The US Supreme Court handed down a major decision yesterday in McGirt v. Oklahoma that could fundamentally alter the criminal justice system in eastern Oklahoma. The case is based on a question of jurisdiction: Did the State of Oklahoma have the right to prosecute a major crime committed by a tribal member if the crime was committed on a reservation? To decide, justices had to determine if the area was still legally a reservation of the Muscogee (Creek) Nation.
The court voted 5-4 against Oklahoma, deciding that Congress did not disestablish the reservation when Oklahoma became a state in 1907.
“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. … Because Congress has not said other-wise, we hold the government to its word. “
- Justice Gorsuch writing for the majority, 591 U. S. ____ (2020)
Eastern Oklahoma is now legally considered a reservation. This area, which includes most of Tulsa, is home to over 1.8 million people.
Supporters of the decision are applauding the court for recognizing the sovereignty and upholding promises the US government made to tribes. Opponents are warning that the decision will result in major disruptions to Oklahoma’s legal and economic systems.
The primary impact of the decision is the removal of the State’s jurisdiction to prosecute tribe members who commit major crimes in the territory that the court ruled is a Creek reservation. Previously, State courts were responsible for prosecuting these crimes, including rape and murder, among others. With the new decision, jurisdiction will now fall to the federal courts.
The State will still have jurisdiction over non-tribal members, except in some instances where tribe members are involved.
Now that the court has ruled that the State did not have legal jurisdiction over cases involving tribal members on tribal land, what happens to the cases of tribal members who have already been convicted? Those currently serving time may argue that the State does not have jurisdiction in their case and work towards a federal retrial.
An article in the Atlantic published in the lead up to the case suggests that the impact of this will be much smaller than reported. Less than 10 percent of cases against tribal members brought by the State may be eligible for retrial in a federal court, according to data from the Atlantic article. This is mainly due to limitations on the timing of appeals and risks associated with a federal retrial.
Other questions about the economic impact and property ownership have surfaced as well.
A Reuters article on the case suggests that tribe members may be exempt from some state obligations such as paying state taxes. If this is true, there may also be implications for state taxes paid by tribal members in the past.
Recognition of sovereignty may also impact tribal casinos and liquor regulation within the reservation, according to Reuters.
While this also brings up questions of property ownership, there don’t appear to be major implications yet.
The court’s decision is based on jurisdiction, not land ownership, according to an NPR interview with University of Iowa law school dean Kevin Washburn. Tulsa Mayor GT Bynum echoed this message in a Facebook post about the court ruling.
However, some issues related to property ownership, such as zoning and civil disputes, may see changes with the new jurisdiction.
Oklahoma’s leadership and Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations have said they are working together to address many of the jurisdictional issues.
“The Nations and the State are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused. We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma.”
- Joint statement from Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations and the State of Oklahoma.
With so many questions unanswered, only time will tell what the total impact this decision will have on our state.
As defense attorneys, our job is to serve Oklahomans facing prosecution. We constantly monitor changes to Oklahoma’s legal system to stay up-to-date with the latest critical information.
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