Oklahoma is Asking For Two Things
Video Transcribed: Does the state of Oklahoma have the authority to prosecute non-Indians who commit crimes against Indians in Indian country? The United States Supreme Court is about to decide.
I’m Oklahoma attorney, James Wirth, and we are talking about a new decision from the United States Supreme Court in Oklahoma versus Victor Manuel Castro-Huerta. And that is one of many cases being appealed by the state of Oklahoma.
And the state of Oklahoma is asking two things in that. The first question presented that they want to decide is whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country.
The second question is whether McGirt versus Oklahoma should be overruled. And it was set for a conference three times with the United States Supreme Court on the docket where they decide whether they’re going to accept the case. And ultimately, the court decided to accept the case, but it was narrow in saying that we’re not going to accept it for both those issues.
We’re not going to decide whether McGirt stands or not. It is going to stand. We’re not going to re-litigate that issue. But they did accept it for deciding whether the state of Oklahoma has jurisdiction over non-Indians who commit crimes against Indians in Indian country.
I can read that decision from the Court minute of January 21st, 2022. It says, “Petition granted limited to question one presented in the petition. The case will be set for argument in the April of 2022 argument session.
Petitioner’s brief on the merits is to be filed on or before Monday, February 28th, 2022. Respondent’s brief on the merits is to be filed on or before Monday, March 28th of 2022. The reply brief is to be filed in accordance with rule 25.3. That is the decision from the United States Supreme Court.
At this point, this decision has already been had by the Oklahoma Court of Criminal Appeals. And based on the law that existed prior to the McGirt, that court decided that the state of Oklahoma lacks jurisdiction to prosecute non-Indians that commit crimes against Indians.
These can be difficult scenarios because, under that scenario, because the defendant, the alleged perpetrator of the crime, is not Indian, the tribe more than likely does not have jurisdiction over them, unless it falls under certain domestic violence exceptions.
So if the tribe doesn’t have jurisdiction, and the state doesn’t have jurisdiction, only the federal government is going to have jurisdiction to prosecute those, which sometimes, for lower-level offenses, the feds may have difficulty prosecuting those because they have limited resources, and they’re used to prosecuting only very serious crimes.
So, that has been the concern of the state of Oklahoma; if the state doesn’t have dual jurisdiction in circumstances like this, then some crimes may fall through the cracks. And that’s why they’re requesting that the state of Oklahoma and asserting that the state of Oklahoma should and does have jurisdiction.
However, based on existing law in place, before McGirt went into effect, the better view of that law is probably in line with the Oklahoma Court of Criminal Appeals. And what they’ve decided: the state of Oklahoma does not have jurisdiction over those, based on existing federal law. That could be changed, but that would require Congress to act and the President to sign on a bill to make that law to change it.
But the United States Supreme Court has found it at least interesting enough for them to review. So they’re going to take that case, review the decision from the Oklahoma Court of Criminal Appeals, and potentially decide whether they’re going to affirm it or overrule it, send it back. So, that’s what’s going on right now; the latest issue related to McGirt from the United States Supreme Court.
If you’ve got questions about that or other issues related to the law in Oklahoma, you’re going to want to talk to an attorney about that privately, confidentially. To get that scheduled with somebody at my office, you can go online to MakeLawEasy.com.
