The U.S. Supreme Court will allow the landmark McGirt v. Oklahoma ruling to stand but will consider whether the state also has the right to prosecute non-Indians who commit felony crimes against Native people on reservation land.
Oklahoma officials flooded the Court with 45 petitions asking to have the July 2020 ruling be overturned entirely or to have the scope narrowed. On Friday, the Court only agreed to hear one of those petitions.
On July 9, 2020, justices ruled that the reservation of the Muscogee Nation was never disestablished. That meant the state of Oklahoma did not have jurisdiction to prosecute Jimcy McGirt, the plaintiff in the case. Since then, courts have ruled that the reservations of the Seminole Nation, Chickasaw Nation, Choctaw Nation, Cherokee Nation and Quapaw Nation are also still intact.
This means the tribes and the federal government are responsible for prosecuting crimes committed by Native people and against Native people on those reservations. Thousands of offenders have been prosecuted again since the ruling, including Jimcy McGirt who was convicted in federal court in November 2020, and is now serving a sentence in federal prison.
The ruling did reorganize large portions of the state’s criminal justice system. In an effort to ease the burden on federal and tribal prosecutors, the Oklahoma Court of Criminal Appeals ruled the McGirt decision was not retroactive before July 9, 2020. The Supreme Court upheld that ruling earlier this month when it denied three petitions appealing that decision.
Following the High Court’s rejection of those petitions, Oklahoma Attorney General John O’Connor reportedly had a phone conversation with leaders of the Muscogee Nation including acting Attorney General Kyle Haskins and counsel for Principal Chief David Hill, Joe Williams.
Both sovereign governments said in a statement that the discussion was to, "establish clear lines of communications".
“The conversation with Attorney General O'Connor was meaningful and a good-faith attempt by all involved to develop an open and professional relationship that will permit future understanding and collaboration on safety issues for the betterment of all Oklahomans,” Haskins said of the conversation. “We are hopeful that a door has been opened between reasonable people to improve Oklahoma's relationship with the Muscogee (Creek) Nation.”
The state of Oklahoma has argued that it should continue to have jurisdiction because that is how things have functioned since statehood. Governor Kevin Stitt has repeatedly said that the ruling has created chaos and lawlessness in the state.
In a statement released after the decision from the U.S. Supreme Court, Muscogee Nation said they will continue their efforts to making sure citizens are safe while celebrating tribal sovereignty.
"It is great news for the Muscogee (Creek) Nation that the U.S. Supreme Court in its order today declined to consider overturning the McGirt ruling that affirms our reservation and sovereignty."
The petition justices did agree to review is in the case of Victor Manuel Castro-Huerta. Castro-Huerta is a non-Native man who was convicted in an Oklahoma district court of neglecting his severely disabled five-year-old stepdaughter. He was sentenced to 35 years in prison. The Oklahoma Court of Criminal Appeals threw out the conviction, saying the state did not have jurisdiction to prosecute Castro-Huerta. Under the McGirt ruling, he should have been prosecuted in federal court because his victim is Native, and the crime was committed on reservation land.
The state is arguing to the High Court that because Castro-Huerta is not Native, it should have concurrent jurisdiction or the ability to also prosecute him. If the Supreme Court agrees, the state would have concurrent jurisdiction in cases where non-Native people commit crimes against Native people on reservation land.
“The fallout of the McGirt decision has been destructive. Criminals have used this decision to commit crimes without punishment,” Stitt said in a statement Friday. “Victims of crime, especially Native victims, have suffered by being forced to relive their worst nightmare in a second trial or having justice elude them completely.”
O’Connor also issued a statement following the Supreme Court’s decision to review the case. He called it a step forward.
“Narrowing the scope of this case will not alleviate all of McGirt’s harmful consequences in our State, but it would ensure that non-Indians can be prosecuted under the same rules as perpetrators who victimize non-Indians,” O’Connor said. “More importantly, it will guarantee Indian victims the same protection and justice that all other Oklahomans enjoy.”
Leaders of four tribes have accused Stitt of stoking division between the state and the tribes and have asked him to accept the 2020 ruling.
“The Cherokee Nation celebrates the Supreme Court’s rejection of a blatantly political request to overturn the McGirt decision,” Cherokee Nation Principal Chief Chuck Hoskin Jr. said in a statement. “Now that the Governor’s fight against tribal sovereignty has once again come up short, we hope he will consider joining tribes, rather than undermining our efforts.”
Hoskin Jr. also said he is proud of the way the Cherokee Nation has rapidly expanded its criminal justice system. Cherokee Nation Attorney General Sara Hill said regardless of the outcome in the Supreme Court’s review of the Castro-Huerta case, the tribe will continue to work with local, state and federal partners to ensure public safety on Cherokee lands.
Tribal leaders celebrated the decision, but don't agree that the state should be able to prosecute non-Native offenders.
"The most important news of the day is that fundamentally, the Supreme Court was unwilling to go back on the McGirt decision itself and whether the country ought to keep its promise," said Cherokee Nation Principal Chief Chuck Hoskin Jr.
"We don't think the court needed to review the issue of concurrent jurisdiction," said Hoskin Jr.
Choctaw Nation Chief Gary Batton said that he hopes Oklahoma officials will now turn their attention to cooperating with tribal nations on the issue of criminal justice.
“We thank the justices for clearly establishing their ruling in McGirt will not be reconsidered at this time. As a Nation, we will continue doing everything we can to protect our citizens and our neighbors," said Chief Batton in a statement.
This report was produced by the Oklahoma Public Media Exchange, a collaboration of public media organizations. Help support collaborative journalism by donating at the link at the top of this webpage.
