Oklahoma reclaims some criminal jurisdiction on reservations after Supreme Court ruling

The U.S. Supreme Court ruled Wednesday that Oklahoma can resume prosecuting some crimes involving Native Americans on the state’s six Indian reservations, narrowing the scope of its landmark McGirt decision as federal prosecutors struggle to keep up with caseloads.

In a  5-4 decision, the court said Oklahoma and other states share criminal jurisdiction with the federal government in Indian country when the accused is a non-Indian and the victim is an Indian.

"This Court has long held that Indian country is part of a State, not separate from it," the high court held.

More: Supreme Court urged to reject Oklahoma's arguments about who should be defined as 'Indian'

"Under the Constitution, States have jurisdiction to prosecute crimes within their territory except when preempted by federal law or by principles of tribal self-government. The default is that States have criminal jurisdiction in Indian country unless that jurisdiction is preempted. And that jurisdiction has not been preempted here."

The decision was a major victory for the Oklahoma attorney general’s office, which has been arguing for concurrent jurisdiction in Indian country since the high court ruled in 2020 in McGirt v. Oklahoma that the Muscogee (Creek) reservation was never disestablished.

That ruling — which was later extended to the Cherokee, Chickasaw, Choctaw, Quapaw and Seminole reservations— meant crimes committed by and against Native Americans could only be prosecuted in federal or tribal courts.

Though the state prosecuted most crimes involving Native Americans since statehood, the McGirt decision and the affirmation of the five other reservations limited district attorneys in most of eastern Oklahoma to crimes in which the defendants and victims were non-Indians.

More: FBI director warns of post-McGirt risks, asks senators for more Oklahoma funding

The Oklahoma Court of Criminal Appeals overturned several convictions of non-Indians whose crimes were committed against Indians on the reservations.

The state attorney general’s office — first under former Attorney General Mike Hunter and then under current Attorney General John O’Connor — argued that Congress never explicitly prohibited states from prosecuting crimes in Indian country with non-Indian defendants and Indian victims.

The decision on Wednesday came in the case of Victor Manuel Castro-Huerta, a Mexican national who was convicted in Tulsa County of neglecting his five-year-old stepdaughter, a member of the Eastern Band of Cherokees, to the point that she was hospitalized.

Castro-Huerta’s conviction was overturned by the Oklahoma Court of Criminal Appeals after McGirt because the girl is a Native American and the crime occurred on a reservation.

The Supreme Court’s ruling on Wednesday means the Oklahoma Court of Criminal Appeals must take up the case again and apply the new decision.

Several similar cases pending before the high court were also sent back to the Oklahoma appeals court.

More: McGirt ruling becomes issue in race to succeed Oklahoma Sen. Jim Inhofe

O'Connor and Gov. Kevin Stitt, who failed to get the high court to revisit the McGirt decision, hailed the ruling issued Wednesday.

“Federal prosecutors are only prosecuting one in four felony referrals from law enforcement officers in eastern Oklahoma," O'Connor said. "Now the State prosecutors can take up the slack and get back to what we have been doing for 113 years."

Cherokee Nation Principal Chief Chuck Hoskin, Jr., said the court had "ruled against legal precedent and the basic principles of congressional authority and Indian law."

He said, "While we are disappointed in this ruling, it does not diminish our commitment to meeting our public safety responsibilities and to protecting Oklahomans on our reservations and across the state. Tribal and federal jurisdiction remain unchanged by this decision, but the need to work together on behalf of Oklahomans has never been more clear."

US Supreme Court lineup, views change

The majority opinion was written by Justice Brett Kavanaugh and joined by Chief Justice John G. Roberts, Jr. and Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett. Justices Neil M. Gorsuch, who authored the McGirt decision, led a scathing dissent on Wednesday, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The court's lineup on the McGirt decision included the late Ruth Bader Ginsburg, who sided with Gorsuch, Breyer, Sotomayor and Kagen. Barrett replaced Ginsburg and accounted for the court's majority on Wednesday.

The majority opinion says the question about whether the General Crimes Act allows for concurrent jurisdiction for crimes committed by non-Indians against Indians didn't matter much before the McGirt decision.

"But after McGirt, about 43% of Oklahoma — including Tulsa—is now considered Indian country," the opinion states. "Therefore, the question of whether the State of Oklahoma retains concurrent jurisdiction to prosecute non-Indian on Indian crimes in Indian country has suddenly assumed immense importance … After independently examining the question, we have concluded that the General Crimes Act does not preempt state jurisdiction over crimes committed by non-Indians against Indians in Indian country."

In the dissent, Gorsuch wrote that Congress did preempt state jurisdiction over any crimes involving Native Americans in Indian country and even provided a means for states to assume that jurisdiction if desired.

Oklahoma could have responded to the McGirt decision, Gorsuch wrote, "by asking Congress for state-specific legislation authorizing it to exercise criminal jurisdiction on tribal lands, as Kansas and various other States have done. The State could have employed the procedures of Public Law 280 to amend its own laws and obtain tribal consent.

"Instead, Oklahoma responded with a media and litigation campaign seeking to portray reservations within its State — where federal and tribal authorities may prosecute crimes by and against tribal members and Oklahoma can pursue cases involving only non-Indians—as lawless dystopias."

The majority decision says Gorsuch's dissent "employs extraordinary rhetoric in articulating its deeply held policy views about what Indian law should be … But this Court’s proper role under Article III of the Constitution is to declare what the law is, not what we think the law should be."

Sharing the caseloads

The decision will likely mean some relief for U.S. attorney’s offices in Tulsa and Muskogee, which have been overwhelmed since they became responsible for crimes involving Native Americans in most of eastern Oklahoma.

The Department of Justice told Congress in April that it couldn’t prosecute most of the non-violent crimes being committed on the reservations. For a second year, the department is seeking tens of millions of dollars to hire more prosecutors, FBI agents, DEA agents, U.S. marshals and others critical to expanding the federal criminal justice system in the eastern half of the state.

Now, state prosecutors can take on some of the cases with non-Indian defendants, though it’s not clear how the work would be divided.

Non-Indians generally can’t be prosecuted in tribal courts, aside from specific offenses in the Violence Against Women Act. And major crimes such as murder and rape are prosecuted by U.S. attorneys because of limits on the length of sentences in tribal courts.

Because tribes don't have jurisdiction over crimes committed by non-Indians, "a state prosecution of a non-Indian does not involve the exercise of state power over any Indian or over any tribe," the majority opinion states.

But Gorsuch wrote in the dissent that the majority had not attempted to grapple with tribal sovereignty.

"Their reservations are not glorified private campgrounds," he wrote. "Tribes are sovereigns ... Tribal sovereignty means that the criminal laws of the States 'can have no force' on tribal members within tribal bounds unless and until Congress clearly ordains otherwise."

The city of Tulsa, which sided with the state in the Castro-Huerta case, told justices that city police officers “have referred thousands of cases to federal prosecutors and tribal authorities — but only a tiny fraction of these cases have been meaningfully prosecuted. Federal authorities decline to prosecute all but the most serious crimes, and tribal authorities do not have the resources to prosecute many of the cases referred to them.”

The Five Tribes — the Cherokees, Chickasaws, Choctaws, (Muscogee) Creeks and Seminoles — opposed Oklahoma’s  position, saying 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 Biden administration also opposed the state of Oklahoma in the case, arguing that Congress must grant a state specific authority to prosecute cases involving Indians in Indian country and had not done so with Oklahoma.

This article originally appeared on Oklahoman: Oklahoma reclaims some criminal jurisdiction on reservations in ruling