On the second-to-last day of its term, the Supreme Court released a decision in Oklahoma v. Castro-Huerta.
This case has likely flown under the radar for many, especially compared to other recent high-profile and controversial decisions. However, the Castro-Huerta decision is incredibly significant for Native Americans. It also has ramifications for the future possibility of online gambling in Oklahoma.
The decision effectively limits the landmark ruling from the Court’s 2019 term in McGirt v. Oklahoma. In that case, Justice Gorsuch penned the majority decision that a large portion of Eastern Oklahoma remained tribal land. That meant that the territory was subject to federal and not state jurisdiction for cases implicating the Major Crimes Act.
The McGirt decision was a landmark decision for tribal sovereignty. However, the Governor of Oklahoma, Kevin Stitt, openly and frequently criticized its impact on the criminal justice system.
The McGirt decision raised jurisdictional questions for hundreds of cases and swamped an understaffed US Attorney’s Office for the state’s Eastern District. In response, Oklahoma filed a series of cases seeking to have the decision limited. Eventually, one stuck: the Castro-Huerta case.
The McGirt Decision
Castro-Huerta, like McGirt before it, was a close 5-4 decision for the Court.
The McGirt case involved a jurisdictional dispute over whether Oklahoma state courts had the authority to hear and decide cases that occurred on tribal lands. The McGirt decision involved Jimcy McGirt, a member of the Creek Nation convicted in state court for a series of horrible sex crimes. McGirt was convicted in 1997 and sentenced to several hundred years in prison.
McGirt’s appeal of his conviction centered on whether Oklahoma courts had jurisdiction to hear cases covered by the Indian Major Crimes Act. This federal law grants the federal government exclusive jurisdiction for prosecuting specific types of serious crimes committed by tribal citizens on tribal land.
Over the years, many tribes effectively secured concurrent jurisdiction over prosecution with the federal government. The Ninth Circuit Court of Appeals upheld this practice in the 1995 case of Wetsit v. Stafne.
Is Eastern Oklahoma Tribal Land?
In 1906, Congress passed the Oklahoma Enabling Act. This paved the way for statehood but did not disestablish the reservations belonging to the five tribes who occupied about half of the land inside the new state’s borders.
This means that large portions of Eastern Oklahoma, including the city of Tulsa, fell within tribal land. When Oklahoma became a state, the federal government granted shared authority to the tribes and the state. The tribes would have authority over Native Americans within their own boundaries. The state would have jurisdiction over non-Native Americans.
Even so, for many years, Oklahoma did much of the enforcement on the lands. However, several questions have arisen in recent years about the degree of the state’s authority.
Gorsuch Issues a Landmark Tribal Sovereignty Opinion
Before McGirt, the Supreme Court agreed to hear the case of Sharp v. Murphy from the Tenth Circuit Court of Appeals.
The crimes in Sharp were distinct from those in McGirt. The jurisdictional question was the same, however. The Supreme Court ended deadlocked at 4-4 because Justice Gorsuch had recused himself. He could not participate because he had been a part of the Tenth Circuit panel that heard Sharp on Appeal.
When the McGirt case arose, it presented a new opportunity to arrive at a ruling. Justice Gorsuch was able to participate and cast the fifth vote in favor of ruling that the federal government maintained exclusive authority over Major Crimes Act offenses in Eastern Oklahoma.
The Governor portrayed the decision as a threat to public safety. The state immediately began looking for ways to limit its impact.
Finally, Something Sticks
The Castro-Huerta case represented the opportunity the state was looking for.
Like McGirt, it centers on a horrific factual scenario. In this case, the crimes related to child neglect and resulted in Vincent Manuel Castro-Huerta receiving a sentence of 35 years in prison.
Mr. Castro-Huerta does not possess tribal citizenship, but the victim – his step-daughter – did. Mr. Castro-Huerta argued that in light of McGirt, Oklahoma lacked the necessary jurisdiction to try him in state court.
This time, however, the Court rejected the argument that the federal and state governments have concurrent jurisdiction. The majority opinion holds that the state’s ability to prosecute non-tribal citizens for crimes committed on tribal land applies even when the crimes are committed against tribal citizens.
Justice Gorsuch Disagrees
Justice Gorsuch penned a blistering dissent. Justices Breyer, Sotomayor, and Kagan joined him in arguing that the decision infringed on tribal sovereignty. Justice Gorsuch introduces his dissent by stating:
At various points in its history, Oklahoma has chafed at this limitation. Now, the State seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee Reservation. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s. Respectfully, I dissent.
Yet, despite the dissent’s extensive recitation of history, the five votes of the Court prevail.
What could this mean for gaming in Oklahoma?
The McGirt decision had a potentially significant impact on gaming in Oklahoma. Although the decision explicitly focused on the Major Crimes Act, there were open questions about what other federal laws could conceivably be implicated by it.
One such question was whether it would be theoretically possible for there to be five individually geo-fenced sections of Eastern Oklahoma that could permit mobile betting under new gaming compacts.
The Castro-Huerta decision, however, throws a lot of cold water on such potential.
True, the McGirt ruling still holds that the tribes still have jurisdiction over the land. However, the Court’s new 5-4 majority raises questions about whether the regulatory structures necessary for online gambling would survive a judicial challenge.
Furthermore, the mood between Oklahoma’s tribes and the Governor remains frosty. That makes gambling expansion of any sort seem like a long shot at the moment.