In July 2020, The U.S. Supreme Court handed down their decision in McGirt v Oklahoma. In that case, the Supreme Court held that the boundaries of the Muscogee (Creek) Reservation had not been reduced when Oklahoma gained statehood in 1907.
Therefore, the Muskogee (Creek) Nation was never disestablished. This had profound implications for criminal jurisdiction. There have been several other cases that have followed, expanded, and clarified McGirt’s reach. Oklahoma courts have now applied the McGirt ruling to all Five Civilized Tribes. These are the tribes that were forced into Oklahoma on the Trail of Tears. They are the Choctaw, Cherokee, Seminole, Muscogee (Creek), and Chickasaw tribes.
In the underlying case, McGirt was tried and convicted of multiple sexual offenses in an Oklahoma state court in 1997 and sentenced to life imprisonment. He successfully challenged his conviction asserting that Oklahoma lacked jurisdiction to prosecute a member of the Seminole tribe for crimes committed on Muscogee (Creek) tribal land. The Supreme Court agreed.
OCCA: Applying and Clarifying the McGirt Ruling
The McGirt ruling now officially applies to all of the Five Civilized Tribes. The Seminole tribe was the last of the five to have McGirt expanded to their tribe, even though McGirt was a member of the Seminole Nation.
In March 2021, in the Bosse case (2021 OK CR3), the Oklahoma Court of Criminal Appeals found that the Chickasaw nation was never disestablished. That same day, the court held that the Cherokee Nation historic boundaries were never disestablished in Hogner (2021 OK CR4).
On April 1st, 2021, McGirt was expanded to the Choctaw Nation in the Sizemore decision (2021 OK CR6) and to the Seminole Nation in the Grayson decision (2021 OK CR8). Oklahoma lacks jurisdiction to prosecute crimes committed by or against tribal members on tribal land.
Future Implications of the McGirt Ruling
McGirt may be expanded to other tribes in Oklahoma and perhaps to other tribes outside of Oklahoma. It represents a growing trend away from ignoring the sovereignty and jurisdiction of Native American tribes.
McGirt was decided in the context of disestablishment. However, the reasoning used by the Supreme Court was that state courts shouldn’t be able to interfere with areas of federal Indian law. This trend may expand into other states and tribal nations.
McGirt and subsequent related cases prevent the state of Oklahoma from prosecuting anyone for a crime committed by or against a tribal member on tribal land. Prosecution of the crime must rest either with the tribal courts or with the federal courts.
These cases may also have implications for those tribal members who are currently serving Oklahoma state prison terms for crimes committed on tribal lands. Currently, McGirt is no longer being applied retroactively. However, if this changes, old convictions may be overturned. Then federal and tribal authorities will have to decide whether to retry these cases.
These decisions continue to unfold. Wirth Law Office – Muskogee will continue to monitor them and update you as decisions are made.
Free Consultation: Muskogee Criminal Defense Lawyer
An experienced Muskogee criminal defense lawyer can work with you to get the best possible outcome. But it is important to talk to an attorney instead of the police. Our Muskogee attorneys are able to defend and appear on your behalf before the tribal and federal courts. We will be with you every step of the way to ensure that you get a fair shake. Call a Muskogee criminal defense attorney today at 918-884-7774 with your questions. You may also schedule a free, confidential consultation by clicking “request a consultation.”