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OKLAHOMA CITY – Less than two years after a historic Supreme Court ruling over Native American rights, the state of Oklahoma is asking the nation’s highest court to revisit its decision.
State officials, led by Republican Gov. Kevin Stitt, filed more than 30 appeals, saying that the Supreme Court’s 2020 ruling has led to crimes not being prosecuted in tribal courts and violent criminals being set free from prison. Oklahoma tribes have pushed back on those claims, saying they’re untrue, rooted in anti-Indigenous rhetoric and designed to threaten tribal sovereignty.
On Wednesday, the Supreme Court will hear oral arguments to reassess the scope of its landmark McGirt v. Oklahoma ruling – but not to overturn it. What will be considered is a question of jurisdiction.
WATCH: What SCOTUS’ McGirt v. Oklahoma means for Native tribes
In July 2020, the justices decided by a 5-4 vote that much of eastern Oklahoma remains Native American territory, under the terms of an 1833 treaty between the U.S. government and the Muscogee Creek Nation. This meant that Oklahoma state authorities could no longer prosecute crimes committed by or against Native Americans and that jurisdiction for those crimes, instead, fell to federal and tribal officials. The 2020 decision reversed the state conviction of Jimcy McGirt, an enrolled member of the Seminole Nation of Oklahoma, for sex abuse offenses. The majority opinion, written by Justice Neil Gorsuch, held that Oklahoma didn’t have the jurisdiction to convict McGirt.
Chuck Hoskin, principal chief of the Cherokee Nation, said this most recent appeal by the governor of Oklahoma is another attempt to undermine tribal sovereignty, one made “with neither the facts nor the law on his side.”
“What the Cherokee Nation and other tribes have been busy doing is preparing to take on the significant responsibilities that come with creating and managing criminal justice systems that are fair for everyone, and deliver that blanket of justice that everyone deserves within our jurisdiction,” he said.
At the heart of Wednesday’s arguments is the conviction of Victor Manuel Castro-Huerta, who is not Native American, for neglecting his 5-year-old stepdaughter, who is an enrolled member of the Eastern Band of Cherokee Indians. Although the Supreme Court has already denied the state’s request to overturn the McGirt ruling entirely, it has agreed to take a second look at the jurisdictional issue, specifically in cases in “Indian Country” where the victim is Native American and the defendant is not. Justices are expected to issue a decision by this summer.
“Prior to the decision in McGirt, Oklahoma had never attempted to assert jurisdiction over non-Indians who committed crimes against Indians,” Sarah Hill, the attorney general for the Cherokee Nation of Oklahoma, told the PBS NewsHour. “This seems like Oklahoma is trying to find any way it can to undermine tribal sovereignty, to undermine the system and to create as much chaos and doubt as possible.”
When the NewsHour reached out to Stitt’s office, the governor’s communication director, Carly Atchison, emailed a statement saying that the governor “believes that the State should be able to protect all Oklahomans, regardless of race, and no criminal should go unpunished.”
The statement went on to call Castro-Huerta a “callous child abuser” who “severely neglected his five-year-old Indian stepdaughter” and who “should not be given any chance to get off easy for this crime.” Oklahoma is taking the case to the Supreme Court to argue for the right to protect Indian victims, Atchison added. .”
While attorneys for the tribes argue that the law is clear, the Oklahoma attorney general, the governor and many conservative lawmakers say the McGirt decision has created a crisis within Oklahoma, with criminals going unpunished due to the court’s ruling.
The change in jurisdiction has meant more federal resources are required in Oklahoma. In its 2023 budget proposal to Congress, the Department of Justice asked for funding to support more attorneys, FBI agents, federal marshals and additional staff to handle the increase in their caseload from “Indian Country.”
Ahead of Wednesday’s arguments, we take a look at what’s happened after the 2020 ruling and why the state of Oklahoma has pushed back against the court’s initial decision.
The Supreme Court’s decision to side with the tribes in the McGirt case was seen as a boon for tribal sovereignty.
In writing the majority opinion, Justice Gorsuch began by touching on the U.S. government’s forced displacement of more than 100,000 Native Americans during the period of President Andrew Jackson’s Indian Removal Act between 1830 and 1850.
“On the far end of the Trail of Tears was a promise,” Gorsuch wrote. “Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”
In the ruling, Gorsuch was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
In an April 19 letter to The Wall Street Journal, Choctaw Nation of Oklahoma Chief Gary Batton wrote how the ruling “confirmed a bedrock principle of the rule of law.”
“The U.S. must honor the treaties it signed,” he wrote. “These binding contracts between two legal entities provide the basis for tribal sovereignty. McGirt confirmed that one side can’t abandon the agreements when they become inconvenient or unpopular.”
Tribal leaders and officials say the issue of tribal sovereignty – or the ability of the tribes to have decision-making power, governance and development agendas that reflect tribal interests, perceptions and values – is what is at stake now.
“A lot of treaties were broken with the Cherokee Nation,” Hill said. “But the Supreme Court said with the McGirt decision that it would require Congress to keep those promises, or if they wanted to break those promises then they would have to break them explicitly.”
Hill said the United States is a better country “when it keeps its word.”
“It’s incredibly important to the tribe to preserve the maximum amount of sovereignty that we have because that’s how we protect our communities.”
The McGirt ruling meant that since Oklahoma’s statehood in 1907, the state did not have jurisdiction to try a case that involved a member of a federally recognized tribe or a crime within the Muscogee Nation reservation. Jurisdiction in those cases rests with the federal government or tribal government, depending on the facts of the case. Tribal leaders praised the ruling as it expanded tribal authority and was significant in the broad implications for tribal treaty rights and sovereignty.
After the Supreme Court’s decision, the Muscogee Nation said in a statement that it would “continue to work with federal and state law enforcement agencies to ensure that public safety will be maintained throughout the territorial boundaries of the Muscogee (Creek) Nation.”
The Oklahoma Court of Criminal Appeals also ruled in a series of decisions that five other eastern Oklahoma tribes’ reservations – those of the Cherokee, Chickasaw, Choctaw, Muscogee, Quapaw and Seminole nations – have similar treaties with the U.S. government, nor were they ever disestablished. Under these decisions, about 43 percent of Oklahoma, including much of Tulsa, the state’s second-largest city, is now considered Indian land.
On April 5 the Cherokee, Chickasaw, Choctaw, Muscogee and Seminole nations filed an amicus brief urging the court to dismiss claims by the state that it was undergoing a “criminal-justice crisis” following the McGirt decision.
“Instead of supporting funding requests, engaging with Congress, or negotiating with the Nations, the Governor and his counsel tout litigation to circumvent and undermine McGirt as the State’s primary effort,” the tribes wrote in their brief.
Hill said the Cherokee Nation alone has filed more than 4,000 criminal cases since the ruling took effect. She added that the nation expects that number to rise as it continues to update its tribal justice system infrastructure to comply with the McGirt decision and address the cases it’s now responsible for.
“Our local law enforcement relations have been very good and move along very smoothly,” Hill said. “It’s a system that works on the ground, but it’s often Gov. Stitt’s argument that there is chaos.”
Hill said the nation is “telling people to come and look because it’s a very orderly system, and we have made a ton of progress in a short amount of time.”
Stephen Greetham, senior legal counsel for the Chickasaw Nation, said the DOJ’s budget request this month affirms what the tribes have been saying for more than a year; they need the state of Oklahoma’s cooperation.
“We’ve all been asking for more resources,” Greetham said. “There is plenty of room for the state to do better, the tribes to do better and the feds to do better but the first step is for us to work effectively together.”
Gov. Stitt has continued to criticize the McGirt decision, often saying that the ruling has created a “lawless state” on national television appearances. He’s also tweeted stories of alleged injustices created by the ruling. And in his 2021 annual state of the state address, he described the aftermath of the McGirt decision as Oklahoma’s “most pressing issue.”
In a March 31 appearance on Tucker Carlson’s Fox News show, Stitt was asked to explain what the ruling meant for Oklahoma.
“This all started when [Jimcy] McGirt, a child rapist, showed his ‘Indian card’ and got his conviction overturned,” Stitt said.
The Supreme Court decision vacated McGirt’s state convictions for first-degree rape by instrumentation, lewd molestation and forcible sodomy, but a federal jury later convicted McGirt, who was sentenced to life imprisonment.
The first-term governor, who is an enrolled member of the Cherokee Nation, continued: “When you think about who is an Indian, you can be 1/500th or 1/1000th. I’ve actually got my ‘Indian card,’ and my six children with blonde hair and blue eyes all have their ‘Indian cards … So our police are having a tough time because they can’t tell who an Indian is and who’s not an Indian in eastern Oklahoma.”
Stitt also claimed in the interview that Oklahoma death row inmates were taking DNA tests to prove Native American heritage, a story the tribes dispute by reminding the governor tribal enrollment is not based on DNA but instead shared customs, traditions, language and tribal blood. In January, the Supreme Court upheld an Oklahoma appellate court decision that the McGirt decision was not retroactive to inmates in prison whose convictions have already been filed.
“Their final conviction is their final one,” Hill said. “They cannot challenge that using the law of McGirt.”
Following that broadcast, the Cherokee Nation of Oklahoma’s Twitter account aimed an indirect message at Stitt.
“As a tribe of 410,402 citizens, we’re thankful for the 410,401 Cherokee citizens who aren’t going on TV to undermine our rights and sovereignty,” the account shared.
Oklahoma’s tribes have said they believe Stitt is using scare tactics in the lead-up to the Supreme Court’s review. Stitt’s office, too, has created a website asking for anyone who has been “directly impacted by the McGirt decision” to share their story with the governor.
“It’s breathtaking that the governor has gone to the Supreme Court, asking it to turn back on the United States’ promise to Indian tribes,” Hoskin said. “While we’ve been busy undertaking the hard work of governing and crafting this legal system, the governor of the state of Oklahoma has engaged in political attacks, fired up the rhetoric to cause fear in Oklahomans.”
When the court agreed to not overturn McGirt, Greetham said the state, the tribes and federal government will all need to work together –- no matter what the Supreme Court rules.
“I’m still waiting to see some cooperation from the state of Oklahoma.” Greetham said. “That will have to start with its chief executive to recognize the value of those intergovernmental relationships, the common cause we all have in public safety and effective government and to sit down with us government to government and figure out a plan to get it done.”
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