Supreme Court lets McGirt stand, will address related question

The U.S. Supreme Court on Friday declined to reconsider its 2020 decision affirming the Muscogee (Creek) reservation but announced that it would address the Oklahoma attorney general’s question of whether the state can prosecute non-Indians for crimes involving Native Americans on reservations.

The court said in a brief order that it will hear oral arguments on that question in April.

The announcement was a blow to Gov. Kevin Stitt and Oklahoma Attorney General John O’Connor, who have been urging justices to overturn the decision in McGirt v Oklahoma.

The Muscogee (Creek) Nation called it "great news" that the court "declined to consider overturning the McGirt ruling that affirms our reservation and sovereignty. The Muscogee (Creek) Nation will continue its vigorous engagement in the judicial process in support of our sovereignty and public safety."

Cherokee Nation Principal Chief Chuck Hoskin, Jr., said Friday, “The Cherokee Nation celebrates the Supreme Court’s rejection of a blatantly political request to overturn its McGirt decision.

"With this rejection of the state’s request in this case, the court affirms its decision in McGirt. I am proud of the Cherokee Nation’s success over the past year and a half expanding our justice system in record speed and fighting for public safety, but it would have been more effective had the governor chosen to come to the table from the start."

Stitt said he was encouraged the Supreme Court had agreed to review the question of state jurisdiction in some criminal cases, but he again criticized the McGirt decision, which has reshaped criminal jurisdiction in eastern Oklahoma.

“The reality is that the McGirt decision has hamstrung law enforcement in half of the state," the governor said. "Oklahoma is a law and order state, and I was elected to protect all four million Oklahomans, regardless of their race or heritage. I will not stop fighting to ensure we have one set of rules to guarantee justice and equal protection under the law for all citizens.”

Landmark ruling on Muscogee reservation issued in 2020

The Supreme Court ruled in 2020 that the Muscogee (Creek) reservation was never disestablished by Congress and that convicted child rapist Jimcy McGirt was wrongly prosecuted by the state because he is Native American and the crimes occurred on the Muscogee reservation.

Under federal law, crimes involving Native Americans in Indian country must be prosecuted in federal or tribal courts.

The Oklahoma Court of Criminal Appeals last year applied the McGirt decision to the Cherokee, Chickasaw, Choctaw, Quapaw and Seminole reservations, meaning most of eastern Oklahoma and some central Oklahoma counties are Indian country.

The Oklahoma attorney general's office has argued since 2020 that federal law does not specifically bar states from exercising concurrent jurisdiction over crimes involving a non-Indian perpetrator and a Native American victim in Indian country.

There are many such cases, and a ruling for the state could further narrow the impact of the McGirt decision on the criminal justice system in Oklahoma. Earlier this month, the U.S. Supreme Court let stand a decision by the Oklahoma Court of Criminal Appeals that the McGirt decision was not retroactive to convictions upheld on earlier appeals. That decision barred thousands of potential appeals.

In a McGirt related case last year, attorneys for the Biden administration argued that the federal government and tribes have exclusive jurisdiction over all crimes involving Native Americans in Indian country. The Trump administration apparently also took that position; in a Supreme Court brief in the McGirt case, it said that, if the court ruled for McGirt, the federal government “would be required, for the first time since (Oklahoma) statehood, to assume jurisdiction over all crimes involving Indians.”

A decision from the court on the question of concurrent jurisdiction could come this summer.

O'Connor on Friday hailed the announcement by the court.

"This is a step forward for the state of Oklahoma and is of paramount importance, given that the overwhelming majority of people who live in eastern Oklahoma are not of Indian heritage," he said.

"Narrowing the scope of this case will not alleviate all of McGirt’s harmful consequences in our state, but it would ensure that non-Indians who victimize Indians can be prosecuted under the same rules as perpetrators who victimize non-Indians. More importantly, it will guarantee Indian victims the same protection and justice that all other Oklahomans enjoy."

The court's announcement on Friday came in the case of Victor Manuel Castro-Huerta, who was convicted in Tulsa County district court of child neglect and sentenced to 35 years in prison. The Oklahoma Court of Criminal Appeals reversed his conviction because the victim was Cherokee and the crime occurred on the Cherokee reservation; the court rejected the state's argument in the case about concurrent jurisdiction.

What's next in the case?

The Castro-Huerta case was the lead petition out of dozens filed by the state seeking the reversal of the McGirt decision.

The state argued in the petitions that the court's 5-4 decision misinterpreted its prior rulings in cases involving reservation disestablishment and caused chaos in criminal justice. Two cities, Tulsa and Owasso, joined in, claiming many crimes were not being prosecuted because of confusion and lack of federal and tribal prosecutors.

Tribes and defense attorneys for some whose convictions had been overturned countered that the McGirt decision was consistent with the court's precedents and that Stitt and the cities greatly exaggerated the impacts. And, they argued, it was Congress' job to resolve any issues regarding the reservations.

The public dispute between Stitt and the Five Tribes — which came on the heels of their dispute over gaming compacts — has been bitter and loud. The court's decision on Friday not to review the McGirt decision was a major victory for the tribes, which have gained a new measure of sovereignty in lands promised to them in the 19th century.

Stitt didn't back off his position on Friday, saying, "The fallout of the McGirt decision has been destructive. Criminals have used this decision to commit crimes without punishment. Victims of crime, especially Native victims, have suffered by being forced to relive their worst nightmare in a second trial or having justice elude them completely."

Hoskin, the Cherokee Nation's principal chief, said the court's affirmation of McGirt offers opportunities.

“Now that Governor Stitt’s fight against tribal sovereignty has once again come up short, we hope he will consider joining tribes, rather than undermining our efforts, so we can focus on what is best for our tribal nations and all Oklahomans," the chief said.

And Choctaw Nation Chief Gary Batton said, “We hope Oklahoma’s government officials will now turn their attention to cooperation, rather than conflict.”

With the ruling now firmly in place, state and tribal officials could start to explore together rising questions created by McGirt about tax and regulatory jurisdiction. A U.S. district judge recently sided with the federal government — and against the state — in a case about jurisdiction over surface mining on an Indian reservation.

Tribes and the state have through the years negotiated compacts on casino and other gaming revenue, tobacco and fuel taxes and other matters. Disputes over sales taxes, income taxes and oil and gas drilling taxes have already arisen in the wake of the McGirt decision and could be resolved in future compacts if the tribes and the state can negotiate.