More on the McGirt v. Oklahoma decisions

In July of 2020, the U.S. Supreme Court shocked many Oklahomans when, in McGirt v. Oklahoma, in a 5-4 decision, it declared that the Muscogee (Creek) reservation had never been abolished by Congress, and that the State of Oklahoma lacked jurisdiction to charge a tribal member with a crime committed in that reservation. With Oklahoma applying its typical rule that a lack of jurisdiction could be raised at any time, Jimsy McGirts conviction was overturned, and he was reprosecuted and imprisoned by the federal system.

Following the decision in McGirt, the Oklahoma Court of Criminal Appeals faced a series of cases dealing with jurisdictional issues. Reluctantly, early in 2021, the Court held that the rest of the five tribes, the Chickasaw, Choctaw, Cherokee and Seminole Nations, still retained their tribal reservations, and were subject to McGirts holding. Additionally, the Court recognized that the rule in McGirt applied not only to charges against tribal members, but crimes committed against Indians by non-Indians. While the Court initially had allowed old convictions in violation of McGirt to be overturned, that all changed on August 12, 2021, as the Court decided in State ex rel. Matloff v. Wallace that cases which were not still pending at the time McGirt was decided would not be subject to that rule, stemming the tide of post-conviction applications seeking to overturn old convictions.

The law is never static, however, and ongoing litigation has continued to refine the scope and reach of McGirt. The defendant in Wallace petitioned the U.S. Supreme Court to review the case, but the Court declined to hear it on January 10, 2022, leaving the Court of Criminal Appeals decision in place. Accordingly, subject to ongoing litigation through other means, the rule in Wallace leaving old convictions in place remains the law.

Meanwhile, in State v. Lawhorn, the Court of Criminal Appeals took its first step beyond the Five Tribes, finding that the Quapaw Nation in the northeast corner of Oklahoma retained its reservation, and affirming the dismissal of a criminal case against a tribal memher. However ,inMartinezv. State, the Court reached the opposite result as to the Kiowa, Comanche and Apache reservation in southwestern Oklahoma, finding that Congress h ad disestablished that reservation in 1900, making McGirt inapplicable there.

The State of Oklahoma has continued to attack McGirt, both by limiting its scope, and by seeking to reverse it entirely. The main hope for reversing McGirt has to do with the changing membership of the U.S. Supreme Court. Justice Ruth Bader Ginsburg, one of the 5-4 majority when McGirt was decided, passed away Sept ember 18, 2020, and was replaced by Justice Amy Coney Barrett on October 27, 2020, just before t he 2020 elections; this led the Oklahoma Attorney General to attempt repeatedly to ask the Supreme Court to reverse McGirt. The latest effort is Oklahoma v. Castro-Huerta, where the State asked the Court to determine two questions: first , whether under McGirt the State retained jurisdiction to prosecute non-Indians who committed crimes against Indians in reservations, and second, whether McGirt should be overruled. On January 21, the Court decided to take up the issue of jurisdiction over non-Indians, but declined to hear the issue of whether McGirt should be overruled.

Castro-Huerta is now scheduled for argument in April, and will presumably lead to a decision sometime this fall. This fall, then, we should have some sort of definitive pronouncement from the Court on whether the State ret ains a ny jurisdiction over non-Indians committing crimes against tribal members in Oklahomas reservations. Until then, the current rules hold, and those cases will remain in the tribal and federal courts. Meanwhile, the High Court h as plainly signaled that despite its changing member ship, the current members have no desire to revisit the basic decision in McGirt at this time.