What rulings on ‘McGirt’ and ‘Castro-Huerta’ mean for tribal relations

US Supreme Court

By Esha Venkataraman

Castro-Huerta could have broad implications. If left as is, states could use the case to argue that it holds jurisdiction over tribes in boundless ways.

McGirt v. Oklahoma is a historic ruling in favor of Native American sovereignty and jurisdiction within the state. But reestablishing tribal liberties presents endless questions over boundaries and the ruling’s literal consequences. It is true that the Supreme Court decision offers a long-awaited opportunity at retribution. However, much is yet to be strictly defined in state and tribal courts. As a result, some confusion and misinformation have risen throughout the country. Citizens must therefore analyze the case with research and scrutiny.

On July 9, 2020, the Supreme Court ruled in favor of Jimmy McGirt, kickstarting an era of reform and legislative retribution within the state of Oklahoma. McGirt went to court after being accused of sex crimes on Muskogee (of the Creek nation) land. Prior to appealing to the Supreme Court, the Wagoner County District Court sentenced McGirt to 500 years in prison and life in prison without parole.

McGirt appealed to the federal courts under the notion that Indians accused of major crimes on tribal lands can only be tried under federal jurisdiction, deriving this technicality under the existing Indian Major Crimes Act.

In the Supreme Court, the major question to be answered was whether or not Muskogee land was ever disestablished. Reservation lands were broken off and sold individually in the past, and the government has previously attacked Native American sovereignty multiple times. Nonetheless, the majority of Congress agreed that according to past — and legitimate — treaties between the federal government and tribes, certain Native American lands remain reservations to this day. Therefore, the Court ruled that the crime was committed on Muskogee land, which was never disestablished, and state authorities could not lawfully prosecute McGirt.

Once the Court decided that Muskogee land remained intact, other tribal lands (such as those of the Cherokee, Chickasaw, Choctaw and Seminole Nations) followed suit within state courts. The McGirt resolution ultimately cemented that much of Oklahoman land in fact belongs to Native American tribes.

Not only does this case bring into question the validity of past legislative decisions, but it also challenges nearly every relation between Oklahoman and tribal communities. Now, negotiations between state and tribal experts strive to put this case into action.

Already, tribal and state relations have been clarified under McGirt’s momentum. To start, any citizenship privileges of Native Americans and non-Native Americans remain untouched. A very important clarification within the ruling is that current contracts, leases, and titles all remain valid. People’s homes and businesses within tribal land may continue to exist as before. The Supreme Court decision has no effect on property rights. Laws regarding mineral interests require tribal and state collaboration for further advancement. Castro-Huerta v. Oklahoma (6-29-22) recently altered criminal prosecution jurisdiction after McGirt, creating more confusion within the state.

The issue of law enforcement and criminal prosecution has procured some misinformation, especially after Castro-Huerta v. Oklahoma. Some regulations stay the same for now. Every criminal will be tried, Indian or non-Indian. Any prisoners, especially members of tribes who were prosecuted under state law and whose position is affected by McGirt, will not be automatically released. Instead, each case may be re-tried by federal or tribal authorities. Until then, prisoners remain incarcerated. Other issues pertaining to criminal prosecution, however, have been reconsidered after Castro-Huerta v. Oklahoma, which declared that the state courts have authority to try non-Indians criminals in Indian territory.

Castro-Huerta v. Oklahoma has driven a wrench in tribal and state proceedings regarding criminal prosecution. On July 6, 2022, the continuation of McGirt went to federal courts to discuss a case of child neglect. Victor Manuel Castro-Huerta, a non-Indian, committed the crime against his stepdaughter, an Indian. The crime was committed on Cherokee land.

Castro-Huerta argued that under McGirt, the state could not prosecute the crime, as it was committed on Native American land. In the federal court, Oklahoma rebutted that McGirt involved a Native American criminal, whereas Castro-Huerta did not. Castro-Huerta used both the General Crimes Act and Public Law 280 to support his argument. The General Crimes Act asserts that “the punishment of offenses committed… within the sole and exclusive jurisdiction of the United States… shall extend to Indian country.”

The Court claimed that this Act does not exactly declare Indian land as part of “federal enclave for jurisdictional purposes”, or that “federal jurisdiction is exclusive in Indian country, or that state jurisdiction is preempted in Indian country.” Castro-Huerta argued that Public Law 280 (took away federal jurisdiction on tribal lands and offered state jurisdiction instead within specific states) would have been rendered void if the state already had concurrent jurisdiction over crimes committed by non-Indian against Indians on Indian land.

To counter Public Law 280, the Court affirmed that the decree never preempted the state from exercising its jurisdiction. The Supreme Court ruled that the state holds the power to prosecute non-Indian criminals who commit crimes on Indian land. This decision limits the scope of McGirt, and many are already discussing the recent setback.

To reiterate, McGirt v. Oklahoma was a simple clarification of Indian law that has existed for nearly 200 years. Prior to Castro-Huerta, crimes committed on Indian land would have been lawfully tried by Indian courts. This is not to say that the state never overrode tribal authority in order to prosecute all criminals itself, but rather that doing so was always illegal.

In order to understand the bold change that Castro-Huerta has made to criminal prosecutions on tribal land, it is imperative to understand a foundational case to Native American law. Worcester v. Georgia, decided in 1832, declared that Georgia had no authority to impose its laws on Cherokee land, as the Indian land remained a sovereign and independent community. Though Andrew Jackson ignored this case and continued to dispossess Native Americans at his will (thereby enacting the infamous Trail of Tears), Worcester v. Georgia remained a central decision upon which Indian law flourished. Castro-Huerta v. Oklahoma presents dismay because it turns this reliable decision on its head.

As stated in the opening opinion of Castro-Huerta, “… that view has long since been abandoned” (referencing Worcester v. Georgia). And as Kavanaugh sharply declared, “This Court has long held that Indian country is part of a State, not separate from it.”

Depending on how following court cases span out, Castro-Huerta could have broad implications on tribal relations. If left as is, states could use the case to argue that it holds jurisdiction over tribes in boundless ways due to the supposed inapplicability of Worcester v. Georgia and other defining court cases.

However, tribes are already working to argue the scope of Castro-Huerta. As stated by a leader of the Muscogee Nation, “We look forward to collaborating with Members of Congress and the federal government to identify all options available to empower Tribal governments to ensure the safety and prosperity of all who reside, work or visit our reservation.” If unquestionably decided that Castro-Huerta only applies to non-Indian criminals who commit crimes against Indians on Indian land, further advancements between tribe and state governments under McGirt may be made. The coming weeks regarding this case will be absolutely crucial.

Above all, only Congress holds the power to change federal law and its power to prosecute major crimes committed by members of tribes. No negotiations between tribes and the state government can change this. Congress holds the ultimate power to decide legislation upon considering the framework of McGirt. The framework of McGirt v. Oklahoma offers a guide to restore the Five Tribes’ sovereignty while maintaining state jurisdiction.

However, the framework does nothing on its own. The tribal authorities and the state government must negotiate consequences of this framework so that Congress may consider this legislation following the Supreme Court decision. Already, governments of tribes in Oklahoma have rapidly grown to accommodate changes post McGirt.

Tribes are gaining an influx in felony and misdemeanor cases, civil cases, and domestic violence cases, to name a few. In response, tribes are investing millions of dollars into their respective nations and are hiring new employees to properly attend to their responsibilities.

Just to provide some examples, as of January of this year the Cherokee Nation spent more than $30 million of its own funds in order to fund their post-McGirt needs. The Choctaw Nation spent upwards of $24.8 million reacting to McGirt as of May 2022.

Even so, Oklahoma’s lawmakers are currently fighting for the federal government to increase funding to support expenses following McGirt. And regardless of the temporarily demanding situation, it seems as though the Supreme Court has no intention of revisiting McGirt v. Oklahoma specifically.

The Court has already declined more than thirty attempts filed by the State of Oklahoma to overturn McGirt. Every day, new questions are settled and new questions arise over this monumental case. As citizens, it is our duty to follow along and understand the impact of these continuous changes to tribal, state, and federal relations.

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