Indian Country Today
The U.S. Supreme Court is set to hear oral arguments Wednesday morning in a case featuring the latest fallout from the court’s historic decision nearly two years ago over tribal lands and authority.
In July 2020, the high court handed down a 5-4 decision in McGirt v. Oklahoma, stating that Congress had not explicitly disestablished the Muscogee (Creek) Nation reservation. In doing so, much of eastern Oklahoma is Indian Country and crimes involving Natives in these lands are to be prosecuted by tribal and federal courts, not the state.
In the time since the ruling, Oklahoma Gov. Kevin Stitt, a Cherokee Nation citizen, has slammed the decision and said it has thrown the state into chaos when it comes to criminal jurisdiction.
During his State of the State Address earlier this year, Stitt said the McGirt decision threatens justice for all.
“Oklahoma has been robbed of the authority to prosecute crimes,” Stitt said in February during the speech. “Put simply, McGirt jeopardizes justice.”
The state filed over 30 appeals petitions, with all being denied by the U.S. Supreme Court except for one; Oklahoma v. Castro-Huerta.
The petition presented two questions: Whether the state has authority to prosecute non-Indians who commit crimes against Indians in Indian Country and whether McGirt v. Oklahoma should be overruled.
In granting the petition, the court limited arguments to question one about the scope of McGirt but indicated it would not overturn the case entirely.
Mary Kathryin Nagle, Cherokee, is an attorney who works to end violence against Native women. She said the court has consistently held that whether or not a specific sovereign has criminal jurisdiction on tribal lands is a question exclusively for Congress.
“Congress has what we call exclusive plenary authority to determine which sovereign can exercise which kind of jurisdiction on tribal lands,” Nagle said. “So what Oklahoma is asking for is unprecedented in terms of the law.”
While Stitt and the state have continually said the jurisdictional issues create chaos, Oklahoma tribes have been working hard to say the opposite is true.
In the time since the decision was handed down, tribes have beefed up their respective judicial systems by hiring additional prosecutors, investigators and judges to meet criminal justice responsibilities. Additionally, tribes have increased the number of cross-deputization agreements with neighboring municipalities.
These cross-deputization agreements allow for state and tribal police alike to detain and arrest individuals whether a particular crime is on or off tribal lands and whether or not the suspect or victim is Native.
On its own, the Cherokee Nation has invested more than $30 million into its criminal justice system.
Cherokee Nation Principal Chief Chuck Hoskin Jr. previously said on the ICT Newscast with Aliyah Chavez that if you talk to people on the frontlines, “they'll tell you that we're meeting our obligation.”
“So we're handling the caseload,” he said at the time. “I mean, think about it, the state of Oklahoma had 113 years to create a criminal justice system. The Cherokee Nation has had really a matter of months, and I think we've done well.”
As with all cases involving federal Indian law that make it to the Supreme Court, repercussions will be felt throughout Indian Country; so tribes beyond Oklahoma are likely to be tuned in to the proceedings.
To that end, Nagle applauds tribal leaders across Indian Country who have filed friend-of-the-court briefs and supported Oklahoma tribes from afar during the last couple of years.
“[I] want to give a shout out to all the tribal leaders throughout Indian Country who have stood by the tribes in Oklahoma and have said no to any legislative fix to McGirt and have really stood up for the side of sovereignty and really supported the Creek Nation's historic victory in McGirt,” Nagle said.
This is the final case of the current Supreme Court term, the last of Justice Stephen Bryer’s career after his retirement announcement earlier this year. A decision is expected by the end of June.