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Last Friday, the US Supreme Court agreed to hear the State of Oklahoma’s question about the 2020 decision in McGirt v. Oklahoma.
McGirt was a landmark decision that held that much of the State of Oklahoma remains sovereign tribal land. As such, it’s subject only to federal, not state authority.
The McGirt decision was quite narrow, concerning a specific question about the Major Crimes Act. Nonetheless, many have attempted to extrapolate its effect to other areas of law, including tribal gaming.
The Supreme Court’s announcement does not threaten to undo the 2020 decision, though that’s something that the State of Oklahoma had asked for. The Justices previously rejected that request. Instead, the Court will hear a case that could limit the scope of the McGirt ruling. The question presented asks:
Whether a State has authority to prosecute non-Indians who commit crimes against Indians in Indian country.
The McGirt decision has been controversial and heavily criticized by the Oklahoma Governor, among others. Its detractors lament the limits it has placed on state law enforcement.
The Creek Nation received a significant portion of what is now Oklahoma in the 1800s, as reservation land. In a 5-4 decision, the Supreme Court ruled that this status continues to this day.
Meanwhile, a federal law dubbed the Major Crimes Act grants the federal government the exclusive jurisdiction to prosecute certain types of crimes, when they are committed by tribal members within “Indian country.”
The jurisdictional aspects of the McGirt case concerned land split into reservations belonging to the Cherokee, Choctaw, Chickasaw, Creek, and Seminole tribes. These account for much of Eastern Oklahoma. This includes what is now part of Tulsa County, home to the state’s second-largest city.
In 1906, the year before Oklahoma became a state, Congress passed the Oklahoma Enabling Act, this created a two-tiered system involving suzerainty governing rights. On the one hand, the five tribes retained the ability to govern tribal members on their own land. At the same time, the State, once established, would have jurisdiction over non-tribal members.
In 2017, in a case involving a Muscogee-Creek citizen, the Tenth Circuit was asked to rule on whether the reservations had been disestablished by the 1906 Enabling Act. If so, that would allow the State of Oklahoma to prosecute tribal citizens as well.
The Tenth Circuit, which at the time had Justice Neil Gorsuch on the panel, ruled that the reservations had not been disestablished. That meant that federal courts would continue to have the exclusive jurisdiction to prosecute crimes taking place there. A second case, McGirt, later made its way to the Supreme Court. There, the Court would rule that the Tenth Circuit Court of Appeals ruling was correct.
The decision immediately raised questions about past convictions. Oklahoma found that it might have hundreds or possibly thousands of these, which now needed to be retried in federal court. In the months and now year following the decision, Governor Kevin Stitt has been very vocal about his displeasure with the decision.
A recent article from the Tulsa World newspaper found that the decision had led to the release of about 235 inmates from prison. 71% of these were either retried in federal or tribal court, or held on unrelated charges. On January 11, 2022, the Supreme Court clarified that the McGirt decision was not retroactive.
However, the future impacts of the decision could be even greater. It could come into play if any or all of the tribes elected to conduct new gambling activities without state approval. They would then only have to worry about federal prosecution, while the state would be powerless.
That could prove important, as Oklahoma’s political climate makes gambling expansion a tough sell in the legislature.
Oklahoma has filed more than 20 petitions to the Supreme Court since the McGirt decision seeking to either have the Supreme Court overturn the two-year-old decision or to get some more details on the contours of the decision. The current case involves Victor Manuel Castro-Huerta. A State court convicted Castro-Huerta of charges of severe child neglect for the horrific mistreatment of his stepdaughter. The stepdaughter is a member of the Eastern Band of Cherokee Indians.
Castro-Huerta had his conviction vacated following the McGirt decision. This was on the basis that previous courts had ruled that crimes committed on tribal land “by or against” tribal citizens were not subject to prosecution by state authorities. Oklahoma’s petition to the Supreme Court seeks to limit the exclusive prosecutorial authority to crimes “by” tribal members. That would then allow the state to prosecute crimes against tribal citizens by non-citizens on tribal land.
In the McGirt decision, Chief Justice John Roberts warned that it had the potential to bring chaos. Roberts wrote the following about its long-reaching impacts:
The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.
Roberts didn’t explicitly mention tribal gaming law. However, it’s almost certainly worthy of inclusion on the list. The decision has not yet spurred any significant change in Oklahoma gaming. However, it could well do so in the future.
Again, the Supreme Court’s decision to hear the Castro-Huerta case does not appear to threaten to undo McGirt entirely. However, a decision in favor of the Sooner State may limit some of the effects of that decision.
For one thing, it does not appear that the Castro-Huerta case would threaten the Court’s finding regarding the existence of the ongoing reservations in eastern Oklahoma. That, in turn, means that questions will persist about what impact could there be for tribal gaming. Many interesting possibilities exist. For instance, the large size of the five reservation territories could allow for a unique approach to mobile gaming in each.