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Indigenous history, treaties and federal Indian law took center stage in Castro-Huerta arguments

chuckhoskin_supremecourt.jpg
Cherokee Nation
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Cherokee Nation Principal Chief Chuck Hoskin Jr. is interviewed by VICE on the steps of the U.S. Supreme Court.

Two hundred years of federal, state and tribal law converged with the realities of Oklahoma and Indigenous history Wednesday as the United States Supreme Court heard oral arguments about whether the state of Oklahoma should be able to prosecute non-Indians when they commit crimes against Native people inside reservation boundaries affirmed by the Court in 2020.

In the case of Oklahoma v. Castro-Huerta, Victor Castro-Huerta is a non-Indian who committed a crime against a Native child inside the boundaries of the Cherokee Nation Reservation. After the McGirt v. Oklahoma decision in 2020, Castro-Huerta’s conviction was vacated because Cherokee Nation and the federal government should have had jurisdiction in the case.

The state of Oklahoma told justices Wednesday that they should have jurisdiction in cases like that of Castro-Huerta. Without that ability, they argue that 40 percent of the state is devolving into legal chaos and Native victims have less protection. This is a point the tribes say is false.

Justices considered the unique and sometimes contentious relationship between the state of Oklahoma and the tribes that were forcibly removed to the area before statehood. They also considered treaties between the federal government and the tribes, and how those agreements are functioning in the rest of the country.

At one point during the oral arguments, Justice Neil Gorsuch asked Kannon Shanmugam, Oklahoma’s counsel in the case, why the state is in a better position to prosecute non-Indians who commit crimes against Indian victims.

Gorsuch pointed to the early 1900s when oil was discovered on Indian lands and non-Native wildcatters and oilmen took advantage of Native people. He openly wondered if the state protected Native victims of these crimes.

"Oklahoma systematically used its state courts to deprive Indians of their property, when oil was discovered on their lands," said Gorsuch.

Shanmugam said that Oklahoma should be able to prosecute non-Indians based on two federal statutes. The first is the General Crimes Act. This act, according to the law text, "creates federal court jurisdiction for certain types of offenses committed by Indians against non-Indian victims and for all offenses committed by non-Indians against Indian victims."

The second federal statute at the center of the state’s case for concurrent jurisdiction is Public Law 280. Under the law that Congress enacted in 1953, the federal government did transfer criminal and civil jurisdiction to states, but only six states opted into the plan. Oklahoma was not one of them.

However, under the law, tribal governments don’t give up any of their jurisdiction. Shanmugam argued that the tangled web this creates could mean even more offenders will go unpunished.

During opening arguments, Shanmugam said the law is on Oklahoma's side.

"The state has inherent sovereign authority to punish crimes committed within its borders, and no federal law preempts an authority as to crimes committed by non-Indians."

He also cited a "yawning gap" in the number of cases going unprosecuted as another reason the state needs to be able to prosecute non-Indians to keep the public safe. Justice Sonia Sotomayor questioned the state's numbers cited in their briefs and grilled him by citing reporting done by KOSU and The Atlantic.

The state contends that 10,000 cases are going unprosecuted, but the data The Atlantic and KOSU found in our reporting showed a gap of fewer than 1,000 cases that have been affected.

The majority of the state’s arguments to justices claimed that the federal government is failing to fill the gap and is leaving whole categories of crimes unprosecuted. In a recent budget report to Congress, the Justice Department did say it does not have enough resources to prosecute all of the crimes. Even still, the U.S. Solicitor General filed a petition to argue for the United States in the Castro-Huerta case, saying that the state of Oklahoma should not have concurrent jurisdiction in cases of non-Indians who commit crimes on Native lands.

The Justice Department and the affected tribal nations have asked Congress for budget increases to comply with the ruling. The money would further increase the number of prosecutors to handle the transfer in the caseload created by the 2020 McGirt v. Oklahoma decision.

Justice Stephen Breyer noted in his questioning that even though this case is a narrow consideration for the state of Oklahoma, 49 other states will also be affected by the Court’s ruling. He said all of those states have acted with the assumption that state jurisdiction is not allowed without congressional authorization. He wondered if the court were to rule in favor of Oklahoma in this case, if the other states would be shackled with an unfunded mandate.

The Reaction

Oklahoma Governor Kevin Stitt and several tribal leaders attended Wednesday’s oral arguments.

Muscogee Nation Principal Chief David Hill spoke to KOSU briefly after the arguments. Hill traveled to Washington to meet with Oklahoma's congressional delegation. He said they are committed to making the decision work and that they've been reaching out to police departments within the reservation. Hill stressed the need for more funding from the Department of Justice and the Department of the Interior.

"Public safety is our number one," said Hill.

Cherokee Principal Chief Chuck Hoskin Jr., who was also in Washington, D.C., said the arguments reaffirmed what tribes have been saying all along.

"The Justices heard clear arguments that explain how the state’s demand to undermine tribal sovereignty is inconsistent with legal precedent, the intent of Congress, and the basics of Indian law," said Hoskin Jr.

Justice Gorsuch's questioning earned praise from many tribal advocates and legal experts who weighed in during the arguments. Sara Hill, Cherokee Nation's attorney general, made note of his using one of the most infamous cases in the court's history: Worcester v. Georgia. The question presented before the court in 1832 asked,"does the state of Georgia have the authority to regulate the intercourse between citizens of its state and members of the Cherokee Nation?"

"One of the things that he said that really caught my ear is: this court in Worcester protected a non-Indian when Georgia tried to exert their authority over him, and are we to wilt today in front of a social media attack," said Sara Hill, citing Gorsuch's questioning.

Justice Gorsuch, who wrote the court's opinion nearly two years ago in the McGirt v. Oklahoma case, said that the United States made binding treaty agreements with tribes, and those treaties say no other sovereign would have power over tribal nations.

"You have to be an Indian country legal person and to have a real appreciation for the history of the Cherokee Nation to ask some of the questions that Justice Gorsuch asked about the treaties, about what should we presume about Oklahoma's ability to protect Indian victims based upon their history," said Sara Hill.

In a statement sent to the press following the oral arguments, Oklahoma Attorney General John O'Connor said the state government is trying to make sure all victims of crimes are protected.

"Clearly, a win for Oklahoma in this case is a win for these Native American victims," said O'Connor. "No matter the outcome, I will continue to reach out to the leaders of the Indian nations to engage in constructive conversations seeking resolutions that will benefit all Oklahomans."

The justices are expected to issue their decision in Oklahoma v. Castro-Huerta sometime this summer.

Allison Herrera is a radio and print journalist who's worked for PRX's The World, Colorado Public Radio as the climate and environment editor and as a freelance reporter for High Country News’ Indigenous Affairs desk.
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