John O’Connor was appointed Attorney General by Governor Stitt in July 2021. courtesy

McGirt v. Oklahoma challenged again by Oklahoma AG

Two new petitions seek to move major crimes committed against Native Americans into the jurisdiction of the state.

On Sept. 17, Oklahoma Attorney General John O’Connor filed two petitions with the Supreme Court in an attempt to overturn their ruling in the 2020 case, McGirt v. Oklahoma. The petitions involve specific crimes committed by non-Native Americans against Native Americans on tribal lands. Attorney General O’Connor believes these cases come under the jurisdiction of Oklahoma’s courts, not federal courts.

The McGirt v. Oklahoma case ruled 5-4 that the state of Oklahoma didn’t have the right to prosecute major crimes by Native Americans in eastern Oklahoma, as per the Major Crimes Act of the Indian Appropriations Act. The crimes must be tried by either tribal or federal courts. The total land this places under federal jurisdiction is just short of half the state’s land.

Jimcy McGirt committed crimes on the Muscogee Reservation, which was never legally disestablished. For this reason, the Supreme Court ruled that the state of Oklahoma didn’t have the right to prosecute McGirt; he had to be tried in federal court. The Supreme Court ruling only specifically mentioned the Muscogee Reservation, but has been successfully used for crimes in various tribal areas. About a month after the Supreme Court decision, McGirt was sentenced in federal court to another life sentence.

In the original McGirt case, the perpetrator of the crime was a Native American. However, in several newer applications of the Supreme Court decision, non-Native perpetrators have been charged for crimes against Native Americans. Attorney General O’Connor believes this is not the proper application of the ruling; it should only apply when the perpetrator is Native American. One of the recent petitions filed seeks to put a case involving a non-Native drunk driving and killing Native Americans into the jurisdiction of Oklahoma.

Critics of the court’s ruling point out the criminals that Oklahoma courts have been unable to prosecute, such as Shaun Bosse. Bosse is not Native American, but his victims were and his crimes were perpetrated on tribal land. This brought Bosse out of Oklahoma’s jurisdiction and into the federal courts, though Bosse is now on Oklahoma’s death row after an appellate court ruled McGirt didn’t apply retroactively.

Attorney General O’Connor has said that McGirt has led to a “criminal justice crisis” in Oklahoma with state-level prosecution impossible for many criminals. Some activists, however, saw the McGirt ruling as an important step for Native American rights, as it establishes a degree of sovereignty for various tribes.

After the death of Ruth Bader Ginsburg, who was in the majority in the McGirt case, and the appointment of Justice Amy Coney Barrett, the Supreme Court has a much more conservative tilt than it did in July 2020. Only one flipped vote would be needed to reverse the decision, and this replacement may represent the necessary vote.

One major impact of the ruling is the overturning of death sentences. Several of Oklahoma’s death row inmates have had their convictions overturned in accordance with McGirt v. Oklahoma, usually replaced by life sentences at the federal level. The Biden administration has not yet used the death penalty in federal courts after Trump brought back federal executions from a 17-year hiatus, though Biden has encouraged the Supreme Court to reinstate capital punishment for Boston Marathon Bomber, Dzhokhar Tsarnaev.

Most of the city of Tulsa is located within the Cherokee and Muscogee reservations. As of writing, crimes committed by or against Native Americans in this area are not within the jurisdiction of Oklahoma’s courts.

Post Author: Justin Klopfer