Supreme Court Rules That States Can Prosecute Non-Native Americans Who Commit Crimes on Tribal Land

AP Photo/Robert F. Bukaty

A divided Supreme Court ruled Wednesday that states now have the authority to prosecute crimes committed by non-Natives on tribal land when the victim is Native American.

The high court's 5-4 decision follows a plead by Oklahoma lawmakers, led by Republican Gov. Kevin Stitt, to revisit a landmark verdict in 2020 which saw SCOTUS side with Indigenous sovereignty and reserved the right to prosecute these crimes to federal and tribal officials.

In a 5-4 decision of the 2020 McGirt v. Oklahoma ruling, with Justice Neil Gorsuch penning the majority opinion, he maintained that Oklahoma did not possess the authority nor jurisdiction to prosecute McGirt, an individual who was convicted by the state for sex abuse crimes and is a member of the Seminole Nation of Oklahoma.

The new arguments were centered around Victor Castro-Huerta, a non-Native who was charged by state prosecutors for the malnourishment of his disabled 5-year-old stepdaughter, who is Native-American and a member of the Eastern Band of Cherokee Indians in Oklahoma.

Crucially, the court acknowledged when it accepted Castro-Huerta's case that it rejected the state's request to overturn the McGirt ruling in its entirety, and it has only agreed to reconsider the jurisdictional issue. The court noted this is specifically for cases in "Indian Country" where the victim is Native American and the defendant is not.

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An important precedent established in the court's 2020 decision is that a significant portion of eastern Oklahoma is still an American Indian reservation. The ruling mandated that the state is unable to prosecute Native Americans accused of crimes on tribal lands that include most of Tulsa, Oklahoma's second-largest city and also one of the most dangerous metro areas in the United States.

A major component in both McGirt v. Oklahoma and Castro-Huerta's case is the fact that federal officials have conceded they lack the resources to prosecute the totality of crimes that have fallen on their laps.

Justice Kavanaugh, a dissenter in the 2020 ruling, weighed in and stated, if the court rules against the state, "it's going to hurt Indian victims," he said.

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Kannon Shanmugam, an attorney representing the state of Oklahoma, emphatically denounced the high court's previous verdict, stating that only the federal government possesses the authority to prosecute crimes in almost half the state, which poses a substantial problem and leaves criminals on the street.

On the contrary, Sarah Hill, who serves as attorney general for the Cherokee Nation of Oklahoma, blasted SCOTUS' decision to revisit the issue, stating, "prior to the decision in McGirt, Oklahoma had never attempted to assert jurisdiction over non-Indians who committed crimes against Indians," adding that Oklahoma was trying to "create as much chaos and doubt as possible."

A key swing vote in the case was Justice Amy Coney Barrett, the only current member who did not sit on the court when they debated the McGirt case. The associate justice sided with the majority.

Notably, Coney Barrett replaced Justice Ruth Bader Ginsberg after her death, who sided with the majority in McGirt v. Oklahoma, emphasizing the importance of a single justice.

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In the majority's explanation Wednesday, the five justices stressed that extending prosecutorial jurisdiction to the state would not impede on tribal independence.

"Here, the exercise of state jurisdiction would not infringe on tribal self-government. And because a State's jurisdiction is concurrent with federal jurisdiction, a state prosecution would not preclude an earlier or later federal prosecution. Finally, the State has a strong sovereign interest in ensuring public safety and criminal justice within its territory, including an interest in protecting both Indian and non-Indian crime victims," the verdict read.

The verdict will be widely viewed as an attack on the sovereignty of tribal lands and a breach of agreements between the government and Native American tribes, as the McGirt ruling previously solidified several treaties between the two sides.

Hill weighed in after that ruling, stating, "It's incredibly important to the tribe to preserve the maximum amount of sovereignty that we have because that's how we protect our communities."

Cherokee Nation Principal Chief Chuck Hoskin Jr. said in a statement Wednesday: "With today's decision, the U.S. Supreme Court ruled against legal precedent and the basic principles of congressional authority and Indian law."

As the court's dynamics continue to shift, many previously ruled upon cases could be reviewed by the high court, with verdicts continuing to change.