Will U.S. Supreme Court hear another case from Oklahoma linked to McGirt ruling?

In three of its last four terms, the U.S. Supreme Court has wrestled with a question about Native Americans and criminal jurisdiction in Oklahoma. With the court’s new term set to begin, justices are being asked to take on another.

The question before the court now is a holdover from its last term: how to determine whether a criminal defendant is Native American.

Justices delayed a decision four times in their last term on whether to take up the question. They punted on it again last week; the case had been scheduled for the justices’ conference of Sept. 28, but was removed from the list of cases under consideration for review.

The court’s new term begins Oct. 3.

Tulsa attorney Mike McBride III, who leads the Indian Law and Gaming Practice Group for Crowe & Dunlevy, said justices have a “lingering interest” in questions stemming from its 2020 decision in McGirt v. Oklahoma.

That decision led to the affirmation of six tribal reservations and reshaped criminal jurisdiction in eastern Oklahoma by shifting criminal cases involving Native Americans to federal and tribal courts.

More:Tribes urge lawmakers to reverse Oklahoma victory on jurisdiction

In its most recent term, the court rejected the state of Oklahoma’s petitions to overturn the McGirt decision.

But justices greatly narrowed the impact of McGirt in two ways: First, they let stand an Oklahoma Court of Criminal Appeals ruling that the decision was not retroactive to people whose convictions had already been upheld on direct appeal. That shut down the pipeline of appeals for hundreds of people hoping to have criminal convictions reversed.

Then, the court ruled in June, that Oklahoma shares criminal jurisdiction with the federal government when the accused is non-Native American and the victim is Native American. That ruling came in the case of Oklahoma v. Castro-Huerta.

The strong divide among justices over issues related to McGirt was shown in that June decision, McBride said, noting the “judicial shift” that came when conservative Justice Amy Coney Barrett replaced the late liberal Justice Ruth Bader Ginsburg between the McGirt decision and the Oklahoma v. Castro-Huerta decision.

Oklahoma’s pending petitions asking the court to consider the definition of a Native American is part of the state's strategy "to undermine tribal and federal criminal jurisdiction and try to wrest back state jurisdiction,” McBride said.

The question about a defendant’s Native American status if he or she is not an enrolled tribal member might be legitimate if courts are using different methods of assessing the status, McBride said.

“Would it be better if there is a uniform test across the country to determine who is Indian under the Major Crimes Act? I think it probably would be,” McBride said.

“But it seems like it’s more a job for the Congress of the United States to articulate that and make a law that defines what is Indian rather than take this up on a piecemeal basis.”

Congress' role

Congress’ role in Native American issues was debated last week when a U.S. House subcommittee held a hearing on the Supreme Court’s decision in the Castro-Huerta case.

Several tribal leaders said Congress should act immediately to restore the law to the way it had been understood for generations — that states had no jurisdiction in Indian country over crimes involving Native Americans.

Jonodev Chaudhuri, ambassador of the Muscogee (Creek) Nation, which was at the center of the McGirt decision, told the Indigenous Peoples subcommittee that Congress should restore tribal jurisdiction and expand the power of tribal courts by allowing them to impose longer sentences. The current maximum sentence of three years in tribal courts means the most serious crimes in Indian country are prosecuted by U.S. attorneys.

But other Oklahoma tribal leaders expressed concerns about making changes that could then be challenged to the U.S. Supreme Court, given its current composition and its ruling in the Castro-Huerta case.

More:Tulsa keeps ticketing Native Americans. A federal appeal raises new questions

Cherokee Nation Attorney General Sara Hill criticized the Castro-Huerta decision but said it hadn’t changed the day-to-day operations of the Cherokee criminal justice system. Tribal courts generally can’t prosecute non-Native Americans anyway except for offenses specified in the Violence Against Women Act. Hill said Congress should let the dust settle and move deliberately, mindful of how the current court might approach other questions of Indian sovereignty.

Stephen Greetham, chief counsel for the Chickasaw Nation, agreed, saying in written testimony to the subcommittee, “Castro-Huerta is an unfortunate ruling. It nonetheless represents this new and relatively young Supreme Court majority’s current approach on matters of Indian law, sovereignty, and the U.S. Constitution.

“As such, it must be taken seriously. It must be studied and acted upon deliberately and in a manner designed to contain it before it more broadly destabilizes federal interests and inherent Tribal rights.”

The question of whether Congress should act could continue to be raised in the future if more McGirt-related cases reach the high court. Oklahoma courts are currently considering cases involving other tribal reservations. Those may eventually be appealed to the nation's highest court, along with potential questions about taxation and regulation on reservations within Oklahoma.

Native American status

The question about the definition of a Native American has been presented to the Supreme Court in the cases of Robert Eric Wadkins and Emmitt Sam.

In both cases, the state of Oklahoma wants the high court to rule that the men should not have been deemed Native Americans after the McGirt decision because they were not enrolled members of a tribe when their crimes were committed.

The Oklahoma Court of Criminal Appeals ruled that the men proved their Indian blood and tribal connections through means other than official membership and were not subject to state jurisdiction for crimes committed on tribal reservations.

Wadkins, who kidnapped and raped a 22-year-old woman in 2017 in Choctaw County, had a Certificate of Degree of Indian Blood most of his life and used it as his primary means of identification and to receive medical benefits from the Choctaw Nation. Also, Wadkins’ mother, brother and several other relatives were enrolled members of the tribe, he attended powwows and “held himself out as an Indian,” the Oklahoma Court of Criminal Appeals said in overturning his state convictions.

The Oklahoma Court of Criminal Appeals reversed Sam’s first-degree murder conviction last year, ruling again that tribal membership was not required. Sam had Cherokee blood and had benefited for many years from services provided by the Cherokee Nation, of which his mother was a member.

The state of Oklahoma contends the Supreme Court, in previous decisions, has left unanswered questions about how to determine Native American status under federal criminal statutes. The ambiguities have led to confusion among law enforcement agencies and caused courts to apply factors inconsistently for assessing Native status, the state says. Oklahoma is urging the high court to require tribal enrollment as the standard.

"The problems with saturating law enforcement and courts with a multi-factor test have magnified after McGirt, which vastly expanded the number of people in the United States affected by federal criminal law for Indian country,” the state argued in a brief in May.

“Crime in Indian country cannot be effectively prosecuted without a clear answer from this Court to the question of who is an Indian.”

Attorneys for Wadkins told justices there was no need to take up the case because there is no confusion in the court. Every court to have considered whether a person must be an enrolled tribal member to be a Native American has rejected Oklahoma's position "for good reason," Wadkins' attorneys say.

"Oklahoma’s position rebels against this Court’s cases — which for centuries have held that the term 'Indian' in federal criminal statutes 'does not speak of members of a tribe' ... as well as statutory text and history. When Congressenacted those statutes, 'enrollment' largely did not exist. So it would be bizarre if those statutes embeddeda concept that, at their passage, had no meaning for most tribes."

This article originally appeared on Oklahoman: Will Supreme Court's new term include an Oklahoma case tied to McGirt?