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Supreme Court Gives States Expanded Power Over Native Tribes

By Laura Temme, Esq. | Last updated on

The U.S. Supreme Court reversed course on how state governments should interact with tribal authorities in criminal matters this week in Oklahoma v. Castro-Huerta, undercutting its own precedent and long-standing assumptions about Native law.

The opinion is a departure from the court's 2020 decision in McGirt v. Oklahoma, although the majority did not wholly overturn McGirt here. In McGirt, the court held that crimes committed on tribal lands must be prosecuted by either tribal or federal authorities rather than the state. But the part that made the most headlines was the court's recognition that most of the eastern half of Oklahoma, from a legal standpoint, is reservation land.

That observation could impact the state's ability to regulate and tax a large swath of Oklahoma. But in the two years since McGirtGov. Kevin Stitt focused much more on wild speculation of the "lawlessness" that would result from taking criminal jurisdiction away from state authorities.

Only 235 people have been released from prison in the last two years because of McGirt, and 71% of those people were charged in either federal or tribal court after state charges were dropped. 

But the Supreme Court's decision in Oklahoma v. Castro-Huerta could confuse things once again.

Court Rules 5-4 For Increased State Control

In 2015, a state court convicted Victor Castro-Huerta of child neglect against his 5-year-old stepdaughter. Castro-Huerta is non-Native, but his stepdaughter is Cherokee, and they lived in Tulsa. Under McGirt, Tulsa is recognized as "Indian Country."

On appeal in the state courts, Castro-Huerta argued that the McGirt decision meant the state had no right to prosecute him. The court of appeals agreed, vacating his conviction.

When the state's appeal reached SCOTUS, Justice Brett Kavanaugh wrote the opinion for the majority. Joined by Justices Samuel Alito, Clarence Thomas, Amy Coney Barrett, and Chief Justice John Roberts, Kavanaugh concluded that "under the Constitution and this court's precedents, the default is that state may exercise criminal jurisdiction within their territory."

"To be clear," Kavanaugh wrote, "the court today holds that Indian country within a state's territory is part of a state, not separate from a state."

Although Stitt assailed the court with numerous petitions challenging McGirt, Castro-Huerta's case was the only one it agreed to take up. And this decision only affects the state's ability to criminally prosecute non-Natives in "Indian country." But, it does signal a major shift in the way the court addresses issues of Native sovereignty.

After the state court of appeals threw out his conviction, federal authorities charged him with child neglect, and he pleaded guilty. Because the Supreme Court's ruling here affirmed that the federal government holds "concurring" jurisdiction over cases that arise in Indian country, this decision will not affect those proceedings. His sentencing is scheduled for August.

Justice Gorsuch Dissents

However, as the dissent points out, the Constitution gives power over Indian affairs to Congress, not the states.

As he did in the McGirt decision, Justice Neil Gorsuch joined the court's liberal justices in voting to keep this power with tribal governments. In his dissent, Gorsuch called the majority's decision a "grim result," saying that he could "only hope the political branches and future courts will do their duty to honor this nation's promises even as we have failed today to do our own."

The comment harks back to the opening lines Justice Gorsuch employed in the majority's decision in McGirt:

"On the far end of the trail of tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that ...'[t]he Creek country west of the Mississippi shall be solemnly guaranteed to the Creek Indians.'"

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