Federal Government May Retry Dismissed Oklahoma Convictions For Crimes On Creek Reservation
Thousands of Oklahoma convictions of Creek Nation members on reservation land may be dismissed following the U.S. Supreme Court’s recent decision in McGirt v. Oklahoma. In that case, the Supreme Court held that only the tribes and federal government may prosecute Native Americans living in most of Eastern Oklahoma for crimes committed there. This holding may be extended to dismiss potentially thousands of state convictions for retrial by either tribal governments or the U.S. Department of Justice.
In 1997, Jimcy McGirt, a member of the Seminole Nation, was convicted in Wagoner County, Oklahoma, for sex crimes against a 4-year-old girl. He was sentenced to 1,000 years plus life in prison. McGirt appealed his conviction, arguing the state’s prosecution against him was invalid because his crimes technically occurred on Muscogee (Creek) Reservation land where his crimes were under tribal and federal, not state, criminal jurisdiction. McGirt’s appeal thus turned on whether the land at issue was state or reservation land.
The Creek Nation has historically claimed the lands on which McGirt’s crimes occurred. Oklahoma has contested that claim. McGirt appealed his conviction up to the Court of Criminal Appeals of Oklahoma, which agreed with the state. McGirt then petitioned the U.S. Supreme Court for a writ of certiorari to decide the question of whether the land where he committed his crimes was on Creek Nation reservation land.
The Supreme Court granted certiorari and the Creek Nation supported McGirt’s argument in an amicus brief to the court. Oklahoma and the U.S. Department of Justice opposed, arguing that if the Creek Nation ever had a reservation, it was eliminated by Congress.
Justice Neil Gorsuch wrote the Supreme Court’s decision for the five justice majority. He framed McGirt’s appeal as presenting the question of whether the land the United States promised by treaties in 1832 and 1833 to the Creek Nation remains an Indian reservation for the purpose of criminal law. If so, McGirt and other Creeks on that land would be beyond state criminal jurisdiction.
It “should be obvious,” Gorsuch wrote, “Congress established a reservation for the Creeks.” In a series of treaties, Congress “solemnly guarantied” the Creeks land and “establish[ed] boundary lines” including the eastern portion of what is now Oklahoma for a “permanent home to the whole Creek Nation of Indians.” Those treaties repeated assurances to the Creeks their right to self-government on reservation lands that would lie outside both the legal and geographic boundaries of any state. “Under any definition,” the majority held, “this was a reservation.”
“Under our Constitution, States have no authority to reduce federal reservations lying within their borders,” the majority held. Once established, only Congress may eliminate or modify a federal reservation. And, as the majority acknowledged “Congress has since broken more than a few of its promises to the Tribe.” So, while Congress in the 19th century established a Creek Reservation, the Court needed to examine the Acts of Congress to determine whether and to what extent the reservation continues to exist.
In a lengthy analysis, Justice Gorsuch dispensed with Oklahoma’s arguments that Congress dissolved the Creek Tribe or disestablished its reservation, finding no such Act of Congress. Oklahoma’s argument thus rested on its assertion of the potentially “transformative effects” of its loss before the Supreme Court. Justice Gorsuch characterized the state as arguing the Supreme Court’s “holding might be used by other tribes to vindicate similar treaty promises,” and “perhaps as much as half [Oklahoma’s] land and roughly 1.8 million of its residents could wind up within Indian country.” The majority held these arguments were “self-defeating,” as speculative and not illustrative of any doomsday event. “In any event,” they held, “the magnitude of a legal wrong is no reason to perpetuate it.”
The Supreme Court thus reversed the Court of Criminal Appeals of Oklahoma and McGirt’s conviction, holding McGirt’s crimes occurred on land outside of Oklahoma’s criminal jurisdiction. It is now for the tribal and federal governments to decide whether to retry McGirt for his crimes. However, tribal court authority is limited by the Indian Civil Rights Act, as amended to sentence convicts for only up to three years’ imprisonment and a fine of $15,000.
Read the Supreme Court’s full opinion in McGirt v. Oklahoma.
This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.