The Supreme Court appears open to Oklahoma’s push to clear up chaos over its ability to protect victims of crimes after a 2020 ruling that state officials say created confusion about who locks up individuals who commit offenses on tribal lands.
At issue is the court‘s ruling in McGirt v. Oklahoma that barred state prosecution of American Indians in eastern Oklahoma for crimes committed on tribal lands and has resulted in a growing backlog of cases in federal and tribal courts.
The case heard on Wednesday, Oklahoma v. Victor Manuel Castro-Huerta, involved a man who was convicted of severely neglecting his 5-year-old step-daughter. He is non-Indian but his step-daughter is Native American.
The lower court vacated Castro-Huerta’s conviction after the McGirt ruling, noting the crime had occurred in Indian country.
The question for the justices to consider in this year’s dispute is who has jurisdiction over a non-Indian who commits a crime against a Native American on tribal land.
The state originally asked the justices to consider overruling McGirt but the court did not squarely take up that issue. That didn’t stop Kannon K. Shanmugam, an attorney representing Oklahoma, from suggesting the court still reverse course.
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“The law enforcement issues are very real,” Mr. Shanmugam told the justices, noting thousands of crimes in Oklahoma are going un-prosecuted because the federal government is unable to handle the case load. “The gap in Oklahoma right now is yawning.”
“The reason we are here today is because of McGirt,” he added. “A state has inherent sovereign authority to punish crimes committed within its borders.”
About 43% of Oklahoma became Indian country after the McGirt ruling, and as a result 1.6 million more people live on Indian territory, Mr. Shanmugam noted. He called the fallout a “law enforcement experiment.”
“The federal government itself recognizes there is a gap,” he said.
Zachary Charles Schauf, who represented Castro-Huerta, argued Congress gave the federal government — not the state — jurisdiction over reservations and that’s been affirmed at least a half-dozen times by the high court.
“We are not writing on a blank slate here,” he said, adding that increasing a state’s authority over Indian territory would be like putting the “fox in the hen house.”
The issue split the justices but not along the usual ideological lines.
Justice Neil M. Gorsuch, a Trump appointee, joined the liberal wing of the court in his skepticism of Oklahoma’s argument.
He said the state had historically abused Indians in the court system in order to take away their property and oil interests.
“Oklahoma’s history is irrelevant?” he asked. “The history and reality should stare us all in the face.”
But Justice Brett M. Kavanaugh, also a Trump appointee, appeared open to Oklahoma having concurrent jurisdiction with the feds in some matters, suggesting that ruling against Oklahoma could actually hurt Indian victims who don’t get justice.
“Indian victims right now are not being protected because the federal government doesn’t have the resources to prosecute all these crimes. This would not be displacing the government. It’s additional prosecutors,” Justice Kavanaugh said.
The confusion from the McGirt ruling led to chaos for cops and courts in Oklahoma for the past two years, according to law enforcement on the ground.
About half the state’s lands are home to dozens of tribes. The city of Tulsa, which has a population of more than 400,000, sits predominantly on a reservation.
A decision in the case is expected by the end of June.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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