WASHINGTON — A closely divided Supreme Court decision in 2020 greatly increased the expanse of “Indian country” in Oklahoma and disrupted criminal prosecutions there. A case argued Wednesday that seeks to limit the decision showed those divisions remain.
Wednesday’s case would allow the state to prosecute non-Indians for crimes against Native Americans on Indian lands, which as a result of the 2020 decision means about 40% of the state, including most of Tulsa. It appeared that the only justice not on the court that year for McGirt v. Oklahoma - Justice Amy Coney Barrett - might provide the deciding vote.
The court spent well more than two hours on the case, which came on the last scheduled day of oral arguments for the term. That meant it was also the last for Justice Stephen Breyer, who is set to retire this summer after the court finishes its work. His former law clerk, Judge Ketanji Brown Jackson, has been confirmed as his successor.
Chief Justice John Roberts’s voice broke with emotion as he recognized Breyer at the close of Wednesday’s hearing. The two are seatmates and perhaps the two members of the Supreme Court most willing to look for compromise in their ideological differences.
“For 28 years, this has been his arena for remarks profound and moving, questions challenging and insightful and hypotheticals downright silly,” Roberts said, at times pausing as he read the statement. “This sitting alone has brought us radioactive muskrats and ‘John the tiger man.’ " He was referring to recent examples of Breyer’s imagined subjects.
Roberts concluded: “We leave the courtroom with deep appreciation for the privilege of sharing this bench with him.”
If that moment was melancholy, the hearing itself was at times snappish.
Washington lawyer Kannon K. Shanmugam, representing Oklahoma, said the 2020 decision had disrupted the normal system of prosecuting crimes, because it meant Native Americans who commit crimes on the vastly expanded reservation lands must face justice in tribal or federal courts. He said state prosecutors should at least share responsibility for prosecuting non-Native American defendants.
The federal government’s position that it is solely responsible for such prosecutions “is simply mind-boggling in light of the situation in Oklahoma, where, by the government’s own admission, whole categories of crimes are going unprosecuted in the aftermath of McGirt.”
Conservative Justice Neil Gorsuch has been a fierce defender of tribal rights in his time on the court, and he teamed up with the court’s then-four liberal members in the McGirt decision, which he wrote. He was Shanmugam’s chief antagonist.
Gorsuch said he found it rich that the state was presenting itself as the protector of Indian victims. There is a long history “in this country of states abusing Indian victims in their courts,” he said, adding that Oklahoma’s request would violate the court’s precedents.
The state of criminal prosecutions in the state is a matter of dispute between the federal government, the tribes and Oklahoma politicians, led by Republican Gov. Kevin Stitt.
“The law enforcement issues are very real,” Shanmugam said. “And as recently as earlier this week, you had the principal FBI agent in Oklahoma conceding that there are whole categories of crimes, by our estimation, thousands of crimes, that are going unprosecuted because the federal government, which has sole jurisdiction over this category of cases, simply has been unable to prosecute them.”
Justice Sonia Sotomayor suggested the figures were exaggerated. Breyer said the solution was more federal prosecutors, rather than changing the system. He pointed out that Oklahoma’s request would affect the other 49 states as well.
Gorsuch was unmoved, saying federal law and the court’s precedents are on the side of the tribes and federal government.
“Are we to wilt today because of a social media campaign?” he asked.
The case at the Supreme Court involves Victor Castro-Huerta, who is not Native American and was convicted in state court of abusive neglect of his 5-year-old stepdaughter, a tribal member who has cerebral palsy and is legally blind. He was sentenced to 35 years in prison. The Oklahoma Court of Criminal Appeals threw out his conviction because the crime occurred in what is now considered tribal lands.
A court filing from the Muscogee (Creek) Nation said the case actually is an example of how the system works since McGirt. Castro-Huerta has been re-convicted in federal court and is awaiting sentencing, it said. His lawyer at the Supreme Court, Zachary C. Schauf, said the plea agreement called for seven years in prison.
Schauf and Deputy Solicitor General Edwin S. Kneedler - who Roberts later would note was presenting his 150th argument representing the federal government - came under tough questioning by the justices who were dissenters in the McGirt decision - Roberts and Justices Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh.
Kavanaugh said he did not understand how tribes would be harmed by Oklahoma’s request.
“Indian victims right now are not being protected because the federal government doesn’t have the resources to prosecute all these crimes,” he said. “And this would not be displacing the federal government. It’s additional prosecutors to protect Indian victims against non-Indians.”
Kneedler said the federal government’s exclusive jurisdiction goes back “to the founding, when the framers rejected the divided authority under the Articles of Confederation and invested plenary and exclusive power over Indian affairs in the national government.”
But Alito questioned whether the federal government was going to live up to the responsibility.
“Is the federal government going to be able to provide enough federal agents, enough federal prosecutors, enough federal judges, enough federal courtrooms, enough federal probation officers, to handle the caseload that was previously handled by state law enforcement?” Alito asked.
If no justice is swayed from his or her previous stance in McGirt, the outcome will depend on Barrett. She replaced Justice Ruth Bader Ginsburg, who voted with the majority. But Barrett asked only a few low-key and technical questions, not tipping her hand.
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The case is Oklahoma v. Castro-Huerta.