A year has passed since the U.S. Supreme Court’s landmark McGirt v. Oklahoma ruling, broadly hailed as a win for Indian Country that also introduced unique challenges for tribal justice systems.
The high court’s majority decision acknowledged that much of eastern Oklahoma remains tribal territory, as it was never disestablished by Congress, as part of the Oklahoma Enabling Act of 1906.
“The McGirt case – as we all know and we’ve said many times – is the most important case in federal Indian law in generations,” Cherokee Nation Principal Chief Chuck Hoskin Jr. said. “You’d have to go back to the Cherokee cases of the 19th Century to see a Supreme Court decision that is as impactful as the McGirt case.”
Fallout from the McGirt ruling includes a growing list of criminal cases within the CN court system now that the state of Oklahoma no longer has jurisdiction to prosecute tribal citizens who commit crimes on the reservation. The tribe responded with a flurry of new laws and funding.
“We have been expanding our court capacity and budget,” CN Attorney General Sara Hill said. “We’ve updated our criminal code to ensure that jurisdiction transitions go as smoothly as possible.”
Tribal courts are limited to three-year prison sentences for criminal convictions, “nine years maximum if the charges are stacked,” Hill said. But federal prosecutors can seek stiffer punishments for major crimes like murder. Preparing for what Hill described as a “massive court expansion,” in August 2020 the CN Tribal Council passed the Reservation, Judicial Expansion and Sovereignty Protection Act to expand the tribe's judiciary, prosecution staff and Marshal Service.
“We have been working diligently to take on our responsibilities under McGirt,” Hoskin said. “The state of Oklahoma has had more than a century to develop a criminal justice system. We’re developing the largest criminal justice system in the state of Oklahoma other than the state of Oklahoma’s in the Cherokee Nation. That means we’ve hired more marshals. That means our attorney general is hiring more prosecutors. That means we’re expanding staff in other areas that deal with public safety, victim protection.”
The Case for Change
At the heart of the landmark decision is Jimcy McGirt, who was serving two 500-year sentences and life without parole in the Oklahoma Department of Corrections for sexually abusing his wife’s 4-year-old granddaughter.
McGirt, now 72, was convicted by the state of Oklahoma in 1997. He argued in his 2020 Supreme Court case that the federal government, not Oklahoma, should have held jurisdiction under the Major Crimes Act since the crime in question was committed on reservation land.
“Years ago, an Oklahoma state court convicted him of three serious sexual offenses,” the Supreme Court noted in its July 9, 2020, opinion. “Since then, he has argued in post-conviction proceedings that the State lacked jurisdiction to prosecute him because he is an enrolled member of the Seminole Nation of Oklahoma and his crimes took place on the Creek Reservation. A new trial for his conduct, he has contended, must take place in federal court.”
The McGirt case, and previously Sharp v. Murphy, asked the high court to determine if the Muscogee (Creek) Nation’s historic boundaries exist as a reservation today. The crux of McGirt’s appeal rested on whether the historical reservation – described as the Creek Reservation in an 1866 treaty and federal statute – remained intact following statehood in 1907.
“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” the Justices wrote. “Because Congress has not said otherwise, we hold the government to its word.”
The Supreme Court’s 5-4 decision held that Congress never disestablished the reservation, effectively handing tribal courts jurisdiction over criminal cases that involve Indians within the Creek Nation and subsequently, other members of the Five Tribes including the CN.
After McGirt’s state conviction was tossed, the U.S Attorney’s Office indicted him on sexual abuse charges “based on the same facts that had resulted in his 1997 Oklahoma conviction.”
On each count, McGirt faces between 30 years and life in prison.
“The FBI’s commitment to seeking justice for the victims will never change, no matter the court, no matter the venue,” FBI Special Agent in Charge Melissa Godbold said.
Indian Country Impact
McGirt and subsequent state-level rulings have established that historical reservation lands in eastern Oklahoma remain intact.
This applies to the original Five Tribes in Indian Country – known historically as the Five Civilized Tribes – that include the Cherokee, Choctaw, Chickasaw, Muscogee (Creek), and Seminole tribal nations.
“The McGirt case, of course, has been extended to all of the other Five Tribes through various Oklahoma Court of Criminal Appeals cases, including the Hogner case handed down in March acknowledging the Cherokee Nation reservation,” Hoskin said. “All of this acknowledges what the Cherokee Nation knew, which is that our reservation was never disestablished. That has consequences for criminal law on these tribal lands of the Five Tribes.”
For the Cherokee Nation specifically, a March 11 ruling in Hogner v. Oklahoma helped cement its reservation status.
“Mr. (Travis John) Hogner was a felon in possession of a firearm in Craig County,” AG Hill said. “He is a citizen of the Miami Nation, but of course the crime happened inside the Cherokee Nation reservation. He was serving 50 years for being a felon in possession of a firearm. The court has dismissed that. The bottom line is the Oklahoma Court of Criminal Appeals found, as we expected, that the reservation was established and had never been disestablished, making Oklahoma’s jurisdiction nonexistent over people in Mr. Hogner’s situation.”
’Tidal Wave’ of Criminal Cases
Following the McGirt decision, a growing number of criminal cases dismissed by the state have landed in the laps of tribal courts, including the Cherokee Nation’s.
In April when the number of new criminal cases jumped by 400, CN Marshal Service Director Shannon Buhl called it “a serious tidal wave of cases coming to the tribe.” Since then, a milestone 1,000-plus new cases have been filed.
“The 1,000th case was filed recently in Cherokee Nation District Court,” Hoskin said. “That is a major milestone when you consider that blows away by a couple of hundred what we’ve done in the entire last decade of our court system. Only here in the last couple of months have we generated that many cases. I think things are going smoothly. But we all need to acknowledge that this is a big undertaking and there will be difficulties from time to time.”
Hill, who has maintained the tribe will do its best to ensure that “people who commit crimes are held accountable,” said the additional cases “run the gamut.”
“We’ve gotten an extremely big variety of cases from the state,” Hill said. “It’s cases as serious as murder and manslaughter down to things as pedestrian as speeding tickets and pretty much everything in between.”
To keep up, the CN is expanding its criminal justice system. The tribe plans to spend a minimum of $35 million annually on its criminal justice system “above the millions that we already spend,” according to Hoskin.
“I’m proud of the attorney general’s office, the Marshal Service, all the men and women involved in helping us build the largest criminal justice system in the state of Oklahoma other than the state of Oklahoma,” he said. “I appreciate the support of the council both in amending law then providing resources because we couldn’t do this without the needed changes in laws … and the budgets you put forth to allow us to do what we need to do.”
Buhl has stressed the importance of cross-deputization agreements with other tribal, city, county, state and federal law enforcement agencies.
“There’s no way we could do the job that you need us to do out there if it was only my 29 officers,” he said.
Over the past year, the CN has passed myriad criminal justice-related measures and endeavors like a new sovereignty commission and Resolution 21-045, which authorizes a unique agreement between the tribe and municipalities for misdemeanors and traffic infractions within the reservation.
Under that legislation, Cherokee Nation would retain jurisdiction, but would return – as a donation – a large portion of all collected fines to the issuing agencies.
“Municipalities, especially in rural communities, depend heavily on the fines they collect to fund their policing,” Hill recently told councilors.
The Tribal Council has also signed off on an act that amends CN law to expand the miscellaneous offenses available under the tribe’s Juvenile Code; added crimes and penalties related to boating within the reservation; expanded the CN domestic abuse-reporting act; modernized the tribe’s motor vehicle code; entered into a new agreement for juvenile detention; and more.
To address the “ongoing jurisdictional challenges,” leaders from both the Cherokee and Chickasaw nations have endorsed what they call narrow federal legislation that would authorize tribal-state compacting on criminal jurisdiction.
“This legislation authorizes an agreement between the tribe and the state,” AG Hill said. “It’s not the United States imposing upon either entity its view of what is best for our communities. It is taking the shackles off of the tribe and the state so the tribe and the state – the two entities with the greatest stake in law enforcement in our area – those two entities can work together creatively to solve jurisdictional problems in ways that make sense.”
The bill, introduced in Congress on May 11 by Oklahoma Rep. Tom Cole, R-Moore, would empower the tribes to compact with the state of Oklahoma “in a meaningful way” for certain criminal cases, Hoskin said.
“When it comes to McGirt … we need more options,” he said during a press briefing May 10. “We need the ability to do what we’ve done so well for so many years, which is to cooperate. The interest that we all have is public safety. The interest that we all have is a blanket of protection over people. The interest that we all have is making sure victims have someone fighting for them, making sure defendants are held accountable, but making sure they’re held accountable in a system of justice that is fair.”
The legislation would help address gaps in criminal jurisdiction, according to CN leaders.
“Right now, we know that certain cases have to be prosecuted by the U.S. Attorney’s Office,” Hoskin said. “That’s going to command a tremendous amount of resources for the Department of Justice. We’ll do our end, providing a blanket of protection over the reservation, but the United States has to do its end. Compacting makes sense on some of these cases, particularly when it comes to a non-Indian committing crimes. There could be room for the state of Oklahoma to take on some concurrent jurisdiction. That can only happen if the Cherokee Nation agrees to it, but we’d only consider agreeing to it if Congress changes the law. Congressman Cole’s bill will change the law.”
Hill noted that the proposed legislation “protects Cherokee sovereignty” and “100% of McGirt.”
“But it gives us options to compact should we choose to exercise those options,” she added. “This proposal doesn’t give up any of the historic gains the tribes have worked so hard for in the McGirt case. Since that monumental decision, it gives more tools to the tribe while keeping the tribe in control of its own future.”
This story is part of the Oklahoma Media Center’s Promised Land collaborative effort, which shows how the landmark McGirt v. Oklahoma decision will affect both tribal and non-Indigenous residents in the state.
It is a project of the Local Media Foundation with support from the Inasmuch Foundation, the Walton Family Foundation and the Democracy Fund. The print, digital and broadcast media partners include: CNHI Oklahoma, Cherokee Phoenix, Curbside Chronicle, The Frontier, Gaylord News, Griffin Communications, KFOR, KGOU, KOSU, The Lawton Constitution, Moore Monthly, Mvskoke Media, the Native American Journalists Association, NonDoc, The O’Colly, Oklahoma City Free Press, The Oklahoma Eagle, Oklahoma Gazette, The Oklahoman, Oklahoma Watch, Osage News, StateImpact Oklahoma, Tulsa World, Telemundo Oklahoma, University of Oklahoma Student Media and Verified News Network.