[The original version has been edited for clarity.]
A mere two years, the U.S. Supreme Court issued a landmark ruling in McGirt v. Oklahoma, affirming Tribal sovereignty in criminal justice matters involving Native Americans on reservation lands.
On Wednesday, the Supreme Court reversed itself in Oklahoma v. Victor Manuel Castro-Huerta, giving states “concurrent jurisdiction” on those cases.
Former U.S. Attorney Generals call it a “radical departure from U.S. law.” One analyst said it could create a “massive” disruption in Indian Country criminal law.
A landmark ruling
The McGirt decision had an outsized impact in Oklahoma because of the state’s unique history. Before Oklahoma was Oklahoma it was “Indian Territory.” (“Indian Territory” was undesirable land the U.S. government set aside to relocate Native Nations forced off their homelands to the east.)
Indian Territory was divided among several Native Nations (see map below). Once again, settlers started encroaching, taking Native Nation’s land and violating treaties.
Bottom line: The State of Oklahoma developed inside vast areas designated as Indian Country.
The McGirt ruling said for the purposes of the Major Crimes Act: “land reserved for the Creek [Muscogee] Nation since the19th century remains ‘Indian country.’”
McGirt applied not only to the Muscogee, but to the Chickasaw, Choctaw, Cherokee, and Seminole, nations that collectively covered roughly the eastern third of Oklahoma, including most of the city of Tulsa.
McGirt threw Oklahoma courts into turmoil. State courts had to reverse convictions for lack of jurisdiction.
A number of non-Indigenous interest groups sought to overturn McGirt. Their test case involved Victor Manuel Castro-Huerta, a non-Native man convicted in state court of criminal neglect of an Indian child within reservation boundaries. Castro-Huerta wanted his conviction overturned based on McGirt.
The case went to the Supreme Court. In Oklahoma v. Victor Manuel Castro-Huerta, announced Wednesday, the Supreme Court voted 5-4 to give the State of Oklahoma “concurrent jurisdiction” for crimes within Indian reservations.
Matthew L.M. Fletcher, Michigan State University law professor and a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians, wrote the decision “dramatically expands the power of states to prosecute crimes on reservations.”
The “potential of Castro-Huerta to disrupt Indian country criminal justice is massive,” he wrote. “… Going forward, the majority asserted that this decision is broadly applicable ‘throughout the United States,’ seemingly authorizing any state to assert criminal jurisdiction over crimes committed by non-Indians against Indians absent a contrary act of Congress …”
The majority opinion says: “The classification of eastern Oklahoma as Indian country has raised urgent questions about which government or governments have jurisdiction to prosecute crimes committed there.”
The majority sounds surprised when it was the Court itself in 2020 that classified eastern Oklahoma as Indian Country and created these “urgent questions.” Did the Supreme Court really not understand the consequences of its 2020 decision?
Justice Neil Gorsuch authored both the McGirt majority opinion and the Castro-Huerta dissent. He’s clear McGirt meant to recognize Tribal self government.
In McGirt, Gorsuch wrote that the treaty between the United States and the Muscogee (Creek) Nation, promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves,” the majority opinion said. The decision holds “the government to its word.”
In his Castro-Huerta dissent, Gorsuch wrote: “Where this Court once stood firm, today it wilts.”
A court with many ‘friends’
This case’s impact is reflected in the number of parties that filed amicus, or friend-of-the-court, briefs.
According to the Turtle Talk blog, those who supported overturning McGirt and weakening Tribal sovereignty were: The City of Tulsa, the Oklahoma District Attorneys and Sheriffs, the Oklahoma Association of Chiefs of Police, a joint filing including the Oklahoma Farm Bureau Legal Foundation, the Oklahoma Cattleman’s Association, and the Petroleum Alliance of Oklahoma, and a joint filing by the states of Texas, Kansas, Louisiana, Nebraska, and Virginia.
Those arguing to leave McGirt intact were: the United States, the National Congress of American Indians, a joint filing by the “Five Tribes”: the Cherokee, Chickasaw, Choctaw, Muscogee and Seminole, the Peace Commission Treaty Tribes, a joint filing by the National Women’s Indian Resource Center and several Tribes, the Federal Indian Law Scholars and Historians, and a joint filing by 10 former U.S. Attorneys, including Thomas Hefflelfinger, who had two stints as the U.S. Attorney for Minnesota.
The former U. S. Attorney’s wrote:
It is black-letter law that the states have no jurisdiction over crimes committed by Indians or against
Indians in Indian country. …
The rule advocated by the State, if adopted, would be a radical departure from Federal Indian law as it is understood by all United States Attorney’s Offices and the Justice Department itself. …
If Oklahoma wishes to advocate such a sweeping change in established Federal law, it should properly address its reasons for doing so to Congress.Former U.S. Attorneys
The city of Tulsa wrote:
Tulsa has enjoyed positive relationships with tribal governments through-out the city’s history.
The overwhelming majority of Tulsa’s landmass lies within the former territory of the Muscogee (Creek) and Cherokee Nations. For over a century it had been clear that municipal and state laws applied equally to—and equally protected—all Tulsa residents and visitors, regardless of tribal membership.
But the Court’s decision in McGirt changed this.
Cities like Tulsa have borne the brunt of McGirt’s negative effects. Among other things, McGirt has significantly constrained Tulsa’s ability to protect crime victims who happen to be Indian.
Fact check: Has Tulsa had positive relationships with Native Nations throughout the city’s history?
According to the city of Tulsa itself, no. In 2020, Public Radio Tulsa ran a piece on the city’s “Native American Day” celebration, where it vowed to “dismantle settler colonialism.” A city official read a land acknowledgement that said: “The City of Tulsa also acknowledges that it was founded upon exclusions and erasures of Indigenous peoples …”
The very “settler colonialism” the city said it wants to dismantle is present in its brief. Tulsa essentially argued that it knows what’s best for Indians more than Indians do.
Tulsa bemoans the fact that it can’t “better protect Indian crime victims.” Yet Native Nations don’t share that concern. They said they’re happy running their own criminal justice system with federal oversight. The city ignored them.
In the 19th Century, the Creek, Seminole, and other Nations were forcibly removed from their homelands in the southeast United States, in what has become known as the Trail of Tears. Thousands died during the forced march.
Gorsuch cites this history in his dissent, arguing the country has an obligation to live up to its word.
“After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities,” he wrote. “Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands.”
The majority opinion responds to Gorsuch in a very telling way. “The dissent emphasizes the history of mistreatment of American Indians,” Justice Brett Kavanaugh wrote. “But that history does not resolve the legal questions presented in this case,” such as “whether Indian country is part of a State or instead is separate and independent from a State…”
The opinion dismisses the “history of mistreatment of American Indians” as relevant to the case. It is relevant to the case.
The Five Tribes amici brief said they had signed treaties with the United States establishing Reservations “on which the Nations would govern themselves, without state interference, under Congress’s jurisdiction.”
“There, the Nations developed sophisticated governments,” it said “… As sovereigns, the Nations have ‘paramount’ responsibility to protect their Reservations from crime.”
Weakening McGirt “would not make Indian country safer,” the Five Tribes said. In fact, it “threatens the Nations’ exercise of tribal self-government to improve public safety and well-being on their Reservations, and resurrects the threat of state encroachment on tribal sovereignty that the Nations’ new homelands were established to foreclose. The Nations therefore turn again to this Court to stave off that threat.”
The Supreme Court failed them.