Lawyers for the federal government and the Oklahoma tribes said in briefs filed this week that only Congress can address any concerns arising from the US Supreme Court’s McGirt decision.
Oklahoma lawyers are asking the U.S. Supreme Court to overturn a state appeals court’s decision that removed concurrent jurisdiction over non-Native Americans who commit crimes against Native Americans under federal general crimes law.
The U.S. Supreme Court ruled in 2020 that Congress had never “nullified” the Muscogee (Creek) Nation’s reservation status and overturned the state’s conviction of Jimcy McGirt, who was retried by federal court and sentenced to life in prison.
The Oklahoma Court of Criminal Appeals in 2021 applied the ruling to the Choctaw, Cherokee, Chickasaw, Seminole and Quapaw nations in eastern Oklahoma.
The decision gave the federal government exclusive authority to prosecute cases involving Native American defendants and victims in tribal lands under federal jurisdiction.
The OCCA has at least twice denied the state’s concurrent jurisdiction argument, saying it’s a “political issue” that only Congress can deal with.
“Assignment of criminal jurisdiction in Indian Country is the domain of Congress, and it has already addressed the issue,” states a brief filed by The Five Tribes. “To effect change, the state must convince Congress why its preferred regime for Oklahoma is preferable, rather than asking the court to overturn a long-standing doctrine nationwide.”
Lawyers representing the tribes say Congress “has the greatest ability” to weigh and accommodate the competing political concerns and trust interests “that have developed around Indian Country jurisdiction and adjust them as necessary.”
“In short, Congress is acting — nationally and in Oklahoma — to address criminal justice in Indian Country by providing additional tribal authority and significantly supplementing funding and resources for both enforcement of federal law and the Nations,” the tribes say.
Federal prosecutors agree in the brief that Congress did not grant Oklahoma jurisdiction over offenses committed by non-Native Americans against Native Americans.
“On the contrary, Congress has enacted laws specifically dealing with this jurisdiction, which make it clear that Oklahoma cannot exercise it,” the government briefly states.
The government states that although the decision in McGirt “has increased the practical consequences of the consequences presented in Oklahoma, this change does not warrant a reversal of the principles that have long governed criminal jurisdiction in Indian Country across the nation.”
“This Court should reject Oklahoma’s invitation to overturn the well-established jurisdictional regime in Indian Country – including not only fee land on a reservation, but also tribal trust and restricted land – nationwide” , says the government.
Briefs have also been filed against the annulment by the National Congress of American Indians, Federal Indian Law scholars and historians, the National Resource Center for Native Women, the Navajo Nation and others.
The pleading in Oklahoma v. Castro-Huerta is scheduled for April 27 at 10 a.m. with a final decision expected later this year.
Contact Derrick James at [email protected]