States should be allowed to prosecute non-Indians for crimes committed on Native American land, an attorney representing the state of Oklahoma told the Supreme Court on April 27, after a court ruling two years ago threw the state’s judicial system into disarray by changing jurisdictional rules.
The case comes after McGirt v. Oklahoma, in which the Supreme Court ruled 5–4 on July 9, 2020, that most of eastern and some of central Oklahoma is Native American land because it hosted Indian reservations. Justice Neil Gorsuch wrote the court’s decision, which was joined by four liberal justices.
This means that prosecution of Native Americans on these lands may only be pursued in tribal courts or in federal courts under a federal statute called the Major Crimes Act. Another court clarified that the reservations belonged to the so-called Five Civilized Tribes—Cherokee, Chickasaw, Choctaw, Creek (Muscogee), and Seminole.
In the case at hand, respondent Victor Manuel Castro-Huerta, a non-Indian, was convicted of neglecting his 5-year-old stepdaughter, an enrolled member of the Eastern Band of Cherokee Indians who has cerebral palsy and is legally blind. The abuse took place on the Cherokee Nation reservation. Castro-Huerta received a prison term of 35 years.
The Oklahoma Court of Criminal Appeals threw out the man’s conviction, finding that the crime had occurred in Indian country. The appeals court also held that the McGirt decision “extends beyond the confines of the Major Crimes Act to all crimes committed by non-Indians against Indians in Indian country.”
That holding was “erroneous, and it greatly exacerbates the ongoing criminal justice crisis in Oklahoma,” according to the state’s petition.
During oral arguments, attorney Kannon Shanmugam, representing Oklahoma, said the 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 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,” the attorney said.
The issue of who has the authority to prosecute “has taken on acute importance in light of the situation on the ground in Oklahoma,” according to Shanmugam.
“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,” he said. “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.”
Justice Elena Kagan told Shanmugam that precedent wasn’t on his side.
“You’re up here, and six times we have said the exact opposite of your position,” the justice said. “Congress has indicated that you are wrong given its ... consistent enactment of statutes that make no sense in light of your position. The executive branch has said that you are wrong in all but one decade.”
The respondent’s attorney, Zachary Schauf, said Oklahoma “lacks jurisdiction because Congress exercised its exclusive power over Indian affairs to provide for exclusively federal jurisdiction.”
In Indian country, “federal statutes presumptively exclude state laws, and it imports the law of federal enclaves, where, likewise, states may prosecute only with Congress’s approval,” according to Schauf.
U.S. Deputy Solicitor General Edwin Kneedler said federal law firmly establishes “exclusive federal jurisdiction over crimes by non-Indians against Indians in Indian country.”
“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 conduct such prosecutions,” Kneedler said.
“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.”
After the hearing had concluded, Chief Justice John Roberts paid tribute to Justice Stephen Breyer, 83, noting that the April 27 hearing would be his last as a justice.
“For 28 years, this has been his arena for remarks profound and moving, questions challenging and insightful, and hypotheticals downright silly,” Roberts said, his voice breaking with emotion.
“This sitting alone has brought us radioactive muskrats and John the Tiger Man,” Roberts said, referring to two of Breyer’s more colorful hypotheticals.
“Now, at the appropriate time, we will, in accordance with tradition and practice, read and enter into the record an exchange of letters between the court and Justice Breyer marking his retirement,” he said.
After the court breaks for the summer in a few weeks, Judge Ketanji Brown Jackson, 51, who was narrowly confirmed by the Senate on April 7, is expected to be sworn in as Breyer’s replacement. Breyer, who was nominated by then-President Bill Clinton, was confirmed on July 29, 1994.
