{"id":23579,"date":"2022-04-26T23:38:46","date_gmt":"2022-04-27T03:38:46","guid":{"rendered":"https:\/\/www.indianz.com\/News\/?p=23579"},"modified":"2022-04-26T23:41:40","modified_gmt":"2022-04-27T03:41:40","slug":"scotusblog-supreme-court-considers-sequel-to-landmark-indian-law-decision","status":"publish","type":"post","link":"https:\/\/indianz.com\/News\/2022\/04\/26\/scotusblog-supreme-court-considers-sequel-to-landmark-indian-law-decision\/","title":{"rendered":"SCOTUSBlog: Supreme Court considers sequel to landmark Indian law decision"},"content":{"rendered":" \"The<\/a>
The Guardian, a sculpture by the late Seminole Nation artist Enoch Kelly Haney, sits atop the Oklahoma State Capitol in Oklahoma City, Oklahoma. Photo: Nicolas Henderson<\/a><\/figcaption>\r\n
In sequel to McGirt, justices will again review scope of state prosecutorial power in Indian country<\/div>\r\n
Tuesday, April 26, 2022<\/div>\r\n
By Matthew L.M. Fletcher<\/div>\r\n
SCOTUSblog<\/div>\r\n
scotusblog.com<\/a><\/div>\r\n

<\/p>\r\nA sad story involving child neglect has become the subject of a Supreme Court case \u2014 and white-hot political rhetoric \u2014 because the crime occurred on the reservation of the Cherokee Nation of Oklahoma and the victim (but, crucially, not the defendant) is a citizen of the Eastern Band of Cherokee Indians.

<\/P>\r\nThe case, Oklahoma v. Castro-Huerta<\/a><\/em>, will be argued on Wednesday, the final argument of the 2021-22 term (and the final argument of Justice Stephen Breyer\u2019s career). It is a sequel of sorts to the court\u2019s 2020 decision in McGirt v. Oklahoma<\/a><\/em>, the most monumental federal Indian law decision of the new century. The legal issue is whether states possess criminal jurisdiction over crimes committed by non-Indians against Indians within Indian reservations concurrent with the federal government\u2019s power. If Oklahoma wins, the consequences on Indian country criminal jurisdiction throughout the nation will be extraordinary. If Victor Manuel Castro-Huerta wins, his conviction in Oklahoma state court for neglecting his five-year-old stepdaughter will be overturned (though he has already pleaded guilty to a federal indictment for the same crime) \u2014 and the Indian country criminal jurisdictional regime will remain in place.

<\/P>\r\nIn McGirt<\/em>, the court determined by a 5-4 vote that the historic Creek Reservation boundaries have continued to exist despite a century-long understanding that the reservation had been terminated by the time Oklahoma earned statehood in 1912. But Congress never terminated the reservation, nor did it authorize Oklahoma to enforce its criminal laws on the reservation. Black-letter federal law provides that, since at least Worcester v. Georgia<\/a><\/em> in 1832, states cannot prosecute crimes committed on Indian reservation land without federal approval. Thanks to McGirt<\/em>, we now know that the Creek reservation remained extant, and we also know Oklahoma never possessed criminal jurisdiction authority.

<\/P>\r\nIn the weeks and months following the McGirt<\/em> decision, the Oklahoma Court of Criminal Appeals grudgingly applied the McGirt<\/em>\u2019s reasoning to the Cherokee, Chickasaw, Choctaw, and Seminole reservations. Those historic Indian reservations are once again considered \u201cIndian country\u201d (a legal term of art defined at 18 U.S.C. \u00a7 1151<\/a>), where state power over Indians consists only of the power that Congress expressly grants the states. Approximately 40% of Oklahoma\u2019s land mass is now considered \u201cIndian country.\u201d

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<\/p>\r\nTo say that Oklahoma begrudges its newly limited jurisdiction is to put it mildly. Oklahoma\u2019s leadership frequently claims that lawlessness is rampant and worsening, all because of McGirt<\/em>. It is true that 235 Oklahoma prisoners have won relief from Oklahoma courts since the decision, but only a couple dozen mostly nonviolent offenders have been released<\/a>. But for the political rhetoric, most Oklahomans likely would not even perceive the difference in criminal jurisdiction.

<\/P>\r\nThat does not mean McGirt<\/em>\u2019s impact is minimal. Thousands of criminal suspects are affected. The biggest change is that many thousands of prosecutions (by Oklahoma\u2019s count) previously brought by the state are now being brought by the United States and the tribes. Refusing to give up on its power, Oklahoma petitioned more than 40 times to the Supreme Court throughout 2020 and 2021 to review cases it lost in the Oklahoma Court of Criminal Appeals. The state \u2014 acutely aware that Justice Ruth Bader Ginsburg, who was in the five-justice majority in McGirt<\/em>, had been replaced by Justice Amy Coney Barrett \u2014 was probing for a Supreme Court vehicle to overrule McGirt<\/em>. The court rejected nearly all those petitions.

<\/P>\r\nThe one petition the court did grant is Oklahoma\u2019s petition in Castro-Huerta<\/em>. But the justices declined the state\u2019s entreaty<\/a> to use the case to explicitly reconsider McGirt<\/em>. Instead, the justices limited their review to a narrower question: whether McGirt<\/em> (which involved a defendant who was an enrolled member of an Indian tribe) also applies to non-Indian defendants accused of committing crimes against tribe members. In other words, the state is seeking to use Castro-Huerta<\/em> to restore its power over non-Indian offenders.

<\/P>\r\nUsually, when it comes to Indian country criminal jurisdiction, either the United States or a given state possesses the power to prosecute, but not both (tribal criminal jurisdiction is a separate matter). The Constitution vests the Indian affairs power with Congress through the Indian commerce clause, the treaty power, and related powers. Indian affairs are similar to foreign affairs in that the federal government possesses exclusive power to manage relations with Indian tribes. The fact that the Oklahoma tribes\u2019 reservations were created by treaties negotiated between the tribes and the federal government pretty much says it all. Because Congress possesses this power, Congress decides which governments govern Indian country, and how they do so.

<\/P>\r\nIn Oklahoma, because Congress never authorized the state to prosecute Indian country crime, state power is considered preempted by operation of federal law. As Castro-Huerta\u2019s brief notes, Congress has extended at least some power to prosecute crime in Indian country to a couple dozen states, but not Oklahoma. Absent a controlling act of Congress, Oklahoma presumably remains governed by the baseline rules.

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