McGirt Has Been a Game Changer
I’m James Wirth, a lawyer in Tulsa, Oklahoma. That is the topic today that we’re dealing with: the Supreme Court decision in Oklahoma versus Castro Horta. And that was decided by the United States Supreme Court on June 29th of 2022, and it decided a serious question that the state of Oklahoma was presenting, and all goes back to the McGirt decision. Now, the McGirt decision didn’t change any jurisdictional rules. All the McGirt decision said is that the Muskogee Creek Nation reservation was never disestablished. That was later applied to all five of the five civilized tribes and one other Indian tribe in Oklahoma, which means that almost 50%, or right around 50% of the state of Oklahoma, is reservation Indian territory.
So, it didn’t change any of the underlying rules regarding jurisdiction, it just expanded what is considered Indian territory, and there are interesting, complicated rules related to jurisdiction on Indian territory that now is applicable to many more people than it was before. So, the question became, that the state of Oklahoma was presenting is, does the state of Oklahoma have concurrent jurisdiction to charge non-natives for crimes against natives?
Historically, the law has been pretty clear in that: non-natives that commit crimes against natives, the state of Oklahoma does not have jurisdiction. Jurisdiction has to be in federal court, or if it is a domestic violence offense, then it could be in tribal court, which created quite a conundrum for prosecution in some crimes. If it is a non-Indian committing a crime against an Indian, the state of Oklahoma historically would not have jurisdiction, okay, so then where do they go? Well, the Indian Court, the tribal court would not have jurisdiction over the non-Indian either, unless it is a domestic violence offense, which there are exceptions for, to allow a tribal court to prosecute a non-Indian. But generally speaking, tribal courts cannot prosecute non-Indians, which means the only court available to prosecute those offenses is the federal courts, which are backlogged and not used to handling those types of cases, or certainly not the number of cases that they’re being asked to handle since the McGirt decision in Oklahoma.
So the state of Oklahoma, contrary to what has historically been the case, and what I thought was pretty clear law, continued to prosecute these non-Indians that committed crimes against Indians. And then ultimately this decision was appealed up to the United States Supreme Court. And we’ve got a decision in that case that ultimately found that the state of Oklahoma can prosecute these, that there are concurrent jurisdictions, that both the federal government as well as the state government has jurisdiction to prosecute those.
That’s contrary to what has historically been the case. And I think this is more of a pragmatic decision than a good legal decision. It’s not like they were just applying the law as it is. It was more like, this is a real problem. Crimes are being not prosecuted, and the state of Oklahoma can fix that by being able to prosecute them if we can just interpret the law to say this. So ultimately, I don’t like the legal reasoning behind the decision. I much prefer the legal reasoning in the dissent by Judge Gorsuch, but this is the highest court of the state. I didn’t predict that it would go this way, but ultimately it has gone this way.
So this is now the law of the land. The state of Oklahoma has concurrent jurisdiction and can prosecute non-Indians for crimes against Indians in Indian country. If you’ve got any questions about that or McGirt, or any other legal issue in Oklahoma, you’re going to want to talk to an attorney privately and confidentially to get legal advice. To get that scheduled with an Oklahoma McGirt attorney at my office, you can go online to makelaweasy.com.