Oklahoma History: July 2020 Archives

Hello from Tulsa, M.C.N. We're not in Oklahoma any more.

This morning, in a 5-4 decision, America's permanent super-legislature voted, in the case of McGirt v. Oklahoma, to liberate convicted child molester Jimcy McGirt by ruling that all the lands within the 1866 boundaries of the Muscogee Creek Nation continue to constitute an Indian reservation for the purposes of the Major Crimes Act. Under the court's ukase, If a member of an Indian tribe -- any Indian tribe -- were to murder me in my own home, he would be prosecuted and tried in Federal court, not the courts of the State of Oklahoma.

The ruling establishes a definition for Indian Country far different than that which has been applied in Oklahoma for the last 113 years and establishes a precedent that brings into doubt questions of jurisdiction, governance, and ownership that were previously thought to be settled. Neil Gorsuch, the latest disappointment to take a seat as a permanent super-legislator, was joined in his opinion by the four knee-jerk Leftists, who probably were just gleeful at the thought of causing headaches for hundreds of thousands of Trump voters. As in the Bostock decision, Gorsuch blithely dismissed concerns about the implications of the decision beyond the major crimes act.

Beyond the former Creek boundaries, the case has implications for all of eastern and south-central Oklahoma, the land officially designated Indian Territory from 1890 to 1907.

This case was a companion to Sharp v. Murphy, which was argued in the 2018-2019 term, but was scheduled for reargument, because it had reportedly deadlocked at 4-4 with Gorsuch not participating in the decision..

Jimcy McGirt, the petitioner in this case, is an enrolled member of the Seminole Nation. Here is the State of Oklahoma's summary of Mr. McGirt's crimes in its brief in opposition:

In 1996, Petitioner and his wife were taking care of Petitioner's wife's grand-daughter, four-year-old B.B., while B.B.'s mother was on vacation. While Petitioner's wife was at work, Petitioner penetrated B.B.'s vagina with his finger and his tongue, and forced B.B. to touch his "private." Petitioner was convicted of first degree rape, lewd molestation, and forcible sodomy. The jury recommended sentences of five hundred years each for first degree rape and lewd molestation, and life imprisonment without the possibility of parole for forcible sodomy. On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner's convictions and sentences, recognizing that Petitioner had two prior convictions for forcible sodomy. See McGirt v. State, No. F-1997-967 (Okla. Crim. App. Aug. 26, 1998).

This is the guy that Neil Gorsuch overturned a hundred years of settled law to set free.

Gorsuch speaks movingly of promises made by the US to the MCN in 1832, but glosses over or ignores the subsequent history of the relationship, including the MCN's alliance with the Confederate States of America against the USA, the 1866 Reconstruction Treaty, and the numerous acts and agreements involving the allotment of tribal lands to tribal members and the subsequent extinction of the tribal government.

Chief Justice John Roberts's dissent (in the same document with the majority decision) is a master class in the evolution of Indian Territory toward incorporation in the State of Oklahoma. He walks through the process of the dissolution of communally held lands and tribal governments toward full American citizenship and property ownership for tribal members. He mentions treaties, agreements, statutes, federal reports, congressional debates, and the contemporary writings of Muscogee Creek principal chief Pleasant Porter. Roberts notes the determination in the last decade of the 19th century, that continued communal ownership of tribal land benefited the politically connected to the detriment of most of the tribal members. When I have more time, I intend to walk through the documents Roberts cites and provide links where I can find them.

Many individuals and entities filed amicus curiae briefs in support of one side or the other of the case. One brief stood out to me as a worrisome sign of tribal government influence in the State of Oklahoma's government: Filed in support of molester McGirt's appeal by the Chickasaw Nation, the Choctaw Nation, Congressman Tom Cole, former Governor Brad Henry, former Senate President Pro Tempore and Secretary of State Glenn Coffee, former Attorney General Mike Turpen, former Secretary of Transportation Neal McCaleb, former House Majority Leader Danny Hilliard, former House Speaker Kris Steele, former Congressman Dan Boren, former House Speaker T. W. Shannon, and former State Rep. Lisa Billy. Cole, McCaleb, Shannon, and Billy are all members of the Chickasaw Nation. McCaleb, Hilliard, Boren, and Shannon either have been or currently are on the payroll of the Chickasaw Nation or its subsidiaries, and Billy serves in the Chickasaw legislature, according to the footnotes of the brief.

The Cherokee Nation and Muscogee Creek Nation also filed briefs in support of molester McGirt's appeal. It's important to note that these two tribes, and the other tribes and individuals I mention above, were not supporting claims of good character or innocence by McGirt, but were supporting the legal doctrine that would void his conviction in Oklahoma's state court system, a doctrine with the potential of providing the tribes with new leverage over the citizens of the State of Oklahoma.

Amici in support of the State of Oklahoma's case included the US Government, the states of Kansas, Louisiana, Montana, Nebraska, and Texas, International Municipal Lawyers Association and National Sheriffs Association, and seventeen of Oklahoma's 27 District Attorneys, along with the Oklahoma District Attorneys Association, including Tulsa County's Steve Kunzweiler and Jack Thorp, who serves Wagoner, Cherokee, Sequoyah, and Adair Counties.

The City of Tulsa's amicus brief in support of the State of Oklahoma explained what is at stake for Tulsa citizens if molester McGirt were to win his case.

The overwhelming majority of Tulsa's landmass and population lies within the former territory of the Creek and Cherokee Nations. But for over a century, the entirety of the City--with the exception of a few scattered land plots--has not been "Indian country." Shortly before Oklahoma statehood, the Creek and Cherokee tribes agreed to disclaim and convey "all right, title, and interest" in their land to individual landowners, including the residents of the platted townsite of Tulsa. Since then, municipal and state laws have been applied throughout the City to Indian and non-Indian Tulsans alike. Only a handful of plots in Tulsa are treated as "Indian country," because they either are still owned by the tribes themselves or remain subject to unique title restrictions.

Petitioner's arguments, if adopted, would upend Tulsa's system of government and force the City into years of litigation over the most basic exercises of regulatory authority. Tulsa's Police Department would be stripped of jurisdiction to investigate crimes against or involving Indian Tulsans. Numerous lots in residential neighborhoods could suddenly be exempt from zoning. The City's taxing and regulatory authority could be subject to numerous challenges and endless litigation.

Tulsa's prosperity has been built on a system of government and regulation that applies equally to all Tulsa residents, regardless of their tribal membership. Petitioner's argument threatens that system, and would negatively impact the lives of thousands of Tulsans.

Here are some bookmarks of interest:

• McGirt v. Oklahoma SCOTUS docket page, with links to McGirt's petition, the Oklahoma Court of Criminal Appeal's denial, and the State of Oklahoma's brief in opposition.
• SCOTUS McGirt v. Oklahoma opinion, with dissents by Roberts and Thomas
• Oral argument transcript and audio.
• Joint statement from Oklahoma Attorney General Mike Hunter and the Five Civilized Tribes: "The Nations and the State are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused. We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma."