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Child-neglect case drives divide at high court on tribal authority

With the justices seeming to stick to their positions that led to a watershed ruling on tribal authority two years ago, the case may hinge on the court’s newest member.

WASHINGTON (CN) — The justices appeared divided on Wednesday during their last scheduled oral argument session of the term that will decide if the court’s watershed ruling on tribal authority will upend a child-abuse conviction of a non-Indian man for the abuse of his part-Indian stepchild. 

An Oklahoma jury convicted Victor Manuel Castro-Huerta of neglecting his 5-year-old stepdaughter who is legally blind and has cerebral palsy. When the child was rushed to an emergency room in 2015, she was dehydrated, emaciated and covered in lice. An investigation found that Castro-Huerta was only giving his stepdaughter between 12 and 18 bottles if milk in a month when she should have received five bottles a day. She was also found to have been living in a crib with bedbugs and cockroaches. 

The shocking details of the Castro-Huerta case were not front and center during over two hours of arguments on Wednesday. Instead, a case the justices decided only two years ago consumed most of the justices' time. 

When the court took up this case in January, the justices said they would not consider overturning McGirt v. Oklahoma but the landmark case was still hotly debated during oral arguments. McGirt found that a large swath of land once part of the Creek Nation could be considered Indian country for the purpose of the Major Crimes Act and that Oklahoma could not prosecute Indians or non-Indians for crimes committed there. 

Castro-Huerta appealed his conviction on the basis of jurisdiction just as the Supreme Court took up McGirt. On remand, the trial court determined that the crime was committed within Indian country. The state claimed that, even though the child had Indian blood, Castro-Huerta did not, so its jurisdiction in the case remained.

Oklahoma brought the case to the Court of Criminal Appeals, arguing that it had concurrent jurisdiction with the federal government over crimes committed by non-Indians against Indians in Indian country. The court affirmed the earlier decision, but a case used in that ruling was later vacated. On direct appeal, the court said states do not have concurrent criminal jurisdiction with the federal government. Oklahoma then brought its case to the high court. 

Oklahoma claims McGirt resulted in whole categories of crimes going unprosecuted, and that states should have the authority to prosecute them. 

“The question is whether it state has authority to prosecute non-Indians who commit crimes in Indian country regardless of whether the victim is a non-Indian or an Indian,” said Kannon Shanmugam, an attorney with Paul, Weiss, Rifkind representing the state. “The answer to that question is yes, the state has inherent sovereign authority to punish crimes committed within its borders, and no federal law preempts that authority as to crimes committed by non-Indians.”

Castro-Huerta claims Oklahoma does not have jurisdiction in the case because Congress has said that is federal jurisdiction. 

“Oklahoma's position would thwart the choice of 25 states not to assume this jurisdiction and nullify consent rights of by my count 190 Indian tribes and for no sound reason,” said Zachary Charles Schauf, an attorney with Jenner & Block representing Castro-Huerta. 

All of the justices who were in the majority in McGirt — Justices Breyer, Sotomayor, Kagan and Gorsuch — expressed strong opposition to Oklahoma’s arguments in this case. The justices focused on the long case law and history that they felt conflicted with the state’s arguments. 

Justice Neil Gorsuch noted that tribes have good reason to distrust states asserting jurisdiction, like when Oklahoma previously used its state courts to deprive Indians of their property when oil was discovered on their lands. 

“It's easy enough to say that, standing at the podium in Washington D.C., but the history and the reality should stare us all in the face,” the Trump appointee told Shanmugam. “There's a reason why they've resisted jurisdiction over crimes against Indian victims. It's not just a matter of being contumacious isn't it?” 

Gorsuch said the court has previously stood firm with promises made in treaties to the Cherokee in the 1830s and suggested a social media campaign was urging the court to go back on those promises. 

“Are we to wilt today because of a social media campaign,” Gorsuch asked. 

Justice Sonia Sotomayor said the state does not have the same rights as Indian tribes. 

“The core of the power of prosecution at its face is the protection of people, of citizens,” the Obama appointee said. “And so the Indian tribes have an inherent right to protect members of their tribes and of their community. The state doesn't have the same right.” 

Sotomayor also brought up an article published in the Atlantic that suggests Oklahoma was exaggerating the upheaval caused by McGirt

Conversely, justices who voted in the minority in McGirt — Justices Roberts, Thomas, Alito and Kavanaugh — seemed to lean into Oklahoma’s arguments. 

“Really, at the end of the day, when you're talking about McGirt you're really just waving the bloody shirt,” Chief Justice John Roberts said. “It doesn't have any direct pertinence on the legal analysis here.” 

Justice Brett Kavanaugh seemed most concerned with potential victims who were not being protected. 

“Victims right now are not being protected because the federal government doesn't have the resources to prosecute all these crimes,” the Trump appointee said. “And this would not be displacing the federal government, it's additional prosecutors to protect Indian victims against non-Indians.” 

The case may hinge on Justice Amy Coney Barrett’s position on the case since she is the only justice on the court who was not present during McGirt. Barrett’s questions during oral arguments did not reveal which side she may favor in the case. 

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