SCOTUS rules for pro se petitioner in tribal case that could upend hundreds of convictions
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The U.S. Supreme Court ruled Thursday that a large part of eastern central Oklahoma is an American Indian reservation, a decision that calls into question hundreds of state court convictions.
The Supreme Court ruled 5-4 for an Oklahoma pro se petitioner who claimed that he was tried in the wrong court system because his alleged crime happened on land that is still an American Indian reservation. The land includes most of the city of Tulsa.
Justice Neil M. Gorsuch wrote the majority opinion, joined by the court’s liberal justices.
Pro se petitioner Jimcy McGirt was convicted in state court for sex crimes against a child. He claimed that the case should have been tried in federal court because he is a member of the Seminole Nation of Oklahoma, and the alleged crime occurred on the Creek Reservation.
Lawyer Ian Gershengorn was appointed to represent McGirt in the Supreme Court.
In his majority opinion, Gorsuch said U.S. treaties gave the Creek Nation land a permanent home in Oklahoma in exchange for ceding all of their land east of the Mississippi River.
“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Gorsuch wrote. “Because Congress has not said otherwise, we hold the government to its word.”
The decision means that tribal members who commit crimes on the Creek Reservation cannot be prosecuted by the state of Oklahoma. They can be prosecuted for serious crimes in federal courts under the Major Crimes Act and for minor crimes by tribal courts.
A dissent by Chief Justice John G. Roberts Jr. warned of far-reaching implications.
“Today, the court holds that Oklahoma lacked jurisdiction to prosecute McGirt—on the improbable ground that, unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the state may not prosecute serious crimes committed by Indians like McGirt,” Roberts wrote. “Not only does the court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the court’s reasoning portends that there are four more such reservations in Oklahoma. … Across this vast area, the state’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.
“On top of that, the court has profoundly destabilized the governance of eastern Oklahoma. The decision today creates significant uncertainty for the state’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”
Roberts’ dissent was joined by the court’s other conservative justices, although Justice Clarence Thomas did not join a footnote.
The case is McGirt v. Oklahoma.
A prior case raising the same issue reached the Supreme Court last term, leading to an apparent 4-4 deadlock after Justice Neil M. Gorsuch recused himself.
The Supreme Court disposed of the prior case Thursday, citing McGirt and affirming a federal appeals court decision that also found that the reservation was never abolished. The case is Sharp v. Murphy.
ABAJournal.com: “SCOTUS accepts pro se appeal that could upend hundreds of convictions”