The Oklahoman

Muscogee Nation stands by McGirt

Claims state exaggerate­s decision’s impacts

- Chris Casteel

Since August, Oklahoma Attorney General John O’Connor has filed more than two dozen petitions asking the U.S.

Supreme Court to reverse its 2020 decision recognizin­g the Muscogee (Creek) reservatio­n, claiming it has caused “chaos affecting every corner of daily life in Oklahoma.”

This week, the Muscogee Nation and defense attorneys responded, telling Supreme Court justices that the state is exaggerati­ng the impacts of the decision and should be taking its complaints to Congress, which has authority over tribal matters, rather than the high court.

“Rarely will this Court receive as audacious a request, justified by so little, as Oklahoma’s request to overrule

McGirt,” attorneys for a former state prison inmate argue in a Supreme Court brief.

“If Oklahoma objects to McGirt’s statutory holding, it must take its case to Congress. It may wish that Congress were speedier, or more pliant. But under

our separation of powers, it is for Congress to decide whether and how to respond to McGirt.”

In its own brief to the court, the Muscogee Nation says the state is using hyperbole and unsubstant­iated numbers to claim the decision in McGirt v Oklahoma has caused a crisis in public safety.

“Contrary to Oklahoma’s tale, McGirt has not rendered eastern Oklahoma a criminal dystopia,” the tribe says.

The brief details the efforts the federal government and tribes have made to prosecute new criminal cases and re-prosecute defendants whose conviction­s were overturned because of McGirt; and it notes that Congress has moved to supply more resources for federal and tribal court systems.

In its brief, the tribe also addresses the issue of tribal members no longer paying state taxes because of the McGirt decision and acknowledg­es that will sometimes be the case.

“Under well-establishe­d law, reservatio­n status does have consequenc­es for Oklahoma’s taxing authority over some tribal members,” the brief states. “But as the Oklahoma Tax Commission has detailed in a report … those impacts again are hardly the stuff of crisis.”

The tribe rejected the state’s contention that individual tribal members were now “refusing” to pay taxes.

“Under state and federal law, Oklahoma is no longer permitted to tax tribal citizens for on-reservatio­n activities,” the tribe’s brief states. “Some tribal citizens are thus following the State process to file for exemptions.”

Referring to an Oklahoma Tax Commission estimate that the state could lose $200 million a year in tax revenue from the Five Tribes’ reservatio­ns, the brief says, “A maximum annual impact of approximat­ely $200 million will not ‘decimate’ State tax budgets. … Indeed, so confident are State leaders in the State’s fiscal condition that a $500 million income tax cut ‘sailed through the Oklahoma House of Representa­tives’ this past spring.”

Jurisdicti­on at issue after Supreme Court’s landmark decision

The Supreme Court ruled in 2020 that convicted child rapist Jimcy McGirt was wrongly tried by the state because he is a Native American and his crimes were committed on the Muscogee (Creek) reservatio­n, which was never officially disestabli­shed by Congress.

The Oklahoma Court of Criminal Appeals extended the decision this year to the Cherokee, Chickasaw, Choctaw and Seminole nations, whose reservatio­ns comprise most counties in eastern Oklahoma and several in central Oklahoma.

Under federal law, crimes involving Native Americans on reservatio­ns must be prosecuted by the federal government or tribes.

The McGirt decision upended a system in place since statehood in 1907 in which the state prosecuted most crimes involving Native Americans except for those that occurred on land taken into trust for a tribe by the federal government.

Dozens of state conviction­s in cases involving Native Americans have been reversed since the McGirt decision. In many cases, U.S. attorneys and tribal prosecutor­s have stepped in to file their own charges even before inmates were released by the state. McGirt himself was sentenced in August in federal court in Muskogee to life in prison for his crimes against a young girl.

Others have been able to escape new prosecutio­n because of legal time limits on when charges could be filed.

In a ruling in August, the Oklahoma Criminal Court of Appeals dramatical­ly reduced the number of conviction­s that could be overturned. The court declared that the McGirt decision was not retroactiv­e and would not apply to those whose conviction­s were final, meaning ones in which a first appeal was rejected or not filed in the allowed time frame.

“The Oklahoma Court of Criminal Appeals has narrowed the universe of cognizable McGirt-based conviction challenges to those raised on direct appeal,” the Muscogee Nation told justices in their brief this week.

“The United States and the Nation are reprosecut­ing where such claims succeed, and are devoting substantia­l resources to the investigat­ion and prosecutio­n of new crimes.”

Issues regarding non-Indian defendants

The Muscogee Nation and defense attorneys filed their briefs this week in the case of Johnny Edward Mize II, whose manslaught­er conviction was overturned on direct appeal by the Oklahoma Court of Criminal Appeals because the victim was a Native American and the crime occurred on the Muscogee reservatio­n.

The case is one of about 30 that O’Connor, the state attorney general, is asking the U.S. Supreme Court to review and use as a vehicle for overturnin­g the McGirt decision.

The state is also arguing in the case that Oklahoma had concurrent jurisdicti­on with the federal government because Mize is not a Native American; it is making the same argument in the other petitions it has filed.

The Oklahoma Court of Criminal Appeals has repeatedly rejected the argument that the state has jurisdicti­on in cases involving non-Indian perpetrato­rs in cases with Indian victims that occurred on a reservatio­n.

Attorneys representi­ng Mize told the justices in their brief that the Oklahoma court is correct.

“For decades, States, the United States, and Tribes have shared a common understand­ing: States have jurisdicti­on over crimes by non-Indians against Indians in Indian country only if Congress expressly confers it,” the brief states. “Hence, where Congress has not done so, non-Indians are subject to federal punishment­s and prosecutor­ial choices, not the different punishment­s and choices States might inflict.

“If Oklahoma believes it needs additional jurisdicti­on, Congress can pass a bespoke law.”

Rep. Tom Cole, R-Moore, has introduced legislatio­n in Congress that would allow the Chickasaw and Cherokee nations to forge agreements with the state on criminal jurisdicti­on; cases involving non-Indian perpetrato­rs is one example where such a compact could be possible, Cole and tribal leaders have said.

Mize has already been charged in federal court and, according to the brief filed by the Muscogee Nation, every other defendant in the petitions filed by O’Connor with the U.S. Supreme Court is being re-prosecuted by the federal government or the tribe with jurisdicti­on. Six have already been reconvicte­d, according to the tribe.

The Supreme Court could decide not to review any of the state’s petitions. Separately, justices will have to decide whether to review a challenge to the Oklahoma Court of Criminal Appeals’ ruling that the McGirt decision was not retroactiv­e.

“The Oklahoma Court of Criminal Appeals has narrowed the universe of cognizable McGirt-based conviction challenges to those raised on direct appeal.”

Muscogee Nation, in their brief this week

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