INDIAN LAW
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.
One of the tactics that had been
used by municipalities to assert that they had jurisdiction over Indians
in their city limits based on the Curtis Act, which was an 1898
law that applied to certain municipalities in Indian Territory.
That law contained language that gave cities jurisdiction over all
inhabitants in their city limits. In 2023, the 10th Circuit Court
of Appeals, decided the case of
Hooper v. City of Tulsa, 22-5034. In that opinion,
the Court found that the Curtis Act applied to towns that were organized
under Arkansas Law, chartered in the Federal District Court for Indian
Territory and having a population greater than 200. The 10th
Circuit found that there is no place known as Indian Territory and the
City of Tulsa was currently chartered under the laws of Oklahoma -
therefore not subject to the Curtis Act. Since the Curtis Act does
not apply, it cannot be used as a source of jurisdiction over Indians.
The Oklahoma state courts continued
to issue opinions affecting Indian Law and asserting jurisdiction over
Indians. In
State v. Brester, 2023 OK CR 10, the Oklahoma Court of Criminal
Appeals refused to vacate or dismiss a case had already been pled,
dismissed the crimes covered by the Major Crimes Act, applying McGirt,
and remanded the balance to the trial court for determination of
concurrent jurisdiction pursuant to Castro-Huerta. In
State v. Crosson, 2023 OK CR 18, the Oklahoma Court of Criminal
Appeals determined that a state judge should issue a warrant, even if it
is known that the defendant is an Indian and on an Indian Reservation.
In
Deo v. State, 2023 OK CR 20, the Court determined that Congress
had not preempted state authority over Indians in Indian Country for
crimes that were not listed in the Major Crimes Act. The Court
also found that Indian Country jurisdiction is actually personal
jurisdiction or territorial jurisdiction and not subject matter
jurisdiction. Therefore Deo had waived his jurisdictional claim
when he entered a plea. In
Barkus v. State, 2024 OK CR 25, the Court of Criminal Appeals
found that freedmen cannot claim Indian status under McGirt
because they have no quantum of Indian blood. In
City of Tulsa v. O'Brien, 2024 OK CR 31, the Oklahoma Court of
Criminal Appeals found that, after employing the Bracker
balancing test, the tribal interest in sovereignty was not affected by
the City's prosecution of a non-member Indian (Osage) on a
reservation (Creek) - therefore, the City has concurrent jurisdiction
with the tribe.
The question of concurrent
jurisdiction over an Indian on their own tribe's reservation remains
undecided.
