.

Does that come into account if we look to balancing?

Kannon K. Shanmugam: Yeah, I -- I mean, I -- I take the point, Justice Barrett, which is that in some sense, whenever the state is making that determination, it is obviously of interest to the tribes how the state makes that determination.

But, you know, I think that the state in good faith attempts to make that determination taking into account enrollment in the tribe as one of the factors.

Amy Coney Barrett: And I -- I want to follow up on a point that Justice Sotomayor made.

She was pointing out that Public Law 280 -- well, that -- that the -- if we rule in your favor, it might mean that states are assuming responsibilities that they didn't sign up for because they didn't opt into Public Law 280 in the days before tribal consent was required. Is there any relationship between states that chose to opt in and population density or size of tribal land within those states, do you happen to know?

Kannon K. Shanmugam: I think it's, frankly, a little bit hard to sort of detect a pattern, and it's complicated by the fact that in many of the states that have opted in, because there were issues with the way in which the states did so, there are some states that simply don't exercise that authority.

There are at least a couple of states that have retroceded that authority. But I think my fundamental point would be that opting into Public Law 280 is a major assumption of jurisdiction because, again, the criminal jurisdiction and the civil jurisdiction, with the caveat of the Cabazon Band limitation, is plenary.

It covers criminal cases where the offenders were Indians as well as cases where the victims were Indians, and, of course, the grant of civil jurisdiction covers any civil action between Indians or to which Indians are parties. So it's a major step for a state to do so, and at least since tribal consent was required, there are no states that have been able to do so, and I think it's a fair inference that Oklahoma would be unable to do so in light of the position of the tribes today.

Amy Coney Barrett: Thank you.

John G. Roberts, Jr.: Justice Alito?

Samuel A. Alito, Jr.: In a case where the accused claims to be an Indian, I assume that the accused is in a position to explain why he or she believes that that is the appropriate categorization. But what happens in the case where the accused is indisputably not a victim and the -- I'm sorry, indisputably not an Indian and the victim says, I don't consider myself to be an Indian? What happens there?

Kannon K. Shanmugam: I think that a court would still have to apply the totality of the circumstances test and to take into account enrollment and blood quantum and any other relevant factors.

And so I don't think that the victim's wishes would be dispositive of what is, after all, a jurisdictional question. And the other thing I would note is that, you know, there are victimless crimes. And when there are victimless crimes, it has long been the view of the lower courts that where the perpetrator is a non-Indian, the state would have jurisdiction. I think it is fair to say, as the OLC opinions from the 1970s made clear, that the line between crimes with a victim and victimless crimes is itself a fuzzy one.

Samuel A. Alito, Jr.: What -- what happens when the crime is the -- a conspiracy involving Indians and non-Indians?

Kannon K. Shanmugam: I -- I -- that's a -- that's a good question to which I actually don't know the answer.

John G. Roberts, Jr.: Thank you, counsel. Mr. Schauf.

Zachary C. Schauf: Thank you, Mr. Chief Justice, and may it please the Court: Oklahoma lacks jurisdiction because Congress exercised its exclusive power over Indian affairs to provide for exclusively federal jurisdiction.

That conclusion follows from statutory text, context, and structure. The General Crimes Act applies to Indian country, where federal statutes presumptively exclude state laws, and it imports the law of federal enclaves, where, likewise, states may prosecute only with Congress's approval. The resulting jurisdiction is exclusive, and one way we know that is that John and Negonsott held as much as the parallel text under the Major Crimes Act.

And that conclusion would have been especially obvious to the Congresses that enacted and reenacted the General Crimes Act. First, Congress in 1834 acted to implement treaties covenanting the tribes would be under the protection of the federal government and "no other sovereign." Second, Congress legislated against the backdrop of Worcester and its holding that Congress -- when Congress has regulated relations with Indian -- Indian tribes, states can't.

It could never have fathomed a more express statement would be required to keep its promises. Third, this Court has recognized a single basis for state criminal jurisdiction in Indian country in McBratney and Draper.

And Donnelly held that those cases do not apply to crimes by or against Indians.

That means federal jurisdiction is exclusive, as this Court has affirmed somewhere between six and 10 times. Fourth, Congress in 1948 embedded in law -- embedded that -- that law in statute when, in the wake of Donnelly and Williams, it reenacted the General Crimes Act while conferring on some states jurisdiction over crimes by or against Indians.

You don't confer jurisdiction that already exists.

And the only way to read all relevant text in harmony is ours. More than that, Congress built on that structure through Public Law 280 and many similar statutes.

And now Oklahoma's position would thwart the choice of 25 states not to assume its jurisdiction and nullify consent rights of, by my count, 190 Indian tribes and for no sound reason. Indeed, Washington State used Public Law 280 to obtain exactly the jurisdiction at issue here.

And Oklahoma could do so too by obtaining signatures from 20 percent of enrolled tribal members and winning an election. I welcome the Court's questions.

Clarence Thomas: Counsel, just to go back to the beginning of your argument, you said that the -- I think you did -- you said that the federal government had plenary authority in this area.

And we've said it too.

What's the source of that?

Zachary C. Schauf: So I think this Court has said that it arises from the Indian Commerce Clause, the Treaty Clause, pre-constitutional powers, war powers.

But I agree that it was quite subtle. And, you know, for our purposes, I think the -- the important point is that when Congress acted in 1834, it did so against the backdrop of Worcester, which interpreted the federal government's powers in this area to be exclusive when exercised.

So, when Congress had regulated intercourse with Indians, that meant states could not.

And, you know, that really has been carried forward, I think, to the present.

Obviously, you know, a bunch changed in the late 19th Century with Indian country coming within states. But I think the important point is we're not writing on a blank slate here.

This Court addressed that issue in McBratney and Draper and Donnelly, and the sort of sum total of the holding of those cases is that the only basis for state criminal jurisdiction in Indian country doesn't apply to cases like this one. And then, in 1940 and on, Congress created the entire modern statutory scheme against the backdrop of that understanding.

So the Kansas Act, for example, in 1940 understood the law the same way we do, conferred jurisdiction on states over crimes by or against Indians because it regarded that as necessary. Then this Court in the Williams case sort of put a cherry on top and said, yeah, we read things the same way.

States lack jurisdiction unless --

Clarence Thomas: Well, yeah, I think you've answered my question.

I don't want to interrupt you, but I don't want to take up all your time. One other question.

Would you take a minute or so to elaborate on your preemption argument? And my difficulty is that we -- when we normally have a preemption case, there is a conflict of some sort that you cannot regulate, for example, a drug the same -- by two different -- in two different governments when they are in conflict with each other, the regulations. But, here, we're talking about concurrent authority.

And you can look at our dual sovereignty double jeopardy cases and see that there's not necessarily a conflict.

There may be an overlap or an overlay. But -- so, with that in mind, I would just like you to sort of tease out your preemption argument focusing on this concurrent jurisdiction as opposed to conflict.

Zachary C. Schauf: Sure, Justice Thomas. So, first, we think the text of the statute is best read to provide that state law shall not apply as to these criminal issues, though I do want to take issue with my friend on the other side's premise that what we're doing here is just familiar principles of preemption. What this Court said in Mescalero Apache is exactly the opposite.

Those familiar principles don't apply, and it's because we are in Indian country, which is the -- the sort of quintessential locus where federal law applies and state doesn't -- and state law doesn't. But, on the conflict point, I think the conflict would have been patent in 1834. So, you know, this is a statute, as we read it, that ensures peace on the frontiers, and it does so by centralizing redress in the federal government. So, if you imagine a state prosecution that goes first in the early 19th Century and, you know, they do a bad job, they don't give an adequate sentence, then, you know, what the other side is sort of relying on is that they can -- that the federal government is going to be able to explain to the Indian tribes, you know, we know that this was not a good trial, but, you know, trust us.

We're going to come in after.

We're going to fix it.

Yes, you know, at this point, the dual sovereignty doctrine, as this Court noted in Gamble, is unsettled, but we hope that this is all going to work out. And, you know, those just aren't the kind of chances you take on matters of war and peace.

But, you know, I think maybe even the more fundamental point is it would have never occurred to Congress in this era that states would be the one to protect Indians from crimes. I mean, after all, as this Court said in the Kagama case, Indian -- states at this point were Indians' deadliest enemies, and I don't think you put, you know, the fox in charge of the hen house even if the fox only has concurrent jurisdiction. And, you know, I think there are other ways too that states could use this authority to really thwart tribal interests.

You could, say, for example, criminalize intercourse by non-Indians with Indians and say that's a crime against the Indian, which could be -- basically get you the same regime this Court invalidated in Worcester.

And I actually think the same thing is true today.

So you can look at the issue in the Williams versus United States case.

Clarence Thomas: Well, let's look at the -- let's look at the issue here with the fox and the chicken house.

Actually, I think it's the hen house.

But the -- let's look at that here.

What did the defendant here get for the child abuse in the state case? What was the sentence?

Zachary C. Schauf: So he received a 35-year sentence in --

Clarence Thomas: And -- and what was the reduced -- what was the sentence after McGirt?

Zachary C. Schauf: It was -- the federal sentence -- his sentence has not been imposed, but what the plea agreement provides for is seven years.

Clarence Thomas: Okay.

So --

Zachary C. Schauf: The key difference --

Clarence Thomas: -- the -- you can't make that fox in the -- in the chicken house or hen house argument there.

So I understand your point about -- your 19th Century point, but we're looking at today, and what I'm really interested in is this conflict for -- because you're making sort of a preemption argument, and I don't know if you -- if it's a good argument or an answer -- good answer to keep resorting to the 1830s or 1840s and not be able to show the conflict that we have today.

Maybe it is. Maybe for some of my colleagues it is. But I'd like you to tease out again, what is the conflict if you're making a preemption argument? If you're not making it, then you can say that.

Zachary C. Schauf: Sure.

So I just want to footnote that actually our primary argument is that the text here ousts states from jurisdiction, and so, you know, that is the end of the story, particularly under the preemption standard that applies in this Court's Indian cases. But, on the conflict, let me -- let me sort of take another run at it.

I think there are two.

So one is just making law enforcement worse based on diminished accountability.

You can see this from the brief of the former U.S. Attorneys submitted in this case.

These were the U.S. Attorneys for many Indian country areas, and what they say is that when you have concurrent jurisdiction, you can create a "pass the buck" dynamic that makes law enforcement worse.

And, indeed, we know, you know, this is the view of the tribes in this case. And the second point, and this is where I was going with this Court's decision in Williams, is you can have states prosecute in a manner -- in a manner that isn't consistent with tribal interests.

So, in that case, the issue was, what is the age of consent? Is it 16 or is it 18? You can have -- you could have a circumstance where, for example, you have the intimate partner of a tribal member who goes to prison under a state prosecution when the federal law or the tribal law would allow that person to remain in the community, maybe raise their child. And the reason why, you know, these issues have never arisen is because the rule that we're advocating has been the law since, you know, 1940 at least and, you know, I think probably far earlier than that. So I guess the place I would go back to is the statutes that Congress has enacted that really do embed this understanding in their text --

Brett M. Kavanaugh: But you're here --

Zachary C. Schauf: -- in dialogue.

Brett M. Kavanaugh: I'm sorry.

Go ahead.

Zachary C. Schauf: No.

Please.

Brett M. Kavanaugh: You're here representing a non-Indian criminal defendant, correct?

Zachary C. Schauf: That's -- that's correct.

Brett M. Kavanaugh: And the victim, the five-year-old, was an Indian, correct?

Zachary C. Schauf: That's correct.

Brett M. Kavanaugh: We don't have --

Zachary C. Schauf: She was an enrolled member of the Eastern Band --

Brett M. Kavanaugh: -- we don't have anyone here representing her, but how are her interests served by not having concurrent authority to prosecute your client for the child abuse that was inflicted on her if we're going to look at the interests of Indian victims?

Zachary C. Schauf: Sure.

So I want to make a point about this case and then -- then a sort of broader point. So, on this case, one thing we know from the plea agreement is that the victim's family consented to the federal sentence that was imposed in this case.

And the reason, I would hazard, or something that has a lot to do with that is that when we talk about the 35-year Oklahoma sentence, you can get parole in Oklahoma after, you know, 33 percent of the time.

In the federal system, no parole or you've got to serve 85 percent. And my client also agreed to not contest removal proceedings thereafter.

So that's a pretty significant interest.

And --

Brett M. Kavanaugh: But, from the perspective not of non-Indian criminal defendants, which you're representing one of and representing well, from the perspective of Indian victims, I guess I'm not sure how Indian victims can be harmed by having more prosecutorial authority to fill a gap in Oklahoma where crimes are not being prosecuted against Indian victims, at least now. Now maybe someday the federal government will get the resources to do the job, but even then, the state resources would be additional protection for Indian victims.

So I'm not understanding the -- the -- the argument that somehow Indian victims would be benefitted by ruling for you.

Zachary C. Schauf: So I think the key point I would make is that Congress has created a process for those Indian interests to be protected and it's done that in Public Law 280. And I want to be specific about how it works because I think it's important. So the optional assumptions under Public Law 280 are assumptions of concurrent jurisdiction, just like we're talking about here.

They can be completely bespoke.

So, if you just want to get jurisdiction over crimes against Indians, you can do that. And the tribes themselves actually can't -- they don't have a right to veto -- or at least the tribal governments don't have a right to veto those assumptions.

What you can see -- and this is 25 U.S.C. 1326 -- is you have a special election that can be called with the consent of 20 percent of enrolled tribal members, and that can be in any given area, so Tulsa County, for example. And then, if a majority vote in that special election favors the assumption of jurisdiction, then it can go forward.

And so, you know, if people in Tulsa believe what my friend on the other side says about what is going to be the best thing to protect them from crime, then, you know, they can have it and the tribal governments actually can't stop that because that's, you know, the system that Congress created in order to balance the tribal and federal and state interests in this area.

Sonia Sotomayor: Am I understanding you correctly that each tribe -- that each tribe, 20 percent of their members, presumably, 20 percent being whoever is potential victims, could choose concurrent jurisdiction?

Zachary C. Schauf: So the way I read the statute is that it's actually the enrolled tribal members in a particular geographic area, and I -- I don't think the statute is completely clear on, you know, how you would figure out the exact denominator.

But it is available for Oklahoma, as it's been available for, you know, any other state. And, you know, my friend said there have been no assumptions under Public Law 280, but -- or at least once the 1968 provision made tribal consent required. But there were a number of assumptions before then, at least 12 by my count in Montana and Washington, where the tribes affirmatively said, we consent to this jurisdiction.

And so this is not something, I think, that's unobtainable. And I think the more important point is that it is something that Congress has taken into account in this statutory scheme.

And, you know, it -- it is a scheme --

Sonia Sotomayor: I think you started to answer a question, and I'd like you to expand on it. There's an assumption in Justice Kavanaugh's question that Indian victims can only be helped by concurrent jurisdiction.

Is that assumption correct, that there's additional resources to protect them against crimes? That's the bottom line of his question.

And is that -- do you agree with that assumption?

Zachary C. Schauf: No, I -- I don't think that's right.

I mean, I think, in particular, as a practical matter, you know, the upshot of Oklahoma's position here is, you know, they're saying that if you adopt their position, then you can go back to more like what the situation was before McGirt, where, basically, the federal government wasn't involved in, you know, these sorts of cases involving Indians. And that, I think, is profoundly contrary to the -- the bargain, the agreement that Indian tribes made with the United States where the United States said we are going to be your protector and make sure that you are taken care of. Now it is true that as a formal matter, as the law stands today, you can have, you know, concurrent federal prosecutions, but, as a practical matter, the entire upshot of my friend on the other side's position is that the federal government can go back and wash its hands of these sorts of offenses and, you know, not invest the resources. And, you know, our fundamental position is that the federal government actually has an obligation to invest those resources to make sure this is being done right unless and until either Congress passes a statute or tribal citizens decide under Public Law 280 that they would like a different system to help protect themselves from crime.

Amy Coney Barrett: Well, if --

John G. Roberts, Jr.: Counsel, if I could just -- I don't think we've gotten to the critical language in the statute yet, and, of course, in the General Crimes Act, this is what the language says: "Except as otherwise 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 D.C., shall extend to the Indian country." Now, as I read that, that's taking a body of law, the laws that apply in places within the sole and exclusive jurisdiction, and say that that extends to Indian country. Now where do you get any notion of the preemption of state jurisdiction in that?

Zachary C. Schauf: So I -- I think the Major Crimes Act says much the same thing, which this Court has held is preemptive.

And I think that's for good reason.

And I think that when --

John G. Roberts, Jr.: Where -- where do you get it in the language of that statute, not in what the Court may have said about the Major Crimes Act?

Zachary C. Schauf: Sure, Mr. Chief Justice. So I think the answer is that when you extend the general laws of the United States as to crimes, that is a reference to the enclave laws.

And one of the background principles in federal enclaves is that states can prosecute only if Congress expressly allows it. So I think, you know --

John G. Roberts, Jr.: Well, okay, but you're -- in other words, you're saying that a background principle. They're -- they're taking a particular reference point, right, the general laws that apply in this particular area, and doesn't say that all of the legal issues or jurisdictional questions in enclaves apply in Indian country, which they could have easily said.

They simply say that body of general laws applies.

Zachary C. Schauf: Well, so, you know, we think that when you take the principle from the sort of soil of the federal enclaves, it brings with it this idea of federal exclusivity, particularly when you look at the body of law that's being applied.

You know, this is the general federal laws plus the Assimilative Crimes Act.

It is designed to replace the --

John G. Roberts, Jr.: Okay.

So it's the soil that comes, it's not the language itself?

Zachary C. Schauf: Well, so I -- I think it's -- it's the language that brings the soil with it, but it's also not only the language of this statute because, remember, we have -- you know, just imagine you're sitting there and it's June 25, 1948.

Congress is reenacting the General Crimes Act, this language.

And at the same time, it's re- --

John G. Roberts, Jr.: Well, but that's just a general -- general codification, right? I mean, you've said over and over again that we shouldn't draw any inferences from the recodification in 1948, which is all the -- all the provisions in the U.S. Code, right?

Zachary C. Schauf: So, as to Indian country criminal jurisdiction, this is the very opposite of a general codification.

So the -- the term that governs the General Crimes Act's geographic scope is Indian country. And in 1948, Congress codifies that definition in 1151, immediately prior section, for the first time since 1934.

It does so expressly recognizing that Indian country is going to include land within states. It looks at this Court's cases in doing that, including -- and you can see this in the revisor's notes -- this Court's decision in Donnelly, which says that the single basis for state criminal jurisdiction in Indian country, McBratney and Draper, does not apply to cases like this one. And then, simultaneously, you have the reauthorization of the Kansas Act saying we are going to give just Kansas and then also Iowa and New York around a week later jurisdiction over crimes by or against Indians.

Stephen G. Breyer: That's Congress's intent.

Now I thought -- I had the same question.

And -- and I thought, but I -- don't make me -- don't just agree with this if -- if -- if -- if I'm wrong -- that the federal enclaves are -- are exclusive of state prosecutorial powers.

The state can't prosecute crimes in federal enclaves. Why not? Well, it was constitutional in origin, I think so, and those constitutional principles about federal enclaves as applied were prosecutions in federal enclaves are federal, period, not state.

And that was the principle based on a constitutional reference which meant the words "general laws" pick up that jurisdictional principle. Am I right or wrong?

Zachary C. Schauf: I -- I think you are right, Justice Breyer, and I think it's particularly significant that you are taking those principles and you are applying them to Indian country, which is another area which historically and presumptively is one where federal law is preeminent and state law gives way particularly easily. You know, as this Court emphasized in Williams versus Lee, the basic policy of Worcester endures.

Stephen G. Breyer: Are you being --

John G. Roberts, Jr.: Well, I think --

Stephen G. Breyer: Yeah.

Go ahead.

John G. Roberts, Jr.: No, I was just going to say, I hesitate to say it, but I think you may be wrong in -- in that they could have said that the exclusive jurisdiction extends to Indian country, and that would have been a pretty big deal.

Instead, they say these laws extend to Indian country.

Stephen G. Breyer: Yeah, you know, that's right, that's the other way to read it. The other way to read it is general laws mean substantive laws.

And that's -- or your way to read it would be it includes principles, at least those derived from the Constitution. Have I got it right? Is that right?

John G. Roberts, Jr.: Yeah.

Stephen G. Breyer: All right.

Zachary C. Schauf: So I -- I do think those are the two readings that are on the table.

I think one reason to pick ours is that it's the only one that is consistent with 82 years of statutes Congress has enacted using the phrase "by or against Indians." And I think it's significant that it's really done that in dialogue with this Court's cases. So two years after this Court in Williams says, you know, what Donnelly means is no state jurisdiction, you have the reenactment of the General Crimes Act and the -- you know, these several state-specific statutes.

Then you get Public Law 280 a few years later.

In 1958, Williams versus Lee reaffirms the rule here is exclusive federal jurisdiction. And then, in 1968, Congress amends Public Law 280 based on all that, and -- and it does a couple of significant things.

So, number one, it creates this tribal consent right.

That consent right, as a matter of text, applies to assumptions of jurisdiction over crimes by or against Indians.

My friend's position would read that text out of what Congress provided in 1968, which was a hard-won victory that tribes earned.

And our fundamental submission is that if Oklahoma wants to do that, then it needs to do what the tribes did and go back to Congress. And it also allowed states to retrocede, again, that specific jurisdiction, crimes against Indians.

And many, many states have decided to do so.

And they would nullify that choice as well.

John G. Roberts, Jr.: You -- you rely heavily on Worcester against Georgia.

What do you do -- I think it was Frankfurter, his language in Village of Kake, that "the general notion" -- I'm quoting -- "drawn from Chief Justice Marshall's opinion in Worcester that an Indian reservation is a distinct nation within whose boundaries state law cannot penetrate yielded to closer analysis when confronted in the course of subsequent developments with diverse concrete situations." I mean, I understand that if Worcester against Georgia were the law that we were dealing with today, that I think your friend's argument on the other side to try to change the parameters of the argument to a strict preemption analysis might be pretty difficult. But, I mean, is Frankfurter wrong?

Zachary C. Schauf: So I think there are three answers --

John G. Roberts, Jr.: We might be too.

Zachary C. Schauf: -- three answers to that, Mr. Chief Justice. Number one, in 1834, Congress's backdrop was Worcester, so that was the understanding that Congress had when it enacted the, you know, forerunner to the General Crimes Act. Second, you know, those same cases like Williams versus Lee that say we have departed in some respects from Worcester emphasized that the rule in this case is that state courts lack jurisdiction. And, third, I don't think we have to guess about sort of how to translate, you know, Worcester into, you know, an era where you have reservations existing within state boundaries because we have everything that happened in 1940, 1948, and thereafter, where you see Congress itself grappling with what should be the rule against the backdrop of this Court's cases saying, you know, we have recognized this one ground for state criminal jurisdiction in Indian country and it doesn't apply to crimes by or against Indians. So I think the core point is that as the -- as to the question presented here, you know, this is something that Congress really has resolved.

John G. Roberts, Jr.: Justice Thomas? Justice Breyer, anything further? Justice Alito?

Samuel A. Alito, Jr.: You said that the regular rules of preemption do not apply in a case like this.

What is your test for preemption in a situation like this?

Zachary C. Schauf: So I -- I think the -- the easy way to approach this is what this Court said in John and Negonsott was sufficient under the Major Crimes Act, is that the Major Crimes Act uses the word "exclusive" and so sort of assimilates Indian country to federal enclaves. And it was passed on the understanding that that federal jurisdiction would be exclusive. And I think that is consistent with the general approach to preemption in Indian country, where -- you know, what this Court has said is that Worcester remains the starting point and it's departed only when there is no governing statute. And so, here, where you've got a governing statute --

Samuel A. Alito, Jr.: Well -- well, that seems to me to be an argument about the interpretation of the General Crimes Act rather than an argument about the applicable test for preemption. What if I thought that the language of the General Crimes Act is quite clear and that it means that the law that applies in federal enclaves applies in Indian country and goes no further than that? Is that the end of the case?

Zachary C. Schauf: No.

I mean, I think, again, you know, what this Court has said in Mescalero Apache -- what I hear, you know, your question to be saying, Justice Alito, is that there is no express statement of preemption.

And what this Court had said in Mescalero Apache is that you do not need an express statement of preemption.

And, you know, if you --

Samuel A. Alito, Jr.: Yeah, and that's my question.

Zachary C. Schauf: -- if you want a test, I think --

Samuel A. Alito, Jr.: I mean, that's my question.

What more -- what do you need more? What -- what do you need in this situation that is insufficient, would be insufficient in an ordinary preemption case?

Zachary C. Schauf: So, you know, I think what -- really, what this Court has said is that it is a more lenient standard.

And so, when you have text that I think we can all agree contains some indicia of federal jurisdiction, then, you know, that really is it, and the state must show an affirmative authorization to --

Samuel A. Alito, Jr.: You mean that the language has to be ambiguous? It has to be possible to read the language to mean something different?

Zachary C. Schauf: So I think that this Court's --

Samuel A. Alito, Jr.: Is that enough?

Zachary C. Schauf: -- this Court's cases have gone much further than that.

It has found preemption under the Indian country preemption standard even where there is no preemptive language at all.

You can look at cases like Warren Trading or Central Machine.

These are cases about the Indian trader statutes.

And the only text at issue in those statutes were -- were provisions that, for example, let the federal government prohibit entirely commerce with Indians. So I think we have a much easier case because we have a statute that directly addresses this question and does so while saying treat Indian country like federal enclaves where federal jurisdiction is sole and exclusive. And, you know, we think it goes much further than that, but I think that is enough under this Court's preemption cases in Indian country.

John G. Roberts, Jr.: Justice Sotomayor? Justice Kagan? Justice Gorsuch?

Neil Gorsuch: Do you think the preemption analysis is affected by treaty promises?

Zachary C. Schauf: I do think the preemption analysis is affected by treaty promises.

And, you know, one other place you could start this case is the treaty promise to the Cherokee Nation that it would be under the protection of the federal government and no other sovereign whatsoever.

You could add the promise that the federal government is going to be the one to protect Indians from crimes by non-Indians.

And you could take the promise that Cherokee lands would not be included within state jurisdiction without Cherokee consent. And I think, when you put that set of treaty promises together, the only understanding you can have is that they expected the federal government alone to prosecute these types of crimes.

And so, if you've got an available reading of the statute that vindicates rather than breaks those treaty promises, I think you take that reading of the statute.

John G. Roberts, Jr.: Justice Kavanaugh? Justice Barrett?

Amy Coney Barrett: I want to give you a chance to respond to this argument with respect to the General Crimes Act and the Major Crimes Act and the potential similarities or differences between the two. So you say that the language is quite similar, and I agree they both use the phrase "exclusive jurisdiction." But I'm wondering if the language actually cuts against your argument in this way: So your friend on the other side says that this is taking one body of law and extending it to Indian country in the General Crimes Act. The Major Crimes Act is phrased differently, so it doesn't use this language of "extend." It says an Indian who commits certain crimes against another Indian "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." Well, a person who commits any of those offenses within the exclusive jurisdiction of the United States is subject to only one law, and it's the law of the United States.

I think that phrasing is quite different when you set it in contrast to the General Crimes Act.

So I wondered what your reaction is to that.

Zachary C. Schauf: So I think the first answer is that those nuances have nothing to do with why this Court said in John and Negonsott that the Major Crimes Act was preemptive, which really was just about, you know, the comparison between Indian country and exclusive -- you know, areas of exclusive federal jurisdiction. But I think the text fundamentally does the same thing.

You know, what it says is that individuals are subject to the same law and penalties as all other persons committing these enumerated offenses, which I think sweeps in a set of criminal but not civil principles, which I think is exactly what the phrase "as to the punishment of offenses" does in the General Crimes Act.

So I think they do fundamentally the same thing. And I guess another -- another point I would make on that is that, you know, if that argument were right, I think that would cut in our favor.

I mean, if you look, for example, at the 1817 statute that was the precursor to the General Crimes Act, it uses actually language that's pretty similar to what's now in the Major Crimes Act.

It says that defendants shall be subject to like punishment as others within areas of exclusive federal jurisdiction.

So, you know, that -- their argument, I think, would make the 1817 General Crimes Act preemptive. And I don't think there's any story in which the General Crimes Act, you know, was preemptive in 1817 and stopped being that after. But I think the more fundamental point is that none of these nuances really have anything to do with why this Court in John and Negonsott held that the Major Crimes Act was preemptive under the Indian country preemption standard.

Amy Coney Barrett: Thank you.

John G. Roberts, Jr.: Thank you, counsel. Mr. Kneedler.

Edwin S. Kneedler: Mr. Chief Justice, and may it please the court: The text, the statutory context, and the history of 1152 firmly establish that it provides for exclusive federal jurisdiction over crimes by non-Indians against Indians in Indian country. For over 100 years, starting with this Court's decision in Donnelly, the Court has construed Section 1152 in exactly that manner. And beginning more than 80 years ago, Congress has repeatedly enacted laws that made clear that an act of Congress is necessary to authorize a state to authorize -- to conduct such prosecutions. The roots of exclusive federal jurisdiction under the statute, in fact, go much deeper, though, to the founding, when the framers rejected the divided authority under the Articles of Confederation and invested plenary and exclusive power over Indian affairs in the national government. And the early Congresses invoked those powers by enacting Section 1152's predecessors to prevent violence that could lead to war and to further the nation's commitments to protect the Indians and their -- the Indians and their territories from federal encroachment -- encroachment by often hostile states and their citizens. This Court should reject the proposition that it should overturn 100 years of settled understanding of this statute in this Court and Congress, by the executive branch, and in the states to solve a problem following this Court's decision in McGirt because the result would be to unsettle established jurisdictional understandings and jurisdictional arrangements in many other states and, in fact, would unsettle jurisdictional understandings in the State of Oklahoma beyond what was -- that were in existence at the time of the decision in McGirt. Oklahoma has much trust and restricted allotment land in both the western part of the state and the eastern part of the state, which for more than 30 years has been understood to be subject to exclusive jurisdiction, and the states have not been able to apply their laws there. So what the state is asking for here is not just to go back to what the situation was before McGirt but to undo the settled understanding in Oklahoma itself about the -- the application of state law to --

John G. Roberts, Jr.: What --

Edwin S. Kneedler: -- Indian country.

John G. Roberts, Jr.: -- what is your answer to the language, Frankfurter's language I read from Kake concerning what weight we should give to Worcester against Georgia?

Edwin S. Kneedler: I think that proposition has to do with things where there is not a governing act of Congress. It -- it often comes up that there may be a question of just inherent tribal sovereignty and does state law interfere with that.

And there have been some adjustments of that, largely because non-Indians have moved on a reservation, and often state law will apply to the non-Indians in that situation.

They --

John G. Roberts, Jr.: But I'm -- I'm sorry, go ahead.

Edwin S. Kneedler: No, but, here, we have an act of Congress that -- that is deeply rooted in exclusive jurisdiction over -- over crimes by or against Indians back to the founding.

And changes --

John G. Roberts, Jr.: Well -- well, but, I mean, I think what Frankfurter was addressing is the overall theory of what Marshall's approach was, that the -- the boundary theory, that this is the state and this is the Indian country and -- and, you know, they don't -- don't overlap at all. And Frankfurter's point is, well, it turns out that they have to overlap quite a bit if you're going to deal with all these different factual situations that come up. So the notion, which certainly has a lot to play in the arguments that -- that you have chosen to support, I think, is undermined quite a bit.

I mean, I -- to the -- to the extent, I guess, you -- you agree that this is a preemption case, don't you?

Edwin S. Kneedler: Well, of a -- of a sort, but that's not the way, you know, this Court has understood it.

And I -- and I -- I -- I -- it hasn't used that terminology.

And I -- I -- I want to take a moment to explain the origins of the modern understanding of this, which is this -- this Court's decision in Donnelly, which was a watershed on this point. The argument was made there that the -- that the result in Draper and McBratney should control and that the state should have jurisdiction and not the federal government. The argument -- or the result in -- in McBratney and Draper was not concurrent jurisdiction.

The theory of those cases was that by admitting -- the act admitting those states to the union had repealed 1152 and therefore allowed state jurisdiction to come into play. And the Court said that expressly in Donnelly.

It said that Draper and McBratney understood that the statehood acts had the -- qualified the prior jurisdiction of 1152 by withdrawing from the federal government and then conferring on the state the jurisdiction to prosecute crimes by non-Indians against non-Indians. The whole understanding of that case was it's one or the other.

It's either exclusive jurisdiction or it's not exclusive jurisdiction.

It's state jurisdiction. And to your point, Justice Gorsuch, the Court in Donnelly made the very point that you made.

It -- it said that in the Court's prior decision in -- in Kagama, which involved prosecution of Indians, the Court said that that was exclusively -- that was subject to federal jurisdiction because the states are often the -- the hostile enemies of the Indians and also of the need to protect the Indians as the wards of the nation.

Samuel A. Alito, Jr.: Could you explain --

Edwin S. Kneedler: The Court in Donnelly --

Samuel A. Alito, Jr.: No, go ahead.

Edwin S. Kneedler: May I just finish for a moment?

Samuel A. Alito, Jr.: Sure, yeah.

Edwin S. Kneedler: The Court in Donnelly said that same principle applies perhaps a fortiori to a situation where you have a non-Indian committing a crime against an Indian because of the need to protect the wards of the nation.

So, as Donnelly, I think, settled this question, and it -- it isn't just dicta.

It was --

Samuel A. Alito, Jr.: Well, Mr. Kneedler, that's --

Edwin S. Kneedler: -- the very reasoning that --

Samuel A. Alito, Jr.: -- that's all very abstract, but could you explain why exclusive federal jurisdiction is better for Indian victims of crimes by non-Indians than concurrent jurisdiction?

Edwin S. Kneedler: It may or may not be. And I think a lot of it has to do with perception.

There are three sovereigns involved here.

There's the federal government, the state, and the tribes and the tribal members. And they may not all see the same -- see the same on that.

And that was the -- that was the purpose for Congress enacting Public Law 280, is it would allow the states --

Samuel A. Alito, Jr.: All right.

Well --

Edwin S. Kneedler: -- not the tribes --

Samuel A. Alito, Jr.: -- in -- in --

Edwin S. Kneedler: -- to decide that.

Samuel A. Alito, Jr.: -- in more concrete terms, you have a crime -- alleged crime committed by a non-Indian against an Indian. Why is it better for the Indian victim that the only recourse is federal prosecution with the limited resources that federal -- that federal law enforcement has rather than concurrent jurisdiction? Concretely, why is that worse?

Edwin S. Kneedler: I --

Samuel A. Alito, Jr.: If the state goes first and the Indian victim or the tribe is not satisfied with the way that played out, we have the dual sovereign doctrine, which we reaffirmed in Gamble, and the federal government can step in and prosecute. Why -- why does that disadvantage an Indian victim? I don't really understand that.

Edwin S. Kneedler: I -- I -- I'm not here arguing that it necessarily disadvantages any particular Indian victim.

The United States prosecutes crimes in some states that have concurrent jurisdiction, but that concurrent jurisdiction exists because the relevant sovereigns have agreed to that regime.

Samuel A. Alito, Jr.: Well, this sounds awfully abstract.

Now I think the most valuable information you can provide for me at least is an assessment of the situation right now in Oklahoma and whether -- whether the criminal laws are being adequately enforced right now and whether the current situation in the judgment of the United States is sustainable. Suppose there Congress does nothing.

Edwin S. Kneedler: Well, I --

Samuel A. Alito, Jr.: Is it -- is it a sustainable situation? Is the federal government going to be able to provide enough federal agents, enough federal prosecutors, enough federal judges, enough federal courtrooms, enough federal probation officers, to handle the caseload that was previously handled by state law enforcement?

Edwin S. Kneedler: Yeah, I'm -- I'm not here to minimize the challenge that has resulted from the decision in -- in McGirt.

And the -- the Justice Department has responded to that by providing resources to Oklahoma, 110 additional AUSA positions.

Federal district court judges have been designated to serve in -- in the districts, magistrates have been brought in, FBI agents have been brought in.

Samuel A. Alito, Jr.: I mean, I --

Edwin S. Kneedler: Those are -- those are temporary.

Samuel A. Alito, Jr.: Yeah, I appreciate all that, but I did have two questions.

Is the situation right now adequate from the perspective of the United States --

Edwin S. Kneedler: Not --

Samuel A. Alito, Jr.: -- and, if it is not, is it sustainable?

Edwin S. Kneedler: The -- the situation with respect to funding, there are -- there are two points, is there adequate funding and will that funding be permanent. The Administration has requested an additional $40 million for AUSAs and an additional 76 slots for FBI agents, additional federal marshals, addition -- additional money for the prisons. It -- and Congress, in its political responsibility, we trust, will appropriate that money --

Samuel A. Alito, Jr.: Well, are you counting --

Edwin S. Kneedler: -- to carry out the --

Samuel A. Alito, Jr.: -- are you -- are you counting on that? Are you counting on this being the permanent situation, or are you counting on an agreement between the state and the tribes? And, if it is the latter, what is the universe of agenda items in the negotiations between Oklahoma and the tribes? What are they --

Edwin S. Kneedler: We -- we are not --

Samuel A. Alito, Jr.: -- negotiating about?

Edwin S. Kneedler: -- we are not counting on an agreement between the tribes and the states.

If they agreed, that would be great. And, in fact, that's what Public Law 280 contemplates.

That's the statutory framework that -- that has been put in place. But I think we have to assume Congress will live up to the responsibilities that -- to enable the Justice Department to do everything that is necessary.

It -- it is prosecuting major crimes and violent crimes.

It is prioritizing that, as it necessarily must.

And as they -- as things hit their stride, then some of the less serious crimes will be prosecuted. It's not like they've been dropped.

They're in the queue to be prosecuted as time comes along. But my basic point is the Court should not rearrange this established jurisdictional regime because of -- of this moment in time in Oklahoma because it would unsettle jurisdictional arrangements throughout the country.

And I -- one point I think hasn't gotten enough emphasis on that, there are a number of states that have chosen not to assume jurisdiction under Public Law 280 before 1968, and that would involve tribal consent. But the 1968 amendments to Public Law 280 also provided for the retrocession of jurisdiction by a state to the federal government.

And -- and I understand there have been 30 retrocessions of jurisdiction.

But the statutory retrocession provision only provides for retrocession of jurisdiction that was acquired under Public Law 280 itself. And that -- two -- there are two lessens from that.

One is it shows that it was necessary for Congress to do something to enable a state to acquire jurisdiction under Public Law 280 in the first place over crimes by or against Indians.

But it also shows that if the states were -- were now found to have inherent concurrent jurisdiction notwithstanding the statutory framework, the corpus juris of Public Law 280 and all those other statutes, it couldn't retrocede that because it would not have been jurisdiction acquired under Public Law 280.

And that would -- that would perhaps call into question the retrocessions that those states have already made --

Sonia Sotomayor: Counsel --

Edwin S. Kneedler: -- states that have decided they didn't want the jurisdiction that had been offered to them under Public Law 280, which just reinforces the idea that Congress has made the allocation of jurisdiction in Indian country against the backdrop of Donnelly, where it's exclusive, to be the subject by sovereign choices by the United States, which can -- Congress could pass a law conferring jurisdiction, taking into account the concerns we have, by the tribes and the states.

That's fundamentally a political judgment about how that jurisdiction should be allocated.

Samuel A. Alito, Jr.: Well, if a state doesn't want concurrent jurisdiction, is there anything to prevent the state legislature from forswearing that?

Edwin S. Kneedler: No, but that's not the -- I don't -- I don't think so, but I -- but -- but if the state has -- if the state has this jurisdiction by virtue of its statehood, then I don't know whether it would be responsible for the state to disavow it.

It has jurisdiction. Doesn't it have to do something about it? But what -- but what Congress enacted, again, a framework in which it's up to the respective sovereigns to decide how Indian country should be governed and, therefore, with -- from the tribal perspective, it's not a question whether a particular Indian victim in a particular case would be better protected or not.

There is a collective judgment to be made on behalf of the tribe with respect to its territory about how the sovereign authorities will be allocated. I -- I mentioned --

Sonia Sotomayor: Isn't that the point --

Edwin S. Kneedler: I'm sorry.

Sonia Sotomayor: -- which is Indians have their rights vis-à-vis their own government, their own Indian government, and they have expectations of what that reservation will do for them or not do for them, that -- correct?

Edwin S. Kneedler: Yes.

Sonia Sotomayor: And that's the same view when you were saying, in treaties, the Cherokee Treaty here, says that the federal government will protect them, correct?

Edwin S. Kneedler: Yes.

Sonia Sotomayor: And so, to the extent that a victim has expectations, that's the expectation, correct?

Edwin S. Kneedler: Yeah.

So, as -- as a member of the tribe.

And, yes, an important difference between the United States and the state, it's not just two -- two entities, both can prosecute.

There is a trust relationship between the United States and a state -- excuse me, and a tribe and the tribal members.

There is not a trust relationship between a state and the tribal members. And it's understandable, particularly given the history -- as -- as this Court said in McGirt itself, there is a long history of separating tribes and tribal members from the states because of the hostility.

It's understandable that a tribe and its members would think it would be best to look to the trustee for protection and not necessarily the state. Now a tribe might make a different conclusion and consent to state jurisdiction because it thinks it's better for its tribal members, but that -- but that is the essence of tribal self-government, to allow the people of the tribe to decide whether they want to consent to state jurisdiction or not.

Sonia Sotomayor: Is there any source that I can look at that would tell me -- everyone assumes that Oklahoma has been fully prosecuting over time -- well, we don't have a history, correct?

Edwin S. Kneedler: Not -- not in the -- not in these -- in the fee lands and -- and the reservation, no.

Sonia Sotomayor: Right.

So there -- there is an assumption that Oklahoma will actually expend the resources in doing this, correct?

Edwin S. Kneedler: Well, I -- I --

Sonia Sotomayor: It did before, and --

Edwin S. Kneedler: Yes, and -- and I'm not in a position to assess how well Oklahoma did that --

Sonia Sotomayor: No.

No, but --

Edwin S. Kneedler: -- before.

Sonia Sotomayor: -- is there a source I can look at that would tell me that, in fact, Oklahoma -- we know they prosecuted some of the people who are getting out now, although many of them have been prosecuted by the federal government.

Do you have an idea of how many people have been let out without prosecution by the federal government?

Edwin S. Kneedler: I -- I -- I don't recall, frankly, the precise number.

It's, I think, not that great.

I can supply the -- the figure that was given.

I think it may be a hundred, a couple hundred, but I -- please don't hold me to that because I -- I'm not -- I don't --

Sonia Sotomayor: That's what I've been given to understand.

Edwin S. Kneedler: Right.

Sonia Sotomayor: So there's nothing to suggest that the number is going to be as large as -- as is being thrown around by the Petitioner?

Edwin S. Kneedler: Right.

I also wanted to mention a couple of the other Court's decisions.

It's not just Donnelly where -- where the reasoning depended on this understanding that the -- that the statute is exclusive.

It was also true in Williams versus United States, where the Court specifically said that the United States, rather than the State of Arizona, has jurisdiction.

That's not concurrent.

That's exclusive.

And there was a long footnote recounting what the Court held in Donnelly and said there may have been some confusion about that.

But, in Donnelly itself, the Court said we have now given a full evaluation of this and this is our conclusion, that the principle of McBratney and Draper does not apply and, therefore, the -- the federal government has the exclusive jurisdiction. And that was particularly relevant in that case because the question in -- in Williams versus United States was the application of the Assimilative Crimes Act to the particular crime. And the Assimilative Crimes Act, of course, brings state law in not of its own force but because it's assimilated.

And the Court was -- that passage in the Court's opinion was explaining why the -- why state law was relevant there, because it was assimilated into exclusive federal jurisdiction.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas, anything further? Justice Breyer? Nothing? Justice Sotomayor? Justice Kagan? Justice Gorsuch? No? Justice Kavanaugh?

Brett M. Kavanaugh: Just one.

On the -- on the statutory text, if we just took the statutory text and nothing else and your position on how to interpret the statutory text were correct, why would a state have jurisdiction over non-Indian-on-non-Indian crime in Indian country?

Edwin S. Kneedler: Well, what -- what the Court held in -- in McBratney and Draper was that the Statehood Act had repealed that.

Not -- it's not that the text itself doesn't -- doesn't reach it.

It's that Draper and McBratney held that it -- it had been -- it had been repealed with respect to that category. So there is a symmetry in the statute as a result.

Indian-on-Indian crimes are excluded by the second paragraph. Non-Indian-by-non -- upon-non-Indian crimes are excluded by virtue of Draper and McBratney. And in the middle, where you have crimes by non-Indians against Indians or the other way around, the very core of the relationship between Indians and non-Indians that Congress was given exclusive responsibility for from the founding forward, that remains exclusive federal jurisdiction. And this Court's decision in Negonsott said that it's the text and the Court's decisions that had rendered the Major Crimes Act jurisdiction exclusive, and it relied only on the word "exclusive." We had that -- we have that same point here. And if I could make one other textual point because I think this is important.

My friend on the other side has several times relied on language in Wilson and also in Donnelly as -- as saying the word "exclusive" refers not to the nature of the jurisdiction but to the laws imported, and I -- I -- I think he's misreading that language. The argument in both Donnelly and Wilson, it was a somewhat convoluted argument, but it was that the federal government as a whole does not have exclusive jurisdiction over those particular reservations, like in Donnelly, it was the state has created a school district, therefore, the federal government doesn't have exclusive jurisdiction. Therefore, the argument was the federal criminal statute can't apply because it's being applied in an area where there is not exclusive jurisdiction.

And the Court said no, the -- the -- the phrase you're talking about is not talking about the -- the -- the general nature of the jurisdiction of -- of an Indian reservation.

It's talking about the laws that will be applied in -- in that area. And -- and, here, that's exactly what we're saying.

The law that will be applied in Indian country, whether or not it's exclusive for other purposes, is --

Brett M. Kavanaugh: Thank -- thank you.

Edwin S. Kneedler: -- the enclave law, which is itself exclusive.

John G. Roberts, Jr.: Justice Barrett? Thank you, Mr. Kneedler. Rebuttal, Mr. Shanmugam.

Kannon K. Shanmugam: Thank you, Mr. Chief Justice.

I'd like to cover the relevant preemption principles, talk a little bit about the cases, and then finally talk about the practical consequences. My friend, Mr. Kneedler, says that this is "preemption of a sort." Well, it can't be that.

It has to be some form of preemption that this Court has recognized, and it seems to us that there are three possibilities. The first is obviously conflict preemption.

And my friend, Mr. Schauf, talked only about the General Crimes Act.

With respect to my friend, Mr. Kneedler, we do think that this Court's decision in Wilson resolves this issue for the simple reason that it says, in the second half of the relevant sentence, that the phrase "within the sole and exclusive jurisdiction of the United States" is only used in the description of the laws which are extended to it. We think that that's correct as a matter of statutory interpretation because the statute talks only about the general laws of the United States extending to Indian country.

And to the extent that my friend, Mr. Schauf, talks about a background principle in the soil, the principle at issue is a constitutional principle.

It's the principle from the enclaves clause in Article I, Section 8. And I think it would be quite strange, given the structure of that provision, to say that it incorporates that principle as well. And if it did, it would suggest that McBratney itself was incorrectly decided. And to the extent that finding no footing in the text of the General Crimes Act, my friends turn to the Major Crimes Act, we think that the proper way to construe the Major Crimes Act is as indicating that an Indian who commits a crime -- a crime that is enumerated is subject to prosecution within the exclusive jurisdiction of the United States, not simply that such an individual is subjected to the same punishment as an individual who commits a crime within federal enclaves. This Court's decisions in John and Negonsott relied on the text of the statute, albeit without much explanation, and that's even clearer when you look at the earlier versions of the two statutes, which we cite in our reply brief. As to Public Law 280, the argument that my friend, Mr. Schauf, is making today really does sound in field preemption.

And I would respectfully submit that Public Law 280 comes nowhere near the standard for field preemption, which requires a framework of regulations so comprehensive that Congress left no room for the states to supplement it and a federal interest that is so dominant that the federal system can be assumed to preclude state law.

That's the Arizona versus United States test.

And that would be a very odd test to say is satisfied in an area where the state has presumptive predominant police power. Finally, with regard to balancing, the language on which Mr. Schauf relied from Mescalero talks about how the ordinary preemption framework often doesn't operate where there's a tribal interest. But what Mr. Schauf omits is that the Court says that when that is true, the Court resorts to balancing.

And we haven't heard a lot today about how Respondent could prevail under that balancing test, and I would respectfully submit that that is because he cannot. With regard to the cases, I would just say with regard to Donnelly that my friend, Mr. Kneedler, said that Donnelly settled this question.

If that's true, I'm a little bit perplexed as to how the federal government could have taken the opposite view on the question presented in the OLC opinion and thereafter for a time and characterized the language in earlier cases as dicta. But the one thing we can be certain about about Donnelly is that it did not say that the states lacked jurisdiction.

Donnelly simply said that the federal government had jurisdiction.

It said that the question was whether or not the states had "undivided authority" over that category of offenses.

And in doing so, the Court repeated and endorsed the language from Wilson to which I referred earlier. Finally, with regard to the practical consequences here, my friend, Mr. Kneedler, said that he was not here to minimize the problem on the ground in Oklahoma, but he was not exactly eager to tell you about the problem. And I think that the problem with respect is greater than he suggested.

He referred to a number for the number of cases where convictions have been overturned in the wake of McGirt, but the far bigger problem is the ongoing prospective law enforcement problem in the State of Oklahoma. And contrary to Mr. Kneedler's suggestion that cases are simply being held in the queue, I would refer the Court to DOJ's fiscal year 2023 budget request where DOJ said, and I'm quoting, "As enforcement of nonviolent crime is relatively low, Oklahoma communities may see a surge in such crimes, and many people may not be held accountable for their criminal conduct due to resource constraints." So, to answer your question, Justice Alito, is this a sustainable situation, I would respectfully submit that it is not a sustainable situation, and it would be a cruel irony if the consequence of this Court's decision in McGirt is less protection for the tribal victims of serious crimes. We would submit that the judgment of the Oklahoma Court of Criminal Appeals should be reversed.

Thank you.

John G. Roberts, Jr.: Thank you, counsel. Mr. Kneedler, I note for the record that this is the 150th case in which you have presented oral argument before the Court, and on behalf of the Court, I thank you for your skilled advocacy over the years.