''McGirt v. Oklahoma'', 591 U.S. ___ (2020), was a landmark

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

case which ruled that, as pertaining to the

Major Crimes Act The Major Crimes Act (U.S. Statutes at Large, 23:385)Oklahoma remains as Native American lands of the prior Indian reservations of the

Five Civilized Tribes The term Five Civilized Tribes was applied by European Americans in the colonial and early federal period in the history of the United States to the five major Native American nations in the Southeast—the Cherokee, Chickasaw, Choctaw, Creek ...

, never disestablished by

Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...

as part of the

Oklahoma Enabling Act The Enabling Act of 1906, in its first part, empowered the people residing in Indian Territory and Oklahoma Territory to elect delegates to a state constitutional convention and subsequently to be admitted to the union as a single state. The act, ...

of 1906. As such, prosecution of crimes by Native Americans on these lands falls into the jurisdiction of the

tribal court Tribal sovereignty in the United States is the concept of the inherent authority of indigenous tribes to govern themselves within the borders of the United States. Originally, the U.S. federal government recognized American Indian tri ...

s and federal judiciary under the Major Crimes Act, rather than Oklahoma's courts. ''McGirt'' was related to '' Sharp v. Murphy'', 591 U.S. ___ (2020), heard in the 2018–19 term on the same question but which was believed to be deadlocked due to Justice Neil Gorsuch's recusal; Gorsuch recused because he had prior judicial oversight of the case. ''Sharp'' was decided ''

per curiam In law, a ''per curiam'' decision (or opinion) is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court (or at least, a majority of the court) acting collectively (and typically, though not ...

'' alongside ''McGirt''. In the wake of ''McGirt'', Oklahoma state courts began reviewing and vacating past criminal cases heard at state courts involving Native Americans and transferred their overview to federal courts. However, this included crimes where the defendants were non-Native Americans but the victims were, which state government and law authorities believed was beyond the intent of the ''McGirt'' decision. In 2022, the Supreme Court ruled in '' Oklahoma v. Castro-Huerta'' that jurisdiction to prosecute non-Native Americans who commit crimes against Native Americans on tribal lands was jointly held by federal and state governments.

Background

Prior to its statehood in 1907, about half of the land in Oklahoma, including the

Tulsa Tulsa () is the second-largest city in the state of Oklahoma and 47th-most populous city in the United States. The population was 413,066 as of the 2020 census. It is the principal municipality of the Tulsa Metropolitan Area, a region with ...

metro area today, had belonged to the

: the

Cherokee The Cherokee (; chr, ᎠᏂᏴᏫᏯᎢ, translit=Aniyvwiyaʔi or Anigiduwagi, or chr, ᏣᎳᎩ, links=no, translit=Tsalagi) are one of the indigenous peoples of the Southeastern Woodlands of the United States. Prior to the 18th century, t ...

, Choctaw,

Chickasaw The Chickasaw ( ) are an indigenous people of the Southeastern Woodlands. Their traditional territory was in the Southeastern United States of Mississippi, Alabama, and Tennessee as well in southwestern Kentucky. Their language is classif ...

, Creek, and

Seminole The Seminole are a Native American people who developed in Florida in the 18th century. Today, they live in Oklahoma and Florida, and comprise three federally recognized tribes: the Seminole Nation of Oklahoma, the Seminole Tribe of Florida, ...

tribal nations, whose nickname arose from their adoption of Anglo-American culture. There had been several decades of warfare and conflict during the 19th century between the Native Americans and the United States over the lands on which the Natives lived, arising from White Americans' efforts to change the Natives from what they viewed as "savage" to their view of "civilized". Eventually, these conflicts led to the

Trail of Tears The Trail of Tears was an ethnic cleansing and forced displacement of approximately 60,000 people of the " Five Civilized Tribes" between 1830 and 1850 by the United States government. As part of the Indian removal, members of the Cherokee, ...

, an over 1,000 mile march from the Eastern US to Oklahoma that the US Government required the Native Americans to endure, resulting in the establishment of reservations. By 1906, the

US Congress The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washin ...

passed the

, which intended to disestablish the reservations, thereby enabling Oklahoma's statehood. The former reservation lands, those of the Five Civilized Tribes as well as the other tribes in the state, were allocated by tribe into areas that gave suzerainty governing rights to the tribe to handle internal matters for Native Americans within the boundaries, but otherwise the state retained jurisdiction for non-Native Americans and for all other purposes such as law enforcement and prosecution. In '' Sharp v. Murphy'', Patrick Murphy, a citizen of the Muscogee-Creek Nation, admitted to committing murder in the state of Oklahoma, and was subsequently tried by the state courts around 2015. During these trials, Murphy argued that the language of the Oklahoma Enabling Act did not specify that the Native American reservations were disestablished, and because he had committed the murder within the

Muscogee The Muscogee, also known as the Mvskoke, Muscogee Creek, and the Muscogee Creek Confederacy ( in the Muscogee language), are a group of related indigenous (Native American) peoples of the Southeastern WoodlandsMajor Crimes Act The Major Crimes Act (U.S. Statutes at Large, 23:385)Tenth Circuit The United States Court of Appeals for the Tenth Circuit (in case citations, 10th Cir.) is a federal court with appellate jurisdiction over the district courts in the following districts: * District of Colorado * District of Kansas * Dis ...

in 2017, the court found in favor of Murphy's argument that the Enabling Act did fail to disestablish the territories, and thus Murphy should have been prosecuted by the federal courts. Judge Neil Gorsuch was a member of the Tenth Circuit panel at the time. The state petitioned to the Supreme Court in 2018, which agreed to hear the case. By then, Gorsuch had been elevated to the Supreme Court, and he recused himself from all hearings on the case. Because only eight out of nine Justices heard the case, it remained unresolved at the end of the 2018–2019 term; the Court had stated plans to hold another hearing on the case in the 2019–20 term but had not set a date. Many court analysts believed the case to be deadlocked due to Gorsuch's recusal.

Statements of the case

Jimcy McGirt was an enrolled member of the Seminole tribe. In 1991, having recently been discharged from prison, he moved in with and married another member of the tribe at Broken Arrow, who was 10 years his senior.https://www.supremecourt.gov/DocketPDF/18/18-9526/102351/20190610161914806_00000010.pdf McGirt's wife had a granddaughter, whom McGirt would sexually abuse on an almost-daily basis when she was just four years old. Jimcy McGirt threatened the girl in order to get her to not speak about the crimes. McGirt was arrested on November 4, 1996, after turning himself in on an outstanding warrant. Bail was set at $25,000, and McGirt was released from jail in January 1997 after posting bail. He was returned to jail in May 1997 after violating bail conditions, and a new bail was set at $50,000. In June 1997, McGirt was found guilty, and was sentenced to life in prison without the possibility of parole, plus two consecutive 500-year sentences. After ''Sharp'' had been certified by the Supreme Court, McGirt sought postconviction relief on the basis of the Tenth Circuit's ruling in ''Sharp''. Both the county and state-level court refused to grant hearing to McGirt's case, claiming he had failed to show how the state courts lacked jurisdiction in his previous court cases. McGirt subsequently petitioned to the Supreme Court to review.

Supreme Court

''McGirt'' was one of a dozen cases in which the Supreme Court opted to use teleconferencing for oral arguments for the first time in the court's history due to the

COVID-19 pandemic The COVID-19 pandemic, also known as the coronavirus pandemic, is an ongoing global pandemic of coronavirus disease 2019 (COVID-19) caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The novel virus was first identi ...

. The arguments for ''McGirt'' were heard on May 11, 2020. Ian Gershengorn, former Solicitor General of the United States, argued the case, after offering his services to the plaintiff. Observers to the court stated that some justices raised concerns of how ruling in favor of McGirt, in recognizing that the reservations were never disestablished, would impact not only existing convicted prisoners within the state but how the federal courts would subsequently need to handle approximately 8,000 felonies that occur annually on those lands, as well as the impact on legal matters related to businesses and other civil actions that would fall under tribal regulations rather than the state's. Attention was given to the stance of Justice Gorsuch, who appeared to doubt Oklahoma's argument that the lands were effectively disestablished. Justice

Sonia Sotomayor Sonia Maria Sotomayor (, ; born June 25, 1954) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 26, 2009, and has served since ...

stated that should the Court find in favor of McGirt, ruling that the reservations were never formally disestablished, Congress would be able to easily remedy the situation with legislation to affirm the disestablishment.

Majority

The Court issued its decision on ''McGirt'' as well as a ''

'' decision on ''Sharp'' following the basis of ''McGirt'' on July 9, 2020. The 5–4 majority opinion was written by Justice Neil Gorsuch and joined by Justices

Ruth Bader Ginsburg Joan Ruth Bader Ginsburg ( ; ; March 15, 1933September 18, 2020) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1993 until her death in 2020. She was nominated by Presiden ...

, Stephen Breyer,

, and Elena Kagan, and determined that for purposes of the Major Crimes Act, Congress had failed to disestablish the Indian reservations and thus those lands should be treated as "Indian country". Gorsuch wrote, "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."

Dissent

Chief Justice

John Roberts John Glover Roberts Jr. (born January 27, 1955) is an American lawyer and jurist who has served as the 17th chief justice of the United States since 2005. Roberts has authored the majority opinion in several landmark cases, including '' Nat ...

wrote a dissent which was joined by Justices Samuel Alito and

Brett Kavanaugh Brett Michael Kavanaugh ( ; born February 12, 1965) is an American lawyer and jurist serving as an associate justice of the Supreme Court of the United States. He was nominated by President Donald Trump on July 9, 2018, and has served since ...

, as well as in part by

Clarence Thomas Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 1 ...

. Roberts wrote of the majority decision, "The state’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the court has profoundly destabilized the governance of eastern Oklahoma."

Results

The Court's judgment reversed McGirt's denial for relief by the Oklahoma criminal court, which withdrew the state convictions. This then required a retrial by a federal court. This retrial was scheduled for October 6, 2020 in Muskogee federal court. Starting from the decision made in his Supreme Court case, McGirt was kept in jail for the duration until his federal trial as decided by a judge. This federal trial however did not occur until November 5. In this retrial, McGirt's victim, the granddaughter of his wife at the time of the incidents, recounted her accounts of the incidents. Now 28 years old, she mentioned that she had some difficulty recalling the events from when she was merely four years old. She did however tell the parts she could remember. The retrial was then set to continue the following day. After 3 days of testimonies, McGirt was found guilty again of sexually abusing his wife's granddaughter.

Impact

The decision by the Supreme Court was seen as a significant win for Native American rights. Gorsuch's opinion was seen to acknowledge that many of the promises that Congress had made to the Native Americans in turning over reservations have gone unfulfilled, and rejected the argument presented by the state and federal government that he summarized as: "Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye." The Supreme Court's decision directly impacts Native American tribal citizens who are currently convicted under state law for crimes committed on the former reservation lands, as well as for any future descendants that may be arrested for similar crimes covered by the Major Crimes Acts, as their prosecution would become a matter of the federal courts and not the state. At the time, about 1,900 of the prisoners in the Oklahoma system met these conditions, but only around 10% qualified for rehearings to transfer to the federal system as they were still within the

statute of limitations A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In ...

. The majority decision left open other potential impacts between territorial rights that may arise, which the Court put to the state and the tribes to resolve amicably should conflicts occur. Roberts had cautioned in his dissent that this could stretch to include taxation, adoption, and environment regulation rights. Lawyers for the tribal groups asserted that the decision was narrow in affecting only Native American descendants within the lands as no land ownership changed hands. The state and the five tribes issued a joint statement after the decision, stating "The nations and the state are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights. We will continue our work, confident that we can accomplish more together than any of us could alone."

Aftermath

Native territorial changes

Since the case of ''McGirt v. Oklahoma'', there have been multiple cases to recognize the other native tribes rather than just stopping at the recognition of the Muscogee (Creek) Nation.

"Five Civilized Tribes" now recognized

The Five Tribes received official recognition as reservations again: *

Muscogee (Creek) Nation The Muscogee Nation, or Muscogee (Creek) Nation, is a federally recognized Native American tribe based in the U.S. state of Oklahoma. The nation descends from the historic Muscogee Confederacy, a large group of indigenous peoples of the South ...

: This is the largest of the federally recognized Muscogee tribes. They are headquartered in Okmulgee, Oklahoma. Their jurisdiction is in Creek, Hughes, Okfuskee, Okmulgee, McIntosh, Muskogee, Tulsa, and Wagoner counties. The Muscogee are a unified nation of multiple tribes. * Cherokee Nation: This nation is federally recognized. They are considered sovereign land. *

Choctaw Nation of Oklahoma The Choctaw Nation (Choctaw: ''Chahta Okla'') is a Native American territory covering about , occupying portions of southeastern Oklahoma in the United States. The Choctaw Nation is the third-largest federally recognized tribe in the United St ...

: Their tribal jurisdiction consists of Oklahoma counties divided into 12 tribal districts. Their headquarters are in Durant, Oklahoma. They function with their own government with Judicial, Legislative, and Executive branches. *

Chickasaw Nation The Chickasaw Nation (Chickasaw: Chikashsha I̠yaakni) is a federally recognized Native American tribe, with its headquarters located in Ada, Oklahoma in the United States. They are an Indigenous people of the Southeastern Woodlands, original ...

: This is also a three-branched self-governed native nation. Their jurisdiction takes up Byran, Carter, Coal, Garvin, Grady, Jefferson, Johnston, Love, McClain, Marshall, Murray, Pontotoc, and Stephens counties. *

Seminole Nation of Oklahoma The Seminole Nation of Oklahoma is a federally recognized Native American tribe based in the U.S. state of Oklahoma. It is the largest of the three federally recognized Seminole governments, which include the Seminole Tribe of Florida and the M ...

: This nation is predominantly in Oklahoma and made up of three tribes. Their tribal complex can be found in Wewoka, Oklahoma.

Other tribes recognized

Quapaw Nation The Quapaw ( ; or Arkansas and Ugahxpa) people are a tribe of Native Americans that coalesced in what is known as the Midwest and Ohio Valley of the present-day United States. The Dhegiha Siouan-speaking tribe historically migrated from the Oh ...

: This nation is located in parts of

Ottawa County, Oklahoma Ottawa County is a county located in the northeastern corner of the U.S. state of Oklahoma. As of the 2020 census, the population was 30,285. Its county seat is Miami. The county was named for the Ottawa Tribe of Oklahoma.Oklahoma. They are headquartered in

Quapaw, Oklahoma Quapaw is a town in Ottawa County, Oklahoma, United States. The population was 906 at the 2010 census, a 7.9 percent decline from the figure of 984 recorded in 2000. Quapaw is part of the Joplin, Missouri metropolitan area. History In 1891 Kan ...

Criminal convictions

McGirt's case was reheard by a federal jury and he was found guilty on three counts of aggravated sexual abuse and sexual contact in November 2020. On August 25, 2021, McGirt was sentenced to life in prison without the possibility of parole. However, he may be granted compassionate release on or after June 1, 2027, per federal law. In the months following the ''McGirt'' decision, several convictions of tribal members who were tried under Oklahoma state law had been undone and new trials held under federal law. Further complicating matters was the March 2021 decision of the Oklahoma Supreme Court in the case of Shaun Bosse, a non-tribal state resident who had been convicted of the murder of a Chickasaw family on tribal lands in 2012. The Oklahoma Supreme Court ruled that under ''McGirt'', Bosse must be tried under federal law as well since the victims were Native American. In April 2021, Oklahoma Governor Kevin Stitt stated that the U.S. Supreme Court's decision had created a threat to public safety because thousands of convicted criminals may have their convictions overturned due to the Bosse ruling. The Cherokee Nation said it was "hard at work to ensure public safety" after the court "acknowledged the state illegally exerted prosecutorial authority involving Natives on our lands for decades" in ''McGirt'' and announced they had refiled over 500 cases dismissed in state courts. Following the Bosse ruling, Attorney General Michael J. Hunter filed an emergency request with the U.S. Supreme Court beseeching the judges to intervene and reconsider their ''McGirt'' decision. The Supreme Court granted the state's request on May 26, 2021, allowing the state to retain custody of Bosse pending a review of the state's petition. Bosse's case was reheard by the

Oklahoma Court of Criminal Appeals The Oklahoma Court of Criminal Appeals is one of the two highest judicial bodies in the U.S. state of Oklahoma and is part of the Oklahoma Court System, the judicial branch of the Oklahoma state government.

in September 2021. The court ruled that the ''McGirt'' decision was not retroactive and denied release to the tribal/federal judiciary. As a result, the state withdrew its petition. Other incarcerated Native Americans continued to challenge this ruling, but the U.S. Supreme Court refused to hear these challenges, maintaining the Oklahoma Court's position that ''McGirt'' was not retroactive.

''Oklahoma v. Castro-Huerta''

In an attempt to overturn the McGirt ruling, either partially or in its entirety, the state filed a new petition to the Supreme Court in the ''Oklahoma v. Castro-Huerta'' case. The 2017 case involved Victor Manuel Castro-Huerta, a non-Native American convicted of neglecting a Native American child while living in

Tulsa County Tulsa County is located in the U.S. state of Oklahoma. As of the 2020 census, the population was 669,279, making it the second-most populous county in Oklahoma, behind only Oklahoma County. Its county seat and largest city is Tulsa, the secon ...

. Castro-Huerta challenged his sentence, citing ''McGirt.'' In April 2021, the Oklahoma Court of Criminal Appeals overturned the sentencing due to jurisdiction issues raised in ''McGirt.'' The Castro-Huerta case was one of several cases the Oklahoma Court of Criminal Appeals had applied the ''McGirt'' ruling to. The court relied on the precedent set by the McGirt case when deciding any case involving a Native American. The state believed this was excessive. The state's new Attorney General John M. O'Connor stated reversing part of ''McGirt'', would be in the state's best interest and allow the state to protect Native American citizens and prosecute non-Natives who committed crimes against them. State law enforcement, several cities within the affected areas, and the states of Texas, Kansas, Louisiana and Nebraska joined Oklahoma's petition specifically to have the part of the ruling affecting jurisdiction over crimes committed by non-Native Americans on Native land. The state, cities and law enforcement groups alleged that there was an increase in crimes committed against Native Americans by non-Native Americans following the ''McGirt'' decision. They went on to claim the ''McGirt'' ruling left them unable to enforce or prosecute these crimes, and existing tribal and federal law enforcement was spread too thin to handle the workload. The Supreme Court granted certification of '' Oklahoma v. Castro-Huerta'' in January 2022, but specifically stated they would only look at the scope of the decision in ''McGirt'' and will not review the ''McGirt'' decision itself. On June 29, 2022, the Court held in ''Castro-Huerta'' that Federal and State governments have concurrent jurisdiction to prosecute crimes committed by non-Native Americans against Natives on tribal land.

Law enforcement

The FBI's jurisdiction expanded in Oklahoma by almost 45% of the state's land.

References

External links

* {{Native American rights 2020 in United States case law United States Native American criminal jurisdiction case law United States Native American treaty case law United States Supreme Court cases United States Supreme Court cases of the Roberts Court Native American history of Oklahoma United States Native American case law Seminole tribe Broken Arrow, Oklahoma