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Supreme Court rules Oklahoma can prosecute non-Indians when they commit crimes against Indians on reservations

Mark Sherman

In a 5-4 decision, the United States Supreme Court ruled on Wednesday that Oklahoma does have concurrent criminal jurisdiction when prosecuting non-Native people for crimes committed against Native people within reservation boundaries.

Voting in the majority were Justices Kavanaugh, Alito, Thomas, Coney-Barrett and Chief Justice John Roberts. Dissenting were Gorsuch, Kagan, Sotomayor and Breyer.

The decision is a follow-up decision nearly two years after the Court ruling in the McGirt v. Oklahoma case. The decision resulted in 40 percent of eastern Oklahoma being affirmed as reservation land for six tribes.

This decision upended what had become tradition since statehood. Oklahoma did not have the right to prosecute crimes on the affirmed reservations. That right belonged to the tribes and the federal government.

The state fought vigorously against the ruling, filing dozens of petitions asking for a modification or a complete overturn of the decision. Justices affirmedMcGirt v. Oklahomaearlier this year by only agreeing to consider only one narrow request from the state.

In the Oklahoma v. Castro-Huerta petition, justices considered this question: Should the state have the authority to prosecute non-Indians who commit crimes against Indians on reservation land?

Victor Manuel Castro-Huerta is a non-Native man who was sentenced to 35 years in prison for neglecting his Native American stepchild while living on the Cherokee Nation reservation. His conviction was overturned by the Oklahoma Court of Criminal Appeals because of McGirt v. Oklahoma. Castro-Huerta argued that the state lacked jurisdiction over his case.

After the appeal, Castro-Huerta was charged for the same crimes in federal court and has since pleaded guilty. But Oklahoma appealed the case to the Supreme Court, arguing that the state should also have jurisdiction in cases like that of Castro-Huerta.

"The understanding of the law has been clear and has been unwavering," said Stephen Greetham, Chickasaw Nation Senior Counsel.

Greetham went on to say that a state can’t have concurrent jurisdiction in Indian Country unless an agreement is made between the tribe and the state.

Some states and tribes have agreed to concurrent jurisdiction under Public Law 280. Congress passed the law in 1953 allowing states and tribes to strike these cooperative agreements.

The State's Argument

Oklahoma Gov. Kevin Stitt has repeatedly said that McGirt v. Oklahoma has created chaos, allowing crimes to go unprosecuted.

During an interview with a reporter from a local Fox affiliate, Stitt claimed that 76,000 to 100,000 were going unprosecuted.

But data obtained by OPMX from the Oklahoma Department of Corrections and District Attorneys does not back up the claim.

In the oral arguments for Oklahoma v. Castro-Huerta, Justice Sonia Sotomayor asked Oklahoma’s litigator what the impact would be on other states if the High Court ruled in the state’s favor.

"You are the only state that wants concurrent jurisdiction to fix a state specific problem," said Sotomayor.

Sotomayor went on to ask if the Court should assume that every other state wants concurrent jurisdiction or the obligation to protect victims that aren’t under their jurisdiction.

“I mean, what you're saying is an unfunded mandate to 49 other states to take on a responsibility," said Justice Sotomayor.

Kannon K. Shanmugam, Oklahoma's litigator in the case, said in his opening statement before the court that the state has the authority to punish crimes committed within its borders, and no federal law preempts an authority as to crimes committed by non-Indians. Shanmugan relied on the General Crimes Act to support his argument.

"When non-Indians commit crimes against non-Indians in Indian country, law enforcement is there, state law enforcement is there," argued Shanmugam. "Because they have exclusive authority in order to enforce the criminal law."

What happens now?

Oklahoma Attorney General John O'Connor released the following statement after the decision was handed down.

"This decision significantly limits the impact of McGirt. It vindicates my office's years-long effort to protect all Oklahomans—Indians and non-Indians alike—from the lawlessness produced by the McGirt decision. While we still have a long road ahead of us to fix all of the harms our State has experienced as a consequence of McGirt, this is an important first step in restoring law and order in our great State. As we move forward, Oklahoma welcomes the opportunity to continue to work with our tribal and federal partners from both the eastern and western sides of the state."

The state's win doesn't take anything away from the tribes or the federal government in terms of prosecution. Instead, Oklahoma will resume prosecuting crimes on tribal lands, even though the reservations were found to have never been disestablished.

Cherokee Nation Principal Chief Chuck Hoskin Jr. released a statement expressing his disappointment with the ruling saying that it went against legal precedent and Indian law.

"During arguments, Justice Gorsuch asked if the Court would ‘wilt today because of a social media campaign’ – it is unfortunate that the answer appears to be yes," wrote Hoskin Jr. in a statement released to the press.

Hoskin Jr. reiterated that the ruling didn't change anything about the McGirt decision or the sovereignty of their reservation status. Tribal and federal jurisdiction, he said remain unchanged as he stressed the need for the tribes, the state and the federal government to work together on issues of public safety.

"As we enter a chapter of concurrent jurisdiction, tribes will continue to seek partnership and collaboration with state authorities while expanding our own justice systems. We hope that with these legal questions behind us, Governor Stitt will finally lay his anti-tribal agenda to rest and come to the table to move forward with us – for the sake of Oklahomans and public safety."

This is a developing story and will be updated.

This report was produced by the Oklahoma Public Media Exchange, a collaboration of public media organizations. Help support collaborative journalism by donating at the link at the top of this webpage.

Allison Herrera is a radio and print journalist who's worked for PRX's The World, Colorado Public Radio as the climate and environment editor and as a freelance reporter for High Country News’ Indigenous Affairs desk.
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