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Cherokee Nation
“Now and forever the Cherokee Nation Rez”: The Cherokee Nation shared a photo of signage recognizing the continued existence of the Cherokee Reservation in a post on social media on January 21, 2022. Photo: Cherokee Nation
Supreme Court surprises by taking up contentious Indian law case
Friday, January 21, 2022

WASHINGTON, D.C. — The highest court in the land has added another Indian law case to its docket, taking up a contentious sovereignty dispute that has been simmering in the state of Oklahoma for nearly two years.

The U.S. Supreme Court on Friday afternoon agreed to hear Oklahoma v. Castro-Huerta to determine who can prosecute non-Indians in certain situations. And the justices put the case on the fast track, with oral argument set for April.

In the order granting the petition in Castro-Huerta, the justices made it clear that they are going to decide one question and one question only. According to the court, they will rule whether the state of Oklahoma has jurisdiction over non-Indian defendants who commit crimes against Indian victims, in Indian Country.

“The petition for a writ of certiorari is granted limited to Question 1 presented by the petition,” the one-paragraph order noted.

U.S. Supreme Court Order

But Republican officials in Oklahoma are seeing the development in another light. They are hoping the Supreme Court will use the occasion to overturn its historic decision in McGirt, the landmark case which has led to the reaffirmation of reservation lands throughout the state.

“I am encouraged that the Supreme Court has decided to address whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian Country,” Gov. Kevin Stitt (R) said in a statement in the afternoon.

“The fallout of the McGirt decision has been destructive,” Stitt continued, blaming the situation not on the defendant who is accused of child neglect but on the Supreme Court’s July 2020 ruling that upheld a treaty promise made by the U.S. government.

“Criminals have used this decision to commit crimes without punishment,” asserted Stitt, who is a citizen of the Cherokee Nation. “Victims of crime, especially Native victims, have suffered by being forced to relive their worst nightmare in a second trial or having justice elude them completely.”

“The reality is that the McGirt decision has hamstrung law enforcement in half of the state,” said Stitt. “Oklahoma is a law and order state, and I was elected to protect all four million Oklahomans, regardless of their race or heritage. I will not stop fighting to ensure we have one set of rules to guarantee justice and equal protection under the law for all citizens.”

In a post on social media sharing his statement, Stitt characterized the legal development as a “Huge win” for Oklahoma. But his own tribal nation is disputing the premature victory, with Cherokee officials pointing out that the Supreme Court — by ignoring Question 2 in the Castro-Huerta petition — has not agreed to reconsider the ruling in McGirt.

“The Cherokee Nation celebrates the Supreme Court’s rejection of a blatantly political request to overturn its McGirt decision,” Principal Chief Chuck Hoskin Jr. said in a statement on Friday. “With this rejection of the state’s request in this case, the court affirms its decision in McGirt.”

“I am proud of the Cherokee Nation’s success over the past year and a half expanding our justice system in record speed and fighting for public safety, but it would have been more effective had the governor chosen to come to the table from the start,” added Hoskin, who has repeatedly clashed with the governor on sovereignty matters.

“Now that Governor Stitt’s fight against tribal sovereignty has once again come up short, we hope he will consider joining tribes, rather than undermining our efforts, so we can focus on what is best for our tribal nations and all Oklahomans,” the chief of the largest federally recognized tribe in the U.S. stated.

Cherokee Nation Attorney General Sara Hill, the highest ranking legal official on the reservation in northeastern Oklahoma, also highlighted the limited nature of the dispute in Castro-Huerta. She too stressed the need for cooperation, rather than conflict, when it comes to public safety in Indian Country.

“The court will separately consider an Indian law issue unrelated to reservation status: whether a state maintains authority to prosecute a non-Indian who commits a crime against an Indian in Indian Country,” said Hill. “Regardless of the outcome, the Nation will continue to work with state, local and federal partners to ensure that the public is protected on the Cherokee Nation’s reservation.”

Still, the threat to McGirt is far from over. Though the decision is less than two years old, the state of Oklahoma has filed dozens and dozens of petitions in hopes of getting the Supreme Court to overturn it. The language used in the petitions comes across as alarmist.

“No recent decision of this Court has had a more immediate and destabilizing effect on life in an American State than McGirt v. Oklahoma,” John M. O’Connor, the state’s Republican attorney general wrote in his Castro-Huerta petition in September.

Unlike the governor, however, O’Connor was not as eager to declare an early win. But he believes a decision in Castro-Huerta will help the state with a broader agenda — undermining the impact of McGirt.

“Narrowing the scope of this case will not alleviate all of McGirt’s harmful consequences in our state, but it would ensure that non-Indians who victimize Indians can be prosecuted under the same rules as perpetrators who victimize non-Indians,” O’Connor said in a statement later on Friday. “More importantly, it will guarantee Indian victims the same protection and justice that all other Oklahomans enjoy.”

The defendant in the case is Victor Manuel Castro-Huerta, a non-Indian. He was prosecuted in the Oklahoma court system for neglecting his step-daughter, who was five years old at the time she was found in deplorable conditions back in 2015.

The incident occurred within the boundaries of the Cherokee Nation. Due to the location of the crime, and since the young victim is Indian — she is a citizen of the Eastern Band of Cherokee Indians, according to records — the Oklahoma Court of Criminal Appeals later ruled that the state lacked jurisdiction over Castro-Huerta.

“The ruling in McGirt governs this case and requires us to find the District Court of Tulsa County did not have jurisdiction to prosecute Castro-Huerta,” the April 29, 2021, ruling read.

Notably, state prosecutors did not dispute the continued existence of the 14-county Cherokee Reservation, or the history behind the reservation that was guaranteed to the tribe by treaty. Instead, the state attempted to argue for concurrent, or shared, jurisdiction over crimes committed by non-Indians in Indian Country.

But the Oklahoma Court of Criminal Appeals noted that it had already rejected Oklahoma’s attempt to claim concurrent jurisdiction in a murder case known as Bosse v. State. O’Connor’s office did not pursue further appeals in Bosse.

However, the non-Indian defendant, Shaun Michael Bosse, is asking the Supreme Court to accept his petition in hopes of getting the Oklahoma court system to revisit his death sentence. O’Connor, in a reply to the request, conceded that the outcome in Castro-Huerta will affect both matters.

The state’s opening brief in Castro-Huerta is due by February 28. Castro-Huerta, who is being represented by an attorney with the Jenner & Block law firm, according to the docket sheet in No. 21-429, must file his reply by March 28 before arguments are heard in April. The exact date for the hearing has yet to be scheduled.

Victor Manuel Castro-Huerta
Victor Manuel Castro-Huerta is serving a 35-year prison sentence for child abuse, according to the Oklahoma Department of Corrections. Screenshot from

By that time, the Supreme Court will have heard two other Indian law cases that are on the docket for the current term, which began in October. Both Denezpi v. United States and Ysleta del Sur Pueblo v. Texas are being argued on February 22.

At issue in Denezpi is whether tribal citizens can be prosecuted by the United States government and by a tribal government for the same crime. The Supreme Court has previously ruled that both are possible because tribes exercise sovereignty independent and separate from the U.S.

But the situation in Denezpi is unique in that the case against Merle Denezpi, a citizen of the Navajo Nation, was handled in a Court of Indian Offenses, commonly known as a CFR Court. The issue has never come before the justices until now.

In the second case, the Ysleta del Sur Pueblo, also known as the Tigua Tribe, is battling the state of Texas over the sovereign right to offer bingo and electronic forms of bingo on its reservation near El Paso. The dispute has been raging for more than 20 years, with the federal government finally siding with the tribe during the Barack Obama administration.

The Supreme Court rarely hears disputes affecting Indian gaming so the stance of the U.S. is notable. The last case involving a tribal casino was the decision in Bay Mills Indian Community v. Michigan from 2014.

The justices haven’t heard this many Indian law cases since the October 2018 term, when three were on the docket. Two of them — Herrera v. Wyoming and Washington State Department of Licensing v. Cougar Den — went in favor of tribal interests on matters affecting treaty promises. The third was Carpenter v. Murphy, which was finally resolved during the following term with the decision in McGirt.

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