Biden administration urges justices to reject Oklahoma claim of jurisdiction
The Biden administration urged U.S. Supreme Court justices this week to reject Oklahoma’s claim of jurisdiction over some crimes involving Native Americans on reservations, saying the federal government has exclusive authority.
The solicitor general, the Justice Department’s advocate before the U.S. Supreme Court, also asked the justices for time to make oral arguments on April 27 in the case to determine whether Oklahoma prosecutors have concurrent jurisdiction on newly-affirmed reservations over crimes with a non-Indian perpetrator and a Native American victim.
The administration argued to the court in a brief this week that Oklahoma does not have concurrent jurisdiction in those cases unless Congress explicitly grants it.
“Absent specific congressional authorization, the United States’ criminal jurisdiction over offenses committed by non-Indians against Indians in Indian country is exclusive of state jurisdiction,” the solicitor general’s brief states.
The high court’s decision, expected some time this summer, will further clarify the criminal justice picture in eastern Oklahoma in the wake of the court’s ruling in 2020 that the Muscogee (Creek) reservation was never disestablished. That ruling came in the case of convicted child rapist Jimcy McGirt, who argued that the state wrongly prosecuted him because he is Native American and the crimes were committed on the Creek reservation.
The Supreme Court agreed, and the McGirt decision has been extended to the Cherokee, Chickasaw, Choctaw, Quapaw and Seminole reservations. Now, criminal cases involving Native Americans on the six reservations are prosecuted in federal or tribal courts.
More: Five Tribes urge Supreme Court to reject Oklahoma claim of jurisdiction
The case before the high court now involves Victor Manuel Castro-Huerta, a non-Indian who was convicted in state court in 2017 of child neglect and sentenced to 35 years in prison. Castro-Huerta’s charges stemmed from crimes committed against his Native American stepchild on the Cherokee reservation.
The Oklahoma Court of Criminal Appeals ruled, in the wake of the McGirt decision, that Oklahoma didn’t have jurisdiction in the case. Charges were filed in federal court and a plea agreement was reached.
But the state appealed to the U.S. Supreme Court, arguing that federal law does not explicitly bar states from exercising concurrent jurisdiction with the federal government in cases on reservations with a non-Indian defendant and a Native American victim.
The administration, along with Castro-Huerta’s attorney and the Five Tribes, argue the opposite: that Congress must explicitly confer jurisdiction on states and that, in the absence of congressional authority, federal and tribal jurisdiction is exclusive. Since tribal courts generally can’t prosecute non-Indians, the federal government would have exclusive authority in cases like Castro-Huerta’s, the solicitor general said.
“In the last century, Congress has enacted a number of statutes granting particular States criminal jurisdiction over crimes by or against Indians in Indian country,” the solicitor general’s brief says. “Those statutes confirm that, in the absence of affirmative authorization, States lack jurisdiction over offenses committed by non-Indians against Indians in Indian country.”
The administration acknowledged that the McGirt decision “increased the practical consequences of the question presented in Oklahoma” but said the change “does not warrant a reversal of principles long governing criminal jurisdiction in Indian country throughout the Nation.”
The brief states, “Federal law enforcement agencies in Oklahoma are working diligently with tribal and State partners to address the increased caseload occasioned by McGirt, including by indicting (Castro-Huerta) here. While Oklahoma contends that those efforts may result in shorter federal sentences, it ignores the differences between the availability of parole in the state and federal systems.”
People convicted in federal court must serve their entire sentences, while many sentenced for crimes in Oklahoma are eligible for parole, though convictions for violent crimes often require that 85% of the sentence be served.