Conviction appeals piling up following McGirt decision
TAHLEQUAH – A landmark U.S. Supreme Court ruling that affirmed Muscogee (Creek) Nation’s reservation status has sparked a wave of appeals from Cherokees who contend the state had no jurisdiction to charge or convict them for crimes on tribal lands.
Cherokee Nation Attorney General Sara Hill said her office is tracking more than 100 cases that involve appeals and pending criminal matters.
“This is where the real fight for Cherokee Nation’s sovereignty is occurring, is in these cases,” Hill said. “That’s where this work is really being done because McGirt did not decide the Cherokee Nation reservation issue directly. It laid down the law that made it clear that the reservation wasn’t disestablished, but this is the exercise that we have to go through to get a specific ruling as to the Cherokee Nation reservation.”
A 5-4 ruling handed down July 9 by the Supreme Court sided with MCN citizen Jimcy McGirt, a convicted child molester who claimed Oklahoma courts had no authority to try him for a crime committed on reservation land. The court’s determination that MCN’s reservation was never disestablished supported his argument. McGirt has since been indicted on the same charges in Muskogee federal court.
The CN has filed amicus, or “friend of the court,” briefs in jurisdictional cases that involve Cherokees, Hill said.
“The amicus basically walks through the history of the Cherokee Nation and the treaties and the allotment acts, and explains that our case is very similar to the Creek Nation case except in a couple of instances where our case is significantly better,” Hill said. “These are particularly important cases because if the Oklahoma Court of Criminal Appeals, when they hear this case and decide that the Cherokee Nation reservation was not disestablished, that will affect every criminal case in Oklahoma that occurs on our reservation.”
One related case is slated for Sept. 21 in Craig County, Hill said.
“It involves a Miami (Tribe) citizen who was charged with possession of a firearm after a felony,” she said. “His case is one of the ones where he is saying, ‘the state doesn’t have jurisdiction over me. This actually occurred in Craig County on the Cherokee reservation.’ So that’s a case where the Cherokee Nation’s reservation will be at issue.”
In late August, the Tribal Council passed the CN Reservation, Judicial Expansion and Sovereignty Protection Act. It expands the tribe’s judiciary, prosecution staff and Marshal Service to deal with fallout from the McGirt ruling.
“Alongside the recently established sovereignty commission,” Principal Chief Chuck Hoskin Jr. said, “today’s action will enable us to ensure our law enforcement and public safety systems can continue to function effectively as we respond to this historic Supreme Court victory for Indian Country.”
Hill said she expects an increase in criminal cases “across the board.”
“So we’re looking at this sort of massive court expansion,” she added. “We have court now, and we’ve always had criminal prosecutions in Cherokee Nation court. It’s just been a much smaller number of them because it’s crimes that occur on tribal restricted and trust land.”
In anticipation of an increased workload, Hill said she is ensuring that “all of the attorneys in our office are improving their education on criminal cases.”
“Some of our lawyers who don’t do criminal law are preparing to prosecute if we need them to prosecute,” she said, adding that her office is in contact with district attorneys and federal law enforcement. “I don’t want to see anybody who committed a crime on the Cherokee reservation walk away from the consequences of that crime. That means we have to work together with those different agencies.”