Using Consent to Expand Tribal Court Criminal Jurisdiction.

In June of 2022, the Supreme Court reversed two hundred years of precedent in Oklahoma v. Castro-Huerta, holding in a 5-4 opinion that states have concurrent criminal jurisdiction over crimes committed by non-Indians against Indians in Indian country. In conducting the preemption analysis, Justice Kavanaugh’s majority opinion reasoned that while states have a strong interest in prosecuting crimes in Indian country in order to keep the community safe, tribes had functionally no interest because they generally lack criminal jurisdiction over non-Indians. The Court then reasoned that the lack of a tribal interest could not preempt the state interest. This Article suggests that, despite the general prohibition on tribes asserting criminal jurisdiction over non-Indians that was discovered by the Supreme Court in its 1978 Oliphant opinion, tribes can assert criminal jurisdiction over non-Indians who consent to the jurisdiction in tribal court. The argument extends to both affirmative and implied consent and draws its authority from both pre-Oliphant scholarship and precedent, as well as from recent developments by the Court, Congress, and dicta from the Ninth Circuit. If tribes are able to regularly assert some criminal jurisdiction over non-Indians, then when lower courts apply Castro-Huerta in the future, there will be a strong tribal interest to preempt state criminal jurisdiction in Indian country. [ABSTRACT FROM AUTHOR]