U.S. Supreme Court

Chemerinsky: With Supreme Court shift on Indian law, will it reconsider a recent landmark ruling?

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Erwin Chemerinsky. Photo by Jim Block.

One of the most important themes of the recently completed Supreme Court term is the significance of Justice Ruth Bader Ginsburg being replaced by Justice Amy Coney Barrett. An important example of how this has affected court rulings came in a case in the area of Indian law that, by comparison, received little media attention.

In 2020, the court decided the landmark case McGirt v. Oklahoma. The court held that pursuant to the Major Crimes Act and a treaty between the United States and the Creek Nation, members of that tribe who commit crimes in Indian country cannot be prosecuted in state court. The decision was 5-4, with Justice Neil Gorsuch writing the majority opinion, joined by Justices Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The effect of the decision is that a significant part of Oklahoma is deemed Indian country, and members of tribes cannot be prosecuted in state court for crimes committed there.

The issue in the most recent term’s Oklahoma v. Castro-Huerta case was whether a nontribal member could be prosecuted in state court for crimes committed against a tribal member in Indian country. The court, 5-4, ruled that such cases can be brought in state court, with Justice Brett Kavanaugh writing the opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Barrett.

Without question, there is a difference in the issues between the two cases. But the real distinction is in the composition of the court, with Justice Ginsburg having been replaced by Justice Barrett. There is thus a strong sense that McGirt would not be decided the same way today, and that, of course, raises speculation about whether the five in the majority in Castro-Huerta may want to reconsider McGirt. But it also is possible that the Castro-Huerta decision, which limits the number of cases that must be litigated in federal court and that cannot be prosecuted in state court, may lessen the pressure on the court to overrule McGirt.

McGirt v. Oklahoma

According to the Major Crimes Act, within “the Indian country,” “any Indian who commits” certain enumerated offenses “shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States.” “Indian country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States government.” Under this law, the tribes retain jurisdiction to try individuals for crimes in Indian country and the federal government has authority to try certain crimes, but as the court noted: “State courts generally have no jurisdiction to try Indians for conduct committed in ‘Indian country.’ ”

Jimcy McGirt was convicted in 1997 by an Oklahoma state court of molesting, raping and forcibly sodomizing a 4-year-old girl, his wife’s granddaughter. He was sentenced to 1,000 years plus life in prison. McGirt argued to the Supreme Court that the state lacked jurisdiction to prosecute him because he is an enrolled member of the Seminole Nation, and his crimes took place on the Creek Reservation.

The Supreme Court said the crucial question was whether his crimes occurred in “Indian country.” The court, in a 5-4 decision, held that for purposes of the Major Crimes Act, land reserved for the Creek Nation since the 19th century remains “Indian country.” Justice Gorsuch focused on acts of Congress and said Congress had never disestablished the Native American reservation. Therefore, McGirt, as a tribal member, could not be tried in state court for crimes committed on tribal land.

Chief Justice Roberts, writing for the four dissenters, emphatically disagreed with the majority that the crime occurred on Indian land. He said the treaties that would have made it Indian country were no longer in effect. Most of all, he expressed great concern about the implications of the decision. The dissent described the vast area covered: The Creek reservation by the majority’s analysis covers 3 million acres, and additional reservations would cover 19 million acres. The dissent complained: “Across this vast area, the state’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the court has profoundly destabilized the governance of eastern Oklahoma. The decision today creates significant uncertainty for the state’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law. None of this is warranted.”

Oklahoma v. Castro-Huerta

Victor Manuel Castro-Huerta lived in Tulsa, Oklahoma, with his wife and several children, including Castro-Huerta’s then-5-year-old stepdaughter, who is an enrolled member of the Eastern Band of Cherokee Indians. Castro-Huerta, who is not a tribal member, was accused in 2015 of severely neglecting his stepdaughter. He was convicted and sentenced to 35 years of imprisonment.

Under the court’s decision in McGirt, the crimes occurred in Indian country. Castro-Huerta, relying on McGirt, argued that the state court lacked jurisdiction to try and convict him. The Supreme Court rejected this argument and held that a state has concurrent jurisdiction with the federal government to prosecute crimes committed by non-Indians against Indians in Indian country. Justice Kavanaugh, who wrote for the court in a 5-4 decision, said, “the court’s precedents establish that Indian country is part of a state’s territory and that, unless preempted, states have jurisdiction over crimes committed in Indian country.” After reviewing the Major Crimes Act and other sources of law, the court concluded that state courts have concurrent jurisdiction for crimes by nontribal members committed in Indian country.

Justice Gorsuch dissented and, joined by the three liberal justices, stressed the history of terrible mistreatment of American Indians. The dissent saw this case as taking important authority away from Native American tribes. Justice Gorsuch wrote: “The real party in interest here isn’t Mr. Castro-Huerta but the Cherokee, a tribe of 400,000 members with its own government. Yet the Cherokee have no voice as parties in these proceedings; they and other tribes are relegated to the filing of amicus briefs.” For the dissent, the majority was removing an important attribute of tribal sovereignty by recognizing concurrent jurisdiction in state courts.


All four McGirt dissenters are in the majority in Castro-Huerta and are joined by Justice Barrett. All four from the McGirt majority are in dissent in Castro-Huerta; the fifth member of the McGirt majority was Justice Ginsburg.

Interestingly, Oklahoma asked the court to consider the question of whether McGirt should be overruled, and the court did not grant review on that issue. Yet Justice Kavanaugh, in the majority opinion, stressed the burdens McGirt is creating for Oklahoma and the federal courts. He wrote: “The Oklahoma courts have reversed numerous state convictions on that same jurisdictional ground. After having their state convictions reversed, some non-Indian criminals have received lighter sentences in plea deals negotiated with the federal government. Others have simply gone free. Going forward, the state estimates that it will have to transfer prosecutorial responsibility for more than 18,000 cases per year to the federal and tribal governments. All of this has created a significant challenge for the federal government and for the people of Oklahoma. … And the Department [of Justice] recently acknowledged that ‘many people may not be held accountable for their criminal conduct due to resource constraints.’”

This suggests that the majority in Castro-Huerta may be willing to reconsider McGirt. But it hasn’t happened yet. Castro-Huerta distinguishes and limits the reach of McGirt, but it does not in any way overrule it. And perhaps by limiting the reach of McGirt, the court makes it less likely that the decision will be overruled.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014) and The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights (Liveright, 2021).

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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