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Hillcat GovDocs Blog

McGirt v. Oklahoma

by Cecily Tubbs on 2021-04-22T13:51:00-05:00 | Comments


Since t McGirt v. Oklahoma decision came out in July 2020, there has been discussion about whether this will affect Oklahoma and Native American law in ways beyond criminal justice. So, what exactly was the question that the case decided?

McGirt v. Oklahoma asked whether the eastern half of Oklahoma is an Indian reservation, exempt from the control of state and local authorities in the area of criminal law. Among other things, reservation status would require federal (rather than state) prosecution of major crimes involving Indians, and likely call into question many recent Oklahoma felony convictions. 

McGirt argued that the state had no jurisdiction to prosecute Jimcy McGirt because he was a member of the Seminole tribe and committed the crimes under the Major Crimes Act on the Creek reservation. The Major Crimes Act (1885) (18 U.S.C. § 1153) provides for federal criminal jurisdiction over seven major crimes when committed by Indians in Indian country. The original seven offenses have been increased to include more offenses.

The court held that land in northeastern Oklahoma, reserved for the Creek Nation since the 19th century, remains a reservation for the purpose of a federal statute that gives the federal government exclusive jurisdiction to try certain major crimes committed by tribal members on tribal land. Around 1.8 million people - of whom about 15% are Native American - live on the land, which spans three million acres. Justice Gorsuch wrote: "Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word." The court’s decision means that state courts in Oklahoma had no jurisdiction to convict McGirt, who is an enrolled member of the Seminole Nation of Oklahoma. 

More Information:


CRS Report: This Land Is Whose Land? The McGirt v. Oklahoma Decision and Considerations for Congress

Public Land & Resources Law Review

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