Supreme Court Agrees to Consider If States Can Prosecute Non-Indians for Crimes on Indian Land

By Matthew Vadum
Matthew Vadum
Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.
January 21, 2022 Updated: January 23, 2022

The Supreme Court announced on Jan. 21 that it would consider whether its 2020 decision expanding tribal authority in Oklahoma should cancel a non-Indian man’s conviction for abusing his part-Indian stepchild.

The high court will consider whether states may prosecute non-Indians for crimes against Indians on Indian reservations but specifically refused to reconsider its 2020 ruling in McGirt v. Oklahoma, which stripped Oklahoma courts of the ability to hear criminal cases against Native Americans for crimes taking place on Indian lands.

The case, an appeal from the Court of Criminal Appeals of Oklahoma, is Oklahoma v. Castro-Huerta, court file 21-429. The Jan. 21 order (pdf) was unsigned and didn’t provide reasons for the decision to hear the case, in accordance with the high court’s usual practice.

In McGirt v. Oklahoma, the Supreme Court ruled 5–4 on July 9, 2020, that most of eastern Oklahoma and some of the central part of the state is Indian country because it hosted Indian reservations. This meant prosecution of Native Americans on these lands may only be pursued in tribal courts or in federal courts under a federal statute called the Major Crimes Act. Another court clarified that the reservations belonged to the so-called Five Civilized Tribes—Cherokee, Chickasaw, Choctaw, Creek (Muscogee), and Seminole.

Conservative Justice Neil Gorsuch wrote the majority opinion, which was joined by four liberal justices: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Ginsburg died Sept. 18, 2020, and was replaced weeks later by conservative Justice Amy Coney Barrett.

Four conservative justices—Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh, and Clarence Thomas—dissented from the majority decision.

Some critics of the McGirt decision speculate that the case might be decided differently if it were reheard now that Barrett has replaced Ginsburg.

But the Supreme Court didn’t agree in its Jan. 21 order to rehear the McGirt case. The court agreed to consider only one of the two questions posed by the state in its petition (pdf), specifically “whether a State has authority to prosecute non-Indians who commit crimes against Indians in Indian country.”

The court indicated it would not consider the second question, which was “Whether McGirt v. Oklahoma … should be overruled.”

In Oklahoma’s petition, the state criticized the 2020 ruling, writing, “No recent decision of this Court has had a more immediate and destabilizing effect on life in an American State than McGirt v. Oklahoma.”

The court’s holding “that a large area of Oklahoma, which at one time was within the boundaries of the Creek Nation, qualifies as ‘Indian country’ for purposes of the Major Crimes Act,” the petition stated.

“That decision deprived the State of authority to prosecute Indians who commit serious crimes there, and the Oklahoma state courts have since held that McGirt compels the same conclusion with respect to the remainder of the Five Tribes in Oklahoma.”

This meant “almost 2 million Oklahoma residents—the vast majority of whom are not Native American—suddenly live in Indian country for purposes of federal criminal jurisdiction.”

As Roberts “predicted in his dissent, the results of this abrupt shift in sovereignty have been calamitous and are worsening by the day.” The McGirt decision “now drives thousands of crime victims to seek justice from federal and tribal prosecutors whose offices never before handled those demands,” the petition states.

“Numerous crimes are going uninvestigated and unprosecuted, endangering public safety. Federal district courts in Oklahoma are completely overwhelmed.

“The effects have spilled into the civil realm as well, jeopardizing hundreds of millions of dollars in state tax revenue and calling into question the State’s regulatory authority over myriad issues within its own borders.”

The petition says McGirt raises “two exceptionally important questions … that cry out for the Court’s immediate attention.”

The respondent, Victor Manuel Castro-Huerta was convicted of “severely neglecting his 5-year-old stepdaughter, an enrolled member of the Eastern Band of Cherokee Indians,” according to the petition. An Oklahoma jury sentenced him to 35 years after the child, who is legally blind and has cerebral palsy, was rushed to a Tulsa emergency room in 2015.

The stepdaughter “was admitted in critical condition; she was dehydrated, emaciated, and covered in lice and excrement, and she weighed only nineteen pounds. Investigators who visited respondent’s home later discovered that her 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 the authorities that he knew the child “required five bottles of nutritional supplement a day,” but he had given her “between only twelve and eighteen bottles the previous month.”

The Oklahoma Court of Criminal Appeals threw out the man’s conviction, finding the crime had occurred in Indian country. The appeals court also held that the McGirt decision “extends beyond the confines of the Major Crimes Act to all crimes committed by non-Indians against Indians in Indian country.”

That holding was “erroneous, and it greatly exacerbates the ongoing criminal justice crisis in Oklahoma,” according to the state’s petition.

The Epoch Times reached out for comment to the respondent’s counsel of record in the Supreme Court case, Zachary C. Schauf of the law firm Jenner and Block in the nation’s capital, but didn’t receive a reply as of press time.

Matthew Vadum
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.