The U.S. Supreme Court just issued its final opinions from its Spring term, and as usual, the pronouncements from the judicial throne predictably resulted in celebration, consternation, protest and plenty of ill-informed declarations. One of those last few opinions was Oklahoma v. Castro-Huerta, which has significant consequences for criminal prosecutions in the eastern half of Oklahoma.
The landscape began shifting with the decision two years ago in McGirt v. Oklahoma. State and federal courts had long held that Oklahoma state courts did not have the jurisdiction to prosecute crimes committed by or against Indians in what federal law defines as “Indian Country.” That had generally been limited to restricted Indian land and small enclaves until the decision in McGirt.
In McGirt, after analyzing the relevant laws and treaties with the Muscogee (Creek) tribe, the Court concluded that their reservation had never been abolished (“disestablished” to use the Court’s term), making the entire Muscogee (Creek) Nation Indian Country, and barring the state from prosecuting an Indian defendant for crimes committed there. Over the ensuing months, Oklahoma’s Court of Criminal Appeals followed McGirt and concluded that its reasoning applied to the Choctaw, Chickasaw, Cherokee, Seminole and Quapaw, thus rendering most of eastern Oklahoma Indian Country.
McGirt has had a colossal impact on eastern Oklahoma. Faced with a huge expansion of their authority as their sovereignty was reaffirmed, the tribes have made enormous expenditures to scale up their criminal justice systems to handle the unprecedented new workload.
Federal authorities also added resources to stem the sudden flood of cases. Meanwhile, Oklahoma Governor Kevin Stitt decried the ruling, and together with Oklahoma Attorney General John O’Connor launched an assault on the ruling. In August of last year, they won a victory in State ex rel. Matloff v. Wallace, obtaining a ruling from the Court of Criminal Appeals which limited McGirt to only currently-pending cases, barring previously-convicted defendants from attacking old convictions.
Oklahoma state authorities didn’t stop there. O’Connor has to date filed over thirty petitions with the U.S. Supreme Court asking the justices to reconsider their ruling. All have been rejected.
However, the High Court did agree to hear arguments in Castro-Huerta. The question considered in that case was whether the State had any jurisdiction to prosecute a nontribal member for committing a crime when a tribal member is the victim. On June 29, the Court rendered a 5-4 decision, deciding that Oklahoma could prosecute a nontribal member in this situation, concurrently with the jurisdiction of the federal government and the tribes.
This means that a non-tribal member who commits a crime in Indian County can potentially be prosecuted three times for the same act. Normally, Indian tribes do not have jurisdiction over non-tribal members, since the Supreme Court made that finding in 1978 in Oliphant v. Suquamish Indian Tribe. However, under the 2013 reauthorization of the federal Violence Against Women Act, tribes regained jurisdiction over non-Indians in strictly limited circumstances, generally involving domestic abuse of tribal members.
So, in a situation where a nontribal member commits domestic abuse against a tribal member in Oklahoma’s Indian country, the U.S. Attorney, the local District Attorney, and the local tribal prosecutor could all file charges against the culprit and punish him. These multiple prosecutions are not barred by double jeopardy, because each actor is a separate sovereign; double jeopardy only prohibits multiple prosecutions by the same sovereign entity, not prosecutions by different sovereign entities.
While Governor Stitt celebrated the decision as a victory for his administration, nothing about Castro-Huerta limits the authority of the tribal nations under McGirt and the following decisions. Instead, the decision merely expands the authority of state-court prosecutors over non-Indians who commit crimes against Indians. However, the long-term consequences of this decision will continue to play out, as will continued litigation.
Among the issues still being litigated is the authority of Oklahoma cities to prosecute Indians for violation of city ordinances. In April, the U.S. District Court for the Northern District of Oklahoma decided in Hooper v. City of Tulsa that Tulsa, which was organized prior to statehood under an 1898 federal law known as the Curtis Act, retained jurisdiction over tribal members for violating its ordinances, notwithstanding Mc-Girt.
That decision is currently on appeal to the Tenth Circuit Court of Appeals, and its progress through the system will be watched by eastern Oklahoma cities hoping to be able to prosecute (and incidentally, collect fines and court costs from) tribal members, instead of sending those cases to tribal courts.
The only constant in life is change. This saying has proven true the last couple of years for Oklahomans, and will undoubtedly continue to do so as these cases continue to wind through the judicial system. The one constant – at least for now – appears to be that McGirt and its expansion of tribal authority are going nowhere, and that – as seen in this year’s campaign literature – it will be used as a political football to be kicked around by candidates for public office.