The state of Oklahoma, with more than 40 petitions filed seeking to overturn or limit the McGirt ruling, is getting its shot after the U.S. Supreme Court last week picked a date to consider appeals related to its landmark decision.
When the nine justices gather Jan. 7, a Tulsa man’s case will be in the spotlight: The state appealed after the Oklahoma Court of Criminal Appeals vacated a 2017 conviction and 35-year prison sentence for Victor Manuel Castro-Huerta, 36, based on the McGirt ruling.
A state appellate court agreed with Castro-Huerta’s claim that the state did not have jurisdiction to prosecute him because the victim was a member of a federally recognized tribe, and the crime occurred within the never disestablished Cherokee Nation reservation.
The state ruling was the first of a series that expanded the Supreme Court’s July 2020 McGirt ruling beyond the Muscogee Nation reservation to acknowledge that the reservations of five other tribes, including the Cherokee and the Chickasaw nations’, had never been disestablished by Congress.
At issue in the Castro-Huerta appeal and others is whether the Supreme Court should overturn its McGirt ruling or at least find that the state of Oklahoma should have concurrent jurisdiction in cases involving non-Indians committing crimes against Native Americans in Indian Country.
A ruling on whether to grant the petitions a hearing could come as early as Jan. 10.
Records indicate that the odds of the Supreme Court’s taking up the case are against the state.
The court receives 7,000 to 8,000 petitions to take cases each term, granting and hearing oral argument in about 80 of them, according to the court’s own website.
Gov. Kevin Stitt and Attorney General John O’Connor have both argued against the July 2020 McGirt ruling and subsequent state court rulings that voided the state of Oklahoma’s criminal jurisdiction in much of the eastern half of the state when the case involves a tribal member.
The McGirt ruling and subsequent state court rulings found that the reservation boundaries of six state tribes — Muscogee, Cherokee, Chickasaw, Choctaw, Seminole and Quapaw — were still intact because Congress, the only entity that can diminish or dissolve a reservation, never altered the reservation boundaries since 1860s.
‘Most pressing issue’
Oklahoma’s opening statement in its appeal to the Supreme Court describes a state in upheaval since the McGirt ruling: “No recent decision of this court has had a more immediate and destabilizing effect on life in an American State than McGirt v Oklahoma.”
The state called the fallout from the decision both “calamitous and … worsening by the day.”
Stitt has called the McGirt ruling the “most pressing issue” for the future of Oklahoma.
He and O’Connor are joined in opposition to McGirt by the cities of Tulsa and Owasso, district attorneys throughout the state and even the state of Texas.
The Oklahoma Farm Bureau Legal Foundation, the Oklahoma Cattlemen’s Association, The Petroleum Alliance of Oklahoma and others also have filed a joint friend-of-the-court brief expressing concerns regarding the potential civil impact of the McGirt ruling.
On the other side, four of the six tribes that have since been recognized as still having reservations have filed friend-of-the-court briefs in favor of keeping the McGirt ruling.
Meanwhile, an expert in federal Indian law said she doesn’t expect the U.S. Supreme Court to overturn its own ruling from just over a year ago.
“I would be surprised if it were overturned — I would be,” said Carole Goldberg, distinguished research professor at UCLA Law School.
Goldberg, who was appointed by President Barack Obama in 2010 to serve on the Indian Law and Order Commission, said that belief is backed in part on legal precedent finding in favor of the tribes when there is ambiguity in the law.
“So there is an interpretive requirement that these ambiguities be resolved in the tribes’ favor,” Goldberg said.
Backers of the state’s cause point to the death of Associate Justice Ruth Bader Ginsberg and appointment of Amy Coney Barrett to the court since the McGirt ruling as one possible avenue to reversal.
Ginsberg was among the narrow 5-4 majority in the McGirt ruling.
Limits after overturned convictions
The state, in its petition to the Supreme Court, argues that McGirt was wrongly decided.
“By discounting historical evidence of the original public meaning of the statutes Congress enacted, the Court not only defied precedent; it also blinded itself to the actual import of Congress’ legislation,” the state wrote.
The state claims that problems caused by the “seismic shift in jurisdiction have rippled through every aspect of life in Oklahoma.”
Chief among the claims by opponents to McGirt is that it could cause violent criminals to be released from state prison with federal and tribal courts unable to prosecute them for various reasons.
As an example, the state points to the case of Richard Ray Roth, who was convicted in state court of manslaughter and sentenced to serve 19 years in prison for the 2013 Wagoner County traffic death of 12-year-old Billy Jack Chuculate Lord.
Roth’s blood alcohol content was nearly four times the legal limit when the vehicle he was driving struck the boy, who was riding a bike.
In September, the Oklahoma Court of Criminal Appeals threw out Roth’s conviction and sentence on McGirt grounds due to the child’s being a member of the Cherokee Nation and the crime occurring within the reacknowledged Muscogee Nation reservation.
Federal prosecutors were not able to pick up the charge because the statute of limitations — typically five years — had expired for the federal offense.
Tribal prosecutors, meanwhile, were not able to pick up the case because Roth is not a member of a federally recognized tribe.
“If any individuals are ultimately released and then reoffend, the cost to society will be great and the trauma to the victims incalculable,” the state said in its filing to the Supreme Court.
The state is appealing the Roth decision.
Cases of evidence
The state hasn’t appealed the case of Shaynna Sims, but that hasn’t stopped the governor’s office from highlighting her in support of its McGirt challenges.
Sims was freed from prison in November after she challenged on McGirt grounds her convictions and a prison term totaling 16 years that were related to the mutilation of a corpse.
Stitt’s office issued a press release Monday that was actually a copy of a Dec. 3-dated Wall Street Journal editorial that outlines the McGirt ruling and ends with the question: “Is this justice, Justice Gorsuch?”
Tribes, meanwhile, contend that all is going as smoothly as could be expected.
They point to the November 2020 retrial of Jimcy McGirt and the prosecution of others in federal and tribal courts as evidence that the justice system is still working post-McGirt.
A federal jury convicted McGirt of three counts of child sex abuse for which he is serving three life prison sentences.
And while Cherokee Nation Attorney General Sara Hill has conceded that some cases overturned due to McGirt may not be reprosecuted in federal or tribal court, she said the number is few.
Cherokee Nation officials have cited the state of Oklahoma’s own track record in prosecuting cases.
“In 2019, Oklahoma only ‘cleared’ about 36% of reported murders, rapes, robberies and aggravated assaults — meaning that state officers identified, charged and apprehended an alleged offender,” the nation claims in its friend of the court brief, citing Oklahoma State Bureau of Investigation statistics.
The Muscogee (Creek) Nation discounts the state’s claims of doom and gloom caused by McGirt.
“McGirt has not rendered eastern Oklahoma a criminal dystopia,” the Muscogee Nation said in its friend of the court brief in the Castro-Huerta case.
“New cases within the Creek Reservation are also being vigorously prosecuted with necessary resources increasing apace,” the nation wrote.
Growing beyond McGirt
More federal court expansion may be coming.
The federal judiciary policy-making arm has also requested that Congress authorize the creation of three new judgeships in the Eastern District and two new judgeships in the Tulsa-based Northern District of Oklahoma.
The Eastern District currently has one authorized judgeship; the Northern District has three; and the two districts share a judgeship.
Criminal filings in the Eastern District have risen over 400% and in the Northern District by nearly 200% between 2020 and 2021, the Muscogee Nation said in its court filing.
The tribe said it continues to enter into cross-deputization agreements with other law enforcement agencies to give nontribal officers federal and tribal authority within the reservation.
It has also adopted a new traffic code that deliberately mirrors the state’s, making it easier for cross-deputized officers to enforce its provisions.
The state of Oklahoma, meanwhile, argues that the Supreme Court is the only body that can solve the problems caused by the McGirt rulings.
Then-Attorney General Mike Hunter announced one week after the McGirt ruling that an agreement in principle had been reached with the tribes regarding the state retaining jurisdiction, but that supposed agreement fell apart as soon as it was announced, as some tribal leaders disputed that they had agreed to the measure.
Legislation introduced by Oklahoma’s 4th District congressman, Tom Cole, that is designed to allow two of the tribes to compact with the state on McGirt-related matters has stalled, according to state officials.
“As a practical matter, therefore, only this Court has the power to bring an end to the chaos in Oklahoma by overruling McGirt,” the state wrote in its petition to the Supreme Court.