OKLAHOMA CITY – In its McGirt ruling earlier this year, the majority of the U.S. Supreme Court “ridiculed the ‘speculative’ concern of ‘Oklahoma and the dissent’ that ‘thousands of Native Americans like Mr. McGirt wait in the wings to challenge the jurisdictional basis of their state court convictions,” Oklahoma Attorney General Mike Hunter wrote in a legal document filed August 3. “And yet that is exactly what happened...”
In a 5-4 decision announced on July 9, the U.S. Supreme Court ruled in McGirt v. Oklahoma that Congress never disestablished the Muscogee (Creek) Nation reservation in eastern Oklahoma. Consequently, major crimes committed by or against Native Americans within the boundaries of the Creek Nation must be prosecuted in federal or tribal courts.
State judges have since advised the Oklahoma Court of Criminal Appeals that Congress never dissolved the tribal reservations of the Cherokee, Choctaw, Chickasaw or Seminole nations, either.
Congress in 1866 established reservation boundaries for the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations. The Creek Nation boundaries encompass three million acres in eastern Oklahoma, including most of the city of Tulsa. The boundaries for all five nations consist of more than 19 million acres and nearly the entire eastern half of Oklahoma.
The Attorney General’s office is tracking approximately 200 criminal cases that potentially could be affected by McGirt, and 58 of those already have been remanded to state courts for an evidentiary hearing, Alex Gerszewski, communications director for the AG’s office, told Southwest Ledger in October.
Five Cherokees from Mayes County filed suit in July in Oklahoma’s Northern District federal court in Tulsa, alleging they and others similarly situated have been unlawfully prosecuted for traffic offenses and/or misdemeanor crimes that occurred within the boundaries of the Cherokee Reservation. Named in their lawsuit were six state district courts, four district attorneys, seven court clerks, and 30 cities and towns in eastern Oklahoma.
Tulsa County District Attorney Steve Kunzweiler announced on August 21 that more than 80 criminal cases were dismissed that day by his office because of the McGirt ruling. Those cases included murder, rape, robbery and domestic assault, he said.
Most of the cases were expected to be refiled in federal court, and Kunzweiler said he hoped the Creek Nation would help prosecute the lesser offenses.
In the first two months after McGirt was issued, 850 criminal cases involving Native Americans and crimes committed on the Creek Reservation were referred to federal authorities, Attorney General Hunter wrote in a letter dated October 21.
By September, 113 criminal cases that normally would have been prosecuted by the State of Oklahoma had been referred to the U.S. Attorney’s Office for the Northern District of Oklahoma. Of those cases, 60 remained with the U.S. Attorney’s Office and the rest were referred to the Muscogee (Creek) Nation judicial system.
The U.S. Attorney for the Eastern District of Oklahoma, based in Muskogee, secured indictments in just three Indian Country crimes in 2017. But 571 such cases were referred to that court in the three and a half months immediately following the McGirt decision, Hunter reported in his letter.
The U.S. Department of Justice (DOJ) has recruited attorneys from around the nation “to help us with these cases,” Doug Horn, assistant U.S. Attorney in the Eastern District of Oklahoma, told the Ledger in September. Lawyers from Georgia, Florida, Pennsylvania, Tennessee and Arizona have “come in and are living here” to help resolve the issue, Horn said.
Chris Wilson, first assistant U.S. Attorney in the Eastern District, said some of the DOJ volunteers “are doing six months” in Oklahoma and others are teleworking and traveling to/from Oklahoma.
Lawyers also are debating whether McGirt has broader implications for taxing, zoning and other government functions. The Oklahoma Tax Commission and the Oklahoma Corporation Commission, for example, prepared reports for Governor Kevin Stitt in which they estimated that those agencies could lose millions of dollars in tax revenue if the Five Tribes asserted administrative jurisdiction over tax collections and energy industry regulation in Indian Country.