The US Supreme Court has ruled that Oklahoma can prosecute non-Native Americans for crimes committed on tribal land when the victim is Native American. This was a five-to-four decision with the "right wing" of the court (excluding Neil Gorsuch) making the majority opinion:

The exercise of state jurisdiction here would not infringe on tribal self-government. In particular, a state prosecution of a crime committed by a non-Indian against an Indian would not deprive the tribe of any of its prosecutorial authority. That is because, with exceptions not invoked here, Indian tribes lack criminal jurisdiction to prosecute crimes committed by non-Indians such as Castro-Huerta, even when non-Indians commit crimes against Indians in Indian country.

The case in question is summed up as:

The case stemmed from a state court decision to throw out the conviction against Victor Castro-Huerta, who is not Native American. Castro-Huerta was charged by Oklahoma prosecutors with malnourishment of his disabled five-year-old stepdaughter, a member of the Eastern Band of Cherokee Indians.

My understanding is that the right wing is usually considered "orginalist", defined by wikipedia as:

originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted"

It would seem to me that at the time when these treaties were signed childhood malnutrition would have been much more of an issue than it is today, certainly for the Native tribes, and avoiding people being prosecuted for these life and death decisions would have been an important factor to the Muscogee and other Native tribes that made this agreement. Non-native men marrying native women would also have been a thing that happened at the time and would have been considered by those making this agreement. Therefore an orginalist would be inclined to support the tribal sovereignty in this case. On the other hand, someone who supported the Living Constitution, or judicial pragmatism may be more likely to consider that childhood malnutrition is avoidable today, and the state would be better if it is able to prosecute people in this situation.

Is this a valid reading of the issues? Is this an example of the right wing of the US Supreme Court taking a less orginalist position that the left wing?

  • 3
    This is on topic here, but it's a technical enough question that you might get a better answer on Law.
    – Bobson
    Jun 30, 2022 at 14:47
  • @Bobson Agreed.
    – ohwilleke
    Jul 1, 2022 at 0:18

1 Answer 1


The biggest issue here is the majority's claim, contrary to Gorsuch's dissent and the Oklahoma Courts, that there is no jurisdiction to try this defendant as page 11 (slip opinion pdf page 39) of the dissenting opinion.

After McGirt, the Oklahoma Court of Criminal Appeals determined that his conviction was invalid because only federal and tribal officials possess authority to prosecute crimes by or against Native Americans on the Cherokee Reservation. The federal government swiftly reindicted Mr. Castro-Huerta, and a federal court again found him guilty.

Now before us, Oklahoma seeks to undo Mr. Castro-Huerta’s federal conviction and have him transferred from federal prison to a state facility to resume his state sentence.

Characterizing the decision as originalist or not originalist is in either case "not even wrong." This decision doesn't have a particularly well defined originalist interpretation.

Gorsuch's dissent spends its first eight and a half pages explaining that historically, federal and Oklahoma officials, sometimes in defiance of controlling U.S. Supreme Court precedents, simply ignored the rights of Indian Tribes enshrined in treaties with them, in a time frame that overlapped with the treaty that turned half of the state of Oklahoma into Indian Country.

There is a legitimate originalist argument that the U.S. government when the treaty was entered into didn't believe that it has much more legal effect than toilet paper and therefore shouldn't be respected.

After all, the black letter law in the United States (contrary to almost every other country in the world) is that Congress has the power to unilaterally abrogate treaties of all kinds at any time, including treaties with Indian tribes, by simply passing a subsequent federal statute that contradicts the treaty.

Indeed, the dissent by Gorsuch severely scolds the State of Oklahoma for not going to Congress and requesting the criminal jurisdiction that the treaty and the laws on the books, in the view of the four dissenting justices, deny it as written.

Also, usually, when we talk about an "originalist" legal philosophy, we are talking about how constitutional interpretation works, and originalism is a far less partisan dividing issue between judges in the context of subsequently enacted ordinary treaties and statutes.

But, this case is not, at its heart, centrally about interpreting the U.S. Constitution, which doesn't have a whole lot to say about this issue which was largely reserved for future Congressional action when the constitution was enacted in 1789 and which has not been the subject in any really serious way, of any subsequent constitutional amendments except the double jeopardy clause which is not at issue here, because the defendant has never been acquitted by anyone, and because double jeopardy does not preclude someone convicted in federal court from also being convicted in state court or a tribal court, or all three.

If you really want to pin down the heart of the dispute between the two sides in this case, it is really between rule of law, in the eyes of Gorsuch and the three liberals on the case, and an alleged inherent ability of state governments to punish criminals without regard to what the law says and to recognize that a past history of might making right can prevail over the law, in the eyes of the five conservative justices in the majority.


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