January 26, 2021

Questions Remain About State Jurisdiction Over Crimes in Post-McGirt Oklahoma

Map highlighting the tribal jurisdictions in Oklahoma, which have come under scrutiny as a result of recent supreme court decisions.

Map highlighting the tribal jurisdictions in Oklahoma, which have come under scrutiny as a result of recent supreme court decisions.

U.S. Department of the Interior Indian Affairs

In July 2020, the U.S. Supreme Court issued a landmark opinion in McGirt v. Oklahoma, holding that a significant portion of Oklahoma is tribal land, and crimes committed on such land are subject to federal, not state, jurisdiction under the Major Crimes Act (MCA). The petitioner, Jimcy McGirt, was tried in Oklahoma state court in 1997, convicted of multiple sexual offenses, and sentenced to life imprisonment without parole. In 2018, he challenged his conviction on the grounds that Oklahoma lacked jurisdiction to prosecute a member of the Muscogee Creek Nation tribe for crimes committed on tribal land.

Patrick Dwayne Murphy, a Muscogee Creek Nation member convicted of capital murder and sentenced to death in Oklahoma in 2000, had previously challenged his conviction on the same grounds. In 2017, the U.S. Court of Appeals for the Tenth Circuit held in his case, Carpenter v. Murphy, that Congress never disestablished the Creek Nation reservation, giving the federal government exclusive jurisdiction to prosecute major crimes there. In 2019, the Supreme Court heard Mr. Murphy’s case but did not issue a decision. However, after McGirt, the Court affirmed the Tenth Circuit ruling. The case then returned to federal district court, which granted Mr. Murphy’s petition for habeas relief as instructed. Based on McGirt, the Supreme Court vacated four other convictions the same day—those of Travis Wayne Bentley, Keith Elmo Davis, Joe Johnson Jr., and Patrick Joseph Terry.

The Department of Justice (DOJ), pursuant to the McGirt holding, obtained federal indictments in August and September 2020 in dozens of cases in which alleged crimes were committed in statutorily-defined “Indian Country,” including in Mr. McGirt and Mr. Murphy’s cases. On November 6, 2020, the now-71-year-old Mr. McGirt was found guilty of multiple sexual offenses by a federal jury in the U.S. District Court for the Eastern District of Oklahoma after a three-day trial. Pretrial proceedings continued through December in the same court in Mr. Murphy’s case. In Mr. Bentley and Mr. Johnson’s cases, the respective prosecuting offices have requested additional time to respond to the McGirt jurisdictional claims. Mr. Davis and Mr. Terry’s cases have been sent back to county district courts for evidentiary hearings to determine their Native American statuses and if the reservations at issue in their cases were ever disestablished.

Since the McGirt decision,  there has been a dramatic increase in the number of criminal cases that prosecutors in the Northern and Eastern District of Oklahoma are handling that before would have been prosecuted in state courts. The Oklahoma Attorney General’s office estimates about 200 criminal cases could be affected by McGirt, 58 of which have already been remanded to state courts for evidentiary hearings. The U.S. Attorney’s Office in the Northern District of Oklahoma requested that then-Attorney General William Barr solicit volunteers from other U.S. Attorney’s Offices to help with the increase in caseload.

The U.S. District Courts for the Northern and Eastern Districts of Oklahoma are also seeing more appeals on McGirt grounds from the 26 counties of Oklahoma containing the reservations of the “Five Tribes.” One issue that courts are considering in these appeals is whether the Cherokee, Choctaw, Chickasaw, and Seminole lands have the same status as the Creek reservation under McGirt. In McGirt, the Supreme Court left this question open, noting, “Each tribe’s treaties must be considered on their own terms, and the only question before us concerns the Creek.” At least one court has interpreted the ruling as having a narrow application, with the U.S. District Court for the Northern District of Oklahoma rejecting the petitioner’s request for immediate release in Berry v. Braggs. The court reasoned that McGirt had only determined that the Muscogee Creek Nation Reservation was “Indian Country” under the MCA but had not spoken to the status of the Cherokee Nation Reservation, where the crime at issue was committed.

Further, as noted by the majority opinion in McGirt, there are procedural barriers that prevent many from successfully challenging their convictions under McGirt. Courts have rejected petitions on the grounds that a jurisdictional challenge could have been but was not raised previously on direct appeal, and therefore was waived. Courts have also rejected petitions for being untimely filed under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which imposes a one-year state of limitations for state prisoners seeking federal habeas relief.

As cases make their way through the courts, the state of Oklahoma is engaging in discussions with the Muscogee Creek, Cherokee, Chickasaw, Choctaw, and Seminole Nations to resolve the jurisdictional issues left open by the McGirt ruling. They issued a joint statement on July 9, 2020, the same day that McGirt was decided, expressing their intention to implement a framework of shared jurisdiction over criminal matters affected by McGirt, and soon after solidifying this intention in a non-binding agreement. Under the agreement, they intend to propose federal legislation that would allow the state to have shared criminal jurisdiction over non-Native American offenders on treaty-controlled lands, while the tribes would have jurisdiction over tribal citizens who commit offenses on tribal lands. Since the publication of the agreement, Muscogee Creek Nation Principal Chief David Hill has withdrawn, citing concerns about the sovereignty of the tribal nation. Seminole Nation Chief Greg P. Chilcoat also withdrew, noting that his tribe has not formally approved the agreement.

Additionally, Oklahoma Attorney General Mike Hunter filed a brief in Bosse v. Oklahoma, a case in which Shaun Bosse, a non-tribal citizen, was convicted and sentenced to death in state court for the murder of Chickasaw tribe members. Mr. Bosse challenged his conviction under McGirt, arguing that Oklahoma lacked jurisdiction because the crime occurred on Chickasaw land. In his brief, the Attorney General argued that the burden to prove that the petitioner or the victim was a member of a tribe should rest on the petitioner and that the state has shared jurisdiction over crimes committed by non-Native Americans, even if those crimes were committed against tribe members or within “Indian Country.” The Attorney General also sent a letter to federal, state, and Native American tribal leaders advocating for federal legislation that would allow for state-tribe compacts through which tribes can consent to shared state jurisdiction on criminal matters.

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