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Oklahoma Wins Second High Court Round on Tribal Prosecutions (2)

June 29, 2022, 2:04 PMUpdated: June 29, 2022, 7:57 PM

The US Supreme Court sided with Oklahoma in a high-stakes follow-up about who can prosecute crimes committed on American Indian reservations.

The split decision on Wednesday pared the court’s 2020 ruling in McGirt v. Oklahoma that said the state couldn’t prosecute crimes that occurred on tribal lands. The court’s now saying the state can play a role in prosecutions if crimes were committed by non-Indians.

Writing for the majority, Justice Brett Kavanaugh noted that McGirt has “sudden” and significant ramifications for the criminal justice system in Oklahoma.

“The Oklahoma courts have reversed numerous state convictions on that same jurisdictional ground,” Kavanaugh said. “After having their state convictions reversed, some non-Indian criminals have received lighter sentences in plea deals negotiated with the Federal Government. Others have simply gone free.”

Stanford law professor Elizabeth Reese called the ruling monumental for Indian law. “While the tribal boundaries affirmed in McGirt still stand, this opinion goes far beyond that to grant all states new powers to prosecute crimes on all tribal lands,” Reese said.

The lineup of the majority and dissents in the two 5-4 cases flipped with the latest ruling. Justice Amy Coney Barrett—who replaced the late Justice Ruth Bader Ginsburg in 2020 after McGirt—cast the decisive vote this time.

‘Power Grab’

McGirt was hailed by tribes as a long-overdue affirmation of their sovereignty, and the high court had resisted calls since it was handed down to overturn it.

Justice Neil Gorsuch, who wrote for the majority in McGirt, dissented this time along with the court’s three liberals. Gorsuch called the latest ruling an “unlawful power grab” by the state “at the expense of the Cherokee.”

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

A state appeals court threw out his conviction in Tulsa, saying the state lacked jurisdiction in light of McGirt. Oklahoma appealed and the court agreed to hear the case to determine the scope of the state’s reach.

Oklahoma Gov. Kevin Stitt (R) hailed the ruling. “Justice has been delayed and denied to thousands of Native victims in our state for no reason other than their race,” Stitt said in a statement.

The dissent and others critical of Wednesday’s decision point to the statement in the majority that says states may exercise concurrent jurisdiction within Indian country.

“Indian country is part of the State, not separate from the State,” Kavanaugh wrote for the court.

Arizona State University law professor Stacy Leeds, who previously served on the Cherokee Nation Supreme Court, said federal law “is premised on the understanding that Indian affairs belongs to Congress” and that “state power inside Indian country is necessarily limited.”

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

(Updates with reaction by legal scholars, and case background. )

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at