Treaties, Tribes & Turmoil: McGirt v. Oklahoma and Castro-Huerta v. Oklahoma

No U.S. Supreme Court decision interpreting Native American treaty rights has had a greater impact on criminal justice in the past generation than McGirt v. Oklahoma (2020). In McGirt, the Court ruled in a 5-4 vote that the original boundaries of the Creek Nation, as recognized by an 1866 treaty between that tribe and the United States government, still apply in criminal cases, regardless if the land within those boundaries is or is not tribal land.  This means that when crimes are committed by Indians within the 1866 treaty boundaries, only the federal government and the Creek (Muscogee) Nation - not the State of Oklahoma - may prosecute the crime.  McGirt has since been interpreted to apply to a total of five Native American tribes with similar 1866 treaties with the United States. Consequently, about 40 percent of Oklahoma, including metropolitan Tulsa, no longer falls within state jurisdiction when citizens of federally recognized Indian tribes allegedly commit crimes there.

In response, the State has filed at least 45 separate petitions with the Court to overturn or modify McGirt. The Court rejected all these petitions except Oklahoma v. Castro-Huerta - another 5-4 decision - in which the Court ruled, for the first time in two centuries, that Oklahoma and other states may prosecute non-Indians who commit crimes against Indians in Indian country.  The combination of these two landmark cases, which rest on competing visions of the retained inherent authority of state governments versus tribal governments in the federal constitutional system, is upending longstanding assumptions about the balance of power among these three sovereigns. McGirt and Castro-Huerta raise potentially serious implications not only for criminal justice in Oklahoma, but for how Native American treaty rights will or will not be enforced in both civil and criminal matters elsewhere.

A former United States Attorney for Colorado who chaired the Indian Law and Order Commission, Troy Eid is President Emeritus of the Navajo Nation Bar Association; an Adjunct Professor of Law at the University of Denver-Sturm College of Law; and a longtime Lawline presenter.

Learning Objectives:

1. Break down the subject of Federal Indian Law, the legal and political relationship - as recognized by treaties, statutes, and Presidential executive orders - between the federal government and 574 Native American and Alaska Native tribes and nations
2. Analyze McGirt v. Oklahoma and Castro-Huerta v. Oklahoma, two recent U.S. Supreme Court decisions that are reshaping criminal justice in Oklahoma as five Native American tribes seek to enforce treaty-based rights with the United States
3. Identify the larger implications of McGirt and Castro-Huerta to Native American tribal sovereignty and the balance of power between and among tribes, the federal government, and state governments across the country