Oklahoma’s criminal legal system is grappling with the impact of a U.S. Supreme Court decision last year ruling that a large part of eastern central Oklahoma is an American Indian reservation (article available here).
McGirt v. Oklahoma held that U.S. treaties gave the Muscogee (Creek) Nation a permanent home in Oklahoma—which meant that tribal members who commit crimes on the Creek Reservation cannot be prosecuted by the state of Oklahoma. Instead, they have to be tried by the federal government for major crimes or by tribal courts for other crimes.
The McGirt decision concerned the Muscogee (Creek) reservation. But the Oklahoma Court of Criminal Appeals ruled in a series of decisions after McGirt that four other tribes had also been given permanent reservations—the Cherokee, Chickasaw, Choctaw and Seminole, the state of Oklahoma said in a Supreme Court filing in a post-McGirt case.
An expanded U.S. attorney’s office for the Northern District of Oklahoma plans to retry those who were convicted in the most serious cases. So far, the office has reviewed 2,460 cases and accepted 826 for prosecution. More than 1,400 cases have been referred to the tribes, which are adding prosecutors, judges and marshals.
Oklahoma hopes to limit the reach of the McGirt decision. The state filed an emergency stay application with the Supreme Court in the case of Shaun Michael Bosse, whose murder conviction was tossed by the Oklahoma Court of Criminal Appeals because of the McGirt decision. The federal government plans to retry Bosse, but the state wanted the Bosse decision to be stayed while it prepares a cert petition. The Supreme Court granted a stay over three dissents.