Oklahoma v. Castro-Huerta

Over the course of 2021, Oklahoma attempted to have the Supreme Court reconsider McGirt. In May, over the dissents of three justices, the Supreme Court stayed the Oklahoma Court of Criminal Appeals' mandate in the case of Shaun Michael Bosse, a non-Indian who was convicted and sentenced to death for a 2012 murder of a Native American. That case became moot in August, when the state court held that McGirt was not retroactive on state post-conviction review, and overruled its prior decisions to the contrary in past cases, including Bosse.

Oklahoma filed a petition for a writ of certiorari in Victor Manuel Castro-Huerta's case in September 2021, seeking to have McGirt overruled and for clarity on the question of whether the state could prosecute non-Indians for crimes against Indians in Indian country. Castro-Huerta was convicted of child neglect and was sentenced to 35 years in prison; he is a non-Indian and his stepdaughter is an Indian. The crime was committed in Indian territory.

In January 2022, the U.S. Supreme Court denied multiple petitions seeking review of the state post-conviction retroactivity issue, and granted this case, limited to the question of state prosecutorial authority.^[3]

Supreme Court

Certiorari was granted in the case on January 21, 2022. Oral arguments were heard on April 27, 2022.^[2]

On June 29, 2022, the Supreme Court reversed the Court of Criminal Appeals in a 5–4 vote and ruled that both tribal/federal and state law enforcement have simultaneous jurisdiction to prosecute crimes committed against Indians in Indian country.^[4] The majority opinion was written by Justice Brett Kavanaugh. Kavanaugh stated that the presumption that states have no jurisdiction in tribal lands, as established in Worcester v. Georgia (1832), had been weakened in the years since and that "the Worcester-era understanding of Indian country as separate from the State was abandoned later in the 1800s". Kavanaugh then wrote that the General Crimes Act, as codified in 1948, no longer considered tribal lands as distinct from that of the state. Kavanaugh then concluded that state prosecution of non-Native Americans would not interfere with tribal governance, as established through White Mountain Apache Tribe v. Bracker.^[5] Kavanaugh wrote "a state prosecution of a crime committed by a non-Indian against an Indian would not deprive the tribe of any of its prosecutorial authority. That is because, with exceptions not invoked here, Indian tribes lack criminal jurisdiction to prosecute crimes committed by non-Indians such as Castro-Huerta, even when non-Indians commit crimes against Indians in Indian Country."^[4]

Justice Neil Gorsuch, who had written the majority opinion in McGirt, wrote the dissent in Castro-Huetra. Gorsuch asserted that tribal lands still have sovereignty from the state, and that Worcester still should be considered, writing "Where this Court once stood firm, today it wilts." Gorsuch urged Congress to pass laws similar to Public Law 280 that would clearly define the bounds of tribal sovereignty.^[5]

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