Judge Samuel A. Alito Jr., disagreeing with McGirt, asked Edwin S. Kneedler, a federal government attorney, whether criminal laws were being adequately enforced in Oklahoma.
“Is it a sustainable situation?” Judge Alito asked. “Will the federal government be able to supply enough federal agents, enough federal prosecutors, enough federal judges, enough federal courtrooms, enough federal probation officers to handle the case burden previously handled by state law enforcement?”
Mr Kneedler, who has argued for Mr Castro-Huerta’s position that the state could not prosecute his case given the identity of the victim, said: “I am not here to minimize the challenge that has arisen from the decision in McGirt. . .” He added that the federal government had shifted resources to the state and asked Congress for $40 million for more prosecutors, FBI agents and prison space.
Justice Neil M. Gorsuch, the author of the majority opinion in the McGirt decision, said there were good reasons for applying it to non-Indian offenders with Indian victims on reservations. For starters, he said, on about 10 occasions the Supreme Court had made rulings in its decisions that supported the idea.
Justice Gorsuch also mentioned the long history of state hostility to the interests of Native American tribes. “We have the treaties, okay, that have been in existence and promise this tribe since before the Trail of Tears that they would not be subject to the jurisdiction of the state precisely because the states were known to be their enemies,” he said. , referring to the forced displacement of approximately 100,000 Native Americans from their homes in the Southeast in the 19th century.
Judge Gorsuch appeared to urge his colleagues to support McGirt’s decision, despite the outrage from some politicians and members of the public. “Should we wither today because of a social media campaign?” he asked.
Judge Brett M. Kavanaugh, who disagreed with McGirt, pushed for an approach that would allow for both federal and state prosecutions. “Indian victims are currently not protected because the federal government does not have the resources to prosecute all these crimes,” he said. “And this would not displace the federal government.”
