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the Creek Nation can t
McIntosh County Democrat
Conviction to be set aside in
light of Supreme Court decision
The high court’s hearing had its roots in McIntosh County
JERRY FINK
MANAGING EDITOR
Convicted child rapist
Jimcy McGirt will get
a new trial following a
momentous decision by
the U.S. Supreme Court
on July 9.
McGirt, serving 500
years each for rape and
molestation and life
without parole for forc-
ible sodomy, appealed
his 1997 conviction in
Wagoner County Dis-
trict Court and the ap-
peal made its way to the
Property of OPS News Tracker and members of the Oklahoma Press Association.
the Court held that the SEE SUPREME COURT, PAGE A2
rolled member of the M
Muscogee (Creek) Na-
tion and the Seminole
Nation and that the al-
leged crimes took place
on Indian land in Wag-
oner County.
Although the McGirt
case was heard this year
by the Supreme Court,
an earlier case was heard ty
Patrick Murphy last year involving the o
appeal by convicted kill- C
Supreme Court. er Patrick Murphy. C
The appeal was based Murphy was convict- to
on the contention by ed in McIntosh County th
McGirt that he is an en- SEE CONVICTION, PAGE A2 p
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McIntosh County Democrat
CONVICTION
CONTINUED FROM A1
District Court of the 1999 murder and dismember-
ment of George Jacobs Sr., 49, near Henryetta in a ru-
ral area of the county.
Murphy, a member of the Muscogee (Creek) Na-
tion, appealed the conviction, arguing that the State
of Oklahoma had no right to prosecute him because
he is a Native American and the crime occurred on a
reservation.
Murphy’s lawyer, Ian Gershengorn, said the crime
occurred in an area of Eastern Oklahoma granted to
the Creek Nation by the Federal Government in 1866,
and the area is still considered an Indian Reserva-
tion because it was never disestablished by Congress.
Therefore, Murphy’s case should have been tried in
federal court, according to Gershengorn.
Although the Supreme Court held a hearing last year
on Murphy’s appeal, it did not make a ruling, instead
turning its attention to McGirt this year.
McGirt’s appeal was based on the same issues put
forth by Murphy, arguing that as an enrolled mem-
ber of federally recognized tribes – the Seminole and
Muscogee (Creek) Nations - the state of Oklaho-
ma couldn’t prosecute him, according to the Major
Crimes Act of 1885.
That law states the federal government alone has the
authority to prosecute any major crime committed by
an enrolled member of a tribe on their own reserva-
tion.
The high court, in a 5-4 decision, ruled that the land
in question in the McGirt case was part of the Mus-
cogee (Creek) Nation’s original reservation dating
back to 1866 and that the area continued to be part of
the reservation for purposes of criminal prosecution.
The justices invalidated McGirt’s state court convic-
tion.
Assuming there will be a trial in federal court, it
Property of OPS News Tracker and members of the Oklahoma Press Association.
will be prosecuted by the U.S. Attorney’s office in the
U.S. District Court’s Eastern District of Oklahoma in
Muskogee.
When a trial might take place is hard to say.
“This is a work in progress,” First Assistant United
States Attorney Christopher Wilson said following the
Supreme Court decision.
Wilson said his office is waiting for a mandate from
the Supreme Court before taking any action.
Potentially, the reversal of McGirt’s conviction could
have far-reaching effects in state and federal courts as
far as criminal prosecution goes.
Possibly hundreds of cases prosecuted over the years
by the state involving Indians on what the Supreme
Court calls Indian could be overturned and retried in
federal court.
Although McGirt’s case is specific to the Muscogee
(Creek) Nation, the Court’s decision is likely to also
apply to reservations of the Cherokee, Choctaw,
Chickasaw and Seminole Nations.
The Muscogee (Creek) Nation boundaries compos-
es three million acres in Eastern Oklahoma, including
most of the city of Tulsa.
The boundaries for all five nations consist of over
19 million acres and nearly the entire eastern half of
Oklahoma.
When Oklahoma became a state in 1907 federal ter-
ritorial courts transferred all non-federal cases involv-
ing Native Americans to state courts.
While the Supreme Court ruling addressed a crimi-
nal matter, it could have implications for civil matters
as well.
“This (decision) doesn’t have any direct implications
on civil matters,” Wilson said.
But, he couldn’t say if it might down the road.
“I have no expertise on that matter,” he said. “Our
concern is the criminal jurisdiction.”
However, after the Supreme Court agreed to hear
the Murphy case last year, Oklahoma Attorney Gener-
al Mike Hunter stated, “This case has implications for
millions of Oklahomans…Meanwhile, my team and I
will continue proactively working with our tribal part-
ners on our shared interests.”
In an interview with the Tulsa World shortly after
the Supreme Court ruling, Indian law expert Mike
McBride III, said, “I think this is the most important
decision in Oklahoma history in terms of sovereignty
for the state of Oklahoma and sovereignty for the five
tribes.”
But, he told the World, he doesn’t believe there will
be a flood of appeals by tribal members seeking to
overturn their state convictions.
“There may be many cases where there’s a Native
American who had committed a crime on Indian
lands, or Indian Country under the Major Crimes
Act statute, that is in jail or prison and would want to
challenge that conviction,” McBride, an attorney with
Crowe & Dunlevy said. “But they have to weigh how
long is that going to take and ‘if I get retried in federal
court is the federal sentence potentially going to be
worse than what I’m serving already?’”
Following the Supreme Court’s announcement in
the McGirt case, the Muscogee (Creek) Nation re-
leased the following statement:
“The Muscogee (Creek) Nation respects and wel-
comes the Court’s decision calling for additional argu-
ment. The Nation remains steadfast in its conviction
that the 1866 Creek Reservation has never been dis-
established and very much looks forward to this op-
portunity to present further arguments to the Court
this Fall.
“In the meantime, the Nation will continue to serve
all citizens within its borders, Indian and non-Indian
alike, to make its strong economic impact felt within
Oklahoma which exceeded $860 million in 2017; and
to enjoy a positive and productive relationship with
the State of Oklahoma.”