John Dunn
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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.

 Murphy 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. 2007)

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 three years. 

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 case of 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 Indian Country.