WASHINGTON – The Supreme Court on Wednesday narrowed the sweep of its landmark 2020 decision declaring that much of eastern Oklahoma falls within an Indian reservation, allowing state authorities to prosecute non-Indians who commit crimes against Indians on the land.
The ruling left in place the basic holding of the 2020 decision, McGirt v. Oklahoma, which was decided by a 5-to-4 vote and said that Native Americans who commit crimes on the reservation cannot be prosecuted by state or local law enforcement and must instead face justice in tribal or federal courts.
The vote on Wednesday was also 5 to 4, with Justice Amy Coney Barrett, who was not on the court when the McGirt case was decided, casting the decisive vote.
The decision came on the next-to-last day of a tumultuous Supreme Court term. The court announced that it would issue its final decisions in argued cases on Thursday, including one on the Environmental Protection Agency’s authority to address climate change.
Justice Stephen G. Breyer, who announced in January that he planned to step down at the end of the term, sent a letter to President Biden on Wednesday saying that his retirement would become effective at noon on Thursday. Judge Ketanji Brown Jackson, who was confirmed by the Senate in April, will be sworn in at noon.
In the case from Oklahoma, Justice Neil M. Gorsuch, who wrote the majority opinion in McGirt, issued a slashing and impassioned dissent, accusing the majority of “astonishing errors” that had produced an embarrassing new entry into the anti-canon of Indian law. ”
John O’Connor, Oklahoma’s attorney general, welcomed the ruling. “This decision significantly limits the impact of McGirt,” he said in a statement. “It vindicates my office’s yearlong effort to protect all Oklahomans – Indians and non-Indians alike – from the lawlessness produced by the McGirt decision.”
Chuck Hoskin Jr., the principle chief of the Cherokee Nation, said the ruling was a betrayal. “With today’s decision,” he said in a statement, “the U.S. Supreme Court ruled against legal precedent and the basic principles of congressional authority and Indian law.”
He said it could have been worse, as “the court has refused to overturn the McGirt decision. ”
The new case concerns Victor Manuel Castro-Huerta, who was convicted of severely neglecting his 5-year-old stepdaughter, a member of the Eastern Band of Cherokee Indians who has cerebral palsy and is legally blind. In 2015, she was found dehydrated, emaciated and covered in lice and excrement, weighing just 19 pounds.
Mr. Castro-Huerta, who is not an Indian, was prosecuted by state authorities, convicted in state court and sentenced to 35 years in prison.
After the McGirt decision, an Oklahoma appeals court vacated his conviction on the ground that the crime had taken place in Indian Country. The appeals court relied on earlier rulings that crimes committed on reservations by or against Indians could not be prosecuted by state authorities.
Federal prosecutors then pursued charges against Mr. Castro-Huerta, and he pleaded guilty to child neglect in federal court and entered a plea agreement calling for a seven-year sentence. His sentencing is scheduled for August.
“In other words,” Justice Brett M. Kavanaugh wrote for the majority, “putting aside parole possibilities, Castro-Huerta in effect received a 28-year reduction of his sentence as a result of McGirt.”
He added that the case was typical. “After having their state convictions reversed, some non-Indian criminals have received lighter sentences in plea deals negotiated with the federal government,” Justice Kavanaugh wrote. “Others have simply gone free.”
In dissent, Justice Gorsuch said the court should not be taken in by “a media and litigation campaign” that he said sought to portray reservations in Oklahoma as “lawless dystopias.”
Federal prosecutors were adjusting to their new responsibilities, he wrote, adding that “those convicted of federal crimes generally receive longer sentences than individuals convicted of similar state offenses.”
Prosecution in a tribal court was not an option in Mr. Castro-Huerta’s case, as tribal courts generally lack authority to try non-Indians for crimes against Indians.
Four members of Wednesday’s majority had dissented in McGirt: Justice Kavanaugh, Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr.
And all four of Wednesday’s dissenters were in the majority in McGirt: Justices Gorsuch, Breyer, Sonia Sotomayor and Elena Kagan.
Justice Ruth Bader Ginsburg, the fifth member of the McGirt majority, died a few months after the ruling was issued, and her replacement, Justice Barrett, almost surely controlled the outcome in the new case.
Justice Kavanaugh’s analysis started from the premise that states have jurisdiction over Indian lands unless it is displaced by Congress or unlawfully infringes on tribal sovereignty.
Justice Gorsuch responded by calling the premise “a category error.”
“Tribes are not private organizations within state boundaries,” he wrote. “Their reservations are not glorified private campgrounds. Tribes are sovereigns. ”
Justice Kavanaugh, proceeding from his premise, concluded that the relevant federal statute left state sovereignty in place, rejecting seeming statements to the contrary in earlier decisions as nonbinding asides in cases where the stakes were low.
“The question of whether states have concurrent jurisdiction over crimes committed by non-Indians against Indians in Indian Country,” he wrote, “did not previously matter all that much.”
He added: “But after McGirt, about 43 percent of Oklahoma – including Tulsa – is now considered Indian Country. Therefore, the question of whether the State of Oklahoma retains concurrent jurisdiction to prosecute non-Indian-on-Indian crimes in Indian Country has suddenly assumed immense importance. ”
Justice Kavanaugh added that the court’s decision would not infringe on tribal self-government.
“In particular,” he wrote, “a state prosecution of a crime committed by a non-Indian against an Indian would not deprive the tribe of any of its prosecutorial authority. That is because, with exceptions not invoked here, Indian tribes lack criminal jurisdiction to prosecute crimes committed by non-Indians such as Castro-Huerta, even when non-Indians commit crimes against Indians in Indian Country. ”
Indeed, he wrote, “Castro-Huerta’s argument would require this court to treat Indian victims as second-class citizens.”
Justice Gorsuch responded that “the old paternalist overtones are hard to ignore.”
He urged Congress to restore what he said the majority had taken away, suggesting statutory language.
In asking the Supreme Court to weigh in on the case, Oklahoma v. Castro-Huerta, no. 21-429, Mr. O’Connor, Oklahoma’s attorney general, said the justices had “never squarely held that states do not have concurrent authority to prosecute non-Indians for state-law crimes committed against Indians in Indian Country.”
Lawyers for Mr. Castro-Huerta responded that the Supreme Court, lower courts and Congress had all said that crimes committed on reservations by or against Indians could not be prosecuted by state authorities.
In his petition seeking review, Mr. O’Connor had also asked the Supreme Court to address a second question: whether the McGirt decision should be overruled. In its order granting review, however, the Supreme Court said it would only consider the narrower question of whether states can prosecute non-Indians for crimes against Indians on reservations.
Justice Gorsuch concluded his dissent with a plea.
“One can only hope the political branches and future courts,” he wrote, “will do their duty to honor this nation’s promises even as we have failed today to do our own.”