The Oklahoma Courts have a long
history of getting this issue wrong - in fact, in the oral arguments in
McGirt, the State continued to argue that this the way things
have always been done and therefore the treaties and agreements with the
united States Government should simply be ignored. This particular
story begins with the case of Murphy. Murphy was convicted of First
Degree Murder in McIntosh County District Court. He originally appealed
his conviction and raised the idea of limited jurisdiction in Indian
Country. In 2005, The Oklahoma Court of Criminal Appeals summarily
dispatched with his proposition as follows:
A dependent Indian Community refers to a limited category of Indian
lands that are neither reservations nor allotments, and that satisfy two
requirements: first, they must have been set aside by the Federal
Government for the use of the Indians as Indian land; second, they must
be under federal superintendence. Alaska v. Native Village of Venetie
Tribal Government, 522 U.S. 520, 527, 118 S.Ct. 948, 953, 140
L.Ed.2d 30 (1998). As an allotment, it is doubtful this particular tract
could qualify as a part of a dependent Indian community. But, more
importantly, there does not seem to be much federal superintendence.
Most certainly, there is much less federal control in this case than
there was in Eaves v State, 1990 OK CR 42, 795 P.2d 1060, 1063, a
case where we found a housing project owned by the Osage Tribal Housing
Authority was not a dependent Indian community under 18 U.S.C. § 1151.
We believe this case falls within the teaching of United States v.
Blair, 913 F. Supp. 1503, 1512 (E.D. Okla. 1995), and the tract in
question is simply a "typical slice of rural eastern Oklahoma occupied
by a mixed culture of people attempting to hold on to their agrarian
roots." Proposition one thus fails.
v. State, 2005 OK CR 25, ¶ 54, 124 P.3d 1198, 1208
After exhausting his state court
remedies, he began his quest with the United States District Court for
the Eastern District of Oklahoma, which similarly determined that the
Creek Reservation did not exist.
While the historical boundaries of once tribally owned land within
Oklahoma may still be determinable today, there is no question, based on
the history of the Creek Nation, that Indian reservations do not exist
in Oklahoma. State laws have applied over the lands within the
historical boundaries of the Creek nation for over a hundred years. See,
Oklahoma Enabling Act, 34 Stat. 267 and other cases cited herein. See
also, City of Sherrill, N.Y. v. Oneida Indian Nation of New York, 544
U.S. 197, 215, 125 S. Ct. 1478, 1490, 161 L. Ed. 2d 386 (2005)
Murphy v. Sirmons, 497 F. Supp. 2d 1257, 1289-90 (E.D. Okla.
That matter was appealed to the
Tenth Circuit Court which prepared an exhaustive opinion and determined
that, in fact, the Creek Reservation had never been disestablished.
Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017). Despite the fact
that this decision was rendered in 2017, the State Courts in Oklahoma,
including the Court of Criminal Appeals did not pay heed to the holding
and continued a “business as usual” pattern of conduct for the next
An interesting fact can be used to
illustrate that statement. In 2017, following the decision in Murphy,
Mr. McGirt filed his first application for post-conviction relief with
the District Court. That matter was denied on the basis that there is
no Creek Reservation. He then filed a writ of habeas corpus with the
Oklahoma Court of Criminal Appeals in In Re: Habeas for Jimcy McGirt,
WH-2017-22. That matter was denied on procedural grounds involving the
failure to produce a record. The accounts of district courts ignoring
or refusing to apply Murphy is legion. However, a couple are as
follows: State v. Shannon Kepler, Tulsa District Court
CF-2014-3952, State v. Christina Calhoun CF-2015-6478 Tulsa
District Court, State v. Mossier, Mayes County CF-2016-313,
Court of Criminal Appeals affirmed PR-2018-38, State v. Jimmie
Johnson, Okfuskee County CF-2017-132.
Both McGirt and Murphy advanced
their cases to the United States Supreme Court. Ultimately, the
Court took up McGirt, because Justice Gorsuch had heard the Murphy case
at the Tenth Circuit and would therefore have to recuse from that case.
The case of
McGirt v. Oklahoma was decided and landed on the State of
Oklahoma like a ton of bricks. Immediately, the state began to
struggle with what to do in the face of being told that it did not have
(and never had)
jurisdiction over a swath of crimes that were committed on
Indian reservations by
Indians or against Indians.
The State also realized that there
were other implications to having reservations within its borders.
Issues such as income taxes (Indians working and living on a reservation
do not pay state income taxes), regulations of activities (such as oil /
mineral production), sales tax collection for starters. What about
fines and court costs that were collected, shouldn't the state have to
refund that money since it never had the right to collect it?
The State immediately began
attempting to frustrate, side-step, minimize, or otherwise ignore the
Supreme Court's Order - in many cases after McGirt. First was the
Bosse v. State, 2021 OK CR 286 wherein the State unsuccessfully
argued that no procedural defenses would prevent the dismissal of
convictions that were had without jurisdiction. This outcome was
immediately appealed to the United States Supreme Court. The State
then argued that McGirt could not be applied retroactively in
State ex rel District Attorney v. Wallace, 2021 OK CR 21. This
time, the state was successful.
The current state of the law is
therefore that Indians that are arrested for crimes in Indian Country
cannot be prosecuted in state court. Jurisdiction will be
determined by the
federal statutes governing jurisdiction in these cases.
However, on June 29, 2022, the United States Supreme Court decided the
case of Oklahoma v. Castro-Huerta, 142 S.Ct. 2486 (2022), which
held that the Federal Government and the State have concurrent
jurisdiction over crimes committed by non-Indians against Indians in