Supreme Court Reconsiders Parts of Oklahoma Indian Territory Ruling
Category: News & PoliticsVia: vic-eldred • 4 weeks ago • 9 comments
By: Jess Bravin and Sadie Gurman (WSJ)
WASHINGTON—The Supreme Court on Wednesday weighed whether to claw back part of its 2020 decision recognizing nearly half of Oklahoma as Indian country, a legal distinction that prompted outcry from state officials and transferred many criminal cases from state courts to federal jurisdiction.
The Supreme Court rejected Oklahoma's request to consider overruling the 2020 case, McGirt v. Oklahoma, outright. It agreed to consider the state's argument that under current federal law, where the U.S. Justice Department prosecutes crimes by or against Indians on Indian reservations, state courts retain parallel authority to prosecute non-Indians even when the victim is an Indian.
The state says it needs to recover that jurisdiction because the McGirt ruling has caused a criminal-justice crisis. Federal and tribal jurisdictions lack the capacity to handle a deluge of cases now under their responsibility, state officials say, and dozens of violent crimes have gone unpunished because federal statutes of limitation expired, witnesses died or evidence vanished.
Wednesday’s case could have implications nationwide. Should the court agree with Oklahoma, other states with Indian reservations could find themselves with authority for prosecuting crimes over swaths of territory that for generations have been the U.S. Justice Department’s sole responsibility.
The McGirt case was decided by a 5-4 vote, with dissenters arguing that, in admitting Oklahoma to the Union in 1907, Congress dissolved the reservations it had granted the Cherokee Nation, Chickasaw Nation, Choctaw Nation of Oklahoma, Muscogee (Creek) Nation, and Seminole Nation of Oklahoma.
There was no indication Wednesday that any justice on either side had changed perspective. But there was a significant difference; the late Justice Ruth Bader Ginsburg, who had joined three other liberals behind Justice Neil Gorsuch’s McGirt opinion, has been succeeded by Justice Amy Coney Barrett, an appointee of former President Donald Trump .
Wednesday’s case was the final argument of the 2021-22 term, and the curtain call for Justice Stephen Breyer, who has announced plans to retire after all decisions are delivered by early July. The Senate has confirmed a former Breyer law clerk, Judge Ketanji Brown Jackson, as his successor.
Justice Breyer treated Wednesday’s case as any other, asking several largely technical questions regarding the importance of past practice and the approach to federal jurisdiction.
The atmosphere grew poignant at the session’s close, when Chief Justice John Roberts, his voice breaking, noted the coming retirement. “For 28 years this has been his arena for remarks profound and moving, questions challenging and insightful, and hypotheticals downright silly,” he said, as Justice Breyer appeared to blush.
Early in Wednesday’s argument Justice Gorsuch, whose McGirt opinion unsparingly depicted Washington’s record of broken promises to Native American tribes, challenged Kannon Shanmugam, the lawyer presenting Oklahoma’s case.
What of “the history in this country of states abusing Indian victims in their courts?” Justice Gorsuch asked. He cited a 1795 letter in which President George Washington lamented that no jury of “white men” would convict one of their kind for murdering an Indian. “In the 1920s, Oklahoma systematically used its state courts to deprive Indians of their property when oil was discovered on their lands,” Justice Gorsuch said.
Mr. Shanmugam said “the tribal interest [is] the interest in punishing tribal offenders.” Previous cases, he said, have “not defined that interest more broadly as an interest in protecting victims.”
Justice Brett Kavanaugh said a ruling for the state would benefit victims.
“Indian victims right now are not being protected because the federal government doesn’t have the resources to prosecute all these crimes,” he said. “This would not be displacing the federal government. It’s additional prosecutors to protect Indian victims against non-Indians.”
Wednesday’s case involved Victor Manuel Castro-Huerta, a non-Indian who was sentenced to 35 years by a Tulsa state court for criminal neglect of his five-year-old, disabled stepdaughter. A state appeals court threw out the conviction because the stepdaughter is an Indian. Citing the McGirt rule, the state court transferred the case to federal prosecutors who reached a plea bargain with Mr. Castro-Huerta: seven years in prison, followed by deportation to Mexico.
Mr. Castro-Huerta’s lawyer, Zachary Schauf, said Congress established the legal framework for Indian reservations to promote peace on the frontier in the 19th century.
“States at this point were Indians’ deadliest enemies, and I don’t think you put the fox in charge of the henhouse even if the fox only has concurrent jurisdiction,” he said.
Justice Clarence Thomas noted that in this case, the state court had more severely punished the non-Indian defendant than had federal proceedings.
“You can’t make that fox in the chicken house, or henhouse, argument there,” he said.
The Biden administration took the position that the state lacks authority over Indian country cases involving Indian victims. Justice Samuel Alito, calling the government’s legal arguments “awfully abstract,” asked whether the avalanche of cases in federal court was sustainable.
“I’m not here to minimize the challenge,” said the Justice Department’s attorney, Deputy Solicitor General Edwin Kneedler. The administration has requested an additional $40 million for new prosecutors, Federal Bureau of Investigation agents, federal marshalls and to expand prison space. “Congress in its political responsibility, we trust, will appropriate that money,” he said.
Nationwide, some tribes have consented to state jurisdiction over certain crimes on their land, and Congress has granted prosecution authority to more than 10 states that sought such powers. But most states have been content to let federal authorities bear the responsibility—and expense—for law enforcement in Indian country.
Justice Sonia Sotomayor suggested that ruling for Oklahoma could solve that state’s problem of unprosecuted crimes, but impose new burdens elsewhere. She called it “an unfunded mandate to 49 other states to take on a responsibility that they had a choice to take on and most of them didn’t want.”
The McGirt decision was a watershed of Indian law, enforcing 19th century treaties with five tribes that were relocated to the prairie after white settlers drove them from ancestral lands in Georgia and Alabama. To this day, that journey is recalled as the Trail of Tears. It led to the legal recognition that 43% of Oklahoma, including much of Tulsa, is Indian country.
Although the vast majority of the area’s inhabitants aren’t Indians, and therefore remain under the state’s jurisdiction, the transfer of prosecution of Indian-related crimes in most of eastern Oklahoma upended the state’s justice system.
Suddenly, hundreds of crimes involving Native Americans could no longer be charged by state prosecutors or heard by state courts, saddling federal and tribal jurisdictions with a deluge of cases and sowing uncertainty for defendants and victims alike.
The FBI’s Oklahoma City field office became one of the agency’s busiest, borrowing scores of out-of-town agents versed in terrorism, counterintelligence and civil-rights investigations to work more like police detectives investigating shootings and beatings. Dozens of federal judges and prosecutors similarly moved to eastern Oklahoma and began taking on what Clint Johnson, U.S. attorney for the Northern District of Oklahoma, at the time called “a crushing onslaught of cases initially.”