The McGirt case specifically dealt with a crime enumerated under the Major Crimes Act (18 U.S.C. 1153) and committed within the historic Muscogee (Creek) Nation reservation. The Major Crimes Act provides that the prosecution of an Indian for a “major crime” occurring in Indian County is within the “exclusive jurisdiction of the United States.” (Emphasis added). It cannot be prosecuted in State court or tribal court.
But, can the State prosecute Indians for lessor offenses (such as misdemeanors) occurring in Indian Country? The general consensus is that the State cannot prosecute Indians for any type of crime occurring in Indian County and this position is based on the General Crimes Act (18 U.S.C. 1152).
Pending cases are being dismissed against Indians charged with misdemeanors in State courts in Indian Country on this basis. However, unlike the Major Crimes Act, the General Crimes Act’s creation of Federal jurisdiction to prosecute Indians does not include the aforementioned exclusivity language and one Judge has held that McGirt does not apply to misdemeanor crimes:
- State v. Raymond Arthur Bogumill. The defendant is being charged with misdemeanor possession of meth (which incidentally is considered a felony in Muscogee (Creek) Nation code). He files a motion to dismiss based on McGirt. On November 4, 2020, Judge Brendon Bridges found that defendant is an Indian and the alleged crime occurred in Indian Country, but denied the motion to dismiss because it is “not major crime.” Case is set for disposition on January 29, 2021.