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Tribal leaders from the Muscogee Nation and Cherokee Nation were in Washington D.C. Wednesday as the U.S. Supreme Court finished its current term hearing arguments in what tribes hope is the last of the litigation stemming from the McGirt decision.

A seemingly divided court heard arguments in Oklahoma v. Castro-Huerta and will decide Oklahoma's authority to prosecute some crimes on Native American lands. The outcome probably rests with Justice Amy Coney Barrett, the only member of the court who didn't take part in the earlier case.

Barrett, who joined the court later in 2020 during the Trump administration, after Justice Ruth Bader Ginsburg's death, didn't tip her hand in more than two hours of arguments.

The case pits Native tribes in Oklahoma against Cherokee Nation citizen and Republican Gov. Kevin Stitt and is the latest strain on his relationship with tribal leaders.

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The high court is being asked to decide whether the state retains the authority to prosecute non-Natives for crimes committed on tribal land when the victim is Native.

Oklahoma appealed to the Supreme Court after a state court threw out the conviction against Victor Castro-Huerta, who is non-Native. Castro-Huerta was charged by Oklahoma prosecutors with malnourishment of his disabled 5-year-old stepdaughter, a citizen of the Eastern Band of Cherokee Indians.

The state court ruled Oklahoma lacked the authority to prosecute a crime committed against a tribal citizen on tribal land.

Castro-Huerta has since pleaded guilty to a federal child neglect charge in exchange for a seven-year prison term, though he has not been formally sentenced yet.

Prior to the arguments, leaders from the Muscogee Nation and several tribal leaders from Montana took part in a prayer song outside of the Supreme Court.

“Our fight resonates beyond Oklahoma,” the Muscogee Nation said in a video tweet of the song.

Two years ago, the justices split 5-4 in holding that Congress had never explicitly disestablished the Muscogee (Creek) Nation reservation. In doing so, a large chunk of eastern Oklahoma remains Indian Country.

Related:
Supreme Court takes another look at McGirt issues
Ruling stands, McGirt not to be overturned
Oklahoma governor knocks McGirt ruling
High Court hears Native law cases 

The decision left the state unable to prosecute tribal citizens accused of crimes on tribal lands that include most of Tulsa, the state's second-largest city with a population of about 413,000.

A state court ruling extended the high court decision to apply to crimes committed by non-Indians in which Natives are victims, leaving the federal government with sole authority to prosecute such crimes.

The four remaining justices in the majority in 2020 strongly suggested that they were against the state in the current case as well. Ginsburg was the fifth vote.

Justice Neil Gorsuch, the author of 2020's McGirt decision, scoffed at the state's concern for Native American victims "given the history in this country of the state abusing Indian victims in their courts."

But when Zachary Schauf, Castro-Huerta's lawyer, picked up on Gorsuch's comments by saying states asserting an interest in protecting Native people is like putting "a fox in charge of the hen house," Justice Clarence Thomas objected.

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Thomas, a dissenter in 2020, noted that Castro-Huerta received a 35-year prison sentence in state court, compared with the seven years he expects to serve in the federal system.

Schauf said the difference in time spent behind bars probably would be less stark because of Oklahoma parole provisions.

After the arguments, Schauf remained optimistic the court would reject Oklahoma’s “unprecedented position.”

“Two centuries of law provides that States have jurisdiction over crimes involving Indians only when Congress provides it. The arguments Oklahoma made today would upend that settled law nationwide, violate the rights of hundreds of tribes, and thrust jurisdiction on dozens of States that expressly declined to assume it—all for no purpose,” he said in a statement after the proceedings. “Congress has provided by statute a mechanism that allows Indians themselves to choose whether state jurisdiction will make them safer.”

On another point, federal officials have acknowledged that they lack the resources to prosecute all the crimes that have fallen to them, and several justices seemed especially interested.

"Indian victims right now are not being protected because the federal government does not have the resources to prosecute those crimes," Kavanaugh said.

If the court rules against the state, "it's going to hurt Indian victims," he said.

Kannon Shanmugam, representing Oklahoma, returned repeatedly to the practical consequences, noting that only the federal government can prosecute crimes in nearly half the state.

"The federal government is failing at this task," Shanmugam said.

However, tribes and Native organizations have pushed back against this notion. Justice Sonia Sotomayor questioned Shanmugam on where the state got its figures from when it comes to cases that slip through the cracks.

Also, since the McGirt decision two years ago, tribes in Oklahoma have invested heavily in their respective judicial systems. From increasing cross-deputization agreements to hiring more judges, attorneys and investigators; tribes have continually worked to rise to meet criminal justice responsibilities.

“Today’s arguments at the U.S. Supreme Court shed light on the misleading arguments and gross exaggerations in the State of Oklahoma’s case to expand its jurisdiction. It is long past time for the State to focus on reality and cease the costly, distracting litigation that rides on these fictions,” the Muscogee Nation said in an emailed statement to Indian Country Today. “The State is overdue to begin working in earnest – as do other entities – with us and other sovereign tribal nations to protect public safety and ensure justice is served for all.” 

Justice Department lawyer Edwin Kneedler, arguing his 150th Supreme Court case, said the court should rule for Castro-Huerta, but said he was "not here to minimize the challenges created by McGirt."

The Supreme Court case involved the Muscogee reservation, but later rulings upheld the historic reservations of other tribes in Oklahoma, including the Cherokee, Chickasaw, Choctaw, Quapaw and Seminole nations.

Stitt said during his State of the State speech in February that "Oklahoma has been robbed of the authority to prosecute crimes."

Tribes are supporting Castro-Huerta in the Supreme Court. "Today's Supreme Court arguments reaffirmed what tribes have said all along: the state of Oklahoma has neither the facts nor the law on its side," Principal Chief Chuck Hoskin Jr. of the Cherokee Nation said in a statement that also accused Stitt of holding "anti-tribal views."

The Cherokee Nation is the country's largest tribe by population with about 400,000 citizens, about 261,000 of whom live in Oklahoma.

Stitt has previously clashed with tribal leaders over his desire to renegotiate tribal gambling compacts that he claimed were expiring. Federal and state courts ruled against Stitt in lawsuits over the gambling question.

Last year, Stitt decided to not renew hunting and fishing license compacts with the Cherokee and Choctaw nations as part of an ongoing dispute between the tribes and the Republican governor.

Replay of the audio and transcript of the arguments can be found on the Supreme Court website.

A decision in the case is expected to be handed down before the court breaks for summer recess at the end of June.

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The Associated Press contributed to this report 

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