Supreme Court to decide whether to reconsider its 'McGirt v. Oklahoma' decision
Eighteen months after a landmark ruling said the state of Oklahoma doesn’t have jurisdiction on tribal reservations in Oklahoma, the nation’s high court will decide if they want to reconsider the decision. Justices have received a barrage of petitions from the state to overturn the McGirt v. Oklahoma decision or at least allow it to have the ability to prosecute non-native citizens when they commit crimes inside tribal boundaries.
The court is considering all of that at a conference on Jan. 7. Justices could allow the McGirt v. Oklahoma ruling to stand, give Oklahoma concurrent jurisdiction in some cases or overturn the July 2020 decision. They are also considering whether to allow cases prior to McGirt to be reconsidered, possibly overturning a lower court decision from last summer that said McGirt was not retroactive.
Oklahoma Governor Kevin Stitt told KOSU in July 2021 that the McGirt decision has made Oklahoma ‘lawless’, and in an address to the Tulsa Chamber of Commerce, he said it is the biggest problem facing the state.
He pointed to what he said were thousands of cases that were affected, saying crimes weren’t being prosecuted in tribal courts and violent criminals were being released from prison because of the Supreme Court ruling.
The tribes say the governor’s claims are false and that he’s making a power grab for the state. They’ve hired new prosecutors and law enforcement officers and changed their criminal codes since July 2020.
As the Supreme Court considers all of the briefs before it, we talked to tribal leaders, Stitt’s office and legal experts to try to make sense of what is happening and what might come next.
What are the real numbers?
Shortly after the ruling in 2020, Stitt said 76,000 cases were being affected by the McGirt v. Oklahoma decision. It’s a number his office says came from the 17 district attorneys in eastern Oklahoma affected by the ruling. But it’s a bit confusing because the total number of people in the state’s entire criminal justice system, including all the people in county jails, state and federal prisons and those on parole or probation, was 78,000.
The McGirt v. Oklahoma ruling said that citizens who committed crimes within the reservation boundaries of the Muscogee Nation were under the jurisdiction of the tribe or the federal government, depending on what kind of crime they committed. It meant that the state of Oklahoma had been illegally prosecuting crimes for more than 100 years.
The governor’s office says these are cases dating back to 2005 that would have qualified for retrial in federal or tribal courts. But in August 2021, the Oklahoma Court of Criminal Appeals ruled in another case that the McGirt ruling was not retroactive, which eliminated many of these cases.
According to new data obtained by KOSU and the Oklahoma Media Center from the Oklahoma Department of Corrections, the number of people in the criminal justice system who applied to have their cases dismissed or vacated by the Supreme Court's ruling is 235 since July 9, 2020 through December 31, 2021. While many have been referred to federal or tribal courts to have their cases retried, 67 were released from prison without having their cases retried.
The alleged chaos
The Governor and Oklahoma Attorney General John O’Connor say the current criminal justice system in eastern Oklahoma is chaos. They point to an amicus brief filed with the U.S. Supreme Court by the cities of Tulsa and Owasso:
“The inescapable result of the complications brought on by McGirt has been thousands of crimes and numerous criminals going completely unpunished… In sum, the result of McGirt in Tulsa and Owasso has been a significant ‘prosecution gap’ of serious crimes that the federal government has declined to prosecute. The tribes cannot fill this gap… even when the tribes can prosecute, they have proven unable to do so. Since McGirt was decided the Tulsa police department has referred at least 1,156 cases to the Muscogee and Cherokee Nations… Yet these tribes have not issued a single subpoena asking a Tulsa police office to testify in a single criminal case.”
A spokesperson for the governor says the actual number of criminal cases that aren’t being prosecuted is “large, but the exact number is ‘elusive’”.
The number of cases district attorneys in the area are prosecuting has decreased dramatically. In an amicus brief, one DA says his office went from handling 350 felonies a year to 17. The rest of the cases were referred to tribal and federal courts.
But tribal courts say in spite of the claims by district attorneys, the state attorney general and the governor, they are prosecuting these cases.
In the Cherokee Nation, more than 3,000 felony and misdemeanor cases have been filed in tribal district court since the ruling. Only 60 cases were filed in 2019. They also point to a $30 million dollar investment to expand their criminal justice system. They’ve hired 13 additional marshals, eight new prosecutors, two additional judges, victims service advocates and opened new courts in Muskogee and Jay.
The Chickasaw Nation has made similar investments to accommodate the additional caseload, and they’re working with the state.
“We're now part of the Oklahoma District Attorneys [Council] and trying to participate in those trainings and those conference opportunities," said Deborah Gee, the chief counsel with the Chickasaw Office of Tribal Justice Administration.
Federal authorities say they have also taken on a large additional caseload. In the one year following the ruling, the FBI says they’ve taken on thousands of additional cases. In the year prior to the ruling, they investigated 50 cases involving Native Americans.
"They don't want it to work"
"The U.S. Supreme Court’s ruling in McGirt v. Oklahoma questions the sovereignty of the state as we’ve known it since 1907," said the Governor in his 2021 State of the State address, where he called the decision the most pressing issue facing the state.
McGirt does change the way the criminal justice system in Oklahoma operates. When reservations boundaries set by the 1866 treaties between the federal government and the tribes were affirmed, it shuffled prosecution authority.
But in Article 1 of the Oklahoma Constitution, it says the state will claim no jurisdiction over Indian Nations, their land or assets.
Additionally, Oklahoma did have the opportunity to hold concurrent jurisdiction through something called Public Law 280. This is a federal statute enacted by Congress in 1953 that allows states to assume criminal, as well as civil, jurisdiction in matters involving Indians as litigants on reservation land. Currently, six states are what's known as PL280 states: Minnesota, Californian, Wisconsin, Oregon, Nebraska and Alaska.
Tribal Nations have said they are willing to sit down with the Governor and the attorney general’s office to figure out a way forward.
"Decades of experience demonstrates that we serve our communities best when we work together in a spirit of common cause and intergovernmental respect," said Chickasaw Nation Governor Bill Anoatubby. "Our goal is to continue working collaboratively to protect public safety, preserve justice and maintain law and order.”
Robert Gifford, a Cherokee citizen and a criminal defense lawyer for some clients affected by the ruling, says it’s just not chaos, and the state is still safe.
"There are going to be a few circumstances where there's going to be an issue of statute limitations, lost evidence, lost witness testimony," said Gifford. "But I think the far majority of the most serious cases will be retried and convicted, just as Mr. McGirt himself was retried and convicted."
Gifford thinks some district attorneys including Steve Kunzweiler in Tulsa County have been critical of the ruling and have refused to take full advantage of agreements with Special Assistant U.S. Attorneys who could stand in the gaps between the federal, state and tribal governments.
"They don't want it to work," he said of the people fighting the ruling.
The current fight
There have been 45 petitions filed with the U.S. Supreme Court asking justices to overturn the ruling or at least allow the state of Oklahoma to have concurrent jurisdiction to prosecute crimes involving non-Native offenders when they occur in Indian Country. With the death of Justice Ruth Bader-Ginsburg and the appointment of Justice Amy Coney-Barrett, the state of Oklahoma hopes there’s been a shift in the court that will tip the decision in their favor.
In the petitions, the state of Oklahoma argues that the reservations were terminated at statehood.
In response briefs filed by the Five Tribes, they say the state waived its right to challenge the ruling of the Supreme Court because it didn’t challenge any of the lower court rulings.
"In the courts below, rather than arguing whether each Nation’s Reservation still exists, the State never presented evidence of diminishment and typically said nothing," said Stephen Greetham, senior counsel for the Chickasaw Nation.
If the nation's highest court decides to "grant cert" and take up one of the state's questions, it doesn't mean that McGirt will be overturned. It means the justices will consider that question. This would be a long process that could be pushed into the court session that starts in late 2022.
Justices could also deny the petitions or say nothing. This would mean the McGirt v. Oklahoma ruling stands as is.
“The Choctaw Nation remains confident in our legal position regarding our reservation, our sovereignty and our ability to provide effective law enforcement and judicial services, as we have done since McGirt was decided in 2020,” said Chief Gary Batton of the Choctaw Nation. “Regardless of whether the Supreme Court decides to take up any challenges, we are committed to working cooperatively with other governments to protect and support our Tribal citizens and our fellow Oklahomans.”
Muscogee Nation Principal Chief David Hill said the state’s arguments don’t have merit, and by filing the petitions, Oklahoma is asking the Supreme Court to wade into political matters of the state rather than rule on the law.
“We hold in high regard the Court’s duty to uphold the rule of law and honor the sanctity of separation of powers," said Hill.
In spite of the pending issues before the Court, O’Connor said in a statement to KOSU that he has talked to three tribal leaders about how they could work together.
“Our office will continue to endeavor to work with the Indian Nations toward meaningful solutions that benefit all Oklahomans," O’Connor said.
The Supreme Court is considering criminal jurisdiction matters affected by McGirt v. Oklahoma, but Stitt has argued the decision is being wrongfully applied to environmental and regulatory law and has created an atmosphere of uncertainty where businesses don't want to invest.
There are already pending cases regarding these matters.
Stitt has said he wants all Oklahomans to follow one set of rules, whether it is criminal justice or hunting and fishing. Sara Hill, Cherokee Nation's Attorney General, agrees.
"Rather than having one set of rules, I would just like to have the rule of law generally respected in my state where I live," said Hill.
This story was produced in collaboration with Oklahoma Media Center's data reporter Joey Stipek.