In McGirt v. Oklahoma (2020), the U.S. Supreme Court recognized the ongoing existence of the Muscogee reservation in Oklahoma. The decision addressed the case of Jimcy McGirt, a Seminole Nation tribal citizen who’d argued that his criminal convictions in Oklahoma state court were not valid because the acts had taken place on Muscogee land. Beyond McGirt’s case, the Court’s ruling carried repercussions for sovereignty and criminal jurisdiction for multiple tribes in the state.
In By the Fire We Carry: The Generations-Long Fight for Justice on Native Land, Rebecca Nagle, a member of the Cherokee Nation, wrote about the Supreme Court’s decision, as well as how her ancestors tried to preserve tribal rights and land. She spoke to A&E True Crime about how this case got to the Supreme Court and its impact in Oklahoma.
Before McGirt, a different Supreme Court case with a Muscogee defendant argued that the Muscogee reservation still existed in Oklahoma?
A murder [occurred] in Oklahoma in 1999. The victim was George Jacobs. The convicted man was Patrick Murphy, and he was sentenced to death [in Oklahoma state court]. It was during the course of his death penalty appeals that his lawyers came up with this novel legal theory [where they said], ‘[We] don’t think Oklahoma had jurisdiction to prosecute our client, let alone execute him, because we think [the crime took place on] tribal land, and states can’t prosecute Native Americans on tribal land, only tribes or the federal government can.’
In response, Oklahoma said that reservation doesn’t exist, and it hasn’t existed in over a century.
That question of the status of the Muscogee reservation wound its way through state courts in Oklahoma, then the federal court system and eventually all the way to the Supreme Court [in 2018].
Why didn’t the Supreme Court resolve Murphy’s case before McGirt v. Oklahoma?
[In June 2019], the Murphy decision didn’t come out. The Supreme Court announced they were going to punt it to the next year. We don’t know why, because the Court doesn’t have to tell us, but the thinking is that they got caught in a tie vote in Murphy. One of the justices, Neil Gorsuch, recused himself from the case because he had participated in it when it was at the Tenth Circuit [Court of Appeals].
About six months later, there was a surprise announcement that they were going to hear this other case that involved Jimcy McGirt, who had [been sentenced to] life in prison for sexually abusing a young child. So the eventual case that settled the question of the reservation status of Muscogee Nation was McGirt v. Oklahoma.
[Note: In July 2020, the Court cited McGirt and affirmed the Tenth Circuit’s decision vacating Murphy’s conviction.]
The McGirt decision meant that Oklahoma lost jurisdiction and couldn’t prosecute tribal citizens for crimes that happened on tribal land, but the decision didn’t change the federal government’s ability to prosecute these cases?
Either the tribe or the federal government would have jurisdiction. Most serious crimes are prosecuted by the federal government.
A federal jury convicted Patrick Murphy of murder and kidnapping and he received a life sentence. Jimcy McGirt reached a federal plea deal for aggravated sexual abuse and he received a 30-year sentence, but was given credit for time served and released from prison. How many other criminal cases in Oklahoma were affected by this decision?
Oklahoma argued that, if the reservations were affirmed, hundreds, if not thousands, of criminals would be set free. But overturning a conviction in our criminal justice system is really difficult. There were inmates whose incarceration shifted from state to federal custody, and then a total of 68 people were actually released from the decision. So instead of it being hundreds or thousands, it was dozens.
How did tribal leaders feel about using a murder case and a case of sexual assault to regain land rights?
Sometimes [in] litigation, people try to find the plaintiff that represents their values and their cause. But tribes occupy this precarious legal status that makes it hard for them to bring cases on their own behalf. A lot of important federal Indian law cases actually come from crime because that’s how so much of jurisdiction functions on reservations get settled.
I think that often puts tribal leaders in a really difficult place where they don’t get to choose the legal vehicle with which they assert their rights.
I talked to James Floyd, [who was] principal chief [of the Muscogee Nation] at the time the [Murphy] case went to the Supreme Court. He didn’t know the murder victim personally, but he knew members of his family. [He] had a real sense of the trauma and effect of that crime on the community. I think it weighed really heavily on him, and the Jimcy McGirt crime did too.
Why did the McGirt decision impact other tribes in Oklahoma?Basically, the central question of that case was, ‘Did Congress ever get rid of the Muscogee reservation? Of these laws that Congress passed impacting Muscogee land rights, did any of them divest the tribe of this reservation?’
The Supreme Court looked through the Congressional Record and said, ‘No.’
A lot of those laws apply to five tribes in eastern Oklahoma, which also include the Cherokees, Seminoles, Chickasaws and Choctaws.
After the Supreme Court ruling, other cases were brought by defendants arguing that Oklahoma didn’t have jurisdiction because their crime happened on a reservation. The Oklahoma Court of Criminal Appeals took McGirt andapplied it to the reservations of [these] four tribes. And there were some other tribes with smaller reservations in northeastern Oklahoma that also had their reservations subsequently affirmed.
How much land in Oklahoma is now under tribal jurisdiction?
When you put it all together, it actually represents the largest restoration of tribal land in U.S. history. It covers about half the land in Oklahoma, 19 million acres, which is an area larger than nine U.S. states.
Could you discuss how this decision has altered tribal court systems?
One thing that’s important to know is that before the McGirt decision came down, the tribes already had court systems and police. And what’s called cross-deputization agreements with local police—meaning, no matter who the perpetrator or victim of a crime was, tribal police could come to the scene of a crime and make an arrest.
Where you saw the big shift was who had jurisdiction to prosecute a case. The tribes went from prosecuting dozens or hundreds of cases a year to thousands. A lot of the tribes revamped their criminal code to make sure that all the types of new crimes that they might be prosecuting were in there. They worked on agreements with local jails and even some prisons for incarcerating people. And they hired more people, including court staff, prosecutors, defenders, victim advocates.
While reporting for the book, I got to meet with [Choctaw Nation] tribal prosecutor Kara Bacon. She talked about how she prosecuted for the state and saw how the court system can create cycles that people just can’t get out of. Her focus is more on rehabilitation than saddling people with prison time and high fees that they can’t pay.
What are your hopes for how the decision will continue to impact Natives and reservations?
When Oklahoma was created on top of our treaty lands in the early 1900s, it was really devastating for tribes here. For our families, for tribal citizens, for our tribal governments, for our language and our culture.
We have spent the past century clawing our way out of the legacy of harmful policies. We’ve rebuilt our tribal governments. We’ve rebuilt our court systems, our police systems, we’ve rebuilt our constitutions.
I think the recognition of our reservations is part of that process. It’s not the beginning of it, and it’s not the end, but I think it’s a really important piece of that restoration of what was lost as we continue to rebuild.
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