Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Free Newsletter Sign Up

Eyes on Justice Barrett in Oklahoma Indian Country Dispute (1)

April 27, 2022, 4:57 PMUpdated: April 27, 2022, 8:33 PM

Supreme Court Justice Amy Coney Barrett could hold the deciding vote on Oklahoma’s effort to prosecute certain crimes committed on American Indian reservations following the landmark McGirt ruling.

Wednesday’s argument suggested the other eight justices might split on the contentious political issue in the state, following the 2020 decision hailed by tribes as a long-overdue affirmation of their sovereignty while state officials press contested claims of criminal chaos in its wake.

Justice Neil Gorsuch authored the 5-4 ruling in McGirt v. Oklahoma, which said the Muscogee (Creek) Nation’s 19th-century reservation still stood. That meant the state couldn’t prosecute crimes involving Indians on the Creek reservation and others with similar treaties in the state’s eastern half.

At Wednesday’s argument, on the issue of state authority to prosecute non-Indians charged with crimes against Indians, Gorsuch again led the way against the state, noting “the history in this country of states abusing Indian victims in their courts.”

But his McGirt majority has shrunk to four, leaving the result to Barrett if, as the argument suggested is a possibility, the justices line up the same way in this follow-on case, in which similar themes of power and practical consequences have surfaced.

Oklahoma’s lawyer, Kannon Shanmugam of Paul Weiss, stressed the state’s “interest in ensuring public safety” as crimes have gone unprosecuted after McGirt. Officials have raised those alarms before and since McGirt, while federal caseloads increased and the state adjusts to the new criminal-justice framework.

The issue was so dire in the state’s view that officials pressed the justices to outright overrule the 2020 decision. Ruth Bader Ginsburg was in the 5-4 McGirt majority and officials expressed hope after she died that the new court with Barrett would reverse course. All four of the court’s Democratic appointees at the time joined Gorsuch’s opinion, while the other four Republican appointees dissented. Barrett was appointed by Republican Donald Trump.

Tribes have contested the state’s “Chicken Little” narrative and said that, if anything, it’s Gov. Kevin Stitt’s (R-Okla.) quest to overturn the recent precedent that has negatively impacted its implementation. The statistics underlying the state’s claims have also been questioned, including in an article in The Atlantic which Justice Sonia Sotomayor raised during the argument.

The justices declined the state’s invitation to reconsider McGirt but agreed to hear the related appeal over non-Indians. McGirt involved an Indian defendant; after the ruling in his favor, he was convicted federally and is serving a life sentence.

The defendant in Wednesday’s case, Victor Castro-Huerta, was convicted in state court of severely neglecting his five-year-old stepdaughter, an enrolled member of the Eastern Band of Cherokee Indians.

Castro-Huerta’s conviction was overturned after McGirt. He was then charged by the federal government and pleaded guilty to child neglect. His plea agreement calls for a seven-year term, which is lower than his vacated state sentence, a point that Justice Clarence Thomas picked up on when questioning the defendant’s lawyer.

Zachary Schauf of Jenner & Block said that, given the history between tribes and states, “I don’t think you put, you know, the fox in charge of the hen house even if the fox only has concurrent jurisdiction.” Concurrent jurisdiction refers to the state seeking authority in addition to, not instead of, federal authority.

But Thomas said Schauf couldn’t make the fox-in-the-hen-house argument in light of the lower federal term his client received.

Schauf said later in the argument that there’s no parole in the federal system but there is in Oklahoma, and that the victim’s family consented to Castro-Huerta’s federal plea agreement, which will end in his deportation.

There’s also a “pass the buck” dynamic that hurts law enforcement when there’s concurrent jurisdiction, Schauf said.

Still, Justice Brett Kavanaugh expressed concern that victims’ interests weren’t accounted for.

“I’m not sure how Indian victims can be harmed by having more prosecutorial authority to fill a gap in Oklahoma where crimes are not being prosecuted against Indian victims, at least now,” Kavanaugh said.

But Schauf said the upshot of Oklahoma’s position is to go back to the pre-McGirt situation where the federal government wasn’t involved.

He said that’s “profoundly contrary” to “the agreement that Indian tribes made with the United States where the United States said we are going to be your protector and make sure that you are taken care of.”

The case is Oklahoma v. Castro-Huerta, U.S., No. 21-429.

(Adds reporting from argument. )

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Tom P. Taylor at; Seth Stern at; John Crawley at