A legal controversy threatens the safety of every person in Oklahoma—and everyone in the United States.
Who Owns Oklahoma?
At its core, the question is simple. Who controls the land—the Indian tribes once settled there or the state of Oklahoma? Unfortunately, the courts and the laws appear to point in both directions. The uncertainty now allows crime to flourish in the state.
This problem appears to be limited only to Oklahoma. Before 1907, the state was known as “Indian Territory,” composed mainly of reservations. When Oklahoma became a state, everyone assumed statehood replaced certain self-governing functions of reservation life. As functions of the state, Oklahoma’s courts and police took responsibility for law and order.
That assumption changed during the Nixon Administration (1969-1974). In response to protests and agitation, Congress reinvested the tribes as limited sovereigns on the reservations. However, much of the land had either been sold or was legally occupied by non-Indians, still governed by the state.
A Dangerously Fluid Legal System
Hence the confusion. When people commit crimes, under what authority would they stand trial?
The Harvard Law Review refers to “a judicial common law approach to federal Indian law.” In other words, a legal tradition developed to answer such questions over time. If a tribal member committed a crime against another member of the tribe, then the tribal courts had jurisdiction. If the member committed a minor offense against a non-member on tribal land, the tribal courts would decide. If the crimes were major, the federal judiciary would decide according to the national “Major Crimes Act.”
This superficially simple division still left room for many jurisdictional disputes involving what constituted a major crime, what percentage of Indian blood gives a person a claim to tribal membership or the status of tribal land sold to non-members. Confusion is rampant in the absence of a clearly stated and simple process.
The McGirt Case
These ambiguous legal areas underlay the case of McGirt v. Oklahoma (2020). Jimcy McGirt is a citizen of the Seminole Tribe of Oklahoma. In 1996, he stood trial in an Oklahoma state court for molesting his wife’s four-year-old granddaughter. He was found guilty of three serious offenses and sentenced to life imprisonment plus 1,000 years—a sentence designed to ensure he would never receive parole.
During the trial, the defendant’s lawyers argued that the crimes occurred on Creek tribal lands. Therefore, either a tribal court or the Federal Courts should hear the case. After the verdict, they used that argument to appeal to the U.S. Supreme Court.
The Supreme Court, on a 5-4 vote, agreed with McGirt’s lawyers. In the Majority Opinion, Justice Gorsuch stated, “State courts generally have no jurisdiction to try Indians for conduct committed in ‘Indian country.’” He effectively declared that the Creek reservation was a sovereign territory.
The appeal did McGirt little practical good. A federal jury found him guilty and sentenced him to life in prison without possibility of parole.
However, McGirt had severe repercussions for the practice of justice in Oklahoma. Many convicted of crimes in Oklahoma state courts can use the Supreme Court’s reasoning to demand new trials. These demands place significant strains on the Oklahoma Courts. The federal prosecutors show little interest in such cases—and the older the cases are, the less interest they take.
Oklahoma may be forced to free legitimately convicted criminals because of a dispute over jurisdiction. Eleven months after the Supreme Court announced the McGirt decision, the Governor of Oklahoma, Kevin Stritt, said, “There’s never been a bigger issue that hit our state before.” He added that 76,000 cases had been thrown into doubt. “And in a lot of cases, the statute of limitations has already ran, evidence has been lost, witnesses are no longer around. So it’s really problematic.”
One of those cases, Oklahoma v. Castro-Hureta (2022), partially reversed McGirt. In that case, Oklahoma contended, “No recent decision of this Court has had a more immediate and destabilizing effect on life in an American State than McGirt v. Oklahoma.”
Victor Castro-Huerta was a non-Indian married to an Indian who had a child before the marriage. Mr. Castro-Huerta was tried in state court for neglecting his Indian stepchild and sentenced to 35 years in prison by the state. Then, as a result of McGirt, his conviction was thrown out. The state appealed, and the Supreme Court agreed that the state could try Castro-Huerta because he was not a member of the tribe, even though the crime happened on tribal land.
The Castro-Hureta creates more confusion than clarification. However, there is reason to argue that neither McGirt nor Castor-Huerta will stand the test of time. The most significant difference was not a change of principle but a change of personnel. Between the two decisions, Justice Ginsburg—who supported McGirt—died and was replaced by Justice Coney Barret—who voted to reverse it.
Reinstating the Reservations
Between the McGirt decision and the beginning of 2023, five other tribal areas—Cherokee, Seminole, Choctaw, Chickasaw and Quapaw—have been accorded similar powers.
In May 2023, another criminal case added three such reservations occupying a considerable part of Oklahoma. The local NPR station, KOSU, describes the situation:
“Winston Whitecrow Brester, a citizen of the Seneca-Cayuga Nation, filed for post-conviction relief in November 2020 over a string of crimes between 2018 and 2020 in Ottawa County.
“After the landmark McGirt v. Oklahoma ruling, Brester claimed he was tried in the wrong court. His crimes were allegedly committed on the Ottawa, Peoria and Miami Tribe’s reservations—therefore, he said, he should be tried in federal, not state court because their reservations were never disestablished.”
When Mr. Brester’s prosecution landed on the lap of the Oklahoma Court of Public Appeals, they created three new tribal areas, bringing the total to nine. The decision effectively kicked the cases to the federal court system.
The McGirt, Castro-Hureta and Brester cases illustrate the pointless confusion that arises from having three systems of justice—state, tribal and federal—without clearly drawn lines separating their jurisdictions.
Indeed, courts exist for two reasons. They protect the general public by punishing malefactors and simultaneously safeguard individuals from being unjustly convicted of crimes they did not commit. These conflicts about jurisdiction do nothing to advance either purpose. They significantly increase the chances that the guilty will go free.
The Oklahoma situation could spread to other states—indeed, to the whole nation. Insofar as every square inch of land in the United States was once inhabited by one or more Indian tribes, activists will be working hard to contest jurisdiction.
Leftist judges, of whom there are many, could easily decide that the decedents of tribes that were never legally recognized have the right to their own justice system. Thus, Shawnee law could once again prevail in Central Ohio. The Wampanoag could reclaim Cape Cod. Perhaps the Luiseño could turn Los Angeles into a version of Seattle’s infamous “Capital Hill Autonomous Zone” (CHAZ) that grabbed the headlines in the summer of 2020. The possibilities of legal chaos are endless—and terrifying.
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