WASHINGTON — A seemingly divided Supreme Court heard arguments Wednesday over Oklahoma's authority to prosecute some crimes on Native American lands, following a 2020 high court decision. 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 after Justice Ruth Bader Ginsburg's death, didn't tip her hand in more than two hours of arguments.
The case pits Indian tribes in Oklahoma against Republican Gov. Kevin Stitt and is the latest strain on his relationship with tribal leaders.
The high court is being asked to decide whether the state retains the authority to prosecute non-Indians for crimes committed on tribal land when the victim is Native American.
Oklahoma appealed to the Supreme Court after a state court threw out the conviction against Victor Castro-Huerta, who is not Native American. Castro-Huerta was charged by Oklahoma prosecutors with malnourishment of his disabled 5-year-old stepdaughter, a member of the Eastern Band of Cherokee Indians.
The state court ruled Oklahoma lacked the authority to prosecute a crime committed against a Native American 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.
Two years ago, the justices split 5-4 in holding that a large chunk of eastern Oklahoma remains an American Indian reservation. The decision left the state unable to prosecute Native Americans 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 Native Americans 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 Americans is like putting “a fox in charge of the hen house,” Justice Clarence Thomas objected.
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.
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.
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 Native American 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.”
Native American 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 tribe is the state's most populous with about 261,000 citizens.
Stitt is a member of the Cherokee Nation. But he 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.
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