Law & Principles

U.S. Supreme Court to consider McGirt limits

January 21, 2022

Ray Carter

The U.S. Supreme Court has agreed to hear a case brought by the State of Oklahoma that could lead to curtailment of the court’s prior decision in McGirt v. Oklahoma, which effectively held that most of eastern Oklahoma consists of Indian reservations.

As currently applied, the McGirt ruling prevents state and tribal officials from prosecuting most crimes involving a mix of Indian and non-Indians victims and perpetrators. Those cases, which represent as much as 40 percent of crimes in areas affected by McGirt, are now shifted to federal court. And state law-enforcement officials report that federal prosecutors are declining to pursue roughly 90 percent of those cases.

In several prominent instances, Indian victims have publicly indicated their support for allowing the state of Oklahoma to prosecute their non-Indian abusers, who are currently evading prosecution thanks to McGirt.

On September 17, 2021, the State of Oklahoma filed a petition for certiorari in the case of child abuser Victor Manuel Castro-Huerta, asking the court to reconsider the McGirt decision or narrow it. The state is currently prevented from prosecuting Castro-Huerta, a non-Indian who victimized a five-year old child who is an enrolled member of the Eastern Band of Cherokee Indians. The child victim also has cerebral palsy and is legally blind.

The state’s petition noted that when Castro-Huerta’s child victim was taken to the emergency room at St. Francis Hospital in Tulsa in 2015, the girl “was dehydrated, emaciated, and covered in lice and excrement, and she weighed only nineteen pounds.” Investigators later found the child’s crib “was filled with bedbugs and cockroaches and contained a single, dry sippy cup, the top of which was chewed through.”

Castro-Huerta admitted to investigators that he knew the girl, his stepdaughter, required five bottles of nutritional supplement a day, but that he had provided only 12 to 18 bottles in an entire month.

At a state jury trial, Castro-Huerta was sentenced to 35 years imprisonment, but that sentence was later overturned thanks to the McGirt ruling because Castro-Huerta was not Indian while the child victim was a member of a North Carolina-based tribe and the crime occurred on the Cherokee Reservation in Oklahoma.

In its petition, the State of Oklahoma argued the state retains jurisdiction over crimes committed by non-Indians, even when those crimes occur on McGirt reservations and the victims are Indian.

The U.S. Supreme Court has agreed to hear those claims during its April 2022 argument session, although the court declined to consider the broader question of whether McGirt should be overturned.

State leaders nonetheless welcomed the court’s decision to hear the case.

“I am encouraged that the Supreme Court has decided to address whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian Country,” said Gov. Kevin Stitt. “The fallout of the McGirt decision has been destructive. Criminals have used this decision to commit crimes without punishment. Victims of crime, especially Native victims, have suffered by being forced to relive their worst nightmare in a second trial or having justice elude them completely.

“The reality is that the McGirt decision has hamstrung law enforcement in half of the state,” Stitt continued. “Oklahoma is a law-and-order state, and I was elected to protect all four million Oklahomans, regardless of their race or heritage. I will not stop fighting to ensure we have one set of rules to guarantee justice and equal protection under the law for all citizens.”

Oklahoma Attorney General John O’Connor voiced a similar opinion.

“I appreciate the Supreme Court's decision to review our petition to confirm that the State has the authority to prosecute non-Indians who commit crimes against Indians in Indian country,” O’Connor said. “This is a step forward for the State of Oklahoma and is of paramount importance, given that the overwhelming majority of people who live in eastern Oklahoma are not of Indian heritage.

“Narrowing the scope of this case will not alleviate all of McGirt’s harmful consequences in our State, but it would ensure that non-Indians who victimize Indians can be prosecuted under the same rules as perpetrators who victimize non-Indians,” O’Connor continued. “More importantly, it will guarantee Indian victims the same protection and justice that all other Oklahomans enjoy.”

Tribal officials had opposed any reconsideration of McGirt, even in cases like Castro-Huerta’s that involved non-Indian abusers evading prosecution for crimes committed against tribal members.

For example, the Cherokee Nation argued in a brief filed with the U.S. Supreme Court that the Oklahoma Court of Criminal Appeals “correctly applied McGirt to hold that federal jurisdiction is exclusive over crimes committed by non-Indians against Indians in Indian country.”

The Castro-Huerta case could be the first of many that will be considered by courts dealing with the fallout of McGirt. The ruling also has consequences for state regulatory authority and funding of things like roads and schools in most of eastern Oklahoma. Cherokee Nation Principal Chief Chuck Hoskin, Jr., has publicly argued that “taxation doesn’t attach to individual Native Americans who live on reservations,” and the Oklahoma Tax Commission has estimated the McGirt decision could slash Oklahoma state tax collections by $72.7 million per year from reduced income tax collections and $132.2 million annually from reduced sales/use tax collections.

At a recent budget hearing, Tim Downing, first assistant attorney general of Oklahoma, told lawmakers it was possible either congressional action or state-tribal agreements could address McGirt problems in a relatively short time, but said there is also a likelihood of protracted legal battles on numerous fronts.

“It could be that it plays out that there’s a ton of litigation, right, that we have a decade of one issue after another of litigation, litigation, litigation,” Downing said.