McGirt v. Oklahoma
McGirt v. Oklahoma, 591 U.S. ___ (2020), was a landmark United States Supreme Court case which ruled that, as pertaining to the Major Crimes Act, much of the eastern portion of the state of Oklahoma remains as Native American lands of the prior Indian reservations of the Five Civilized Tribes, never disestablished by Congress as part of the Oklahoma Enabling Act of 1906. As such, prosecution of crimes by Native Americans on these lands falls into the jurisdiction of the tribal courts 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" 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. The Supreme Court agreed to hear one challenge, "Oklahoma v. Castro-Huerta", in January 2022, limiting the case to refine the scope of "McGirt" but with no intention of overturning it. Background. Prior to its statehood in 1907, about half of the land in Oklahoma, including the Tulsa metro area today, had belonged to the Five Civilized Tribes: the Cherokee, Choctaw, Chickasaw, Creek, and Seminole 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, 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 passed the Oklahoma Enabling Act, 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 reservation territory, that his crime was subject to federal jurisdiction and not state under the Major Crimes Act. This argument was rejected by the state and on its first appeal within the federal courts, but at the Tenth Circuit 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. 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 back 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 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 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 "per curiam" 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, Stephen Breyer, Sonia Sotomayor, 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 wrote a dissent which was joined by Justices Samuel Alito and Brett Kavanaugh, as well as in part by Clarence Thomas. 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 grand-daughter 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 grand-daughter. 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. 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. Section::::"Five Civilized Tribes" now recognized. The Five Tribes received official recognition as reservations again: Criminal convictions. McGirt's case was reheard by a federal jury and 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, though he may be granted compassionate release on June 1, 2027 or later, per federal  law. In the months that followed the "McGirt" decision, several convictions of tribal members that 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 that had been convicted with 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 Americans. State governor Kevin Stitt stated in  April 2021 that he considered the U.S. Supreme Court's decision to have created an threat to public safety since now thousands of convicted criminals may have their convictions undone due to the Bosse case. 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 refilled over 500 cases dismissed in state courts. The state's attorney general Michael J. Hunter filed an emergency request with the U.S. Supreme Court on the basis of  the Bosse case, requesting the Court 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 review of the state's petition of their case. Bosse's case was reheard by the Oklahoma Court of Criminal Appeals in September 2021, but ruled that the "McGirt" decision was not retroactive and denied release to the tribal/federal judiciary. The state withdrew its petition to the Supreme Court as a result. 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. A separate case led the state to file a new petition to the Supreme Court to seek to overturn part or all of "McGirt". The case "Oklahoma v. Castro-Huerta", involved Victor Manuel Castro-Huerta, a non-Native who had been convicted by the state in 2017 of child neglect of a Native American child while living in Tulsa County. With the ruling in "McGirt", Castro-Huerta challenged his sentence, and the Oklahoma Court of Criminal Appeals was forced to overturn the sentencing  due to the jurisdiction issue raised by "McGirt" in April 2021. This had been part of a string of cases which the Oklahoma Court of Criminal Appeals had relied on "McGirt", applying it to any case involving a Native American, which the state believed was excessive. The state's new attorney general John M. O'Connor stated that by reversing part of "McGirt", it would be in the state's interest to protect Native American citizens while prosecuting non-Natives that commit crimes against them. Several cities located within the affected lands, including Tulsa and Owasso, state law enforcement organizations, as  well as the states of Texas, Kansas, Louisiana and Nebraska had joined in Oklahoma's petition specifically to have the Supreme Court overturn part of the ruling affecting jurisdiction over crimes committed by non-Native Americans within the affected lands. The state, cities and enforcement groups state that there has since been an increase of crimes committed by non-Native Americans against Natives which "McGirt" left them unable to enforce or prosecute, and the existing tribal and federal enforcement was spread too thin to handle these. 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. Law enforcement. The FBI's jurisdiction expanded in Oklahoma by almost 45% of the state's land.