Thursday’s Supreme Court ruling that the Muscogee (Creek) Nation’s original reservation boundaries were never legally disestablished ranks as one of the most important court decisions in Oklahoma history, according to a Tulsa attorney with extensive experience in federal tribal law.
“I think this is the most important decision in Oklahoma history in terms of sovereignty for the state of Oklahoma and sovereignty for the five tribes,” said Mike McBride III, an attorney with Crowe & Dunlevy.
McBride made his comments in a Tulsa World interview following the court’s ruling in a case brought by a Wagoner County man who challenged his conviction on jurisdictional grounds.
The Supreme Court, in a 5-4 ruling, found that Congress never formally disestablished the historic reservation boundaries of the Muscogee (Creek) Nation, throwing out the convictions of two men and casting doubt on the legal status of other state convictions.
The decision meant Jimcy McGirt, 71, and Patrick Dwayne Murphy, 51, both convicted in state court on unrelated crimes, will have a shot at new trials in federal court.
However, McBride said he doesn’t believe that there will be a flood of appeals by tribal members seeking to overturn their state convictions.
“There may be many cases where there’s a Native American who had committed a crime on Indian lands, or Indian Country under the Major Crimes Act statute, that is in jail or prison and would want to challenge that conviction,” McBride said.
“But they have to weigh how long is that going to take and ‘if I get retried in federal court is the federal sentence potentially going to be worse than what I’m serving already?’ ” McBride said.
“Many could find … they are rolling the dice and they could lose big if they go for another trial,” he said.
The state of Oklahoma claimed in Supreme Court filings in Murphy’s case that thousands of cases would be subject to being overturned if the court ruled against the state, McBride said.
“They really backed off of that (claim) in the McGirt case.” McBride said. “It appears there are considerably (fewer cases) than that.”
A law passed in 1996 by Congress greatly limited post-conviction appeals in federal court to one year, he said.
“They basically said you have to do it (file an appeal) in one year and you have one shot at doing it,” McBride said. “I think that’s going to cut out a lot of the appeals.”
Even so, McBride said he expects that the U.S. government will be ramping up funding for federal law enforcement, federal prosecutors and the federal court system in Oklahoma.
“But on the flip side of that, I believe you will see less work for (Tulsa County District Attorney) Steve Kunzweiler’s office in Tulsa County and his counterparts in other counties within the 11-county (Creek Nation) jurisdiction.
Kunzweiler released a statement that mirrored the “work together” mantra cited by all three U.S. attorneys and the leaders of five tribal governments following the ruling.
“My office has prepared for this possibility and we are in direct communications with the United States Attorney’s Office and the Muskogee (Creek) Nation Attorney General’s Office on insuring that eligible offenders are appropriately transferred to those jurisdictions for prosecution,” Kunzweiler said in a written statement. “I am confident that the strong relationships we have with our federal, tribal and local law enforcement partners will manage this change in the law in a professional manner.”
McBride said he doubts that any inmates will be walking free anytime soon as a result of the ruling. More likely, he said, state prosecutors would coordinate with federal prosecutors to ensure there was no gap permitting someone to be free while awaiting the filing of federal charges.
However, McBride thinks some cases where evidence is stale or witnesses cannot be located could pose problems for federal prosecutors.
He said he believes that this case will have implications for four other Oklahoma tribes.
“The Cherokee, Chickasaw, Choctaw and Seminole nations all have similar treaty provisions from the 1866 treaties following the Civil War and I think will have a very similar standing and could get the same relief,” McBride said.
The five tribes’ historical reservation lands cover a combined 11 million acres, he said.
The case could also have implications for civil matters, he said.
“There’s a potential for the Muscogee (Creek) Nation to assert some jurisdiction within its reservation area over non-Indians through consensual relationships or that impacts the health, safety and welfare and political integrity of the tribe, they could potentially assert some jurisdiction,” McBride said.
However, under Supreme Court case law there is a presumption that tribes lack jurisdiction over non-Indians unless that consensual relationship exists, he said.
The Muscogee (Creek) Nation also would have jurisdiction over any crime committed by a Native American within the 11-county reservation area, although it would be limited to at most a three- to five-year prison term under federal law.
McBride and others have noted that most tribes in the state already have cross-deputization agreements with state and municipal law enforcement agencies, “so I think some of these things could be worked out,” he said.
He thinks it will be easier for tribes to establish casinos now that their tribal lands have been extended beyond land they currently own.
The state of Oklahoma and five tribes issued a press release following the ruling that indicated they were working with Congress and the U.S. Department of Justice on an agreement that would resolve “any significant jurisdictional issues raised” by the McGirt decision. The release did not elaborate on the potential agreement.
Oklahoma’s congressional delegation issued a statement that read in part: “We are reviewing the decision carefully and stand ready to work with both tribal and state officials to ensure stability and consistency in applying law that brings all criminals to justice. Indeed, no criminal is ever exempt or immune from facing justice, and we remain committed to working together to both affirm tribal sovereignty and ensure safety and justice for all Oklahomans.”
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