The last hearing of the Supreme Court’s current term will be held tomorrow, focusing on an attempt by the state of Oklahoma to overcome – at least partly – a devastating legal setback it had in the Court two years ago. The state would have preferred that the Court use this new case to overrule that decision, but the Court refused, choosing to explore specific complications resulting from that decision.
Wednesday’s hearing: Oklahoma v. Castro-Huerta Starting at 10 a.m., the hearing is scheduled for 70 minutes.
Background: Few powers granted to Congress under the U.S. Constitution are as robust as its authority to deal with the nation’s Indian tribes – at least as Congress and the Supreme Court have understood for many decades. Although there is now a serious scholarly movement to question the breadth of that authority, so far that notion has not been embraced by a majority of the Court. But there is now a new majority, and it will decide this case.
The Constitution’s Article I, Section 8 reads: “Congress shall have power to regulate commerce with the Indian tribes.”
The meaning of that clause – and, specifically, how Congress has used that authority in dealing with the Creek tribe in Oklahoma – divided the Court 5-to-4 two years ago when it decided the case of McGirt v. Oklahoma. Oklahoma’s states’ rights argument failed then, but it is back with a new claim that its sovereignty is deeply threatened as a result of the prior decision.
This time, how the state’s argument will fare likely depends upon how Justice Amy Coney Barrett decides to vote. The junior Justice has succeeded the late Justice Ruth Bader Ginsburg, who helped make the five-Justice majority in that decision. (The latest appointee to the Court, Justice-designate Ketanji Brown Jackson, will not join the Court until the current term is over. This case probably will be decided in this term.)
If the four Justices who dissented in 2020 do side with Oklahoma again, Barrett would be faced with the choice of becoming the deciding vote in favor of states’ rights. Given how they expressed their views last time, there is not much doubt how Chief Justice John G. Roberts and Justices Samuel A. Alito, Jr., Brett M. Kavanaugh and Clarence Thomas will wind up now.
In 2020, those four predicted dire consequences from a decision that, in an instant, turned almost half of the state into a Creek Indian reservation with a highly uncertain future. It did so even though there has not been an officially recognized tribal reservation within Oklahoma since it became a state in 1907.
The majority ruled that Congress could have “disestablished” the Creek reservation, created by two 19th Century treaties, but it actually never did. The majority said the reservation concept would exist only to determine authority to prosecute for crime involving Indians in that area, but the impact has not been limited to that. Also, the majority expressed confidence that the tribe and the state could work out any complications from the ruling, but so far that has not happened.
Since that ruling, state courts have interpreted the decision to be even wider in scope than the Supreme Court had declared, expanding it from 3 million acres to 19 million, an area that is home to 1.8 million people, less than 15 percent of whom are members of Indian tribes. That wider area includes reservations of additional tribes, not just the Creek. It is clear, from the 2020 decision, that a reservation can continue to exist in a legal sense even if most of it is no longer the home for Indians or used by them as a community of their own.
Oklahoma is back at the Supreme Court, reciting a litany of chaos, spreading from enforcing its criminal laws to deciding who owns property, what zoning laws apply and how taxes are assessed. “No recent decision of this Court has had a more immediate and destabilizing effect on an American state,” causing “turmoil affecting every corner of daily life in Oklahoma,” the state’s lawyers told the Court.
Once again, as in 2020, the Court begins with a focus on the state’s power to prosecute for a crime in “Indian country,” an area that the prior ruling deemed to remain within the Creek reservation. (The prior case involved the state court conviction of Jimey McGirt for a series of sexual assaults on a four-year-old girl; he was sentenced to 1,100 years in prison. Although he won the Supreme Court case in 2020, he was later prosecuted in federal court, convicted and sentenced to three life-prison terms without parole.)
The new case involves Victor Manuel Castro-Huerta of Tulsa, a non-Indian who was convicted in state court of criminal neglect of an Indian child, and was sentenced to 35 years in prison. The crime involved charges that in 2015 he had failed to provide adequate nutrition and medical care or even basic sanitation for his five-year-old stepdaughter. The child, a member of the Eastern Band of Cherokee Indians, had cerebral palsy and was legally blind.
An Oklahoma appeals court, relying on the McGirt precedent, accepted Castro-Huerta’s claim that he could not be prosecuted in state court, only in federal court. Several federal laws, dating back to 1817, control the prosecution of crimes within “Indian country” – basically, all land within the boundaries of a tribal reservation. (Castro-Huerta has since been charged in federal court for the same crime, and has pleaded guilty in exchange for a recommended prison sentence of seven years. That case has no effect on whether his state prosecution was valid, as Oklahoma argues in this case. The Constitution’s ban on being tried twice for the same crime – “double jeopardy” – does not apply to separate federal and state prosecutions, on the premise that they are the actions of separate sovereigns.)
Oklahoma filed its new appeal to the Supreme Court last September, seeking to uphold Castro-Huerta’s conviction in state court and the state’s power to prosecute such crimes, even in “Indian country.” Half of its appeal was focused on its separate plea that the Court overrule the McGirt decision entirely. However, when the Court agreed in January to hear the case, it specified that it was going to review only the issue of state power to prosecute cases like Castro-Huerta’s.
The question before the Court: Do states have the authority to enforce their criminal laws in state courts, even within areas treated as Indian reservations, against non-Indians whose victims are Indians?
Significance: The case is of profound importance to the state of Oklahoma, because there seems little doubt that the 2020 ruling has had a significant impact not only on criminal law enforcement, but across a wide array of state government activity.
The case has attracted widespread interest, and many friend-of-court legal briefs, by specialists in Indian law, other states, the Creek Nation and other tribes, and a variety of advocacy groups promoting state sovereignty or cultural agendas – including a plea by one group that the entire scheme of two systems of law, one for Indians, one for all others, should be cast aside as a relic of the slavery era.
The Court may have to canvass the entire area of federal-Indian relations in order to sort out what to do, if anything different, in the wake of the 2020 precedent.
The state has narrowed its main argument in the case to a plea to allow it to prosecute crimes in
Indian country if the person charged with the crime is a non-Indian and the victim is an Indian. (The McGirt case involved an Indian’s crime against a non-Indian victim, and Oklahoma is seeking to treat that as entirely different.)
Because the Court did not grant review of the state’s plea to overrule the McGirt decision, the state is not free to continue to argue that point. However, the Court is not bound by its decision to pass up that question because doing so was not a definitive ruling against the plea. With the Court’s membership changed, it is at least possible, though not likely, that the Court could reconsider, if there are five votes to do so.
It would be somewhat embarrassing, institutionally, to do so, but that is not unprecedented in the Court’s history. In fact, constitutional historians well remember a dramatic constitutional turnaround in the 1940s.
The Court first ruled that children of the Jehovah’s Witness faith could be required, despite their religious objection, to salute the America flag at public school. Just three years later, however, the Court reopened the issue and changed its mind, deciding that the compulsion to salute would violate the children’s constitutional rights.
Because that incident so quickly comes to mind, it illustrates that the Court does not do that very often.
Once the Wednesday hearing has finished, the Court does not plan to hold any hearings until its next term starts on October 3. It will spend the remainder of the current term preparing decisions in the cases it has heard, probably finishing up in late June or early July. When the new term opens, the ninth seat will be occupied by Justice Ketanji Brown Jackson.