Today, in Oklahoma v. Castro-Huerta, 21-429 (June 29, 2022), a 5 to 4 Supreme Supreme Court limited the rule in McGirt, holding the federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. Justice Kavanaugh delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Thomas, Alito, and Barrett. Justice Gorsuch dissented, joined by Justices Breyer, Sotomayor, and Kagan.
In 2015, respondent Victor Manuel Castro-Huerta was charged by the State of Oklahoma for child neglect. Castro-Huerta was convicted in state court and sentenced to 35 years of imprisonment. While CastroHuerta’s state-court appeal was pending, this Court decided McGirt v. Oklahoma, 140 S. Ct. 2452 (2020),holding that the Creek Nation’s reservation in eastern Oklahoma had never been properly disestablished and therefore remained “Indian country.” In light of McGirt, the eastern part of Oklahoma, including Tulsa, is recognized as Indian country. Following this development, CastroHuerta argued that the Federal Government had exclusive jurisdiction to prosecute him (a non-Indian) for a crime committed against his stepdaughter (a Cherokee Indian) in Tulsa (Indian country), and that the State therefore lacked jurisdiction to prosecute him. The Oklahoma Court of Criminal Appeals agreed and vacated his conviction. This Court granted certiorari to determine the extent of a State’s jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.
Reversing the Oklahoma Court of Criminal Appeals, Justice Kavanaugh's majority opinoin starts this way:
This case presents a jurisdictional question about the prosecution of crimes committed by non-Indians against Indians in Indian country: Under current federal law, does the Federal Government have exclusive jurisdiction to prosecute those crimes? Or do the Federal Government and the State have concurrent jurisdiction to prosecute those crimes? We conclude that the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.
Justice Gorsuch, the author of McGirt, begins his dissent like this, with some old school citations:
In 1831, Georgia arrested Samuel Worcester, a white missionary, for preaching to the Cherokee on tribal lands without a license. Really, the prosecution was a show of force—an attempt by the State to demonstrate its authority over tribal lands. Speaking for this Court, Chief Justice Marshall refused to endorse Georgia’s ploy because the State enjoyed no lawful right to govern the territory of a separate sovereign. See Worcester v. Georgia, 6 Pet. 515, 561 (1832). The Court’s decision was deeply unpopular, and both Georgia and President Jackson flouted it. But in time, Worcester came to be recognized as one of this Court’s finer hours. The decision established a foundational rule that would persist for over 200 years: Native American Tribes retain their sovereignty unless and until Congress ordains otherwise. Worcester proved that, even in the “[c]ourts of the conqueror,” the rule of law meant something. Johnson’s Lessee v. McIntosh, 8 Wheat. 543, 588 (1823).
Where this Court once stood firm, today it wilts. After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands. At various pointsin its history, Oklahoma has chafed at this limitation. Now, the State seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee Reservation. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s. Respectfully, I dissent.
The opinion in Castro-Huerta is here; oral argument here; merits briefing here.