The McGirt Decision, the US Supreme Court Ruled That the Muskogee Creek Nation Was Never Disestablished When Oklahoma Statehood Came
So the Attorney General of Oklahoma has released a document entitled the Murphy McGirt agreement in principle, where he claims that there have been some outlines on what a proposal would be for congressional legislation to resolve some of the issues with the aftermath of the McGirt decision.
So in the McGirt v Oklahoma decision, the United States Supreme Court ruled that the Muskogee Creek nation was never disestablished when Oklahoma statehood came, and therefore most of Tulsa and the surrounding counties are still on Muskogee Creek reservation.
That decision equally applies, or at least the rationale for doing that, equally applies to all five civilized tribes in Oklahoma, which means that most of Northeast Oklahoma is now considered to be and to have always have been reservation land, although we didn’t know it until this decision.
So that divests jurisdiction for a lot of criminal cases, prosecution from the state of Oklahoma, which potentially could cause hundreds, if not thousands, of convictions to be overturned, and it could have similar implications in civil cases.
That’s all yet to be seen as these things get worked out. So trying to get ahead of it to prevent this from happening and to prevent overcrowding in federal court and tribal court, as a lot of these cases are forced out of state court and into those courts, the attorney general has reached out to the tribes, and they purport to have reached an agreement to propose new congressional legislation that’ll resolve some of these things.
So first off, let’s talk about what it would do. Essentially, it notes that it wants to recognize tribal sovereignty, but also affirming the continuity of the state of Oklahoma as it relates to handling some of these issues in Northeast Oklahoma.
So the main effect is that it doesn’t take away jurisdiction from the tribe over these areas that were granted, but it adds in the jurisdiction to the state that allows the state to continue prosecuting crimes on reservation land, even when there are perpetrated by an Indian or against an Indian.
So some of the feedback that I have heard from the tribal communities is that this could potentially make them the most prosecuted and the most policed people in America because rather than taking the jurisdiction away from the state and giving it to the fed and the tribes, like the McGirt decision does for a lot of that, they suggest that this agreement would actually give it back to the states, but not remove it from the feds or the tribe.
So if they’re in a city that’s still on reservation land, they can be prosecuted by the city, they could be prosecuted by the tribe, they could be prosecuted by the state through the County.
So four different potential prosecutors picking on which cases they want to charge could make them the most prosecuted, the most policed people in the United States. So they don’t like the idea of that.
Additional concerns I’ve had is that it specifically notes that it maintains authority for the tribes to do various taxing, but it prevents the state from taxing over any tribe, tribal official, or an entity owned or operated by one of the five tribes.
So that part that says tribal official, to some of the tribal members I spoke to, that is concerning because they feel like that the tribal officials may have gotten themselves a loophole from state taxes that may not apply to them as tribal members. Some people think they may have been sold out to some degree.
So when this was released, there was a bit of a backlash against the tribes agreeing to this. Subsequent to that two tribes have come forward, the Muskogee Creek tribe itself as well as the Seminal Nation have come forward and said, “Hey, we don’t agree to this.”
But the important thing that this does is it acknowledges that there is no easy fix for this. It has to be congressional legislation. The state can’t fix this, the tribes can’t fix it.
It has to be fixed through federal law, which we’ve got a lot of division up in Congress right now where it’s unlikely that anything’s going to get passed.
Now we’ve got the attorney general saying that there’s an agreement with the tribes that at least two of the five tribes says there’s not an agreement.
The hope of this was to make this smooth over some of the changes, but some people are hoping this can be done retroactively. I don’t think it can be constitutionally done retroactively.
So even if an agreement was reached and passed by Congress, it would likely only be prospective, or if it purported to be retroactive, there would likely be a lot of litigation over that.
My feeling is is that there’s really no way to get around the fact that it would be a constitutional violation to change this retroactively and somehow grant the State of Oklahoma jurisdiction to charge tribal members over the last hundred years when federal law now under the McGirt decision clearly indicates that they can’t do that.
So even if passed, I don’t think this is going to save the prior convictions, but it doesn’t look like that the tribes are in agreement, and it doesn’t look like that there’s going to be a lot of congressional support for anything without the tribes’ agreement.
So we’re still in this murky area where time will tell how things play out, but it doesn’t look like the Murphy McGirt agreement in principle is going anywhere at this point.
If you’ve got questions on how all of these changes in law apply to your situation or the situation of a friend or family member, you’re going to want to talk about your specifics with an attorney. If you want to talk to somebody in my office, go to makelaweasy.com.