Why the Supreme Court’s Expansion of State Criminal Jurisdiction in Oklahoma v. Castro-Huerta Likely Does Not Apply on Most Pueblo Lands in New Mexico, By Reed C. Bienvenu

In Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022), decided June 29, 2022, the United States Supreme Court announced an important new rule regarding state criminal jurisdiction within the territory of Indian tribes.

In a 5-4 decision, the Court ruled that states have the authority to prosecute crimes that occur in Indian country where the perpetrator is a non-Indian and the victim is an Indian. (“Indian” is a term of art used for jurisdictional purposes under federal law.) As stated by Justice Brett Kavanaugh: “Unless preempted, States may exercise jurisdiction to prosecute crimes committed by non-Indians against Indians within Indian country.” 142 S. Ct. at 2504 n.9.

This decision significantly alters the jurisdictional rules that have long been understood to govern tribal lands. Prior to Castro-Huerta, the prevailing view was that states only possessed jurisdiction over two types of crimes in Indian country: (1) crimes by non-Indians against other non-Indians, and (2) victimless crimes by non-Indians. Crimes involving Indians—either as perpetrators or victims—were believed to lie exclusively within the jurisdiction of the federal government or Indian tribes.

Castro-Huerta adds a third category of crimes in Indian country to the states’ jurisdiction: crimes by non-Indians against Indians. Specifically, the Court ruled that the states’ jurisdiction over these crimes is “concurrent” with that of the federal government. 142 S. Ct. at 2491. Justice Kavanaugh also noted that “[t]he Court’s holding is an interpretation of federal law, which applies throughout the United States.” 142 S. Ct. at 2504 n.9. The result of the Castro-Huerta decision is thus a substantial expansion of state criminal jurisdiction over tribal lands across the country.

Here in New Mexico, however, the effect of Castro-Huerta is likely to be more limited, due to a federal law known as the Indian Pueblo Land Act Amendments of 2005 (the “2005 IPLAA”), Pub. L. No. 109-133, 119 Stat. 2573 (codified at 25 U.S.C. § 331 Note). This law specifically defines the scope of state criminal jurisdiction within the exterior boundaries of the Pueblos’ Spanish land grants. As a result, Congress appears to have preempted any expansion of state criminal jurisdiction under Castro-Huerta on these Pueblo lands.

To understand the 2005 IPLAA, it is useful to know the unique history of the Pueblos’ landholdings. During the period of Spanish control over New Mexico, the Spanish recognized a minimum entitlement of land for each Pueblo, referred to as a “Pueblo league,” of about 17,350 acres. See Malcolm Ebright, Rick Hendricks & Richard W. Hughes, Four Square Leagues: Pueblo Indian Lands in New Mexico 11 (2014). After the United States took over New Mexico, a number of Pueblos possessed documents that purported to be Spanish land grants giving them a Pueblo league or, in some cases, a substantially larger area. Id. 205–34. Congress confirmed the Pueblos’ titles to the land identified in many of those written grants and recognized Pueblo leagues for the rest. Id.; see also United States v. Sandoval, 231 U.S. 28, 39 (1913). Today, these Spanish grant lands comprise the Pueblos’ core landholdings. But within the exterior boundaries of many of these grants are lands that were taken or purchased from the Pueblos, which are now owned by non-Indians.

It has long been established that the Pueblos’ lands are “Indian country” for purposes of federal criminal jurisdiction. However, around the year 2000, questions arose as to whether lands owned by non-Indians within the Pueblos’ land grants also constituted Indian country. See United States v. Antonio, 936 F.3d 1117, 1121 (10th Cir. 2019). Congress responded to this uncertainty by passing the 2005 IPLAA, which was intended to “resolve the question of criminal jurisdiction” over Pueblo lands and also to “avoid checkerboard jurisdiction.” United States v. Smith, 482 F. Supp. 3d 1164, 1170 (D.N.M. 2020).

The 2005 IPLAA states:


(a) IN GENERAL.—Except as otherwise provided by Congress, jurisdiction over offenses committed anywhere within the exterior boundaries of any grant from a prior sovereign, as confirmed by Congress or the Court of Private Land Claims to a Pueblo Indian tribe of New Mexico, shall be as provided in this section.

(b) JURISDICTION OF THE PUEBLO.—The Pueblo has jurisdiction, as an act of the Pueblos’ inherent power as an Indian tribe, over any offense committed by a member of the Pueblo or an Indian as defined in title 25, sections 1301(2) and 1301(4), or by any other Indian-owned entity.

(c) JURISDICTION OF THE UNITED STATES.—The United States has jurisdiction over any offense described in chapter 53 of title 18, United States Code, committed by or against an Indian as defined in title 25, sections 1301(2) and 1301(4) or any Indian owned entity, or that involves any Indian property or interest.

(d) JURISDICTION OF THE STATE OF NEW MEXICO.—The State of New Mexico shall have jurisdiction over any offense committed by a person who is not a member of a Pueblo or an Indian as defined in title 25, sections 1301(2) and 1301(4), which offense is not subject to the jurisdiction of the United States.

25 U.S.C. § 331 Note (emphasis added).

The final phrase of paragraph (d)—“which offense is not subject to the jurisdiction of the United States”—appears to exempt from state criminal jurisdiction any crime that is subject to federal jurisdiction. Id. And paragraph (c) expressly recognizes federal jurisdiction over any offense “committed by or against an Indian,” that is found in Chapter 53 of Title 18 of the United States Code. Id. (emphasis added). That chapter includes the Indian Country Crimes Act, 18 U.S.C. § 1152, which, in conjunction with the Assimilative Crimes Act, 18 U.S.C. § 13, incorporates the criminal laws of the states into federal law for acts committed in Indian country. See United States v. Langford, 641 F.3d 1195, 1197 (10th Cir. 2011).

In combination, these two provisions of the 2005 IPLAA appear to preempt the application of Castro-Huerta within the exterior boundaries of the Pueblos’ land grants by giving the federal government exclusive jurisdiction over crimes committed by non-Indians against Indians within this territory. In other words, due to an act of Congress predating Castro-Huerta by almost two decades, the State of New Mexico is likely prohibited from prosecuting crimes by non-Indians against Indians on most Pueblo lands.

Importantly, there are also many tribal lands in New Mexico that do not fall within the scope of the 2005 IPLAA because they are not “within the exterior boundaries of any grant from a prior sovereign.” 25 U.S.C. § 331 Note. The 2005 IPLAA would not affect the reach of Castro-Huerta on such lands.

Most significantly, the reservations of the Navajo Nation, the Jicarilla Apache Nation, and the Mescalero Apache Tribe do not originate from Spanish land grants. There might, however, be other laws or treaties that affect how Castro-Huerta applies to criminal jurisdiction on these reservations. Notably, Justice Neil Gorsuch’s dissent in Castro-Huerta stated that the 1868 Treaty between the Navajo Nation and the United States “appear[s] to promise tribal freedom from state criminal jurisdiction in express terms.” 142 S. Ct. at 2526.

Further complicating things, some Pueblos also have trust lands that are outside of the boundaries of their Spanish land grants. Castro-Huerta could be determined to apply to the Pueblos’ trust lands but not their Spanish grants lands, resulting in a confusing situation where state criminal jurisdiction varies on different parcels of land held by a single Pueblo.

Given the complexity of these issues, state officials in New Mexico should be cautious when exercising jurisdiction over crimes committed in Indian country by non-Indians against Indians, and they should consult with legal counsel to determine whether Castro-Huerta applies on the specific tribal lands involved. Pueblos and Tribes in New Mexico should also communicate with state officials to ensure that those officials are aware of any legal limitations that apply to Castro-Huerta within their respective territories.

This article was published in the 2022 Issue of the “Indian Law Times,” the newsletter for the State Bar of New Mexico Indian Law Section, which is available here.

Reed C. Bienvenu is a member of the Board of the State Bar of New Mexico Indian Law Section. Kanji & Katzen P.L.L.C. represented the Muscogee Nation in connection with an amicus brief filed in Oklahoma v. Castro-Huerta.