McGirt’s Impact on Criminal Prosecutions in Oklahoma
In July 2020, The U.S. Supreme Court handed down their decision in McGirt v Oklahoma. In essence, the McGirt case was about boundaries and jurisdiction. It held that the boundaries of the Muscogee (Creek) Reservation had not been reduced when Oklahoma gained statehood in 1907. This may sound trivial, but the impact on jurisdiction has been huge.
The petitioner, Jimcy 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 Nation tribe for crimes committed on the Muscogee (Creek) Nation tribal land.
The Muscogee (Creek) Nation maintains jurisdiction over tribal members within its reservation land. The McGirt decision means that the state of Oklahoma has no jurisdiction to prosecute crimes committed by or against tribal members on tribal land. Law enforcement must now determine the tribal status of a suspected criminal before charging them.
Tribal members can be prosecuted either under tribal or U.S. federal law. This also affects tribal members of the Seminole, Cherokee, Choctaw and Chickasaw nations. Muskogee and the surrounding areas are highly affected by the McGirt decision.
Tribal Court Jurisdiction
Criminal cases may be filed in Cherokee or Muscogee (Creek) Nation Courts if the accused or the victim is a member of either of those tribes. As convictions of tribal members are overturned and dismissed in state court, it is not yet clear whether tribal courts will be retrying these cases. They can be retried in either tribal court or federal court, if the statute of limitations has not expired.
Will Federal Courts Pick up the Slack?
Oklahoma’s Northern and Eastern Districts are now inundated with criminal matters that otherwise would have been handled by the state courts in Oklahoma before McGirt. It remains to be seen how much the federal court system will pick up in terms of slack. In early August 2021, the State of Oklahoma asked the U.S. Supreme Court to either narrow or overturn McGirt.
Retroactive Dismissal of Cases
Cases involving previously convicted members of the Five Civilized Tribes may be overturned if the conviction was in an Oklahoma state court. This affects tribal members of the Seminole, Cherokee, Muscogee (Creek), Choctaw and Chickasaw nations.
Members of these five tribes who have been previously convicted of Oklahoma crimes are now eligible to have their state criminal cases dismissed. Those people could be re-charged either in tribal court or through the federal court system. Ostensibly, they can be retried if the statute of limitations has not expired.
To obtain dismissals, convicted tribal members must petition Oklahoma courts for release. The dismissal is not automatic. Courts are still working through all the implications arising from McGirt. Some courts have rejected petitions based on McGirt on the grounds that any jurisdictional challenge not previously raised on direct appeal was, in effect, waived.
That changed, though, when Judge Lumpkin, a conservative judge of the Oklahoma Court of Criminal Appeals, recently ruled that subject matter jurisdiction must be raised if relevant. The case, James Chandler Ryder v the State of Oklahoma, seems to settle the matter that subject matter jurisdiction cannot be waived. That means that Oklahoma not only no longer has jurisdiction but they never did.
However, on August 12, 2021, the Oklahoma Court of Criminal Appeals decided that McGirt is a new rule of criminal procedure that does not apply retroactively. For people who have already filed for post-conviction relief under McGirt for crimes committed prior to the July 2020 decision, this means delays and even rejections.
McGirt and subsequent related cases will continue to affect criminal prosecutions in Oklahoma for some time. As these cases make their way through the courts, it is wise to continue to monitor the situation. Wirth Law Office – Muskogee will keep you apprised as the situation unfolds.
Low-cost Consultation with a 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 can defend you 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 low-cost, confidential consultation by clicking “request a consultation.”