Understanding What the McGirt Decision Means

Tracy Tiernan - April 12, 2021 - Criminal Defense

A recent Supreme Court decision will likely have major implications for the regulatory authority over Oklahoma tribal land. In 1997, the state of Oklahoma convicted McGirt of several criminal offenses and sentenced him to 1,000 years plus life in prison. Because McGirt is an enrolled citizen of the Seminole nation, he argued that Oklahoma lacked jurisdiction to prosecute him because his crimes occurred in Indian Country on the Muscogee Reservation. Reviewing McGirt’s conviction, the United States Supreme Court questioned whether Indian land falls under federal jurisdiction.

The Supreme Court’s Decision

Justice Gorsuch held that the boundaries of the Muscogee Nation Reservation as established in an 1866 treaty with the United States remain intact. Consequently, the Creek Reservation was promptly recognized as legally “Indian Country.” The case has other substantial implications concerning the Muscogee (Creek) Nation as well as other Indian tribes. 

In the McGirt decision, the Court referred to a 1984 case, Solem v. Bartlett, which assessed whether an Indian reservation has been diminished in either size or completely disestablished. In Solem, the court found that only Congress can diminish or disestablish a reservation. The court in Solem also established a three-step process to apply when faced with diminishment and disestablishment questions. First, courts inquire whether Congress displayed an intent to change a reservation’s boundaries. Second, if Congress’s intent was uncertain given the controlling issues, courts examine whether contemporaneous historical events determine whether there was a widely held understanding that the reservation would shrink. Finally, the court recommended that courts consider subsequent events including how Congress and the Bureau of Indian affairs have treated the lands in question.  

In arriving at its decision, the McGirt court ignored the second step of the Solem test. Instead, Justice Gorsuch applied a textual approach by reviewing the language of the relevant Congressional acts. The majority found no clear or explicit statement from Congress that it intended to disestablish the Creek reservation. 

The Implications of McGirt

Following the McGirt decision, Oklahoma courts have recognized the existence of four other Indian reservations as well as the continued existence of at least three other Indian tribe reservations that are currently being litigated.

Additionally, soon after the McGirt decision, the Attorney General of Oklahoma as well as five major Oklahoma tribes announced they had come to an agreement-in-principle regarding the future of criminal and civil legal proceedings. After the decision, at least three other Indian nations rejected this agreement as well as the legal authority behind McGirt. McGirt’s repercussions also mean that the Muscogee (Creek) Nation can now exercise civil, criminal, and regulatory jurisdiction over its three million acres and the state’s power in such areas will be limited. 

Speak With a Knowledgeable Criminal Defense Attorney

If you or a loved one has been charged with a criminal offense in Oklahoma, one of the best things that you can do is promptly obtain the assistance of a compassionate defense lawyer. Contact attorney Tracy Tiernan today to schedule a free case evaluation.