What is McGirt v. Oklahoma; what does it mean?

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  • Ths map shows the "Former Indian Reservations in Oklahoma" as originally defi ned In 1998 by the IRS issued Notice 98-45 Courtesy photo
    Ths map shows the "Former Indian Reservations in Oklahoma" as originally defi ned In 1998 by the IRS issued Notice 98-45 Courtesy photo
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In the news, we’ve seen story after story talking about a Supreme Court decision that decided that parts of Oklahoma were still Indian reservations. Some reports indicate that hundreds, maybe thousands of prison inmates are on the verge of being released. Some wonder whether law enforcement still has any power in eastern Oklahoma. Given that level of uncertainty, it’s high time that someone actually tried to explain what’s going on to the general public in a way that can make sense to the average person.

First, a little history. Oklahoma’s first settlers were Native Americans, members of what were once commonly referred to as the Five Civilized Tribes, the Choctaw, Chickasaw, Cherokee, Muscogee (Creek) and Seminole Nations. Those tribes resided in territories that encompassed much of the southeastern United States, and white settlers wanted their land. While the tribes had treaties with the federal government that theoretically guaranteed and protected their territories, State authorities often refused to enforce those treaties or protect the tribes. Under President Andrew Jackson, who had fought both against and alongside the tribes in various conflicts, Congress passed in 1830 the Indian Removal Act, which authorized President Jackson to negotiate treaties with the tribes to exchange their lands for different territories west of the Mississippi River, and then transport them to their new lands, thus (at least temporarily) resolving the problem; at this time, the new lands, part of the Louisiana Purchase, were largely unsettled and beyond the frontier.

The first treaty was signed with the Choctaws, the 1830 Treaty of Dancing Rabbit Creek. One by one, each of the Five Tribes, left with little choice in the matter, signed treaties exchanging their lands for lands in what was known as Indian Territory, and then the majority of those tribes were relocated by the federal government to that new territory. The relocation was thoroughly mishandled by uncaring and incompetent federal agents, and resulted in the deaths of thousands, now known as the “Trail of Tears.” The survivors were resettled in their new lands, in what is now most of Eastern Oklahoma, lands that were guaranteed to them in perpetuity by the federal government. Those lands were then owned by the tribes in common - no Indian held title to any specific part of their region but could use any portion of those lands as though it were their own. As time passed, and settlement advanced, Congress eventually “altered the deal” to allow for white settlement in the In-dian lands. In 1887, Congress passed the Dawes Act, which provided for the distribution of individual tracts, called “allotments,” to members of the tribes. This led to the creation of the Dawes Commission, whose job it was to identify each member of the Five Tribes, add them to the rolls for their tribe, and assign them an allotment. Some allotments could not be sold without permission of the federal government and were referred to as “restricted.” Those restrictions on transfer could not be lifted without the authorization of the De partment of the Interior, and some still exist today. In any event, the tribal members were enrolled, assigned allotments, and then the balance was sold to incoming settlers, and the State of Oklahoma was eventually formed from the Indian Territory and the Oklahoma Territory (most of western Oklahoma). While the laws enacting this transfer contemplated that the tribal governments in the Indian Territory would be abolished, that was never completed, and the tribal governments still exist today as sovereign nations within the State of Oklahoma.

This all becomes relevant to us because of federal laws known as the General Crimes Act and the Major Crimes Act. Because, as demonstrated by the experience of many Indians (including the Five Tribes), state authorities could not be trusted to deal fairly with Indians who resided within state borders, the Crimes Acts restricted state jurisdiction over crimes committed by Indians or against Indians on their lands. Found at 18 U.S.C. ‘’ 1151, 1152 and 1153 (read that as Title 18 United States Code Sections 1151, 1152 and 1153), these laws provide that in “Indian Country,” certain listed major crimes (such as murder, manslaughter, kidnapping, rape and the like) can only be prosecuted by federal authorities in a federal court, when they are committed by or against an Indian. Other crimes committed by or against Indians must be prosecuted on or in tribal court.

These laws mean that the definition of “Indian Country” takes on substantial importance. Section 1151 defines “Indian Country” as “all land within the limits of any Indian reservation,” any “dependent Indian community,” and “all Indian allotments” still held by Indians. In Oklahoma, state courts largely ignored those laws, but beginning in 1989 with the decision in State v. Klindt, the Oklahoma Court of Criminal Appeals (Oklahoma’s highest state court for criminal cases) recognized the state had been erroneously prosecuting cases for years and held that “the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country.” In the ensuing 30 years, the Court’s opinions reflected that the only property they recognized as “Indian Country” in Oklahoma was restricted Indian allotments. Such has been the state of the law in Oklahoma since 1989.

This began to change, however, with the 2017 decision of the U.S. Court of Appeals for the Tenth Circuit (the federal appeals court which includes Oklahoma) in Murphy v. Royal. In Murphy, the Tenth Circuit dealt with the case of Patrick Murphy, who was convicted of killing his girlfriend’s ex-boyfriend, and sentenced to death in Oklahoma state court. After his initial appeals were denied, Murphy raised a claim in federal court that the State lacked jurisdiction over his crime, since both he and the victim were members of the Muscogee (Creek) Nation, and the crime was committed in the territory of the Muscogee (Creek) Nation and was thus in “Indian Country.” After his claim was denied by the federal district judge, he appealed to the Tenth Circuit. After an extensive review of the treaties, laws, and history of dealings between the federal government and the Muscogee (Creek) Nation, the Tenth Circuit reached the conclusion that when the federal government had granted the tribe their lands under the Indian Removal Act, it had created a reservation for the tribe. That reservation could only be abolished, or Adisestablished” to use the language of the Court, by Congress, which had never expressly done so. This meant that, contrary to the prevailing assumption, the Muscogee (Creek) Nation remained “AIndian Country” for purposes of federal law. Accordingly, the Tenth Circuit decided that since Murphy’s crime had been committed both by and against an Indian in Indian Country, he could only be prosecuted in federal court. Since Oklahoma did not have the jurisdiction to try or punish him, his conviction was reversed, to be dismissed. The Court was very clear that the only body with the power to change that result going forward was Congress, which could pass legislation disestablishing the reservation any time it chose.

The State appealed the Murphy decision to the U.S. Supreme Court. A decision was delayed, however, because of the death in 2016 of Justice Antonin Scalia, and the appointment of Justice Neal Gorsuch by President Trump to fill his seat. Justice Gorsuch recused from consideration of the Murphy appeal, since he had been a member of the Tenth Circuit when that case was decided. The other eight justices of the Supreme Court, apparently split 4-4 on how to rule on the issue, delayed deciding the Murphy case until they could hear a case dealing with that issue which could be heard by all nine justices. Thus, this issue languished unresolved by the Court until 2020.

On July 9, 2020, the High Court decided the case of McGirt v. Oklahoma. McGirt presented the case of Jimcy

McGirt, who, as a member of the Seminole tribe, had been convicted by an Oklahoma state court of serious sexual offenses which had occurred in the territory of the Muscogee (Creek) Nation. In a 5-4 decision, written by Justice Gorsuch, the Court followed the reasoning of the Tenth Circuit in Murphy, holding that the Muscogee (Creek) Nation had been established as a reservation, and had not been disestablished by Congress. In the words of Justice Gorsuch, “Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.” As a result, the Court held that McGirt could only be prosecuted in a federal court, as an Indian who had committed a crime falling under the Major Crimes Act in Indian Country, and his conviction was ordered reversed. The same day, the Court issued a summary opinion affirming the Tenth Circuit’s opinion in Murphy, based on its reasoning in McGirt.

The Murphy and McGirt decisions had gained the attention of attorneys and judges all over the State of Oklahoma, because of its potential to not only impact ongoing and future criminal charges, but past ones as well. Since the State had never had jurisdiction over the crimes themselves (known to the law as subject-matter jurisdiction), past convictions in contravention of the Crimes Acts were invalid. The Court of Criminal Appeals had held for years that subject-matter jurisdiction could never be waived, and so legal practitioners waited to see if that Court would both continue to recognize that principle in the face of post-McGirt challenges. If so, then those who had previously been unlawfully convicted of crimes (such as Patrick Murphy and Jimcy McGirt) could raise those challenges, and at worst, get a new trial in either federal or tribal court.

Another issue that awaited resolution was the issue of whether this applied to other tribes. While each tribe’s reservation status required evaluation on a case-by-case basis, it seemed likely to most observers that the rest of the Five Tribes would all hold a similar status to the Muscogee (Creek) Nation, given that they were often dealt with as a group by the federal government, and even when dealt with separately, their treaties often contained very similar language to that noted in the McGirt opinion.

After months of waiting, the Oklahoma Court of Criminal Appeals began recognizing that other tribes also maintained reservations. On March 11, 2021, the Court decided Bosse v.

State, which decided that the Chickasaw Nation (including all of Marshall County) maintained its status as a reservation, and Hogner v. State, which made the same decision as to the Cherokee Nation. This was followed on April 1 by Sizemore v. State, which extended that ruling to the Choctaw Nation, and Grayson v. State, which extended it to the Seminole Nation. As a result of these decisions, within the territory of the Five Tribes, a crime committed by an Indian or against an Indian is beyond the subject-matter jurisdiction of an Oklahoma state court, and any such charges must be dismissed. Additionally, any old convictions rendered in violation of this rule must be vacated, and the defendant can be retried in either federal court or tribal court, depending on the crime of which they are accused. Meanwhile, as the Court noted in Bosse, the State retains jurisdiction over crimes committed by non-Indians against non-Indians within these territories

This ruling has, as of this date, not been extended to the territories of other tribes. There are some tribes in Oklahoma that likely have had their reservations disestablished, and thus McGirt is inapplicable to their territories. However, there may well be other tribes that still maintain that status, which will result in litigation for years to come over those issues.

Unsurprisingly, the ruling in McGirt has led to a fair amount of public comment about its impacts on the administration of justice within the State of Oklahoma. Much of this comment has been ill-informed or not thoughtful, and so there are a number of questions typically posed by the general public about those impacts. Those include:

Does this mean that the State of Oklahoma no longer exists in the tribal reservations?  

If land was within the State of Oklahoma before McGirt was decided, that land still remains in the State of Oklahoma. Oklahoma can and does still conduct a wide range of governmental functions in the reservation lands, and rightfully so. As noted above, if a non-Indian commits a crime that either lacks a victim (such as drug possession) or with a non-Indian as a victim, that person is as liable to punishment in state court now as they were before McGirt. In this manner, the State of Oklahoma is no different than other states that have large tribal reservations; those states coexist with their tribes, and Oklahoma will continue to do so.

Can I still call local law enforcement, or do I have to call tribal law enforcement when I have an emergency?

In short, you can and should still call 911 if you have an emergency. Most local law enforcement agencies were cross-deputized with the tribes before McGirt was decided, and since the decisions in Murphy and McGirt, only the most stubborn would not be at this point. When an officer is cross-deputized, that means that officer can be treated as an officer of either agency, depending on the circumstances; thus, a local city policeman or deputy sheriff who is cross-deputized is treated by the law as a tribal officer if he is investigating a crime that falls under McGirt or arresting a tribal member. At worst, an officer can summon tribal law enforcement if needed, but still deal with an emergency situation in a manner necessary to protect public safety.

What about criminal charges in State court?

This is the biggest impact of the McGirt decision. Any tribal member, or defendants who are accused of committing crimes against tribal members, within the tribal territories, have a right to have their cases dismissed in state court. This does not mean that the defendant automatically escapes punishment for their crimes. In cases under the Major Crimes Act, it will be up to a federal prosecutor (for Marshall County, that would be the U.S. Attorney for the Eastern District of Oklahoma, based in Muskogee) to decide whether to refile the charges in federal court. For other crimes, it will be up to a tribal prosecutor (for Marshall County, that will be the Chickasaw Nation in Ada) to make that determination. Those agencies have had since last summer’s McGirt decision to begin preparing to handle the caseloads that they have expected to have sent to them.

What about convicted defendants being released?

The biggest elephant in the room, of course, will be old state convictions. It should be noted that, as of press time, the decisions in Bosse, Hogner, Sizemore and Grayson have not become final. However, local courts have already started applying Bosse to cases before them. For instance, in a case that was covered by local television news, Russell Neasbitt was convicted in Marshall County District Court in 2014 for shooting his girlfriend. On March 24, 2021, District Judge Wallace Coppedge granted his request for post-conviction relief and ordered the charges against Neasbitt dismissed, based on the decisions in McGirt and Bosse. Those charges, which fall under the Major Crimes Act, do not appear to have been refiled in federal court as of press time, and Neasbitt does not appear to be in custody any longer. Ultimately, it will be up to the US Attorney’s office to decide what to do about him and a number of others, whether they are in prison, have been released after completing their sentences, or are on some form of probation, who now can challenge their state convictions and obtain, at a minimum, a new trial.

For these prosecutors, there are issues with prosecuting old cases. First, in some cases, especially the less-serious misdemeanors, the statute of limitations (the time period in which criminal charges can be filed after a crime is committed) may well have expired. If the limitations period has expired, then charges cannot be refiled. The second issue is witnesses and evidence. In cases that are sufficiently old, there will undoubtedly be problems with witnesses who have forgotten key details, or in locating witnesses who have moved, remarried, or even died. If those witnesses have testified before, but now are unavailable, it is possible to use their prior testimony in a new prosecution for the same offense. Whether these issues are something a particular prosecutor wants to try to overcome in a particular case will be a decision to be made on a case-by-case basis.

For criminal defendants, there is a risk, if the statute of limitations has not expired, that they could be reprosecuted and then reimprisoned for their crimes, without receiving any credit against their sentences for the time they have served. For defendants like Patrick Murphy, who was sentenced to death, this obviously is not much of a risk, as he had little to lose in challenging his sentence. However, a defendant who is merely facing probation or who has completed probation will want to weigh the risks of being incarcerated on a refiled charge with a different prosecutor. This issue is not an automatic “Get Out of Jail Free” Card for defendants in these matters, and so the decision whether to raise this issue will be a matter for criminal defendants to discuss with their attorneys.

Do I have to be a member of that specific tribe to be able to take advantage of this decision?

No. A member of any federally-recognized Indian tribe is subject to the ruling in McGirt as long as the crime in question is committed within the boundaries of the tribal reservation. Take for example Jimcy McGirt, who was a Seminole, but was convicted of crimes committed in the Muscogee (Creek) Nation. Neither the defendant nor the victim (if any) has to be a member of the tribe whose reservation is at issue, so long as a federally-recognized tribe has granted them membership status.

Does this apply to traffic tickets?

Yes, it does. Traffic citations in Oklahoma are misdemeanor criminal charges, and so would fall under tribal jurisdiction.

Who can change this?

As noted by the Tenth Circuit, the U.S. Supreme Court, and the Court of Criminal Appeals, only Congress has the power to unilaterally change the status of the tribal reservations. Otherwise, the tribes are capable of voluntarily ceding their sovereignty to the State through new treaties with the federal government, or by agreements with the State. Given that there has been absolutely no movement in that direction in the four years since Murphy was decided, it seems highly unlikely that any of the parties with the power to change this result will do so in the foreseeable future. Even if they did, none of them have the power to retroactively grant jurisdiction to Oklahoma state courts, so the problem with the old convictions would still be there to resolve.

What about other areas of the law?

The holding in McGirt is based on particular federal statutes that only govern criminal cases. Whether the reservation status will impact other areas, such as civil court jurisdiction, taxes, and so forth, has yet to be decided. In the meantime, residents of these areas would be well-advised to continue complying with court orders and paying their taxes, and to consult with an attorney about what impact, if any, this has on those responsibilities.

Why are they making this change now?

The answer is they aren’t actually changing anything - they’re just correctly applying a law that has been misapplied in Oklahoma for generations. As for why it should happen now, perhaps these words from Justice Gorsuch are an answer: “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

Michael Haggerty has been an attorney in private practice in Durant for 25 years, whose practice encompasses Bryan, Marshall, Atoka and Johnston Counties. He is past president and officer of the Oklahoma Criminal Defense Lawyers Association and has served as a member of the OCDLA’s Board of Directors for over a decade. Haggerty is also a long-time municipal prosecutor and served the City of Madill for 18 years as municipal judge. Haggerty is also an enrolled member of the Choctaw Nation of Oklahoma, and a frequent contributor to The Madill Record.