INDIAN LAW WHIPSAW: THE WAKE OF MCGIRT AND CASTRO-HUERTA

Author: John Gaffin, Associate Editor

I.                Introduction

Since 2020, two Supreme Court cases have substantially reshaped Oklahoma’s criminal justice system. First came a 2020 holding that restricted the state’s criminal jurisdiction in about half of its territory by finding that it was comprised of a number of Indian reservations.[1]  This was followed by a 2022 case that walked back some of those restrictions and restored state jurisdiction under some circumstances.[2]  While the cases have seen a degree of national attention, their impact landing primarily in the area of Indian Law seems to have limited broader coverage of the cases and issues involved.  This post endeavors to provide the reader with background on Indian Law, a brief overview of McGirt v. Oklahoma and Oklahoma v. Castro-Huerta, and considers their impacts moving forward.  

II.              Indian Law Background

To understand the holdings and impact of McGirt and Castro-Huerta requires a cursory understanding of Indian Law.[3]  The defining concept is that of tribal sovereignty.[4]  Because most tribes were self-governing prior to the establishment of the United States, tribal sovereignty exists independent of the federal government.[5]  Most law students come to understand the more familiar tenets of federalism in which some matters are the sole province of the federal government and some matters are reserved to the states.[6]  Indian Law adds tribal governments to this mix.  One of the clearest principles of Indian Law is that the federal government, rather than individual states, is responsible for interfacing with tribes in a “government to government” relationship.[7]  As we will see, a web of treaties, legislation, case law, and more impact the extent of tribal sovereignty.[8]  

With respect to criminal law, states generally lack jurisdiction in what is known as “Indian country.”[9]  This term includes reservations, allotments, and other communities recognized by the federal government.[10]  The federal Indian Country Crimes Act, sometimes better known as the General Crimes Act, establishes a baseline of broad federal jurisdiction over crime in Indian country.[11]  Exceptions exist where an offender is punished under tribal law, jurisdiction is otherwise reserved to the tribe, or where an Indian commits an offense against another Indian.[12]  Laid atop the General Crimes Act is the Major Crimes Act.  This statute outlines more than two dozen serious offenses where the federal government has jurisdiction over Indian-on-Indian crime.[13]  Taken together, these laws establish fairly generous federal jurisdiction in Indian country. 

By now, it is probably clear that a state like Oklahoma could lack jurisdiction to prosecute a crime committed within its apparent borders.  There are, however, notable exceptions to the general principles outlined above.  Among the most significant of these comes from United States v. McBratney.[14]  Dating to the 1880s, McBratney recognized state “jurisdiction to prosecute crimes committed by non-Indians against non-Indians in Indian country” unless otherwise preempted.[15]  McBratney gives us a helpful starting point for understanding state criminal jurisdiction in Indian country.  It answers, generally in the affirmative, the question of whether a state can prosecute non-Indians who commit crimes against non-Indians in Indian country.[16]  Castro-Huerta creates a similar carve out with respect to non-Indians who commit crimes against Indians in Indian country.[17]  The remainder of this framework addresses the question of state jurisdiction over Indian country crimes perpetrated by Indians regardless of the victim’s Indian status.  Generally, these cases fall under federal and tribal jurisdiction to the exclusion of states.[18]  However, because numerous non-statutory agreements also impact jurisdiction the answer can vary widely depending on the tribe and state in question.[19] 

III.            McGirt and Castro-Huerta

With that background, we can examine two recent Supreme Court cases affecting Oklahoma’s jurisdiction over Indian country crimes.  The Court’s McGirt ruling in 2020 felt seismic as it suddenly deprived Oklahoma of criminal jurisdiction over a significant portion of its residents and territory by concluding, surprisingly to some, that about half of the state remained Indian country.[20]  Earlier this summer, just a few days short of two years after the McGirt decision, a shift in the Court[21] culminated in the Castro-Huerta holding that eroded a significant portion of McGirt’s impact.[22]  Both cases are examined below.    

In 1997, the state of Oklahoma sentenced Jimcy McGirt to more than 1,000 years in prison after his conviction for molesting, raping, and sodomizing his wife’s four-year-old granddaughter.[23]  In 2020, the United States Supreme Court overturned McGirt’s conviction.[24]  The court held that Oklahoma lacked jurisdiction to prosecute McGirt, a member of the Seminole tribe, for crimes committed in what most observers and maps would have then called Oklahoma.[25] 

The McGirt court’s conclusion that roughly the eastern half of Oklahoma remained tribal land was the catalyst for the case’s jurisdictional consequences.[26]  A derisive dissent described this status as “unbeknownst to anyone for the past century.”[27]  Nevertheless, the majority found that the land where McGirt, an Indian, committed his crimes remained a Muscogee Creek reservation through the operation of an 1866 treaty, and accordingly held that the State of Oklahoma lacked jurisdiction to prosecute him.[28]  Oklahoma argued, to no avail, that a number of factors cut against this finding.[29]  These included that the character of the land had changed over time, that even several tribes had expressed a belief that no reservations remained in Oklahoma, and that Congress disestablished any reservations upon admitting Oklahoma to the Union.[30] The McGirt majority acknowledged Congress’ power to disestablish reservations and even to break its own promises before ultimately concluding that Congress had not yet done so.[31]

Despite the SCOTUS holding, McGirt remained behind bars.[32]  Federal authorities retried the 72-year-old McGirt in 2021 – including graphic testimony from his now-adult victim – and again imprisoned him for life.[33]  For his troubles, McGirt personally gained only a change of scenery from state prison to federal prison. 

McGirt’s dissenters expressed concern about “destabiliz[ing]” Oklahoma and about the fate of future and past prosecutions of serious crimes.[34]   They noted that the area impacted by the ruling is “home to 1.8 million people, only 10% - 15% of whom are Indians.”[35]  Curiously, a deluge of overturned convictions does not seem to have resulted from the holding in McGirt.[36]  Some estimates suggest that as few as 33 defendants have escaped accountability.[37]  Nevertheless, the holding strained law enforcement in Oklahoma.  In July 2021, FBI Director Christopher Wray described a “drastic increase” in Indian country investigations, ostensibly those previously handled by state authorities, which required an influx of 140 agents and $80 million in Congressional appropriations.[38]

As Oklahoma was adjusting to McGirt, the Supreme Court agreed to hear Castro-Huerta to decide whether the state had jurisdiction to prosecute a non-Indian who victimized an Indian in the now-expanded Indian country.[39]  Victor Manuel Castro-Huerta, like McGirt, argued that Oklahoma lacked jurisdiction to prosecute him for child neglect after first responders found Castro-Huerta’s five-year-old stepdaughter, an Indian, “[d]ehydrated, emaciated, and covered in lice and excrement.”[40]  She weighed just 19 pounds at the time.[41]  Oklahoma convicted Castro-Huerta, who unlike McGirt is a foreign national unlawfully in the United States, and sentenced him to 35 years in prison.[42] 

The Oklahoma Court of Criminal Appeals vacated Castro-Huerta’s conviction based in part upon McGirt, reasoning that federal law established exclusive federal jurisdiction over Indian country.[43]  Oklahoma appealed this ruling and when Castro-Huerta reached the United States Supreme Court, the Court held that the state and federal governments instead maintain “concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.”[44]  The Castro-Huerta majority found no explicit statutory text granting exclusive federal jurisdiction over Indian country.[45]  Further, where a non-Indian defendant is involved, the Court reasoned that a criminal prosecution presented no incursion on tribal sovereignty because the only parties are a non-Indian and the state.[46]  The ruling came before a backdrop of concern over public safety and criminal justice in Oklahoma, walking back a substantial piece of McGirt such that the state can now exercise jurisdiction over non-Indian defendants in Indian country.[47] 

IV.            What Now?

Following McGirt, a tidal wave of issues, from heavy to humorous, confronted Oklahoma and the impacted tribes.[48]  Tribes began to consider millions of dollars in investments to bolster their justice systems.[49]  The state’s large oil and gas industry weighed potential impacts.[50]  A power plant claimed it was exempt from property taxes.[51]  The brother of Oklahoma’s governor argued that the McGirt holding deprived Tulsa of the jurisdiction necessary to issue him a speeding ticket.[52]  Though Castro-Huerta seems to ameliorate some of the public safety concerns raised by the McGirt dissenters, it opens perhaps as many about intrusions on tribal sovereignty. 

            The public safety impact ­­post-McGirt has been a mixed bag.  While the dissenters’ concerns about destabilization and waves of overturned convictions never quite materialized,[53] some arguably dangerous offenders were freed[54] and local authorities faced significant challenges.  Consider the City of Tulsa, Oklahoma.  Tulsa is a metropolitan area of 400,000 people, Oklahoma’s second largest city, and largely lies on land impacted by McGirt.[55]  In its amicus brief with Castro-Huerta, the city describes McGirt’s wake as thousands of criminal referrals to federal officials with scarce few prosecutions as a result.[56]  The city specifically calls out burglary and murder as offenses to which the federal response has been underwhelming.[57]  On a more fundamental level, city police describe difficulty contemporaneously ascertaining the Indian status of victims and offenders along with the lack of a uniform standard for making such determinations.[58]  According to the city’s brief, this has resulted in substantial delays in police response across the board.[59]  The city concludes that McGirt served to make Indians easy targets for crime and second class citizens.[60]  To the extent that one views the ruling through a public safety lens, Castro-Huerta scaled back these challenges to only those cases involving Indian defendants. 

There is, however, another side to this story.  Following the McGirt ruling, a spokesperson for the Muscogee Creek described the decision as an emotional one that affirmed the tribe’s homeland and discarded a century of state overreach.[61]  Castro-Huerta’s subsequent erosion of McGirt quickly found criticism among some Native American rights groups as an attack on tribal sovereignty.[62]  In response to Oklahoma’s arguments that the safety of Native Americans was threatened, some officials went so far as to draw parallels with historical mistreatment of tribes that was also presented as being for their own good.[63] 

            How the Muscogee Creek came to live in Oklahoma was highlighted in the tribe’s McGirt brief.[64]  This history is the source of Justice Gorsuch’s opening line in the McGirt opinion: “On the far end of the Trail of Tears was a promise.”[65]    Having ceded most of their ancestral land, the group was left with a small piece of territory in Alabama.[66]  Despite harassment by settlers and government pressure, they steadfastly refused to cede more and secured treaties guaranteeing them this land.[67]  Nevertheless, the Creek were forcibly removed to Oklahoma by the Army.[68]  A subsequent treaty guaranteed this new territory to the Creek for perpetual self-government.[69]  To some, Castro-Huerta’s intrusion on this sovereignty was another broken promise, the latest in long history of might-makes-right legal outcomes.[70] 

            Despite the specific controversies in these cases, Oklahoma is recognized by some experts as a model of state and tribal collaboration.[71]  Indeed, the post-McGirt landscape saw a proliferation of cross-deputization agreements.[72]  These agreements preserve tribal sovereignty by allowing law enforcement officers in the affected areas to enforce tribal, state, and federal laws.[73]  For example, the City of Tulsa maintains an agreement with the Muscogee Creek and Cherokee tribes allowing its officers to enforce state, federal, and tribal law.[74]  For its part, the Muscogee Creek nation maintains 63 such agreements.[75]  Tribes can opt-in to these arrangements and maintain some manner of control over the terms.[76]  Despite their benefits, the agreements are not a silver bullet.  Because Oklahoma regularly exercised jurisdiction over these lands, tribal law sometimes has blind spots that can leave officers and victims without recourse.[77]  For instance, when a vicious dog attacked and killed a neighbor’s two smaller dogs, responding officers noted that Muscogee Creek law provided no avenues to pursue.[78]  Tribal law did not regulate harboring a vicious animal, allowing pets to run at large, or other domestic animal issues that are frequently the target of regulation.[79] 

V.              Conclusion

Moving forward, Oklahoma and the affected tribes should consider continued partnerships.  These holdings have the opportunity create a laboratory of criminal justice and tribal sovereignty.  In the immediate wake of McGirt, there is some indication that more state-tribal collaboration created better outcomes.[80]  While Castro-Huerta reinstates state jurisdiction over non-Indian offenders, tribal law is likely to continue to be tested and will be crucial in delivering justice to victims of crimes carried out by Indian offenders.  Of course, tribes retain federal law as a mechanism for addressing these incidents.  On the other hand, they might seize on this moment to use tribal justice systems to supplement or supplant federal systems where preferable.  To this end, some tribes have begun to grow their courts and law enforcement capabilities.[81]  Only time will tell what comes next in Oklahoma.  Many challenges and opportunities lie ahead, all triggered by the McGirt holding which may have flown under the radar of many Americans who are not impacted by Indian Law. 

[1] McGirt v. Oklahoma, 591 U.S. ___ (2020).

[2] Oklahoma v. Castro-Huerta, 597 U.S. ___ (2022).

[3] The author is an admitted Indian Law novice who desired to learn more about a specialized area of law that probably deserves more attention than it receives.  This section is designed to provide sufficient background to understand the broad issues at play in the cases profiled.  Each of these subtopics is complex and can be covered in much finer detail than space here permitted.

[4] Cohen's Handbook of Federal Indian Law (Nell Jessup Newton et al. eds., 2019) § 4.01.

[5] Id.

[6] See, e.g. U.S. Const. art. I, § 8; U.S. Const. amend. X.

[7] Cohen's Handbook of Federal Indian Law, supra note 4; U.S. Const. art. I, § 8; U.S. Const. art. VI, cl. 2; U.S. Const. art. I, § 10; see also Oklahoma v. Castro-Huerta, 597 U.S. ___, ___ (2022) (Gorsuch, J., dissenting).

[8] Cohen's Handbook of Federal Indian Law, supra note 4.

[9] Cohen's Handbook of Federal Indian Law, supra note 4, at § 9.03.

[10] 18 U.S.C. § 1151; Cohen’s Handbook of Federal Indian Law, supra note 4, at § 3.04.

[11] 18 U.S.C. § 1152.

[12] Id.

[13] 18 U.S.C. § 1153.

[14] United States v. McBratney, 104 U.S. 621 (1881).

[15] Id., cited in Oklahoma v. Castro-Huerta, 597 U.S. ___, ___ (2022).

[16] McBratney, 104 U.S. at 624 (1881).

[17] Castro-Huerta, 597 U.S. at ___ (2022).

[18] Cohen's Handbook of Federal Indian Law, supra note 4, at § 6. 

[19] Id.

[20] 591 U.S. ­­­___, ___ (Roberts, C.J., dissenting) (2020).

[21] The McGirt decision saw Justice Gorsuch side with Justices Ginsburg, Breyer, Sotomayor, and Kagan to form a 5-4 majority.  By the time the court heard Castro-Huerta, Justice Barrett replaced Justice Ginsburg, creating a new 5-4 majority that pulled back on McGirt. 

[22] Castro-Huerta, 597 U.S. ___.

[23] McGirt, 591 U.S. at ___ (Roberts, C.J., dissenting).

[24] Id.

[25] Id. at ___; See, e.g. Jessie Christopher Smith, Boundaries Of Six State Tribes Now On Google Maps, KGOU, Your NPR Source, (Sept. 28, 2020), https://www.kgou.org/oklahoma-news/2020-09-28/boundaries-of-six-state-tribes-now-on-google-maps.

[26] McGirt, 591 U.S. at ___

[27] Id. at ___ (Roberts, C.J., dissenting).

[28] Id.

[29] Id. at ___.

[30] Id.

[31] Id. at ___-___.

[32] Matt Trotter, McGirt Transferred from State Prison, Faces Federal Trial, Public Radio Tulsa, (Aug. 14, 2020), https://www.publicradiotulsa.org/local-regional/2020-08-14/mcgirt-transferred-from-state-prison-faces-federal-trial.

[33] U.S.Dep’t of Just., Jimcy McGirt Sentenced To Life Imprisonment (Aug. 25, 2021) https://www.justice.gov/usao-edok/pr/jimcy-mcgirt-sentenced-life-imprisonment.

[34] McGirt, 591 U.S. at ___ (Roberts, C.J., dissenting).

[35] Id.

[36] Ben Gibson, Lessons from McGirt v. Oklahoma's Habeas Aftermath, 99 Denv. L. Rev. 253 (2022) (noting that defendants convicted by Oklahoma while the state apparently lacked subject matter jurisdiction have prevailed surprisingly few times as courts dispose of cases on questionable procedural grounds or only apply McGirt prospectively).

[37] Rebecca Nagle and Allison Herrera, Where Is Oklahoma Getting Its Numbers From in Its Supreme Court Case?, The Atlantic, (Apr. 26, 2022), https://www.theatlantic.com/ideas/archive/2022/04/scotus-oklahoma-castro-huerta-inaccurate-prosecution-data/629674.

[38] Chris Casteel, FBI anticipates 7,500 cases in Oklahoma next year in wake of McGirt ruling, The Oklahoman, (July 16, 2021), https://www.oklahoman.com/story/news/2021/07/16/mcgirt-v-oklahoma-ruling-thousands-new-cases-fbi-director-christopher-wray/7979571002.

[39] Castro-Huerta, 597 U.S. ___.

[40] Id.

[41] Id. at ___.

[42] Id. at ___, ___.

[43] Castro-Huerta v. State, No. F–2017–1203 (Apr. 29, 2021) as cited in Castro-Huerta, 597 U.S. at ___.

[44] Castro-Huerta, 597 U.S. at ___.

[45] Id. at ___-___.

[46] Id. at ___.

[47] Id.

[48] Curtis Killman, Bizarre dog killing exposes limits to cross-deputization agreements in wake of McGirt ruling, Tulsa World, (Jan. 16, 2022), https://tulsaworld.com/news/local/crime-and-courts/bizarre-dog-killing-exposes-limits-to-cross-deputizationagreementsin-wake-of-mcgirt-ruling/article_15257a30-7486-11ec-9d56-4f603d8ec293.html.

[49] Michael Overall, Cherokees expanding criminal justice system for larger role after McGirt; $35M needed annually, chief says, Tulsa World, (Mar. 11, 2021), https://tulsaworld.com/news/state-and-regional/crime-and-courts/cherokees-expanding-criminal-justice-system-for-larger-role-after-mcgirt-35m-needed-annually-chief-says/article_23c0c626-81d9-11eb-ad9c-c3133b2fb2cb.html.

[50] JD Supra, Oklahoma Oil and Gas Business Braces for Change in Wake of Supreme Court Decision, (July 16, 2020), https://www.jdsupra.com/legalnews/oklahoma-oil-and-gas-business-braces-47615.

[51] Curtis Killman, Broken Arrow power plant claims county has no authority to levy property taxes, citing McGirt decision, Tulsa World, (Mar. 14, 2021), https://tulsaworld.com/news/state-and-regional/broken-arrow-power-plant-claims-county-has-no-authority-to-levy-property-taxes-citing-mcgirt/article_17f38684-8360-11eb-bcce-3f2dbb0cebb9.html.

[52] Molly Young, Oklahoma Gov. Kevin Stitt's brother challenges Tulsa municipal court, citing McGirt ruling, The Oklahoman, (Dec. 21, 2021), https://www.oklahoman.com/story/news/2021/12/23/oklahoma-governor-brother-keith-stitt-cites-mcgirt-ruling-tulsa-traffic-ticket/9007778002/.

[53] Curtis Killman, Most released due to McGirt have been charged either federally or tribally, Tulsa World analysis finds, Tulsa World, (Jan. 9, 2022), https://tulsaworld.com/jan-9-2022-most-released-due-to-mcgirt-have-been-charged-either-federally-or-tribally/image_e7966160-7872-11ec-961b-3f1e0dea5f83.html; Nagle and Herrera, supra note 37.

[54] Anna Codutti, Man charged in 1990s rapes freed due to McGirt reservation ruling; statute of limitation passed in 2000, judge agrees, Tulsa World, (Aug. 29, 2020), https://tulsaworld.com/news/local/crime-and-courts/man-charged-in-1990s-rapes-freed-due-to-mcgirt-reservation-ruling-statute-of-limitations-passed/article_40c5ed0e-e946-11ea-b5e5-5bacb96aa9c7.html.

[55] Brief for the City of Tulsa as Amicus Curiae in Support of Petitioner at1, Oklahoma v. Castro-Huerta, 597 U.S. ___ (2022) (No. 21-429), 2022 WL 879229. 

[56] Id. at 2.

[57] Id. at 7-10.

[58] Id. at 3.

[59] Id. at 4.

[60] Id. at 10-11. 

[61] Brandon King, McGirt v. Oklahoma: One Year Later, 405 Magazine, (June 14, 2021), https://www.405magazine.com/mcgirt-v-oklahoma-one-year-later/.

[62] Native American Rights Fund, NARF/NCAI JOINT STATEMENT ON SCOTUS RULING ON CASTRO-HUERTA V. OKLAHOMA, (July 7, 2022), https://www.narf.org/castro-huerta-v-oklahoma-scotus-ruling/.

[63] David Hill, Del Beaver, and Geri Wisner, Tribal chief: Castro-Huerta ruling is an alarming affront to our sovereignty, safety, The Oklahoman, (July 1, 2022), https://www.oklahoman.com/story/opinion/2022/07/01/oklahoma-vs-castro-huerta-supreme-court-ruling-undermines-tribal-sovereignty/7771323001/.

[64]Brief for Amicus Curiae Muscogee (Creek) Nation in Support of Petitioner at 8-11, McGirt v. Oklahoma, 591 U.S. ___ (2020) (No. 18-9526), 2020 WL 774430

[65] McGirt, 591 U.S. at ___. 

[66] Brief for Amicus Curiae Muscogee (Creek) Nation, supra note 64, at 8.

[67] Id. at 9-10.

[68] Id. at 9-10.

[69] McGirt, 591 U.S. at ___.

[70] Elizabeth Hidalgo Reese, Conquest in the Courts, The Nation, (July 6, 2022), https://www.thenation.com/article/society/supreme-court-castro-huerta.

[71] King, supra note 61.

[72] Killman, supra note 48.

[73] Id.

[74] Id.

[75] Id.

[76] Id.

[77] Id.

[78] Killman, supra note 48.

[79] Id.

[80] See Nagle and Herrera, supra note 37 (attributing a reduced “chaos” to situations where district attorneys and tribal authorities worked hand-in-hand).   

[81] Overall, supra note 49; Allison Herrera, Lighthorse Police Accept New Challenges, New Responsibilities With Expanded Jurisdiction, KOSU, (May 24, 2021), https://www.kosu.org/local-news/2021-05-24/lighthorse-police-accept-new-challenges-new-responsibilities-with-expanded-jurisdiction.