By Adam Willfond, City of Indianapolis
Challenges loom for a 2020 Supreme Court opinion, which sent shockwaves through the legal community when it was issued, while its collateral consequences remain unclear. Jimcy McGirt, an enrolled member of the Seminole Nation of Oklahoma, was convicted of sex crimes against a child by the state of Oklahoma that occurred within the historical Creek Nation boundaries. He argued that Oklahoma had no jurisdiction over him because the under the Major Crimes Act, any crime victim involving a Native American victim or perpetrator, or occurring within recognized reservation boundaries, is subject to federal jurisdiction, not state jurisdiction. The question was whether Oklahoma had jurisdiction to try McGirt for crimes committed within the historical Creek boundaries. In other words, did McGirt commit his crimes in “Indian country” for MCA purposes?
Writing for the majority (and joined by Justices Ginsburg, Breyer, Sotomayor and Kagan), Justice Neil Gorsuch said Oklahoma lacked jurisdiction and McGirt committed his in Indian County. How did the Court arrive at its conclusion? Congress established a reservation for Creek Nation in 1833, and later acts and treaties “left no room for doubt.” 140 S. Ct. 2452, 2461 (2020). And once Congress establishes a reservation, only Congress can “disestablish” or dissolve it. Doing so requires a clear expression of congressional intent, which the Court found was absent for the Creek Nation. In short, land reserved for the Creek Nation since the 19th Century remains “Indian country” under the MCA, which grants the federal government exclusive jurisdiction try certain serious crimes committed by enrolled members of a tribe on that land.
What does this all mean? As it relates to Jimcy McGirt, it means that Oklahoma state courts lacked jurisdiction to try him for the crimes that took place on the reservation.
More broadly, it means that the state has no right to prosecute certain crimes committed in the eastern half of Oklahoma because of federal preemption. Chief Justice John Roberts’ dissent (joined by Justices Alito, Thomas and Kavanaugh) sounded this alarm. And beyond that—what about past convictions? Other wide-ranging implications of McGirt have not yet been felt or understood.
Even so, Oklahoma Governor Kevin Stitt recently called the McGirt decision the state’s “most pressing issue.” Because of McGirt, the state says, more than 3,000 applications for postconviction relief have been filed, and the Oklahoma Department of Corrections has released custody of more than 150 prisoners (almost half of whom have been set free). More fallout is still to come as approximately a quarter of the postconviction challenges involve crimes already beyond the federal statute of limitations. Currently, almost two million people in Oklahoma reside in areas affected by the McGirt ruling and only 10-15 percent of these people are Native Americans. The total population of Oklahoma is just less than four million residents.
Oklahoma Attorney General John O’Conner already has a slate of petitions pending at the Supreme Court to overturn it. The state has hired the white-shoe DC law firm Paul Weiss and elite Supreme Court litigator Kannon Shanmugam to lead the charge. Meanwhile, FBI field offices in the state have ramped up and federal prosecutors obtained a record number of grand jury indictments due to the federal government’s newly acquired jurisdiction over certain serious crimes.
But for now, the court continues to “hold the government to its word.” McGirt reaffirms the continued existence of the reservations that the federal government promised to the Five Civilized Tribes in the 1830s to persuade them to give up their ancestral lands in Georgia and Alabama and walk along the Trail of Tears to the lands at issue in the case. Time will tell whether the Court has any interest in revisiting its decision on which the ink has barely dried.
Whatever happened to Jimcy McGirt? At 72 years old, he got his wish and was tried (and convicted) in federal court. He is serving two concurrent life sentences for his crimes.
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