McGirt v. Oklahoma: SCOTUS Makes the US Keep Promises to Native Americans

A sex crime prosecution usually would not draw attention outside of perhaps a mention in the local media. Still, a case out of Oklahoma that made its way to the U.S. Supreme Court recently drew plenty of attention on a national scale. The underlying criminal charge became secondary to the primary focus of the Court's decision recognizing the treaty rights of the Muscogee (Creek) Nation over disputed reservation lands encompassing much of eastern Oklahoma, including the city of Tulsa.

State officials and legal scholars are trying to understand the potentially far-reaching impact the case will have on the state's criminal justice system moving forward and how it will affect the validity of past convictions.

How a challenge to state jurisdiction ended up in the Supreme Court

Jimcy McGirt challenged his conviction in state court on felony sex crimes by raising a novel issue dealing with Oklahoma’s right to charge and prosecute him for crimes committed within the Creek reservation. His lawyers appealed his conviction in state court by arguing that, as a member of the Seminole Nation accused of committing a crime on land that was part of the Creek Reservation, the state of Oklahoma lacked subject matter jurisdiction over allegations.

McGirt's lawyers relied on the Major Crimes Act. This federal statute which states that certain serious criminal offenses committed by a member of a recognized tribe within the boundaries of "Indian country" do not fall under state criminal courts’ jurisdiction. Mr. McGirt's lawyers did not find any success on appeal in state court when they argued that their client was entitled to a new trial in federal court, according to the Major Crimes Act. The appeal made its way through the federal appellate process until it reached the United States Supreme Court.                                                

Attorneys representing the state of Oklahoma argued that the criminal acts’ location was not part of the Creek Reservation. Their argument referred to the fact that any “deal” made with the Creek Nation regarding land in Oklahoma never came to fruition as Congress had, over time, demonstrated by its actions an intent to end Creek claims to the land. As a further argument, the state's lawyers contended that Congress never officially recognized the challenged land as being a reservation. In effect, the government never followed through on its promises made to the Creek Nation.

After taking land from the Creek Nation east of the Mississippi River, the federal government agreed through a treaty in 1832 to recognize parcels of land west of the Mississippi as part of the reservation governed by tribal laws. The land would eventually become the eastern part of Oklahoma, including the city of Tulsa. It was these treaties that the High Court hung its hat on.

SCOTUS makes the government keep its promises  

The July 9, 2020, Supreme Court decision written by Justice Gorsuch makes note of the efforts undertaken by the federal government, over almost two centuries, to undermine the rights granted to the Creek Nation through treaties. Justice Gorsuch, writing for a 5-4 majority, concluded that the promises made by Congress would be honored and the land treated as part of the reservation for purposes of the application of criminal laws.

An issue the Court had to resolve was the practice of allotment of individual parcels of land from what was designated as the reservation. According to the Court, Congress set out in the late 19th century to grant rights regarding parcels of land to individuals for farming and raising livestock through a process referred to as allotment. The government planned to eventually abolish the reservation once all parcels had been allotted.

While it did so with other reservations in the state, Congress failed to disestablish or abolish the Creek Reservation in Oklahoma. As a result, individual ownership of parcels of land within the boundaries of the original Creek Reservation is not affected by the Court's decision, arguably limiting itself to recognition of the reservation and preservation of the right of the Creek Nation to govern it as Congress promised through its treaties. But even though the opinions facts are specific to the Creek Nation, its legal reasoning should likely apply to any similarly situated land.

What does the decision mean for the future of eastern Oklahoma?

The decision by the Court does not affect the rights of individuals who own land in Tulsa or other locations within the boundaries of the reservation. However, it does bring into question the validity of state convictions of Native Americans for crimes committed within the boundaries of the reservation. Those individuals could see their convictions overturned based on the lack of state jurisdiction over the crimes they committed. Those cases would then have to be prosecuted in federal court.

According to The New York Times, at least one inmate awaiting execution in Oklahoma following his murder conviction should benefit from the Supreme Court ruling. As they did in earlier appeals, his lawyers will argue that his status as a member of the Creek Nation eliminates the death penalty as a sentencing option if he is convicted in federal court.

The Times also reports that the decision could affect the application of Oklahoma taxation and environmental laws to tribal members residing on lands within the reservation. And, truth be told, the impact could be even more significant once all of the ashes settle. The future ramifications of the opinion could substantially change the legal landscape of Oklahoma in many ways.

However, here at the Law Offices of Adam R. Banner, P.C., we only practice criminal defense, so the opinion’s impact on past criminal convictions, currently pending criminal cases, and future criminal prosecutions are our only focus. Consequently, anyone with questions or concerns about how this ruling may affect their criminal case or the case of a family member or loved one should contact our office to learn more.

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