By: James C. Asbill

 On July 9th, 2020, the United States Supreme Court handed down its decision in McGirt v. Oklahoma, 591 U.S. _____, 140 S. Ct. 2452, a landmark case which held that the State of Oklahoma lacked subject matter jurisdiction to try criminal cases involving a member of a Native American tribe alleged to have committed a crime on tribal land. The majority’s decision rested upon the determination that the historic boundaries of the Muskogee (Creek) Nation’s tribal lands, comprising roughly 3.25 million acres of land in Northeastern Oklahoma, had never been disestablished.[1] While the direct result of the decision was to overturn McGirt’s conviction,[2] the ruling had widespread implications for Oklahoma criminal cases, past and future, particularly given the voluminous (and contradictory) rulings rendered in the wake of McGirt. Finally, there are a litany of cases pending on writ of certiorari before the United States Supreme Court, asking the Court to reexamine its holding in McGirt. In other words, questions regarding the boundaries of state, federal, and tribal jurisdiction may persist without clear answer for some time yet. 

Background[3]

Before statehood, much of the land in Eastern Oklahoma belonged to the “Five Civilized Tribes”: the Cherokee, Choctaw, Chickasaw, Creek, and Seminole tribes. The tribes had been forcibly relocated from their ancestral lands to “Indian Territory” in the 1830’s, during the event known as the “Trail of Tears.” Over the decades that followed, the tribes saw the boundaries of their “reservations” (and their sovereignty over them) winnowed away by treaty and military intervention. In 1906, Congress passed the Oklahoma Enabling Act, paving the way for Oklahoma’s statehood. Among other provisions, the Act was presumed to have disestablished the reservations of Oklahoma’s tribes by allotment, with the tribes reduced to suzerainty governing rights over internal matters on behalf of their tribal members within their boundaries, but otherwise ceding all other jurisdictions to the State. For over a century after achieving statehood, the State of Oklahoma operated on the assumption that it had subject matter jurisdiction over criminal matters within the former reservations of the Five Civilized Tribes, regardless of the identity of the accused or victim. 

 In June of 1997, Jimcy McGirt was found guilty by a Wagoner County, Oklahoma jury of First Degree rape by instrumentation, Lewd Molestation, and Forcible Sodomy After Former Conviction of a Felony. McGirt was sentenced to 500 years each on the first two counts, and life without parole on the third. McGirt’s attempts at post-conviction relief failed until, 20 years after his conviction, the Tenth Circuit held in Murphy v. Royal[4] that the Muskogee (Creek) Reservation had not, in fact, been disestablished by the Enabling Act of 1906. As an enrolled member of the Seminole Tribe, whose crimes were alleged to have occurred within the boundaries of the Muskogee (Creek) Reservation, McGirt argued that the State of Oklahoma lacked subject matter jurisdiction to prosecute him, as jurisdiction was vested in the federal government under the Major Crimes Act (“MCA”).[5] 

 The Murphy case ultimately deadlocked at the United States Supreme Court during the 2018-2019 term, as Justice Neil Gorsuch, who had heard the Murphy case at the Tenth Circuit, recused from the matter, leaving a 4-4 split between the remaining eight Justices. The Court elected to take up McGirt on its 2019-2020 term instead. In a 5-4 ruling, Justice Gorsuch, writing for the majority, opined that the Enabling Act did not expressly disestablish the Muskogee (Creek) Reservation, and that absent an explicit Congressional act, the reservation could not be disestablished. Therefore, the boundaries of the Muskogee (Creek) Reservation were “Indian country,” and McGirt’s crimes were therefore the subject of exclusive federal jurisdiction. Applying the evergreen principle that subject matter jurisdiction can never be waived (and therefore can be raised on collateral appeal), the majority granted McGirt the requested relief. 

The Fallout, and the Pushback

 The fallout from McGirt in the State of Oklahoma was nearly instantaneous. Within less than a year, the Oklahoma Court of Criminal Appeals ruled that the shortcomings of the Enabling Act applied not only to the Muskogee (Creek) Nation’s historic reservation boundaries, but to the other Five Civilized Tribes as well.[6] The United States District Courts for the Northern and Eastern Districts of Oklahoma were inundated with new criminal cases under the MCA. Tribal Courts, generally limited in their scope (and the number of cases they handled) prior to McGirt, found themselves inundated with defendants thanks to their newly-recognized jurisdiction, prompting rapid appointment of new judges and prosecutors, and construction of new facilities. State courts, meanwhile, were inundated with appeals and applications for post-conviction relief (“PCR”), as thousands of incarcerated individuals sought to have their convictions overturned on the basis of the McGirt ruling. 

At first, Oklahoma’s Court of Criminal Appeals (“OCCA”) recognized (albeit begrudgingly) the applications of the McGirt ruling. A number of opinions were issued consistent with McGirt, and expanded it to the Cherokee, Choctaw, Seminole, and Chickasaw tribal territories. However, the OCCA made a sharp turn on August 12, 2021 in State ex rel. Matloff v. Wallace, 2021 OKCR 21. Backtracking from previous rulings, the court ruled that “McGirt v. Oklahoma announced a new rule of criminal procedure which [the court] decline[d] to apply retroactively in a state post-conviction proceeding to void a final conviction.” Id. at ¶ 6. The OCCA’s about-face on the retroactive application of McGirt, despite its foundation in subject matter jurisdiction, effectively cut off access to relief for retrospective PCR applicants. 

 The OCCA’s ruling in State ex rel. Matoloff came in conjunction with renewed efforts by the State of Oklahoma to have the decision in McGirt reversed. As of the writing of this blog, there are approximately three dozen cases pending on writ of certiorari before the United States Supreme Court wherein the State of Oklahoma has sought to have the United States Supreme Court overturn or modify its ruling in McGirt. While it would generally be unrealistic to expect the United States Supreme Court to reverse itself in such a short span of time, anti-McGirt litigators look to the revised makeup of the Supreme Court as an indicator that McGirt might be vulnerable to reversal or modification.[7] Whatever the outcome, the State of Oklahoma, the tribal Nations, and the affected defendants can expect that uncertainty over McGirt will continue for years to come.

Possible Civil Ramifications

While the McGirt decision was decidedly a case about criminal jurisdiction, the acknowledgment of the existence of the historic boundaries of the Muskogee (Creek) Reservation set off a number of concerns in the civil sphere. In particular, questions have arisen regarding tribal regulatory jurisdiction over fee simple lands within the boundaries of established (or, more importantly, recently recognized) reservations. 

Previously, the Supreme Court decided in Montana v. United States, 450 U.S. 544 (1981) that a two-path test would be used to determine whether tribes have regulatory jurisdiction over fee simple land owned by non-tribal or non-Native persons within the boundaries of a reservation. The test hinged on whether the individual (1) had a consensual relationship with the tribe; or (2) whether the individual’s conduct threatened the political or economic integrity of the tribe, or health and welfare of its members. 

The McGirt decision has seen some title insurance companies express concerns over lack of clarity regarding which entity has jurisdiction over regulation of fee simple land within tribal reservation boundaries, and the proper venue for foreclosure on fee land within said boundaries. There have already been cases involving land disputes in a number of states where litigants have attempted to cite to McGirt in support of their positions, despite the case having no application (at least on its face) to civil matters.[8]

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 [1] Justice Gorsuch, writing for the majority, noted that tribal reservations could only be disestablished by act of Congress, which had never explicitly been done. 

[2] McGirt was subsequently tried and convicted of two counts of Aggravated Sexual Abuse in Indian County, and one count of Abusive Sexual Contact in Indian County in the Eastern District of Oklahoma pursuant to the Major Crimes Act.

[3] For purposes of this article, the recited history of Oklahoma’s Native American tribes has been significantly condensed in the interest of economy and should not be taken as an exhaustive or nuanced examination of the historic events. 

[4] 866 F.3d 1164 (10th Cir. 2017).

[5] 18 U.S.C. § 1153. The Major Crimes Act provides that federal courts, exclusive of the states, has jurisdiction over Native Americans who commit any offenses listed under the Act against another Native American or non-native person in “Indian country.”

[6] See Hogner v. State, 2021 OK CR 4, Bosse v. State, 2021 OK CR 30 (originally 2021 OK CR 3, withdrawn and reconsidered pursuant to the ruling in State ex rel. Matloff v. Wallace, 2021 OK CR 21). 

[7] McGirt was a 5-4 decision; Justice Gorsuch was joined in the majority by Justices Sotomayor, Breyer, Ginsburg, and Kagan; subsequent to the ruling, Justice Ginsburg has passed away, and been replaced with Justice Barrett. As the court’s ideological makeup has been altered, some observers believe (not without cause) that the previous ruling is vulnerable. 

[8] Sarah Roubidoux Lawson and Megan Powell, Unsettled Consequences of the McGirt Decisionhttps://www.theregreview.org/2021/04/01/lawson-powell-unsettled-consequences-mcgirt/ (last updated Apr. 1, 2021). 


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