U.S. Supreme Court

SCOTUS limits scope of McGirt, allows Oklahoma to prosecute some crimes on reservations

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The U.S. Supreme Court ruled 5-4 Wednesday that Oklahoma has the authority to prosecute crimes by non-Indians against Native Americans on reservations. The decision limits the reach of a prior decision that barred the state from prosecuting tribal members on reservations.

The Supreme Court ruled in Oklahoma v. Castro-Huerta. At issue was whether the federal government had exclusive jurisdiction to prosecute such crimes under the language of the General Crimes Act.

Oklahoma and the federal government have concurrent jurisdiction, wrote Justice Brett Kavanaugh in his majority opinion.

The case stems from the Supreme Court’s 2020 decision McGirt v. Oklahoma, which held that a large part of eastern central Oklahoma is an American Indian reservation. The McGirt case has been extended by courts to cover at least four other tribal nations.

The McGirt decision meant that tribal members who committed crimes on the Muscogee (Creek) Nation land couldn’t be prosecuted by the state of Oklahoma.

Major crimes could be prosecuted by the federal government, however, under the Major Crimes Act. And the federal government could prosecute the type of crimes that apply to federal enclaves when committed by and against non-Indians under the General Crimes Act. Tribal justice systems would have to prosecute other crimes.

The new decision limits the scope of McGirt, according to early coverage of the case by SCOTUSblog.

The case involved Victor Manuel Castro-Huerta, a non-Indian living on a reservation who was convicted of child neglect by the state in the care of his stepdaughter, a tribal member. Castro-Huerta had argued that the state could not prosecute crimes committed on reservations that were by or against Indians, the New York Times reported in its coverage of the case.

The Supreme Court said Oklahoma’s jurisdiction to prosecute was not preempted by federal law or principles of tribal self-government.

“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. Therefore, a state has jurisdiction to prosecute crimes committed in Indian country unless state jurisdiction is preempted.”

In this case, there is no preemption, Kavanaugh said.

Justice Neil Gorsuch was the author of McGirt. He wrote the dissent in the new case, which was joined by the court’s three liberal justices. He began by referring to an 1823 Supreme Court decision affirming Native American sovereignty.

“Where this court once stood firm, today it wilts,” Gorsuch wrote. The majority’s decision on state jurisdiction “comes as if by oracle” without any sense of history and “unattached to any colorable legal authority,” Gorsuch said.

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