LISTEN: Supreme Court appears split in Oklahoma tribal lands jurisdiction case

WASHINGTON — A seemingly divided Supreme Court heard arguments on Wednesday about Oklahoma’s power to prosecute certain crimes on Native American lands, following a 2020 High Court ruling. The outcome likely belongs to Judge Amy Coney Barrett, the only member of the court who did not participate in the previous case.

Watch the debates in the player above.

Barrett, who joined the court later in 2020 following the death of Judge Ruth Bader Ginsburg, did not bow a hand in more than two hours of arguments.

The case pits native tribes in Oklahoma against Republican Gov. Kevin Stitt and is the latest strain on his relationship with tribal leaders.

The High Court is asked to decide whether the state retains the power to prosecute non-natives for crimes committed on tribal lands when the victim is Native American.

Oklahoma appealed to the Supreme Court after a state court overturned the conviction of Victor Castro-Huerta, who is not Native American. Castro-Huerta was charged by Oklahoma prosecutors with malnourishment of his disabled 5-year-old stepdaughter, a member of the Eastern Band of Cherokee Indians.

The state court ruled that Oklahoma had no jurisdiction to prosecute a crime committed against a Native American on tribal land.

Castro-Huerta has since pleaded guilty to a federal charge of child neglect in exchange for a seven-year prison sentence, although he has not yet been formally convicted.

READ MORE: Oklahoma wants Supreme Court to withdraw part of landmark ruling on native rights

Two years ago, the judges split 5-4 in ruling that much of eastern Oklahoma remains a Native American reservation. The decision left the state unable to prosecute Native Americans accused of crimes on tribal lands that include most of Tulsa, the state’s second-largest city with a population of about 413,000.

A state court ruling extended the High Court ruling to apply to crimes committed by non-Indians against Native Americans, leaving the federal government with exclusive authority to prosecute such crimes.

The four justices remaining in the majority in 2020 have strongly suggested they are against the state in the current case as well. Ginsburg was the fifth vote.

Judge Neil Gorsuch, the author of the 2020 McGirt decision, scoffed at state concern for Native American victims “given the history in this country of the state abusing Indian victims in their courts”.

In oral arguments Wednesday, Judge Neil Gorsuch said it had been documented by treaties between tribal nations and the United States that Oklahoma would not have jurisdiction over crimes on Native American lands. Video by PBS NewsHour

But when Zachary Schauf, Castro-Huerta’s attorney, echoed Gorsuch’s remarks by saying that states asserting their interest in protecting Native Americans is like putting “a fox in charge of the chicken coop,” the judge objected. Clarence Thomas.

Thomas, a 2020 dissenter, noted that Castro-Huerta was sentenced to 35 years in prison in state court, compared to the seven years he expects to serve in the federal system.

Schauf said the difference in time spent behind bars would likely be less because of Oklahoma’s parole provisions.

On another note, federal officials admitted they lacked the resources to prosecute all the crimes that fell to them, and several magistrates seemed particularly interested.

“Indian victims are currently unprotected because the federal government does not have the resources to prosecute these crimes,” Kavanaugh said.

If the court rules against the state, “it will hurt Indian victims,” ​​he said.

Kannon Shanmugam, representing Oklahoma, repeatedly returned to the practical consequences, noting that only the federal government can prosecute crimes in nearly half the state.

“The federal government is failing in this task,” Shanmugam said.

Justice Department lawyer Edwin Kneedler, arguing his 150th Supreme Court case, said the court should rule for Castro-Huerta, but said he was “not here to downplay the challenges created by McGirt”.

The Supreme Court case involved the Muscogee reservation, but later rulings upheld the historic reservations of other Native American tribes in Oklahoma, including the Cherokee, Chickasaw, Choctaw, Quapaw, and Seminole nations.

Stitt said during his State of the State Address in February that “Oklahoma has been stripped of the power to prosecute crimes.”

Native American tribes back Castro-Huerta in Supreme Court. “Today’s Supreme Court arguments reaffirmed what the tribes have always said: The State of Oklahoma has neither the facts nor the law on its side,” Chief Chief Chuck Hoskin said. Jr. of the Cherokee Nation in a statement that also accused Stitt of holding “anti-tribal views.”

The Cherokee Nation is the nation’s largest Native American tribe by population with approximately 400,000 citizens, of whom approximately 261,000 live in Oklahoma.

Stitt is a member of the Cherokee Nation. But he has previously clashed with tribal leaders over his desire to renegotiate tribal gaming pacts that he says were expiring. Federal and state courts have ruled against Stitt in lawsuits over the gambling issue.

Last year, Stitt decided not to renew hunting and fishing license contracts with the Cherokee and Choctaw nations amid an ongoing dispute between the tribes and the Republican governor.

Miller reported from Oklahoma City.

Thelma J. Longworth