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Melissa Harris-Perry: This is The Takeaway. I'm Melissa Harris-Perry and it's good to have you with us. We're going to start today with a look at two criminal cases both involved heinous abuse and criminal neglect of children, but the issues raised in these cases are also connected to tribal sovereignty, bringing into question the rights of Native American tribes to self govern.

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Melissa Harris-Perry: In 1997, a man named Jimcy McGirt was convicted of sexually abusing a child in Oklahoma. He was sentenced to life without parole plus two 500-year sentences by the state. That seemingly definitive sentence became more complicated because McGirt is a citizen of the Seminole Nation. The crimes were committed on Muscogee Creek Nation reservation. See, where the crime was committed in part determines which entities can prosecute it.

The Supreme Court has long held the crimes committed by or against Native Americans that take place in Indian country can only be prosecuted by the tribe itself, or the federal government, not by the states. Following a precedent set by the very first United States Congress in 1790, the federal government has held jurisdiction over major felonies committed on reservations.

McGirt appealed his conviction on this basis, saying his crime occurred on native land where the state of Oklahoma had no jurisdiction. His case wound its way up to the Supreme Court in 2020. Attorneys argued that the boundaries of the Muscogee Creek Nation had never been dissolved when Oklahoma became a state so the land McGirt committed this crime on was still their land. The Supreme Court agreed in a 5-4 decision.

Here's an ambassador for the Muscogee Creek Nation speaking on PBS NewsHour following the McGirt decision.

Jonodev Chaudhuri: Not one inch of land, not one fistful of sand changed ownership by this ruling. Simply, it was a recognition that the Muscogee Creek Nation's boundaries had never been disestablished or destroyed.

Melissa Harris-Perry: That's Jonodev Chaudhuri. Now, not only did the court rule that McGirt's conviction should be dealt with by a federal court, it also affirmed that 43% of Oklahoma was actually Indian country for the purposes of criminal jurisdiction. That includes Tulsa, where a man named Victor Manuel Castro-Huerta has been convicted of criminal child neglect in 2015. Now, Castro Huerta is not a tribal member, but the child he victimized is.

After the McGirt decision, an Oklahoma Court of Appeals vacated Castro for this state conviction with the idea that since this has always been native land, the state's authority to prosecute him ended where Indian country began. State officials in Oklahoma immediately set out to claw that authority back.

Kevin Stitt: Just because you're Indian country, it doesn't mean you're not in the state of Oklahoma.

Melissa Harris-Perry: That's Oklahoma governor, Kevin Stitt, who's a citizen of the Cherokee Nation. His administration petition Castro-Huerta's vacated conviction to the Supreme Court, and in a 5-4 ruling in June, the Supreme Court sided with the state of Oklahoma. The majority opinion delivered by Justice Kavanaugh said, "The federal government and the state have concurrent jurisdiction to prosecute crimes committed by non Indians against Indians in Indian country. To many tribal leaders around the country, this decision marks yet another page in the country's long history of broken promises to indigenous peoples." Here's Chuck Hoskin, Jr, Principal Chief of the Cherokee Nation.

Chuck Hoskin, Jr: It's breathtaking that the governor has gone to the Supreme Court asking it to turn back on the United States promise Indian tribes.

Melissa Harris-Perry: With me now is Allison Herrera. Allison reports on indigenous affairs in Oklahoma. Thanks for being here, Allison.

Allison Herrera: Thank you for having me.

Melissa Harris-Perry: Also with us is Prof. Matthew Fletcher, professor at the University of Michigan. He's also a tribal judge and member of the Grand Traverse Band of Ottawa and Chippewa Indians. Thanks for joining us, Matthew.

Prof. Matthew Fletcher: Happy to be here. Thanks.

Melissa Harris-Perry: Allison, when the McGirt decision resulted in 40% of eastern Oklahoma being affirmed as tribal land in the matter of criminal jurisdiction, help me understand how that changed the status quo for folks.

Allison Herrera: Well, I guess in the face of it, it didn't change all that much. Jonodev Chaudhuri said in the clip that you played that not one inch of sand or land changes ownership, it simply changed criminal jurisdiction. Tribes and the federal government were able to prosecute major crimes where as the state had done so before, and I think tribes had to start to step up and hire more prosecutors, more judges, hire more light horse or tribal police. That way, it did change.

It went from tribes handling maybe 50-100 cases per year to I think over 3,000. I think that's the Cherokee Nation's latest count of cases that they've had to handle. That's probably more since I last checked. In that way, it did change. Then the other thing is that tribes have-- what's known are cross-deputization agreements. Those have been in place even before the McGirt decision that allows both tribal and non-tribal police to arrest citizens for crimes without worrying whether they have jurisdiction or not.

There were things in place ahead of the McGirt decision to have this seamless-- to have a smoother transition. It's not to say that there weren't bumps in the road. As I've said, the tribes went from prosecuting a small number of cases to a lot of cases. There were mechanisms and talks in place before that decision to really start to handle that.

Melissa Harris-Perry: Let me just follow up real quickly on that. That ramp up though, does seem as though it would be expensive. When you talk about going from 500-3,000, hiring more public workers, essentially, I'm just wondering if it ended up being a resource burden.

Allison Herrera: Certainly. The Cherokee Nation's budget for criminal justice, I think, was $30 million for its 2022 fiscal year. That's a lot of money. It's a really historic amount of money for a tribal nation. They're one of the largest tribal nations in the country. Yes, certainly, that's a resource burden and that threatens to take away money from other things that the tribe really wants to invest in like language revitalization, like housing, and that sort of thing.

Certainly, the other tribes have had to staff up and increase their criminal justice budget, but I want to say one thing about that is that the federal government has a trust responsibility to tribes and that means that they need to adequately fund tribal justice programs to be able to handle and meet this need.

Tribes were making that point before the Castro-Huerta decision, and certainly after the McGirt decision, and the US Attorney's Office had been given more resources, and certainly were asking for more to be able to meet the demand that it was placing on them.

Melissa Harris-Perry: Matthew, this is not uncomplicated so I did my best to try to walk through how the Castro-Huerta decision affects McGirt, but can you maybe dig in on that for us a bit?

Prof. Matthew Fletcher: McGirt is about all of the cases that are within a certain category, within that 40% of Oklahoma. Any cases, any crimes committed by Indians or against Indians are included in the McGirt case. Those are the cases that are implicated, so long as they're within an Indian reservation. What Castro-Huerta includes are a very, very specific slice of those cases, crimes committed by non-Indians against Indians.

I don't know exactly what the numbers are on that or even what the percentage of those cases are. Currently, tribes do not prosecute those cases. That would be exclusively federal, except for a very small sliver of domestic violence type cases, intimate partner violence type cases. That's basically the outcome of the Castro-Huerta case is that those non-Indians who commit crimes against Indians may now be prosecuted by the state of Oklahoma.

Melissa Harris-Perry: Now, how critical is that, Matthew, for issues of tribal sovereignty? What difference does that end-up making?

Prof. Matthew Fletcher: It's a very political choice by governments to prosecute anyone. Every government has what we call prosecutorial discretion. They don't have to prosecute a crime. They can, in fact, choose not to prosecute crimes or dedicate limited resources to prosecuting certain crimes in certain places. In a lot of places around the country on Indian reservations, there's very little resources dedicated to prosecuting those cases.

In some places, states offer no resources to prosecute those kinds of cases, but Oklahoma is a weird little thing. The statewide leadership seems to have decided as a state to try to re-assume jurisdiction over case cases that they lost in the McGirt case. The impact is very uncertain and it has everything to do with probably more so local politics than statewide politics. County by county, municipality by municipality. We will see whether the local governments, the local prosecutors and police, and Sheriff's offices are going to aggressively assert jurisdiction within areas that they previously did not have.

Now, in Oklahoma, that means they're going to reassert jurisdiction over cases that they used to have jurisdiction over. Outside of Oklahoma, suddenly, there are all these states that have jurisdiction that the Supreme court just granted to them that they never asked for. They might not never have wanted that jurisdiction. We don't really know what that means. It is going to be, as I said at the outset, it's a very political choice as to what that's going to mean.

Sometimes a state or local government might be aggressive in asserting jurisdiction that are contrary to the interests of a tribal government. I won't speculate on what those kinds of crimes are, but you can imagine that in a situation where some states abortion is illegal, that a state might become aggressive in asserting jurisdiction in Indian country. I don't know. It's purely speculative at this point.

Melissa Harris-Perry: Allison, I wanted to come to you in part on the nature of both of these cases that stand at the cornerstone around these questions, because there's-- as Prof. Fletcher was just suggesting around the kind of politics of all this.

I also wonder about the ways that the particular crimes committed in these two cases, if it creates political flashpoint relative to this question of jurisdiction that might be different if the crime that we were talking about were more of a status-based defense, for example, or even a drug-based crime, for example, versus a violent crime against children. Which again, politically in our media, it carries a certain different kind of discursive and moral weight.

Allison Herrera: I think that's certainly to be taken into account. I wanted to follow up on something that Prof. Fletcher was talking about and that is that this ruling does not just apply to Oklahoma. It applies to all of the other states. I remember listening to oral arguments back in April and Justice Sotomayor said, "Well, are you proposing to leave states with an unfunded mandate?" I think that's what this is.

I want to make another point too, is that Oklahoma had a few ways to have concurrent jurisdiction or to be able to prosecute-- to get what it wanted. The first is that they could have had public-- they could have opted asked to opt into Public Law 280, which is a 1953 law that allowed-- first, it mandated that six states must-- that the state must have criminal jurisdiction over all crimes. Prof. Fletcher can correct me if I'm wrong on that.

Then later on, states could opt into that so they could have done that. They could have fought some of the decisions at the lower court level that granted the Cherokee, the Chickasaw, the Seminole, the Choctaw, and the Quapaw Nation's reestablishment of their reservation.

Then the last thing that they could have done is they could have come to the table and met with the tribes and said, "Okay, we don't like this decision, but we want to be able to work with you to be able to figure out how we are going to best protect the public." I think that's the thing I've heard from the tribes. That's what certainly what Gov. Stitt's interest is, that's the interest of the Attorney General.

Melissa Harris-Perry: Matthew, I want to ask you about the kind of forceful language that we heard in the Castro-Huerta decision from Justice Gorsuch who dissented and called the decision, "An embarrassing new entry into the anti canon of Indian law." Why did he break with conservatives on this?

Prof. Matthew Fletcher: That's a really good question. Justice Gorsuch comes out of the 10th Circuit, which includes a bunch of states in the west. He was there for more than a decade as a lower court judge and heard a lot of Indian law cases, cases arising in Indian country, including a lot of Indian country crimes cases. He may be the justice with the most Indian law experience of anyone in the history of the United States Supreme Court. Also, he's a textualist.

He's what us as scholars call an Uber textualist. He is the ultimate textualist and textualist is a judge who really claims to be and practices a theory of he's just an umpire in a baseball game, calling balls and strikes and his political leanings don't matter. He doesn't care about what's good for public policy. He's only going to apply the law in the most neutral way possible. This is what all judges claim to be. Some are just better at it in practice.

The thing about the text is that it almost always supports tribal interests. In this case, you've got a bunch of congressional statutes that lay out pretty cleanly what the law is and as Allison just said, Oklahoma have lots of ways to assume jurisdiction over these kinds of cases. It chose to just go to the wrecking ball of the United States Supreme Court instead.

That's why he's so angry because Oklahoma could have done this in a proper way. In a way that the law was established.

Instead, Oklahoma like many other states, knows that when it's litigating against Indian people and Indian tribes, it's more likely than not to get whatever it wants out of the United States Supreme Court. For someone like Gorsuch who knows Indian law probably has some sympathy for tribes and Indian people to see that sort of thing happen before his eyes where he's powerless at this point to stop it. It must be incredibly frustrating for him. It's all I can say.

Melissa Harris-Perry: Allison, we got this quick moment from Prof. Fletcher about the possibility of other kinds of crimes. The name check specifically around abortion. I just want to go to you on that because Oklahoma's Attorney General announced that the state was banning abortion services very swiftly after the Dobbs decision was ha handed down. I am wondering about the question of reproductive access relative to indigenous tribes given this decision about what constitutes tribal sovereignty around crime.

Allison Herrera: You bring up reproductive rights. That's a really complicated issue in Indian country. I've done a fair bit of reporting about this. I'm actually in the middle of reporting a story about indigenous mental health and looking at some of the history of Indian Health Service in that regard. One thing I just want to make clear, and there's been a lot of talk about this on Twitter and on social media about opening an abortion clinic on a reservation, and that's really not a possibility.

One thing people forget about is that the Hyde Amendment or don't know about the Hyde Amendment, which prohibits federal funds from being used for abortion and IHS is federally funded and tribally run clinics also receive money from Indian Health Service so that is not a possibility.

Melissa Harris-Perry: Allison Herrera reports on indigenous affairs in Oklahoma and Dr. Matthew Fletcher is from the University of Michigan. Thank you both for being here.

Allison Herrera: Thank you for having me.

Prof. Matthew Fletcher: Thank you too, as well.

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