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McGirt v. Oklahoma

From Wikipedia, the free encyclopedia

McGirt v. Oklahoma
Seal of the United States Supreme Court
Argued May 11, 2020
Decided July 9, 2020
Full case nameJimcy McGirt, Petitioner, v. Oklahoma
Docket no.18-9526
Citations591 U.S. ___ (more)
140 S. Ct. 2452
Case history
PriorDenial for relief, PC-2018-1057 (Okla. Crim. App. Feb. 25) (2019); Cert. granted, 140 S. Ct. 659 (2019)
For Major Crimes Act purposes, land reserved for the Creek Nation since the 19th century remains "Indian country."
Court membership
Chief Justice
John Roberts
Associate Justices
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Neil Gorsuch · Brett Kavanaugh
Case opinions
MajorityGorsuch, joined by Ginsburg, Breyer, Sotomayor, Kagan
DissentRoberts, joined by Alito, Kavanaugh; Thomas (except footnote 9)
Laws applied
Oklahoma Enabling Act
Major Crimes Act

McGirt v. Oklahoma, 591 U.S. ___ (2020), was a landmark[1][2] United States Supreme Court case which ruled that, as pertaining to the Major Crimes Act, much of the eastern portion of the state of Oklahoma remains as Native American lands of the prior Indian reservations of the Five Civilized Tribes, never disestablished by Congress as part of the Oklahoma Enabling Act of 1906. As such, prosecution of crimes by Native Americans on these lands falls into the jurisdiction of the tribal courts and federal judiciary under the Major Crimes Act, rather than Oklahoma's courts.

McGirt was related to Sharp v. Murphy, 591 U.S. ___ (2020), heard in the 2018–19 term on the same question but which was believed to be deadlocked due to Justice Neil Gorsuch's recusal; Gorsuch recused because he had prior judicial oversight of the case. Sharp was decided per curiam alongside McGirt.


The former reservations of the Five Civilized Tribes in dispute in this case
The former reservations of the Five Civilized Tribes in dispute in this case

Prior to its statehood in 1907, about half of the land in Oklahoma in the east, including the Tulsa metro area today, had belonged to the Five Civilized Tribes: the Cherokee, Choctaw, Chickasaw, Creek, and Seminole tribal nations whose name was trademarked due to their adoption of much of Anglo-American standards.[3][4][5] There had been several decades of warfare and conflict during the 19th century over these lands between the Native Americans and the United States. This was mainly due to the bitterness between the White Americans and Native Americans. This tension was created due to the White Americans' efforts in changing them from bringing what they falsely viewed as savage to their definition of "civilized".[6] Eventually these conflicts led to the Trail of Tears, a march that was over 1,000 miles that the US Government required the Native Americans to do.[7] By 1906, the United States Congress passed the Oklahoma Enabling Act, which had been taken to disestablish the reservations, and enabling Oklahoma's statehood.[8] The former reservation lands, those of the Five Civilized Tribes as well as the other tribes in the state, were allocated into areas by tribe that were given suzerainty governing rights to the tribe to handle internal matters for Native Americans within the boundaries, but otherwise the state retained jurisdiction for non-Native Americans and for all other purposes such as law enforcement and prosecution.

In Sharp v. Murphy, Patrick Murphy, a citizen of the Muscogee-Creek Nation, admitted to committing murder in the state of Oklahoma, and was subsequently tried by the state courts around 2015. During these trials, Murphy argued that the language of the Oklahoma Enabling Act did not specify that the Native American reservations were disestablished, and because he had committed the murder within the Muscogee reservation territory, that his crime was subject to federal jurisdiction and not state under the Major Crimes Act. This argument was rejected by the state and on its first appeal within the federal courts, but at the Tenth Circuit in 2017, the court found in favor of Murphy's argument that the Enabling Act did fail to disestablish the territories, and thus Murphy should have been prosecuted by the federal courts. The state petitioned to the Supreme Court in 2018, which accepted to hear the case. However, as Justice Neil Gorsuch was part of the Tenth Circuit panel that heard the case on appeal, he recused himself from all hearings on the case. Because only eight Justices heard the case, it remained unresolved at the end of the 2018–2019 term; the Court had stated plans to hold another hearing on the case in the 2019–20 term but had not set a date. Many court analysts believed the case to be deadlocked due to Gorsuch's recusal.[9][10]

Statements of the case

Jimcy McGirt was an enrolled member of the Seminole tribe. In 1991, having recently been discharged from prison, he moved in with and married another member of the tribe at Broken Arrow, who was 10 years his senior.[11] McGirt's wife had a granddaughter, whom McGirt would sexually abuse on an almost-daily basis when she was just four years old.[12] McGirt's wife witnessed the sexual abuse, and rather than report it, she assisted him in covering up the crimes, and threatened the girl in order to get her to not speak about the crimes. McGirt was arrested on November 4, 1996 after turning himself in on an outstanding warrant.[13] Bail was set at $25,000, and McGirt was released from jail in January of 1997 after posting bail. He was returned back to jail in May of 1997 after violating bail conditions, and a new bail was set at $50,000.[14] In June of 1997, McGirt was found guilty, and was sentenced to life in prison without the possibility of parole, plus two consecutive 500-year sentences.[15][16]

Supreme Court

McGirt was one of a dozen cases in which the Supreme Court opted to use teleconferencing for oral arguments for the first time in the court's history due to the COVID-19 pandemic.[17] The arguments for McGirt were heard on May 11, 2020. Observers to the court stated that some justices raised concerns of how ruling in favor of McGirt, in recognizing that the reservations were never disestablished, would impact not only existing convicted prisoners within the state but how the federal courts would subsequently need to handle approximately 8,000 felonies that occur annually on those lands, as well as the impact on legal matters related to businesses and other civil actions that would fall under tribal regulations rather than the state's. Attention was given to the stance of Justice Gorsuch, who appeared to doubt Oklahoma's argument that the lands were effectively disestablished. Justice Sonia Sotomayor stated that should the Court find in favor of McGirt, ruling that the reservations were never formally disestablished, Congress would be able to easily remedy the situation with legislation to affirm the disestablishment.[18][19]


The Court issued its decision on McGirt as well as a per curiam decision on Sharp following the basis of McGirt on July 9, 2020. The 5–4 majority opinion was written by Justice Neil Gorsuch and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, and determined that for purposes of the Major Crimes Act, Congress had failed to disestablish the Indian reservations and thus those lands should be treated as "Indian country". Gorsuch wrote, "Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word."[20] Gorsuch further assessed that disestablishment was a power only Congress could exercise, affirmed by Lone Wolf v. Hitchcock.


Chief Justice John Roberts wrote a dissent which was joined by Justices Samuel Alito and Brett Kavanaugh, as well as in part by Clarence Thomas. Roberts wrote that the majority decision "creates significant uncertainty for the State's continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law." It was also emphasized that the Dawes Commission had established these ceded lands for natives with the intention to eliminate the reservation. These attempts were however merely that. The Creek refused to give up their land at the time these attempts were made once the Dawes Commission was put into place.[21]


The Court's judgment reversed McGirt's denial for relief by the Oklahoma criminal court, which withdrew the state convictions. This then required a retrial by a federal court. This retrial was scheduled for October 6th, 2020 in Muskogee federal court. Starting from the decision made in his Supreme Court case, McGirt was kept in jail for the duration until his federal trial as decided by a judge.[22] This federal trial however did not occur until November 5th. In this retrial, McGirt's victim, the grand-daughter of his wife at the time of the incidents, recounted her accounts of the incidents. Now 28 years old, she mentioned that she had some difficulty recalling the events from when she was merely four years old. She did however tell the parts she could remember. The retrial was then set to continue the following day.[23] After 3 days of testimonies, McGirt was found guilty again of sexually abusing his wife's grand-daughter.[24]


The decision by the Supreme Court was seen as a significant win for Native American rights. Gorsuch's opinion was seen to acknowledge that many of the promises that Congress had made to the Native Americans in turning over reservations have gone unfulfilled, and rejected the argument presented by the state and federal government that he summarized as: "Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye."[25]

The Supreme Court's decision directly impacts Native American tribal citizens that are currently convicted under state law for crimes committed on the former reservation lands, as well as for any future descendants that may be arrested for similar crimes covered by the Major Crimes Acts, as their prosecution would become a matter of the federal courts and not the state. At the time, about 1,900 of the prisoners in the Oklahoma system met these conditions, but only around 10% qualified for rehearings to transfer to the federal system as they were still within the statute of limitations.[26][27]

The majority decision left open other potential impacts between territorial rights that may arise, which the Court put to the state and the tribes to resolve amicably should conflicts occur. Roberts had cautioned in his dissent that this could stretch to include taxation, adoption, and environment regulation rights.[26] Lawyers for the tribal groups asserted that the decision was narrow in affecting only Native American descendants within the lands as no land ownership changed hands.[1] The state and the five tribes issued a joint statement after the decision, stating "The nations and the state are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights. We will continue our work, confident that we can accomplish more together than any of us could alone."[28]


Native territorial changes

Since the case of McGirt v. Oklahoma, there have been multiple cases to recognize the other native tribes rather than just stopping at the recognition of the Muscogee (Creek) Nation.

"Five Civilized Tribes" now recognized

  • Muscogee (Creek) Nation: This is the largest of the federally recognized Muscogee tribes. They are headquartered in Okmulgee, Oklahoma. Their jurisdiction is in Creek, Hughes, Okfuskee, Okmulgee, McIntosh, Muskogee, Tulsa, and Wagoner counties. The Muscogee are a unified nation of multiple tribes.[29]
  • Cherokee Nation: This nation is federally recognized. They are considered sovereign land.[30]
  • Choctaw Nation of Oklahoma: Their tribal jurisdiction consists of eight Oklahoman counties among 12 tribal districts. Their headquarters are in Durant, Oklahoma. They function with their own government with Judicial, Legislative, and Executive branches.[31]
  • Chickasaw Nation: This is also a three-branched self-governed native nation. Their jurisdiction takes up Byran, Carter, Coal, Garvin, Grady, Jefferson, Johnston, Love, McClain, Marshall, Murray, Pontotoc, and Stephens counties.[32]
  • Seminole Nation of Oklahoma: This nation is predominantly in Oklahoma and made up of three tribes. Their tribal complex can be found in Wewoka, Oklahoma.[33]

Criminal convictions

McGirt's case was reheard by a federal jury and was found guilty on three counts of aggravated sexual abuse and sexual contact in November 2020.[34]

In the months that followed the McGirt decision, several convictions of tribal members that were tried under Oklahoma state law had been undone and new trials held under federal law. Further complicating matters was the March 2021 decision of the Oklahoma Supreme Court in the case of Shaun Bosse, a non-tribal state resident that had been charged with the murder of a Chickasaw family on tribal lands. The Oklahoma Supreme Court ruled that under McGirt, Bosse must be tried under federal law as well since the victims were Native Americans.[35] State governor Kevin Stitt stated in April 2021 that he considered the U.S. Supreme Court's decision to have created an threat to public safety since now thousands of convicted criminals may have their convictions undone due to the Bosse case.[36] The Native American tribes said the governor was overestimating the impact of McGirt and urged the state to cooperate with the tribes to manage these cases, performing initial prosecution in their own tribal courts before pursuing federal oversight.[37] The state's attorney general Michael J. Hunter filed an emergency request with the U.S. Supreme Court on the basis of the Bosse case, requesting the Court to intervene and reconsider their McGirt decision.[35] The Supreme Court granted the state's request on May 26, 2021, allowing the state to retain custody of Bosse pending review of the state's petition of their case.[38][39]

Law enforcement

The FBI's jurisdiction expanded in Oklahoma by almost 45% of the state's land.[40]

See also


  1. ^ a b Healy, Jack; Liptak, Adam (July 9, 2020). "Landmark Supreme Court Ruling Affirms Native American Rights in Oklahoma". The New York Times. ISSN 0362-4331. Archived from the original on July 11, 2020.
  2. ^ Rubin, Jordan S. (July 9, 2020). "Supreme Court Tribal Treaty Decision Praised as Game Changer". Bloomberg Law. Archived from the original on July 11, 2020.
  3. ^ "Five Civilized Tribes | The Encyclopedia of Oklahoma History and Culture". Retrieved 2021-04-26.
  4. ^ Clinton, Fred S. (December 1915). "Oklahoma Indian History". The Indian School Journal. Vol. 16 no. 4. pp. 175–187.
  5. ^ Barry Pritzker (2000). A Native American Encyclopedia: History, Culture, and Peoples. Oxford University Press. p. 389. ISBN 978-0-19-513877-1.
  6. ^ Editors, History com. "Trail of Tears". HISTORY. Retrieved 2021-04-24.CS1 maint: extra text: authors list (link)
  7. ^ Millhiser, Ian (July 10, 2020). "The Supreme Court's landmark new Native American rights decision, explained". Vox. Retrieved July 10, 2020.
  8. ^ Pub.L. 59–234, H.R. 12707, 34 Stat. 267, enacted June 16, 1906
  9. ^ Nagel, Rebecca (May 8, 2020). "Oklahoma's Suspect Argument in Front of the Supreme Court". The Atlantic. Retrieved May 11, 2020.
  10. ^ Liptak, Adam (December 13, 2019). "Supreme Court to Rule on Whether Much of Oklahoma Is an Indian Reservation". The New York Times. Retrieved May 11, 2020.
  11. ^
  12. ^ "McGirt v. Oklahoma". Retrieved 2021-04-26.
  13. ^
  14. ^
  15. ^
  16. ^ "McGirt v. Oklahoma". Retrieved 2021-04-27.
  17. ^ Liptak, Adam (April 13, 2020). "The Supreme Court Will Hear Arguments by Phone. The Public Can Listen In". The New York Times. Retrieved May 11, 2020.
  18. ^ Liptak, Adam (May 11, 2020). "Supreme Court Weighs Whether Much of Oklahoma Is an Indian Reservation". The New York Times. Retrieved May 12, 2020.
  19. ^ Hurley, Lawrence (May 11, 2020). "U.S. Supreme Court weighs Oklahoma tribal authority dispute". Reuters. Retrieved May 12, 2020.
  20. ^ Healy, Jack; Liptak, Adam (2020-07-09). "Landmark Supreme Court Ruling Affirms Native American Rights in Oklahoma". The New York Times. ISSN 0362-4331. Retrieved 2021-04-30.
  21. ^
  22. ^ World, Curtis Killman Tulsa. "McGirt to remain jailed while awaiting federal retrial necessitated by Supreme Court reservation ruling". Tulsa World. Retrieved 2021-04-28.
  23. ^ World, Curtis Killman Tulsa. "Prosecution rests in retrial of Jimcy McGirt, man at center of landmark Supreme Court decision". Tulsa World. Retrieved 2021-04-28.
  24. ^ World, Curtis Killman Tulsa. "Federal jury finds man at center of landmark Supreme Court ruling guilty in retrial". Tulsa World. Retrieved 2021-04-28.
  25. ^ Feldman, Noah (July 10, 2020). "How the Creek Nation Finally Prevailed in Oklahoma". Bloomberg News. Retrieved July 10, 2020.
  26. ^ a b "Half of Oklahoma ruled to be Native American land". BBC. July 9, 2020. Retrieved July 10, 2020.
  27. ^ Nagle, Rebecca (May 8, 2020). "Oklahoma's Suspect Argument in Front of the Supreme Court". The Atlantic. Retrieved July 10, 2020.
  28. ^ Wolf, Richard; Johnson, Kevin (July 9, 2020). "Supreme Court gives Native Americans jurisdiction over eastern half of Oklahoma". USA Today. Retrieved July 9, 2020.
  29. ^ "Muscogee (Creek) Nation". Retrieved 2021-04-29.
  30. ^ "The Cherokee Nation". Retrieved 2021-04-29.
  31. ^ "Choctaw Nation". Retrieved 2021-04-29.
  32. ^ "Chickasaw Nation". Retrieved 2021-04-30.
  33. ^ "Seminole Nation of Oklahoma". Retrieved 2021-04-30.
  34. ^ Raache, Hicham (November 6, 2020). "Man at center of U.S. Supreme Court case that impacted OK justice system found guilty of sexually abusing child". KFOR-TV. Retrieved April 28, 2021.
  35. ^ a b Richards, Dillion (April 27, 2021). "AG Hunter makes emergency filing with SCOTUS in wake of landmark McGirt decision". KOCO-TV. Retrieved April 28, 2021.
  36. ^ Breasette, Austin (March 11, 2021). "Thousands of criminal cases to be reviewed, possibly dismissed, after McGirt ruling shows its effect on Shaun Bosse case". KFOR-TV. Retrieved April 28, 2021.
  37. ^ Raache, Hicham (April 15, 2021). "Gov. Stitt says Supreme Court's McGirt ruling created 'public safety threat', asks Oklahomans to share stories; Cherokee Nation reacts". KFOR-TV. Retrieved April 28, 2021.
  38. ^ Howe, Amy; Romoser, James (May 27, 2021). "Court puts relief for Oklahoma inmate on hold amid uncertainty about scope of McGirt". SCOTUSblog. Retrieved May 27, 2021.
  39. ^ "Justices signal they could limit Indian Country ruling". Associated Press. May 26, 2021. Retrieved May 26, 2021.
  40. ^ "Oklahoma FBI Case Volume Unprecedented". Federal Bureau of Investigation. 2021-07-08. Retrieved 2021-07-23.

External links

This page was last edited on 23 July 2021, at 13:17
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