The US Supreme Court Wednesday ruled that the state of Oklahoma can prosecute non-Native Americans who commit crimes against Native Americans on tribal territory. This decision clarifies the 2020 McGirt v. Oklahoma ruling, which held that part of eastern Oklahoma was still a Creek reservation and that the state could not prosecute crimes committed by Native Americans within its boundaries.

The case concerns the conviction of Victor Manuel Castro-Huerta, who is not a Native American, for neglecting his five-year-old Native American stepdaughter. Castro-Huerta appealed the ruling to the Oklahoma Court of Criminal Appeals, which vacated his conviction as a result of McGirt. The court reasoned that Oklahoma did not have the authority to prosecute Castro-Huerta for crimes committed on tribal territory.

The state appealed the decision to the Supreme Court, which ruled 5-4 in favor of Oklahoma. The majority reasoned that although states could not prosecute Native Americans on tribal territory, Oklahoma had the authority to prosecute Castro-Huerta because the prosecution did not “infringe on tribal self-government.”

Justice Brett Kavanaugh said in the majority opinion that both the federal government, under the General Crimes Act, and the state may prosecute non-Native offenders on tribal lands. Kavanaugh wrote that in the Supreme Court’s 1882 decision United States v. McBratney:

this Court held that States have jurisdiction to prosecute at least some crimes committed in Indian country. Since 1882, therefore, Congress has been specifically aware that state criminal laws apply to some extent in Indian country. Yet since then, Congress has never enacted new legislation that would render federal jurisdiction exclusive or preempt state jurisdiction over crimes committed by non-Indians in Indian country.

Justice Neil Gorsuch, who wrote the majority opinion in McGirt, said in his dissent:

The Court’s suggestion that Oklahoma enjoys “inherent” authority to try crimes against Native Americans within the Cherokee Reservation makes a mockery of all of Congress’s work from 1834 to 1968. The [General Crimes Act] and [Major Crimes Act]? On the Court’s account, Congress foolishly extended federal criminal law to tribal lands on a mistaken assumption that only tribal law would otherwise apply. Unknown to anyone until today, state law applied all along […] Once more, it seems the Court thinks Congress was hopelessly misguided.