McGirt V. Oklahoma


I am fortunate to have guest writers every so often. George Burnett was Assistant Attorney General for the State of Oklahoma and is uniquely qualified to write on the recent Supreme Court decision of McGirt v. Oklahoma.

Issue: Whether the State of Oklahoma had jurisdiction to prosecute Jimcy McGirt in state court or whether proper jurisdiction is the U.S. federal court.

Facts: McGirt is a Seminole Indian who committed child molestation in what was historically the Creek Indian Reservation. He was prosecuted in state court and sent to prison in Oklahoma.

Ruling: In a 5-4 decision the U.S. Supreme Court held that since the U.S. Congress had not officially disbanded the Creek Reservation, McGirt should have been tried in the federal district court under the Major Crimes Act.

Analysis: This case is about procedure not the substantive facts of the case. Therefore, it is not necessary to get into the sordid details of the crime for the purposes of this discussion. Indian law is one of the most complex areas of the law. It is always a mixture of contract law, treaties, constitutional analysis and history. To shorten the discussion, accept the fact that native tribes were reserved in a special status in the U.S. Constitution.

There is a long history of treaties between the U.S. and each individual tribe. There is disagreement as to the performance of those treaties. But suffice it to say that in the last 100 years tribes have been more aggressive in exerting their tribal sovereignty. Gorsuch joined the so-called liberal side of the bench in the vote and wrote the opinion. The opinion is an eloquent expression of the history of treaties between the Creeks and the U.S. government starting with the removal treaty in 1832. It culminates with the 1906 treaty just before statehood. Gorsuch determines that through the whole analysis Congress never ended the reservation; in fact, the 1906 treaty expressly names the reservation. Gorsuch is a textualist, much like Scalia, his opinion is driven by the words used by Congress and the Creeks and the meaning attached to those words. For Gorsuch there are no words found in the document to show the reservation ended.

Oklahoma tried a shotgun approach to defend the case. It argued there was never a reservation, that various federal government decisions ended the reservation by implication, the allotment system when Oklahoma was born ended reservations, and the statehood act ended Indian reservations. All of these arguments were rejected by Gorsuch who believes the words of the documents show no termination of the reservation.

Impact: The historical Creek reservation exists in its entirety rather than the little parcels of land dedicated as tribal land by the Bureau of Indian Affairs. The immediate impact is that McGirt will be tried in federal court in Muskogee. Other Indians convicted in state court for crimes committed in the historical Creek reservation may decide to appeal which will be granted and the federal court will try them if they are one of the crimes enumerated in the Major Crimes Act. All other crimes (mostly misdemeanors) will be prosecuted in tribal court. The Choctaw, Chickasaw, Seminole and Cherokee came to Oklahoma under very similar treaties. Indians convicted in those reservations may appeal under the same issue. The relative number of cases is unknown. Plus, there are limitations in federal appeals that may bar some of them. With this decision, Oklahoma police officers will have no authority over Indians in the Creek reservation. This could be alleviated by a cooperation agreement between the tribe and each individual police agency, a complex process. Only federal officers and tribal police can stop and arrest. Future prosecutions will be in federal or tribal court. It is a new day for the Creek tribe. They will have other power in areas such as environmental law, water law, family law, taxation and other possible areas. This does not dissolve non-Indians ownership rights under the allotment act. But there will be impact on non-Indians in reservations. How much is anyone’s guess. Of course, Congress could pass an act to dissolve the reservations. That would be an interesting fight.

George Burnett received his B.S. from Oklahoma State University in 1981 in Animal Science. He then later graduated from the Oklahoma City University Law School in 1987. Burnett worked as an Assistant District Attorney for Oklahoma, Blaine, Garvin, and McClain Counties for 25 years. As a felony lawyer he tried thousands of cases, everything from shoplifting to Capital murder cases. He completed his career as Assistant Attorney General for the State of Oklahoma. Follow Historically Speaking at or on Facebook.

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