Oklahoma is wrong to claim Indian Country jurisdiction, judges say

Visitors walk past the Supreme Court building on Capitol Hill in Washington, Monday, Feb. 21, 2022.

The state of Oklahoma cannot prosecute people accused of crimes involving Native Americans on the Cherokee Nation reservation, even if the accused is not Indian, lawyers for a man convicted of child neglect at the United States Supreme Court.

Congress, through statutes and treaties with the tribes, “envisaged that the federal government – and only the federal government – would protect Indians from crime,” the attorneys said in written submissions.

“Congress has created a comprehensive program that sets particular penalties and established mechanisms. And when Congress wanted to leave room for other sovereigns, it made express exceptions. But Congress made no exception for state suits and instead applied to Indian Country laws governing areas of “sole and exclusive” federal jurisdiction.

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The arguments came on behalf of Victor Manuel Castro-Huerta, a non-Indian who was convicted in state court in 2017 of child neglect and sentenced to 35 years in prison. The conviction was overturned following 2020 United States Supreme Court decision in McGirt v Oklahomawhich led to the assertion of six reservations comprising most of eastern Oklahoma.

Castro-Huerta’s charges stemmed from crimes committed against a Native American child on the Cherokee reservation. Under federal law, crimes involving Native Americans in Indian Country — which includes reservations — must be prosecuted in federal or tribal courts.

Oklahoma argues that it shares criminal jurisdiction in cases involving non-Indian perpetrators, even when the crimes occur in Indian country and the victim is Native American.

“Neither the General Crimes Act nor any other federal statute prejudices the authority of a state to prosecute non-Indians who commit crimes against Indians in Indian Country within the boundaries of the state”, Oklahoma Attorney General John O’Connor said in a brief filed last month in the case. .

“Nor does a state’s exercise of power to prosecute these crimes interfere with tribal or federal interests.”

State attorneys from Oklahoma and Castro-Huerta will present oral arguments on April 27 to Supreme Court justices, who have agreed to consider the specific issue of concurrent jurisdiction while denying the state’s request to overturn the McGirt decision.

In the McGirt decision, the High Court ruled that the Muscogee (Creek) reservation in eastern Oklahoma had never been dissolved and that Jimcy McGirt, who had been convicted in state court of sex crimes against a child, had been wrongfully prosecuted because he was Native American. and the crimes were committed on the Creek Reservation.

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The Oklahoma Court of Criminal Appeals has since extended the McGirt decision to the Cherokee, Chickasaw, Choctaw, Quapaw and Seminole reservations.

Like many whose convictions were overturned because of McGirt, Castro-Huerta was later charged in federal court and he was granted a plea deal.

His lawyers in the Supreme Court case argued Monday that Oklahoma was wrong to claim concurrent jurisdiction over the specific cases at issue. The state was also wrong to say that concurrent jurisdiction would not interfere with tribal or federal interests, they said.

When 19th-century lawmakers established the system of prosecuting cases in Indian Country, they often viewed the states as the “deadliest enemies” of Native Americans, the lawyers said.

And today, “unilateral expansion” of Oklahoma’s criminal jurisdiction “would undermine tribal sovereignty,” they said.

“When states prosecute crimes against Indians, they project sovereign power into the heart of tribal communities. Even non-Indian defendants in cases like this are often deeply rooted in tribal communities, as spouses, partners, parents, etc.

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“(Oklahoma) therefore misses the point when he says that the tribes have no interest because they generally do not have “the power to prosecute non-Indians”. The tribes have significant interests in how these lawsuits play out.

Congress has given some states — but not Oklahoma — specific authority to prosecute cases “by or against Indians,” the attorneys said.

Certain Oklahoma tribes, including the Cherokees and Chickasaws, are expected to file amicus curiae briefs in the case arguing that Oklahoma does not share jurisdiction over their reservations for cases involving Native Americans. The states of Texas, Kansas, Louisiana, Nebraska and Virginia filed a brief siding with Oklahoma, along with the Oklahoma District Attorneys Association and several other organizations.

A decision is expected this summer and could affect many ongoing appeals as well as future lawsuits.

This article originally appeared on Oklahoman: Oklahoma cannot claim Indian Country jurisdiction, lawyers say

Thelma J. Longworth