Less than two years ago, the Supreme Court ruled in McGirt v. Oklahoma by a vote of 5-4 that a large portion of eastern Oklahoma, which was reserved for the Creek Nation in the 19th century, remains a reservation for purposes of a federal law that gives the federal government sole power to try certain major crimes committed by “any Indian” in “Indian country.” On Friday, the justices – with Justice Amy Coney Barrett having replaced the late Justice Ruth Bader Ginsburg, who was in the McGirt majority – agreed to consider how broadly McGirt applies, but they declined to reconsider the decision itself, which the state describes as having a “more immediate and destabilizing effect on life in an American State” than any of the court’s other recent decisions.
The justices granted review in the case of Victor Manuel Castro-Huerta, who was convicted of neglecting his five-year-old stepdaughter. Although Castro-Huerta is not a Native American, his stepdaughter is a member of the Eastern Band of Cherokee Indians, and the Oklahoma Court of Criminal Appeals vacated his conviction because the crime occurred in Indian country. The decision rested on the court’s conclusion that McGirt applies not only to major crimes committed by Native Americans but also to crimes committed by others in Indian country.
Oklahoma filed more than 30 separate petitions asking the justices to overrule McGirt. It told the justices that the effects of the decision have been “calamitous and are worsening by the day.” Thousands of crime victims are now seeking justice from federal and tribal prosecutors, the state wrote, overwhelming those offices and federal district courts and leaving many crimes “uninvestigated and unprosecuted.” The decision also threatens “hundreds of millions of dollars in state tax revenue,” Oklahoma added. The state argued that although the court may have “believed that compromise or congressional action could limit the disruption from its decision,” it is now apparent that “neither is forthcoming.” “Only the Court,” the state stressed, “can remedy the problems it has created, and this case provides it with an opportunity to do so before the damage becomes irreversible.”
Castro-Huerta urged the justices to deny review, telling them that the state has repeatedly conceded that it has no power to try cases – like this one – committed against Native Americans on land that Congress historically reserved for Native people. The court should not revisit its decision in McGirt, he contended. “It scarcely needs saying that this Court does not overrule statutory decisions based only on changes in personnel,” he wrote, particularly when Congress can make the changes that the state seeks.
In a brief order on Friday afternoon, the justices agreed to take up only the first question presented by the state’s petition, relating to the application of McGirt to bar state prosecutions of non-Native defendants who commit crimes against Native Americans in “Indian country.” The court set the case for argument in its April 2022 argument session, with a decision to follow by summer.
The justices are expected to issue more orders from Friday’s conference at 9:30 a.m. on Monday, followed by opinions in argued cases at 10 a.m.
This post is also published on SCOTUSblog.