Division of Powers in Native America: How Constitutional Federalism is Maintained in McGirt v. Oklahoma

The state of Oklahoma prides itself on being the “Home of Native America” because of its rich Native American history and large sums of reservation land — but what is this historically Native state doing to protect its citizens that live on designated reservation land? The state of Oklahoma was recently overturned in the 2020 court ruling entitled McGirt v. Oklahoma. This case emerged after a member of the Seminole Nation of Oklahoma, who was charged with multiple serious sex crimes, appealed his conviction by claiming that the state of Oklahoma had no jurisdiction in his case because of the location of his crimes — on Native land. In their historic decision siding against the state of Oklahoma, the U.S. Supreme Court ruled that, due to upwards of 40% of Oklahoma’s geography being defined as Native reservation land, independent Native governments have sovereign power over criminal cases on their land. The palpable result of this ruling was the revoking of all involvement from state governments. This decision of tribal jurisdiction outraged many Oklahomans because of a skyrocket in criminal activity; Cherokee courts alone saw a rise from 100 criminal cases per year to 4,000 criminal cases per year. [1] In addition to this extreme increase in crime, Oklahomans were outraged because they believed this decision was a breach of the constitutional right for federalism. Article I Section VIII of the Constitution states that power should be divided between central and regional powers. [2] Because the state of Oklahoma would no longer hold any precedent over criminal proceedings, Oklahoma residents felt as if Native governments were being given too much power over these matters with none of the checks and balances that come from divisions of legal power. This poses the concern of whether or not McGirt v. Oklahoma (2020) has a constitutional precedent on the basis of federalism. When analyzing constitutional amendments, revisions of acts passed in favor of tribal jurisdiction, and more recent Supreme Court rulings, it is apparent that the McGirt v. Oklahoma decision is constitutionally in line with the definitions and demands of federalism. 

Federalism is most clearly kept intact through the implementation of the Indian Major Crimes Act. This act was passed by Congress in 1885 as the final section of the Indian Appropriation Act — this act created the reservation system for Native people. The Indian Major Crimes Act proclaims sovereign jurisdiction be given to the federal government in extreme criminal cases with a Native American perpetrator on designated Native land — murder, manslaughter, kidnapping, sexual abuse, etc. [3] The federal involvement has basis in cases involving both Native and non-Native victims. This act remains in place in the state of Oklahoma, even with the implementation of McGirt v. Oklahoma; the aforementioned matter of coexisting results in a division of power between the sovereign governance of Native tribes and the federal government in extreme circumstances. One such case in which federal courts took over prosecution for a crime in Native territory is United States v. Warrington (2023). [4] In this case, Edmond Warrington, a member of Cherokee Nation, was taken into custody by the Oklahoma state court for the sexual abuse of his niece; because the nature of the crime falls under federal jurisdiction, Cherokee governments had no say in the trial. This inevitably led to Warrington being convicted of three counts of sexual abuse. It is apparent that, although state involvement is prohibited under McGirt v. Oklahoma, there is still a division of power in criminal cases. Federalism is upheld through this ruling due to each separate government having limitations on their decision making power. The constitutional definition of federalism comes with the intent to abolish arbitrary power; this power continues to be warded off through Native government’s inability to determine rulings for criminal cases that fall under the categories for federal jurisdiction under the Indian Major Crimes Act.

The Indian Major Crimes Act and McGirt v. Oklahoma are far from the most recent Supreme Court rulings. As a means to revise the controversial ruling of McGirt v. Oklahoma, the Supreme Court passed Oklahoma v. Castro-Huerta in June of 2022 to provide a more concurrent governance of criminal cases in Oklahoma. After a non-Native man was charged by the Oklahoma state court for sexually abusing a Native child in Cherokee territory, he appealed this decision with claims that he could not be prosecuted by the state under the terms of McGirt v. Oklahoma. [5] The Oklahoma v. Castro-Huerta ruling sided with the state of Oklahoma by finding that, in the case where a non-Native person commits a crime against a Native person in Indian Country, there is concurrent federal and state jurisdiction. [6] While this decision left many Oklahoma residents concerned because of the lessened strength of tribal jurisdiction, the state’s newfound involvement provides more division amongst federal and regional governments. 

Oklahoma v. Castro-Huerta comes as a successor to another court decision — Worcester v. Georgia (1832). This Georgia-based case was revolutionary for paving the way for Native laws because of its decision to overturn the state’s discriminatory and unconstitutional extension of state laws on Native territory; these laws prohibited white men from integrating Native tribes. [7] This conclusion came about after non-Native people were indicted for living in the Cherokee Nation. McGirt v. Oklahoma makes very similar arguments as Worcester v. Georgia in terms of sovereign Native rights, with the exception of the addition of federal power over criminal cases. As opposed to McGirt v. Oklahoma, Oklahoma v. Castro-Huerta reverts back to the premises of its Georgia-based predecessor by supporting equal rights and punishments alike for Native and non-Native people on official Native land. Many have claimed that this integration has led to lesser rights for the Native governments, but tribal jurisdiction still stands under the clauses of McGirt v. Oklahoma in cases that solely revolve around Native people — simply with a lessened scope of authority. State involvement in select proceedings aims for governmental autonomy and balance among governmental systems. 

The autonomy that both McGirt v. Oklahoma and Oklahoma v. Castro-Huerta seek is defined constitutionally in the tenth amendment in the Bill of Rights. [8] On the topic of federalism, this amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This wording is critical to the discussion of McGirt v. Oklahoma on the basis of federalism due to the closing words of the amendment — “or to the people”. While Oklahoma v. Castro-Huerta does check the box for state reserved powers, the McGirt v. Oklahoma ruling stands alone as constitutional because of this explicit argument for popular sovereignty. These four words protect regional governments — in this case, Tribal governments — from federal or state tyranny. The tribal jurisdiction granted by McGirt v. Oklahoma is a delegation of powers to a specific people — regionalized powers of this sort fall under the premises of the Bill of Rights. This amendment’s wording adds emphasis to the division of legal power to specific peoples. As seen through the contemporary additions of Oklahoma v. Castro-Huerta and the Indian Major Crimes Act, state and federal power is crucial in many cases — sovereignty of the people has proven to be just as necessary. 

Recent amendments to McGirt v. Oklahoma have led Oklahomans to wonder whether the federalism-aimed revisions of Oklahoma v. Castro-Huerta were worth giving up the Tribal freedom granted by the case alone. From analysis on these cases, precedents for Tribal freedom, and the Constitution, it is apparent that McGirt v. Oklahoma is constitutional on the basis of federalism and the amendments. This monumental decision grants tribes historic jurisdiction over their own people, as recognized in the U.S. Constitution, while allowing for outside interference when necessary. Although controversial, stripping the Tribal governments of some of their legal power only leans into this constitutionalism more. The state of Oklahoma has a long way to go until they please everyone, but McGirt v. Oklahoma was a massive first step in the direction of autonomy.

Edited by Claire Thornhill

[1]Fischler, Jacob, Nebraska Examiner August 29, and 2023. 2023. “Three Years after Landmark Ruling, Congress Silent on Tribal Jurisdiction in Oklahoma.” Nebraska Examiner. August 29, 2023. https://nebraskaexaminer.com/2023/08/29/three-years-after-landmark-ruling-congress-silent-on-tribal-jurisdiction-in-oklahoma/.

[2]National Constitution Center. 2023. “The 1st Article of the U.S. Constitution.” National Constitution Center. 2023. https://constitutioncenter.org/the-constitution/articles/article-i.

[3]“679. The Major Crimes Act—18 U.S.C. § 1153.” 2015. Www.justice.gov. U.S. Department of Justice. February 19, 2015. https://www.justice.gov/archives/jm/criminal-resource-manual-679-major-crimes-act-18-usc-1153.

[4]Wolpert, Christopher M. 2023. “United States v. Warrington, No. 22-7003 (10th Cir. 2023).” Justia Law. 2023. https://law.justia.com/cases/federal/appellate-courts/ca10/22-7003/22-7003-2023-08-11.html.

[5]“SUPREME COURT of the UNITED STATES Syllabus.” 2021. Court of Criminal Appeals of Oklahoma. https://www.supremecourt.gov/opinions/21pdf/21-429_8o6a.pdf.

[6]Kickingbird, Kirke. 2023. “The Jurisdictional Landscape of Indian Country after the McGirt and Castro-Huerta Decisions.” Americanbar.org. 2023. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-end-of-the-rule-of-law/jurisdictional-landscape-of-indian-country-after-mcgirt-and-castro-huerta-decisions/.

[7]“Worcester v. Georgia.” 2019. Oyez. Justia Supreme Court Center. 2019. https://www.oyez.org/cases/1789-1850/31us515.

[8]“Constitutional Amendments – Amendment 10 – ‘Powers to the States or to the People.’” n.d. Ronald Reagan Presidential Library and Museum. National Archives. https://www.reaganlibrary.gov/constitutional-amendments-amendment-10-powers-states-or-people.