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Supreme Court picks up challenge to tribal authority in Oklahoma child-neglect case

Two years after a watershed ruling on state prosecutions of crimes on Native American land, the justices have agreed to look at a child-neglect case caught in the crosshairs. 

WASHINGTON (CN) — The Supreme Court agreed Friday to say whether its recent expansion of tribal authority should upend the conviction of a non-Indian man for the abuse of his part-Indian stepchild.

Victor Manuel Castro-Huerta was convicted by an Oklahoma jury and sentenced to 35 years after his 5-year-old stepdaughter who is legally blind and has cerebral palsy was rushed to an emergency room in 2015.

Dehydrated, emaciated and covered in lice, the child weighed only 19 pounds. An investigation revealed she had been living in a crib filled with bedbugs and cockroaches. While children her age would normally require five bottles a day, Castro-Huerta admitted he only gave his daughter between 12 and 18 bottles the previous month. 

Castro-Huerta appealed on the basis of jurisdiction, just as the Supreme Court was wading into similar issues of states attempting to prosecute crimes that occurred on Indian land. After the high court decided McGirt v. Oklahoma, ruling that a large swath of land once part of the Creek Nation could be considered Indian country for purpose of the Major Crimes Act, and that Oklahoma could not prosecute Indians or non-Indians for crimes committed there. The state sees the decision as a threat not only to the rule of law but to its sovereignty of the state was at risk. Meantime, the man behind the 2020 case, Jimcy McGirt, was prosecuted at the federal level and given a life sentence for child rape.

When the trial court reconsidered the case against Castro-Huerta on remand, it determined the crime was committed within Indian country. Oklahoma reiterated that, even though Castro-Huerta’s stepdaughter had Indian blood, it still had jurisdiction in the case because the crime was committed by a non-Indian. A trial court declined to hear argument or reach a conclusion in the case but said the state could preserve the argument. 

Oklahoma then moved its case to the Court of Criminal Appeals to prove Castro-Huerta’s conviction was valid. The state argued that it had concurrent jurisdiction with the federal government over crimes committed by non-Indians against Indians in Indian country. The Court of Criminal Appeals affirmed, but then, in a different case that ws used to affirm Oklahoma’s case against Castro-Huerta, it vacated its judgment sua sponte in August 2022. On direct appeal the appeals court said states do not have concurrent criminal jurisdiction with the federal government under the General Crimes Act. 

In its petition to the hight court in Washington, Oklahoma explicitly asks the justices to consider overturning McGirt. Their order granting a writ of certiorari in Castro-Huerta's case declines the invitation. With no further comment on the case, as is its custom, the court says only that arguments will be limited to whether a state has the authority to prosecute non-Indians who commit crimes against Indians in Indian country.

Kannon Shanmugam, an attorney for the state with the firm Paul, Weiss, Rifkind, told the court that Oklahoma has a responsibility to protect its citizens. 

“A State’s Indian citizens are entitled to equal protection under the law, including equal access to the resources, protection, and benefits of the State’s criminal-justice system,” Shanmugam wrote. “As the Court has instructed, a State has ‘the power of a sovereign over their persons and property’ in Indian territory within state borders as necessary to ‘preserve the peace’ and ‘protect [Indians] from imposition and intrusion.’”

Without congressional action, the state can prosecute non-Indians living on reservation lands, Shanmugam insists. 

Zachary Schauf, an attorney at Jenner & Block representing Castro-Huerta, argued against the court taking up the case because the effects of McGirt are for Congress to weigh. 

“The simple facts remain: McGirt’s backward-looking effects are limited, and its going-forward effects are for Congress to weigh,” Schauf said. 

Schauf argues that Oklahoma doesn’t have authority to prosecute crimes committed by non-Indians against Indians in Indian country, and that the court has already affirmed that the federal government has this power, not states. 

Shanmugam counts about 2 million Oklahoma residents in Indian country.

“The Governor did not mince his words earlier this year when he identified the fallout from McGirt as the ‘most pressing issue’ for the future of Oklahoma,” his petition for the state argues. “Simply put, the fundamental sovereignty of an American State is at stake.” 

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