WASHINGTON – An attorney for the state of Oklahoma told Supreme Court justices Wednesday that “thousands of crimes” have gone unprosecuted in the two years since the court removed state jurisdiction over many crimes in a large part of eastern Oklahoma.
Kannon Shanmugam said the federal government has been unable to keep up with the criminal caseload since the court’s 2020 ruling McGirt v. Oklahoma, and that the court has never determined what is “sufficient enough” to justify tribal jurisdiction in cases where the tribes ordinarily lacked jurisdiction.
But Justice Neil Gorsuch pushed back, asking Shanmugam how Oklahoma could justify its claim that it should have authority to prosecute crimes on tribal lands given 200 years of history “of states abusing Indian victims in their courts.”
“In the 1920s, Oklahoma systematically used its state courts to deprive Indians of their … property when oil was discovered on their lands,” said Gorsuch, the author of the McGirt ruling.
“We have the treaties, OK, which have been in existence and promising this tribe before the Trail of Tears that they would not be subject to state jurisdiction precisely because the states were known to be their enemies,” he said.
The exchange came as the court considered the scope of McGirt, which found that 3 million acres of eastern Oklahoma still fell within 19th-century boundaries of the Muscogee reservation. That meant the state could no longer prosecute major crimes committed there by members of the Muscogee Nation.
The ruling has since been expanded by state courts to include the Cherokee, Chickasaw, Choctaw, Quapaw and Seminole nations.
The state has filed dozens of petitions with the Supreme Court, seeking to get it to overturn McGirt, which the court has so far declined to do. But it did agree to consider in Wednesday’s case, Oklahoma v. Castro-Huerta, whether the state or tribal nations should try non-Natives who commit crimes against Natives on reservations.
Victor Manuel Castro-Huerta, a non-Native, was convicted of neglecting his Native stepdaughter in 2015 while on reservation land. After McGirt, his sentence was vacated but sparked debate around whether non-Native criminals who committed crimes on reservations against Natives were under tribal jurisdiction.
Zachary Charles Schauf, arguing for Castro-Huerta, focused on the General Crimes Act and the Major Crimes Act. Schauf said Oklahoma lacks jurisdiction in tribal lands because Congress exercised its power over Indian affairs to provide for exclusive federal jurisdiction.
The General Crimes Act cited by Schauf created a federal court jurisdiction for certain types of offenses committed by Natives against non-Native victims and for all crimes committed by non-Natives against Native victims. The Major Crimes Act similarly provided federal court jurisdiction for certain crimes committed by Natives on reservations.
Shanmugam said Oklahoma views concurrent jurisdiction as a way to have “an interest in protecting all of its citizens.” But The Atlantic recently scrutinized Oklahoma’s claim that it lost jurisdiction in “over 18,000 prosecutions a year” because of McGirt, and said ti was unable to verify that number with any state entity.
In a news conference outside the court, Cherokee Nation Principal Chief Chuck Hoskin Jr. admonished the state’s continued efforts to reverse McGirt, calling Republican Gov. Kevin Stitt “the most anti-Indian governor in the history of Oklahoma.”
Hoskin said he feels “confident” with the hearing because of the high court’s past adherence to tribal law precedent.
“We can work together. I just wish the governor of the state of Oklahoma would join us in that effort,” Hoskin said.
He said the nation takes its responsibility to provide a “blanket of protection” for everyone on tribal land “very seriously,” citing the $30 million the Cherokee Nation has invested in its justice system as an example of its commitment to its new role.
Stitt refuted Hoskin’s claims and implied that the tribes are unwilling to work with the state.
“We cannot understand for the life of us why the tribes or, frankly, the federal government would be against concurrent jurisdiction,” Stitt said, “What is the problem with the state of Oklahoma, like we’ve done for 115 years, protecting Native victims?”
He said the hearing was a “law and order issue,” and the state’s case pushed for the right to “protect citizens in eastern Oklahoma.”
Stitt has maintained that McGirt has “ripped Oklahoma apart,” but has also said that if the initial decision were limited to major criminal cases it would be “fixable.” He doubled down on that stance Wednesday and described his concerns about how McGirt could affect taxes and zoning.
“If we can get past, ‘It’s a reservation for all purposes,’ remember the Supreme Court said that it was a reservation for the Major Crimes Act, then we can work through it,” Stitt said. “But if this falls into taxation and zoning, again it’s disastrous for our state.”
Justice Stephen Breyer questioned why Oklahoma hasn’t approached Congress for help.
“I mean, if there is crime, particularly in Oklahoma, can’t they ask Congress to provide extra prosecutorial and judicial resources?” Breyer said.
Oklahoma Attorney General John O’Connor said he thought the state’s position was presented “very well.”
“We’re optimistic,” he said. “We think our position is well-grounded in the law.”
O’Connor said the next step in Oklahoma’s fight against McGirt includes a petition for a future case to determine, “Who is an Indian?” for purposes of criminal jurisdiction, what he called a legal gray area for defendants who were not tribal members when they committed a crime, but joined a tribe later.
– Gaylord News is a reporting project of the University of Oklahoma Gaylord College of Journalism and Mass Communication, which has partnered with Cronkite News to expand coverage of Indigenous communities.