Q&A: What does McGirt ruling mean?
Indian Country Today
Indian Country Today and The Associated Press
The nation's top court ruled Thursday that a large portion of eastern Oklahoma remains tribal land, saying Congress never explicitly “disestablished” the 1866 boundaries of the Muscogee (Creek) Nation.
The decision was hailed as a win for tribal sovereignty but also raised questions about its potential implications.
Here's a look at what the ruling does and doesn't do:
Does the decision give land back to tribes?
No. It does not change any land ownership in eastern Oklahoma, according to a release from the Native American Journalists Association and the Native American Rights Fund.
How does it affect criminal jurisdiction?
It does not grant the tribe criminal jurisdiction over non-Natives. Another Supreme Court case, Oliphant v. Suquamish, still limits tribal jurisdiction over non-Natives who commit crimes on tribal land, the release said.
But it does mean state prosecutors lack authority to pursue criminal cases against Native defendants in parts of Oklahoma that include most of Tulsa, the state's second-largest city.
Also, serious felonies committed by tribal citizens in parts of eastern Oklahoma will be subject to federal jurisdiction.
“That's what they [federal prosecutors] do in Indian Country all the time, is they prosecute cases where there's an Indian defendant or whether there's an Indian victim,” said Robert Anderson, a law professor at the University of Washington School of Law.
What about civil jurisdiction?
Federal law prevents tribes from exercising civil jurisdiction or regulatory jurisdiction over non-Natives in most circumstances, the release said.
How does the ruling affect past convictions?
The decision does raise questions about previous convictions won by local prosecutors. But Justice Neil Gorsuch suggested optimism.
“We proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long. But it is unclear why pessimism should rule the day. With the passage of time, Oklahoma and its Tribes have proven they can work successfully together as partners,” he wrote.
Oklahoma's three U.S. attorneys also quickly released a joint statement expressing confidence that "tribal, state, local and federal law enforcement will work together to continue providing exceptional public safety" under the ruling.
What other effects will the ruling have?
“In the long term, outside of the criminal context, there may be some minor changes in civil law," said Forrest Tahdooahnippah, a Comanche Nation citizen and attorney who specializes in tribal law.
"The majority opinion points out assistance with Homeland Security, historical preservation, schools, highways, clinics, housing, and nutrition programs, as possible changes. The Creek Nation will also have greater jurisdiction over child welfare cases involving tribal members."
What were the details of the case?
The case revolved around an appeal by tribal citizen Jimcy McGirt, Seminole, who argued state courts had no authority to try him for a crime committed on reservation land within the jurisdiction of the Muscogee (Creek) Nation.
McGirt, 71, is serving a 500-year prison sentence for molesting a child.
What does the decision mean for McGirt?
He will likely have charges brought against him and be retried in federal court, but he is not expected to be released from prison, said Michael McBride, who specializes in tribal law at an Oklahoma City-based firm.
What happened to the other case from last term?
With Gorsuch recused and only eight justices taking part, the Supreme Court last term failed to reach a decision on Carpenter v. Murphy.
That case involved Patrick Murphy, a Muscogee (Creek) Nation citizen, who was convicted of murder in Oklahoma state court for a crime that occurred within the Muscogee (Creek) Nation reservation.
Having exhausted his state court appeals, his case came to the Supreme Court through the federal courts, where he prevailed in the 10th Circuit. When justices could not reach a decision, they agreed to hear McGirt, because the two cases presented the same legal issue and Gorsuch would no longer be recused.
At the same time the court handed down its McGirt decision, it issued a one-page opinion affirming the lower court's ruling in Murphy, now under the name Sharp v. Murphy.
Why is Thursday's ruling important?
U.S. Rep. Deb Haaland, Laguna and Jemez Pueblo, said the decision sets an important precedent and affirms the federal government’s obligation to uphold and honor treaties.
“As we move forward addressing longstanding broken promises, this decision will serve as a marker to ensure the federal government honors its promises to Native Nations,” the New Mexico Democrat said.
Jonodev Chaudhuri, ambassador of the Muscogee (Creek) Nation and a former chief justice of the tribe's Supreme Court, added: "This case didn't change ownership of any land. It didn't impact the prosecutions of non-Indians in any way. All it did was bring clarity to jurisdictional questions regarding the border, and it enhanced the Creek Nation's ability as a sovereign nation to work with other sovereign interests to protect people and to work in common interests."
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