WASHINGTON, D.C. — The nation’s highest court is set for another tribal sovereignty showdown as the state of Oklahoma continues efforts to weaken a landmark treaty rights decision.

On Wednesday morning, the final day of the October 2021 term, the U.S. Supreme Court hears arguments in Oklahoma v. Castro-Huerta. The closely-watched case stems from a historic ruling — issued barely two years ago — in which Oklahoma was barred from prosecuting tribal citizens for crimes committed in Indian Country.

Up until the McGirt decision from June 2020, the state had been illegally exercising jurisdiction on reservations for more than 100 years. While the ruling is rooted in promises made in tribal treaties, it merely confirms that authority for crimes committed by American Indians and Alaska Natives rests with tribal nations and with the United States, a situation common across Indian Country.

Oklahoma Gov. Kevin Stitt (R) has taken a different view of the legal landscape, flooding the high court with dozens of petitions aimed at undermining McGirt in as many ways possible. In public remarks, he’s repeatedly spoken of a crisis that he claims was brought about by a case that the state lost during his second year in office.

“Oklahoma has been robbed of the authority to prosecute crimes,” Stitt said during the State of the State address in February. “Put simply, McGirt jeopardizes justice.”

Despite the rhetoric, the Supreme Court hasn’t been too receptive to Stitt’s efforts. So far, the justices have denied the vast majority of petitions from Oklahoma, leaving in place not only the precedent in McGirt, but also preventing the state’s past illegal prosecutions from being reopened for the time being.

And in agreeing to hear Castro-Huerta, the high court is attempting to limit Stitt in some fashion. The case is limited to one question and one question only: whether the state of Oklahoma can prosecute non-Indians who commit crimes against Indian victims, in Indian Country.

“In the year and a half since the McGirt decision, tribes have been working closely with state, local and federal partners to address public safety challenges and ensure we can provide a blanket of protection to everyone on our reservation,” Principal Chief Chuck Hoskin Jr. of the Cherokee Nation said in response to Stitt’s claims in February.

“Meanwhile, Governor Stitt prioritized creating instability across Oklahoma, with nothing to show for his quest to overturn McGirt but millions of wasted Oklahoma taxpayer dollars, and lost time that could have been spent working collaboratively on our shared safety goals,” Hoskin said of the Republican governor, who happens to be a Cherokee citizen.

But unlike the arguments in McGirt, and its predecessor Murphy, tribes won’t be at the table when the Supreme Court takes up Castro-Huerta on Wednesday. Although Indian Country interests have submitted a slew of briefs in support of tribal sovereignty, the hearing will be limited to three parties.

Up first at the Castro-Huerta hearing, scheduled to last 70 minutes, will be Oklahoma. Representing the state is Kannon K. Shanmugam, an attorney based in Washington, D.C., who has argued 34 cases before the Supreme Court, according to his law firm.

The choice of Shanmugam stands in marked contrast to McGirt, when the state was represented by Mithun Mansinghani, who serves as Oklahoma’s Solicitor General. His presentation back in May 2020 was the first time he had ever argued before the Supreme Court.

The more experienced Shanmugam is among nearly a dozen attorneys — both from the Oklahoma Office of the Attorney General as well as several in private practice — who have been writing briefs in Castro-Huerta. The state’s legal team argues that non-Indian criminal defendants should be prosecuted in the Oklahoma court system, instead of in the federal system, where they say punishments aren’t as strong.

“For example, respondent was sentenced in state court to 35 years of imprisonment for his heinous conduct in severely neglecting his five-year-old stepdaughter, yet he accepted a federal plea of seven years,” Oklahoma’s final brief, submitted on April 15, reads. Shanmugam has 35 minutes to present at the hearing.

The non-Indian defendant is Victor Manuel Castro-Huerta, who admitted in federal court that he neglected his stepdaughter, a citizen of the Eastern Band of Cherokee Indians. The crime occurred within the reservation of the Cherokee Nation in northeastern Oklahoma.

Castro-Huerta is being represented at the hearing by Zachary Charles Schauf, another D.C. attorney who has ties to the Supreme Court as a former clerk to Justice Elena Kagan. Nearly a dozen attorneys have signed onto his briefs, calling for his prosecution in federal court to stand, a system that is common across the nation when it comes to Indian Country criminal cases.

“Everywhere today, a settled rule governs crimes by non-Indians against Indians in Indian country: Where Congress has authorized States to prosecute, States do,” Castro-Huerta’s March 28 brief reads. “Where not, not.”

“In 21 States, Congress has authorized prosecutions,” the brief continues. “So they proceed. In 26 States, authorization is absent. So federal jurisdiction is exclusive.”

Schaurf has 20 minutes to present Castro-Huerta’s case, according to the Supreme Court’s Day Call for April 27.

Chief Hoskin responds to Oklahoma governor's State of the State address https://t.co/jvGnoVRQei @CherokeeNation pic.twitter.com/DokLHIL5BB

— Anadisgoi (@Anadisgoi) February 7, 2022

Finally, one additional party has been granted approval to appear at the Castro-Huerta hearing. The United States will be represented by another well-experienced Supreme Court practitioner — Edwin S. Kneedler of the Department of Justice, who argued McGirt as well as Murphy, the cases that reaffirmed the presence of Indian Country in Oklahoma.

“Federal law enforcement agencies in Oklahoma are working diligently with tribal and State partners to address the increased caseload occasioned by McGirt, including by indicting respondent here,” the federal government’s April 4 brief reads, reminding the justices that Castro-Huerta is indeed being prosecuted for child neglect in Indian Country.

The brief also acknowledges that punishments in the federal system are indeed different than those in the Oklahoma courts. But government attorneys point out that parole is not possible for federal criminal defendants.

“While Oklahoma contends that those efforts may result in shorter federal sentences, it ignores the differences between the availability of parole in the state and federal systems,” the brief continues. Kneedler has 15 minutes to present on Wednesday.

Castro-Huerta was indicted in federal court in November 2020 on two counts of child neglect in Indian Country, according to the public version of the indictment. A co-defendant, identified as Christina Ann Calhoun, also was indicted on the same counts. According to federal prosecutors, Calhoun is “Indian” for purposes of federal law.

In October 2021, Castro-Huerta agreed to plead guilty to the second count of the indictment. He admitted he “willfully or maliciously failed or omitted to provide adequate” care to an Indian child for a period of about three years. The child needed “special care,” according to federal prosecutors.

The plea agreement envisions a seven-year sentence for the crime of child neglect in Indian Country. Castro-Huerta remains in federal custody as he awaits formal punishment from the federal court in the Northern District of Oklahoma. A sentencing hearing that was to take place on February 15 has been rescheduled for August 8, with the court docket indicating that the delay in part can be attributed to an “unprecedented increase in workload resulting from McGirt.”

Whatever the sentence, the plea agreement notes that Castro-Huerta will be deported by the United States following the completion of any prison term.

Calhoun is currently serving a life sentence in the state of Oklahoma for the crime of child neglect. Although she is attempting to have her state prosecution vacated under McGirt because the crime was committed in Indian Country, federal prosecutors contend the case is not likely to be reopened. As a result, they agreed to withdraw the federal indictment against her but have reserved the right to refile should the legal landscape change.

The Supreme Court will broadcast arguments in Oklahoma v. Castro-Huerta on supremecourt.gov. The building itself remains closed to the public due to the ongoing COVID-19 pandemic.

The hearing is scheduled to begin at 10am Eastern on Wednesday. Castro-Huerta is the only case on the calendar and it also the final case being argued in the high court’s October 2021 term.

Although the Supreme Court has allotted 70 minutes for the case, hearings in Indian law matters tend to run over schedule. McGirt for instance lasted 90 minutes, which was 30 minutes longer than scheduled.

The Supreme Court will post audio from the hearing later on Wednesday at supremecourt.gov. A written transcript also will be posted later in the day.

A decision in Castro-Huerta is expected before the end of the court’s current session in June. Rulings are also due in two other Indian law cases that were heard earlier this year.

The outcome of Denezpi v. United States will impact the ability of tribes to protect women and children from violence while Ysleta del Sur Pueblo v. Texas affects the livelihoods of thousands of people who depend on employment in Indian Country. Both cases were argued on February 21.

A closely-watched case known as Haaland v. Brackeen will be heard during the court’s next session. At issue is whether tribes can exercise sovereignty over their most precious resource — their children — through the Indian Child Welfare Act.

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