McGirt v Oklahoma

Download the full text of McGirt-v-Oklahoma (pdf)


Five Civilized Tribes

McGirt v Oklahoma Summary

On July 9, 2020, the United States Supreme Court returned a decision that significantly changed criminal prosecution in Oklahoma. The court determined that boundaries of the Muscogee (Creek) Reservation had not been reduced when Oklahoma gained statehood in 1907.

Because the Muscogee (Creek) Nation enjoys jurisdiction over its members within the boundaries of its reserved land, the decision meant Oklahoma had no authority to prosecute Muscogee (Creek) members for crimes under Oklahoma law. Tribal members can be prosecuted under tribal law, or in the case of major crimes, under United States federal law.

The decision directly involved one individual, Jimcy McGirt, who had been convicted of crimes under Oklahoma law. The case sets precedent, however, that controls how any Native American may be prosecuted on any of five reservations in Oklahoma. Those tribal nations include the Seminole, Cherokee, Muscogee (Creek), Choctaw and Chickasaw nations.

Release from Prison is not Automatic

seal of the state of OklahomaSignificant consequences resulted from the decision. Tribal members convicted of Oklahoma crimes became eligible to have their cases dismissed.  The five tribes may charge some of those people under tribal law. Others may be charged under federal law.

Changes that resulted from the decision became inevitable, but not automatic. Tribal members convicted of Oklahoma crimes may petition Oklahoma courts for release from prison, or from other terms of their sentences. Until a court determines they are eligible for release, their convictions may stand. Some have sought damages for their convictions in state courts.

Once released from their state convictions, tribal members might face charges in tribal or federal courts. Police and prosecutors throughout Eastern Oklahoma must now determine whether a person arrested or suspected of a crime is a tribal member.

Wirth Law Office has prepared several informative videos detailing the impacts of the McGirt v Oklahoma ruling. This page provides links to those videos, and other McGirt resources.

Free Consultation: McGirt Criminal Defense Attorneys

If you or a loved one are a tribal member who has been convicted of a crime in Oklahoma courts, a Tulsa criminal defense attorney can help you determine how the McGirt decision affects your case. If you are charged with crimes in a tribal court or you are a tribal member charged with crimes in federal court, a Wirth Law Office defense attorney can explore with you options for your defense.

For a free, confidential consultation about McGirt matters or criminal prosecution in Oklahoma Indian Country, contact Wirth Law Office through this Web page, or call the Tulsa attorneys at (918) 879-1681 .

To What Historic Reservation Boundaries Does the McGirt Precedent Apply?

Both McGirt and Murphy dealt with crimes alleged to have occurred within the historic boundaries of the Muscogee (Creek) Nation; however, the circumstances of that tribe’s land and treaties are almost identical to that of the other “Five Civilized Tribes.”  Therefore, the legal logic in McGirt almost certainly must be applied to each of the “Five Tribes.”  Nonetheless, many prosecutors and some judges are holding out and waiting for appellate court decisions specific to the other tribes before dismissing cases or vacating convictions for crimes alleged to have occurred on those reservations.

  • Muscogee (Creek) Nation.  The United States Supreme Court in both McGirt and Murphy held that the historical Muscogee (Creek) Nation reservation of the tribe was never disestablished.  As the decision by the highest court of the land was directly on point to this this tribe, Wirth Law Office has already been able to obtain the dismissal of pending charges in State courts within the Muscogee (Creek) Nation reservation.
  • Cherokee Nation.  Judges in Tulsa County District Court are transferring all cases where McGirt arguments are being made to a special docket that Judge Tracy Priddy is overseeing.  Although Judge Priddy has dismissed cases alleged to have occurred within the Muscogee (Creek) reservation; she has continued many cases where crimes are alleged to have occurred within the historic Cherokee Nation reservation, which covers the northernmost part of the county.  On Friday, October, 13, 2020, she continued 123 such cases to February of 2021, as she is awaiting further guidance from the Oklahoma Court of Criminal Appeal regarding whether the McGirt precedent applies to the Cherokee Nation reservation.  Wirth Law Office is objecting to the court keeping Indian defendants in jeopardy with pending cases when it is clear the State lacks jurisdiction to prosecute.  The Judge should use existing precedent, apply it to the facts of the Cherokee Nation and dismiss these cases rather than delay proceedings to get a decision from a court with substantially less authority than the United State Supreme Court.  Let us not forget that the Oklahoma Court of Criminal Appeals denied relief to both Murphy and McGirt before being overruled the US Supreme Court.
    • Travis John Hogner.
      • Craig County CF-2015-263.  On September 14, 2020, the Amicus Brief of Cherokee Nation was filed with the trial court. Remand hearing occurred on September 21, 2020 and through a September 30, 2020, Order on Remand the trial court found that the defendant “(1) has some Indian blood and (2) is recognized as an Indian by a tribe or the federal government.”  The trial court additionally found that the Cherokee Nation reservation was never disestablished and therefore the crime occurred in “Indian Country.”
  • Chickasaw Nation.
    • Shaun Michae Bosse v. Oklahoma.  On August 12, 2020, the Oklahoma Court of Criminal Appeals remanded the case back to the trial court in McClain County for a hearing to determine whether the victims were Indians (the defendant in this case is not an Indian) and whether the crime occurred in Indian County (i.e. whether the Chickasaw Nation reservation has been disestablished).  The trial court’s October 13, 2020, Findings of Fact and Conclusions of Law holds that the crime victims were Indians and that this crimes occurred in “Indian Country.”  That is, the trial count found that the Chickasaw Nation reservation has not been disestablished.  With these findings submitted to the Oklahoma Court of Criminal Appeals, the defendant is not awaiting a decision from that court.  The Chickasaw Nation filed an Amicus Brief in this case, support of the continued existence of the Chickasaw reservation, on November 4, 2020.
    • Miles Sterling Bench v. Oklahoma.  Defendant is appealing his conviction and death sentence, arguing among other things that the court lacked jurisdiction to prosecute him based on the Chickasaw Reservation never being disestablished.  The Oklahoma Court of Criminal Appeals ordered a remand hearing to determine “whether (1) Appellant has some Indian blood, and(2) is recognized as an Indian by a tribe or the federal government”  and whether Congress established reservation for the Chickasaw Nation, and if so, whether Congress specifically erased those boundaries and disestablished the reservation.”  On November 5, 2020, the trial court held that the defendant is an Indian and that the Chickasaw Nation reservation was never disestablished.  This decision is now awaiting review by the Oklahoma Court of Criminal Appeals.
    • Clarissa Marie Mars. On October 13, 2020, Defendant filed for Post-Conviction Relief asserting the court lacked jurisdiction to prosecute her based on McGirt precedent. As of November 19, 2020, no hearing date has been set.
  • Choctaw Nation.
  • Seminole Nation.
    • Joe Johnson v. Oklahoma.  On the same day that McGirt was decided, The United States Supreme Court vacated the order from the Oklahoma Court of Criminal Appeals in this case.
      • Seminole County CF-2018-6098.

Does McGirt Apply to Tribes Outside of the Five Civilized Tribes

The legal tests articulated in McGirt, and the cases cited therein, could be applied to the factual histories of other tribes, but because tribal histories can be quite unique, there is little reason to believe applying the same test to a different set of facts will lead to similar results for any particular tribe.  That said, it is likely that other tribes and tribal members will seek application of McGirt to their tribe and circumstances and some may be successful.  Wirth Law Office will be following these efforts.

  • Kiowa-Comanche-Apache (KCA).  On October 21, 1867, the First Treaty of Medicine Lodge Creek and the Second Treaty Medicine Lodge Creek were entered between the tribes and the United States, which established the original boundaries of the Kiowa-Comanche-Apache reservation.  If these boundaries were not disestablished or diminished through Congressional authority, then the original reservation, covering parts of seven counties, including all of Comanche County remain Indian country where the State of Oklahoma lacks jurisdiction to prosecute Indians.  Whether the Kiowa-Comanche-Apache reservation has been disestablished will have to be determined by the courts.
    • Joshua Codynah.  On September 25, 2017, the Defendant entered a blind plea to murder and other charges.  The Defendant subsequently filed to withdraw his  plea and on appeal to  the Oklahoma Court of Criminal Appeals asserted that the Kiowa-Comanche-Apache reservation was never disestablished and therefore the State lacked jurisdiction to prosecute him as he is an Indian and the crime occurred in Indian Country.  On September 29, 2020, the Oklahoma Court of Criminal Appeals remanded the case to the trial court for an evidentiary hearing regarding defendant’s Indian status and whether the crime occurred within the reservation.  An evidentiary hearing is scheduled for November 24, 2020.
    • Charles Killfirst.  On September 17, 2020, Defendant, citing McGirt, filed a pro se supplemental brief in his late appeal to the Oklahoma Court of Criminal Appeals (OCCA) regarding the denial of his petition for post-conviction relief.  In this pleading he, for the first time, asserted that the State lacked  jurisdiction  to  prosecute  him  as  he  is  an  Indian  and  the  crime  occurred  on  the  Kiowa-Comanche-Apache reservation in Comanche County.  Although OCCA decided to allow his appeal out of time, it held that the September 14, 2020, Brief is “Rejected” since the jurisdiction issue was not addressed  in  the  lower  court  proceedings.  The  matter was remanded back to the trial court where the defendant was granted court appointed counsel.
  • Citizen Potawatomi Nation.
    • Travis W. Bentley v. Oklahoma.  On the same day that McGirt was decided, The United States Supreme Court vacated the order from the Oklahoma Court of Criminal Appeals in this case.
      • Cleveland County
  • Ottawa Nation.
    • Patrick J. Terry v. Oklahoma.  On the same day that McGirt was decided, The United States Supreme Court vacated the order from the Oklahoma Court of Criminal Appeals in this case.
      • Ottawa County CF-2018-8801
  • Osage Nation.
  • Pawnee Nation.

Does Oklahoma Have Jurisdiction over Non-Indian Defendants with Indian Victims

  • Shaun Michael Bosse v. Oklahoma.
    • Oklahoma Court of Criminal Appeals PCD-2019-124.

Is the Timing of Obtaining Tribal Membership Relevant to Jurisdiction

Some prosecutors are objecting to dismissals based on McGirt if the Defendant was not a tribal member on the date of the alleged offense.  When determining who is an “Indian” under the relevant Federal law, is one born an Indian or does one only become an Indian was registering with the relevant tribe?  Prosecutors are asserting the latter and citing non-precedential authority from other circuits:

  • United States v. Zepeda, 792 F3d 1103, 1113 (9th Cir. 2015).
  • State v. Perank, 858 P.2d 927, 932 (Utah 1992).

Does McGirt Precedent Apply to Misdemeanors

The McGirt case specifically dealt with a crime enumerated under the Major Crimes Act and the Muscogee (Creek) Nation reservation.  However, the United States Supreme Court’s finding that the Muscogee (Creek) reservation was never disestablished has much more wide reaching implications.

  • 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.

Is There A Requisite Blood Quantum for McGirt Relief?

Prosecutors do not like dismissing cases or having convictions overturned, so there has been much incentive for creative arguments to get around the consequences of the McGirt ruling.  One such argument is to decrease the number of people that qualify as “Indian” by requiring some specific quantum of Indian blood, irrespective of tribal membership.  The authority cited for this argument is Goforth v. State, 1982 OK CR 48.

  • Goforth v. State, 1982 OK CR 48, 6.
  • United States v. LaBuff, 658 F.3d 873, 874-75 (9th Cir. 2011).
  • Viapando v. State, 640 P.2d 77, 79-80 (Wyo. 1982).
  • United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012).
  • United States v. Dodge, 538 F.2d 770, 786 (8th Cir. 1976).

Can Subject Matter Jurisdiction be Waived

In an attempt to avoid the overturning of thousands of unlawful convictions in Oklahoma courts, many prosecutors and the State Attorney General are asserting that lack of jurisdiction arguments were waived by the defendants not asserting it previously or that the doctrine of “Laches” prevents it from being heard now given the delay.  However, Oklahoma case law has historically been clear that subject matter jurisdiction can NEVER be waived.  Orders from a court that lacked subject matter jurisdiction are not just voidable, they are void ab initio (from the beginning).  This means the court need not vacate the order; instead, the court must simply acknowledge that the order was never valid.  Below are case law quotes, including the initial one from the United States Supreme Court in McGirt:

  • ” The Court suggests that ‘well-known’ ‘procedural obstacles’ could prevent challenges to state convictions. Ante, at 38. But, under Oklahoma law, it appears that there may be little bar to state habeas relief because ‘issues of subject matter jurisdiction are never waived and can therefore be raised on a collateral appeal.’ Murphy v. Royal, 875 F. 3d 896, 907, n. 5 (CA10 2017) (quoting Wallace v. State, 935 P. 2d 366, 372 (Okla. Crim. App. 1997)).”  McGirt v. Oklahoma, 591 U.S. ______ (2020).
  • “[I]ssues of subject matter jurisdiction are never waived and can therefore be raised on a collateral appeal.”  Wallace v. State , 1997 OK CR 18, ¶15.
  • “There are, of course, some constitutional rights which are never finally waived. Lack of [subject matter] jurisdiction, for instance, can be raised at any time.”  Johnson v. State , 1980 OK CR 45, ¶15.
  • “Jurisdiction of the subject-matter cannot be conferred by consent, nor can it be waived, and it may be raised at any time before or after trial, and even for the first time in the appellate court.”  Armstrong v. State, 1926 OK CR 259, Pg. 118.
  • “A court has a duty to inquire into whether it possesses jurisdiction over the subject matter of an action that has been brought before the court.”  Dutton v. City of Midwest City, 2015 OK 51, ¶15.
  • “The question of the jurisdiction of the court over the subject matter of an action is properly raised by motion to dismiss for want of jurisdiction; even in the absence of such a motion, it is the bounden duty of the court to inquire into its own jurisdiction.”  Sanders v. Oklahoma Employment Security Commission, 1948 OK 116.

Can the Court Delay Dismissal to Allow Time for Charges in Tribal or Federal Court?

In the Travis Hogner, mentioned above (Oklahoma Court of Criminal Appeals F-2018-138), the Attorney General in its Supplemental Brief of Appellee After Remand nearly acknowledges that the State had no jurisdiction to prosecute and confine the defendant but states, “Should this Court find the defendant is entitle to relief . . . the State respectfully requests this Court stay any order reversing the conviction in this case for thirty days to that the appropriate authorities can review his case and determine whether it is appropriate to file charges and take custody of the defendant.”  The State’s sole cited authority for this request is Okla. Stat. tit. 22, § 846; however, this statute is relegated to circumstances where the State of Oklahoma has subject matter jurisdiction but the case was filed in the wrong county/venue.  This statute does not provide authority for the State to hold someone where the State has no subject matter jurisdiction.

McGirt Class Action Lawsuits

If the State of Oklahoma lacked jurisdiction to prosecute Indians for crimes alleged to have occurred on tribal reservation land (now considered to include nearly half the State of Oklahoma), what about the those wrongfully prosecuted and held and those required to pay fines and costs that the State had no authority to collect?  That will have to be decided by Oklahoma courts and the Wirth Law Office is monitoring class-action lawsuits demanding compensation from the State:

  • Muscogee (Creek) NationJason Nicholson, et al. v. Kevin Stitt, et al. was filed in Okmulgee County District Court CJ-2020-94 on July 13, 2020.  This lawsuit seeks class-action status on behalf of Indians improperly prosecuted by the State within the territory of the Muscogee (Creek) Nation and the return of fines and costs paid to the State of Oklahoma by Indians unlawfully prosecuted in Tulsa County District Court, McIntosh County District Court, Omkulgee County District Court, Wagoner County District Court, Muskogee County District Court, Okfuskee County District Court, Mayes County District Court, Rogers County District Court, and the dozens of city court located within the Muscogee (Creek) Nation.

McGirt v Oklahoma Boundaries Maps

Cherokee Nation: v Oklahoma Boundaries Map

Muscogee (Creek) Nation:

Seminole Nation:

Choctaw Nation:

Chickasaw Nation:

Constitutions of the Five Tribes of Oklahoma

Oklahoma is home to 39 federally recognized tribes, including five who lived in what is now Oklahoma before the United States was founded. Another five tribes that relocated here under the Indian Removal Act of  1830 were, at that time, called the Five Civilized Tribes. Today that group of tribes is more often called the Five Tribes of Oklahoma. These are the constitutions of the five tribes.

The Seminole Nation of Oklahoma – Tribal Constitution

Constitution of the Chickasaw Nation

Constitution of the  Choctaw Nation of Oklahoma

Muskogee Constitution

Constitution of the Cherokee Nation

McGirt Decision Videos

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