The U.S. Supreme Court just issued its final opinions from its Spring term, and as usual, the pronouncements from the judicial throne predictably resulted in celebration, consternation, protest and plenty of ill-informed declarations.  One of those last few opinions was Oklahoma v. Castro-Huerta, _____ U.S. _____, 2022 WL 2334307 (2022), which has significant consequences for criminal prosecutions in the eastern half of Oklahoma.

            The landscape began shifting with the decision two years ago in McGirt v. Oklahoma, 591 U.S. _____, 140 S.Ct. 2452 (2000).  State and federal courts had long held that Oklahoma state courts did not have the jurisdiction to prosecute crimes committed by or against Indians in what federal law defines as “Indian Country.”  That had generally been limited to restricted Indian land and small enclaves until the decision in McGirt.  In McGirt, after analyzing the relevant laws and treaties with the Muscogee (Creek) tribe, the Court concluded that their reservation had never been abolished (“disestablished” to use the Court’s term), making the entire Muscogee (Creek) Nation Indian Country, and barring the state from prosecuting an Indian defendant for crimes committed there.  Over the ensuing months, Oklahoma’s Court of Criminal Appeals followed McGirt and concluded that its reasoning applied to the Choctaw, Chickasaw, Cherokee, Seminole and Quapaw, thus rendering most of eastern Oklahoma Indian Country.  For previous articles discussing this evolution see here.

            McGirt has had a colossal impact on eastern Oklahoma.  Faced with a huge expansion of their authority as their sovereignty was reaffirmed, the tribes have made enormous expenditures to scale up their criminal justice systems to handle the unprecedented new workload.  Federal authorities also added resources to stem the sudden flood of cases.  Meanwhile, Oklahoma Governor Kevin Stitt decried the ruling, and together with Oklahoma Attorney General John O’Connor launched an assault on the ruling.  In August of last year, they won a victory in State ex rel. Matloff v. Wallace, 2021 OK CR 21. 497 P.3d 686, obtaining a ruling from the Court of Criminal Appeals which limited McGirt to only currently-pending cases, barring previously-convicted defendants from attacking old convictions.  For a discussion of Wallace see here.

            Oklahoma state authorities didn’t stop there.  O’Connor has to date filed over thirty petitions with the U.S. Supreme Court asking the justices to reconsider their ruling.  All have been rejected.  However, the High Court did agree to hear arguments in Castro-Huerta.  The question considered in that case was whether the State had any jurisdiction to prosecute a non-tribal member for committing a crime when a tribal member is the victim.  On June 29, the Court rendered a 5-4 decision, deciding that Oklahoma could prosecute a non-tribal member in this situation, concurrently with the jurisdiction of the federal government and the tribes.  Castro-Huerta, 2022 WL 2334307 at 14.

            This means that a non-tribal member who commits a crime in Indian County can potentially be prosecuted three times for the same act.  Normally, Indian tribes do not have jurisdiction over non-tribal members, since the Supreme Court made that finding in 1978 in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 (1978).  However, under the 2013 reauthorization of the federal Violence Against Women Act, tribes regained jurisdiction over non-Indians in strictly limited circumstances, generally involving domestic abuse of tribal members.  See 25 U.S.C. § 1304.  So, in a situation where a non-tribal member commits domestic abuse against a tribal member in Oklahoma’s Indian country, the U.S. Attorney, the local District Attorney, and the local tribal prosecutor could all file charges against the culprit and punish him.  These multiple prosecutions are not barred by double jeopardy, because each actor is a separate sovereign; double jeopardy only prohibits multiple prosecutions by the same sovereign entity, not prosecutions by different sovereign entities.

            While Governor Stitt celebrated the decision as a victory for his administration, nothing about Castro-Huerta limits the authority of the tribal nations under McGirt and the following decisions.  Instead, the decision merely expands the authority of state-court prosecutors over non-Indians who commit crimes against Indians.   However, the long-term consequences of this decision will continue to play out, as will continued litigation.

            Among the issues still being litigated is the authority of Oklahoma cities to prosecute Indians for violation of city ordinances.  In April, the U.S. District Court for the Northern District of Oklahoma decided in Hooper v. City of Tulsa, 2022 WL 1105674 (N.D. Okla. 2022), that Tulsa, which was organized prior to statehood under an 1898 federal law known as the Curtis Act, retained jurisdiction over tribal members for violating its ordinances, notwithstanding McGirt.  That decision is currently on appeal to the Tenth Circuit Court of Appeals, and its progress through the system will be watched by eastern Oklahoma cities hoping to be able to prosecute (and incidentally, collect fines and court costs from) tribal members, instead of sending those cases to tribal courts.

            The only constant in life is change.  This saying has proven true the last couple of years for Oklahomans, and will undoubtedly continue to do so as these cases continue to wind through the judicial system.  The one constant – at least for now – appears to be that McGirt and its expansion of tribal authority are going nowhere, and that – as seen in this year’s campaign literature – it will be used as a political football to be kicked around by candidates for public office.

A version of this article was originally published in the July 7, 2022, edition of The Madill Record, and is republished here by permission.

In July of 2020, the U.S. Supreme Court shocked many Oklahomans when, in McGirt v. Oklahoma, _____ U.S. _____, 140 S.Ct. 2452 (2020), in a 5-4 decision, it declared that the Muscogee (Creek) reservation had never been abolished by Congress, and that the State of Oklahoma lacked jurisdiction to charge a tribal member with a crime committed in that reservation.  With Oklahoma applying its typical rule that a lack of jurisdiction could be raised at any time, Jimsy McGirt’s conviction was overturned, and he was reprosecuted and imprisoned by the federal system.

Following the decision in McGirt, the Oklahoma Court of Criminal Appeals faced a series of cases dealing with jurisdictional issues.  Reluctantly, early in 2021, the Court held that the rest of the five tribes, the Chickasaw, Choctaw, Cherokee and Seminole Nations, still retained their tribal reservations, and were subject to McGirt’s holding.  Additionally, the Court recognized that the rule in McGirt applied not only to charges against tribal members, but crimes committed against Indians by non-Indians. (For a full discussion, see our prior article here).  While the Court initially had allowed old convictions in violation of McGirt to be overturned, that all changed on August 12, 2021, as the Court decided in State ex rel. Matloff v. Wallace, 2021 OK CR 21, 497 P.3d 686, that cases which were not still pending at the time McGirt was decided would not be subject to that rule, stemming the tide of post-conviction applications seeking to overturn old convictions. (Our prior article about Wallace and its impact is here). 

The law is never static, however, and ongoing litigation has continued to refine the scope and reach of McGirt.  The defendant in Wallace petitioned the U.S. Supreme Court to review the case, but the Court declined to hear it on January 10, 2022, leaving the Court of Criminal Appeal’s decision in place. (The online docket is here).  Accordingly, subject to ongoing litigation through other means, the rule in Wallace leaving old convictions in place remains the law.

Meanwhile, in State v. Lawhorn, 2021 OK CR 37, 499 P.3d 777, the Court of Criminal Appeals took its first step beyond the Five Tribes, finding that the Quapaw Nation in the northeast corner of Oklahoma retained its reservation, and affirming the dismissal of a criminal case against a tribal member.  However, in Martinez v. State, 2021 OK CR 40, _____ P.3d _____, the Court reached the opposite result as to the Kiowa, Comanche and Apache reservation in southwestern Oklahoma, finding that Congress had disestablished that reservation in 1900, making McGirt inapplicable there.

The State of Oklahoma has continued to attack McGirt, both by limiting its scope, and by seeking to reverse it entirely.  The main hope for reversing McGirt has to do with the changing membership of the U.S. Supreme Court.  Justice Ruth Bader Ginsburg, one of the 5-4 majority when McGirt was decided, passed away September 18, 2020, and was replaced by Justice Amy Coney Barrett on October 27, 2020, just before the 2020 elections; this led the Oklahoma Attorney General to attempt repeatedly to ask the Supreme Court to reverse McGirt.  The latest effort is Oklahoma v. Castro-Huerta, No. 21-429, where the State asked the Court to determine two questions: first, whether under McGirt the State retained jurisdiction to prosecute non-Indians who committed crimes against Indians in reservations, and second, whether McGirt should be overruled.  On January 21, the Court decided to take up the issue of jurisdiction over non-Indians, but declined to hear the issue of whether McGirt should be overruled. (The online docket is here).

Castro-Huerta is now scheduled for argument in April, and will presumably lead to a decision sometime this fall.  This fall, then, we should have some sort of definitive pronouncement from the Court on whether the State retains any jurisdiction over non-Indians committing crimes against tribal members in Oklahoma’s reservations.  Until then, the current rules hold, and those cases will remain in the tribal and federal courts. Meanwhile, the High Court has plainly signaled that despite its changing membership, the current members have no desire to revisit the basic decision in McGirt at this time.

A version of this article was published in the February 3, 2022 edition of The Madill Record, and it is republished here by permission. 

The Internet has transformed the way we learn and consume information.  If you’re like me, you’ve used YouTube more than once to learn how to do something around the house.  Social media sites like Facebook allow us to stay connected with faraway friends and family to a degree we could not before, while allowing us to share information widely with very little effort. Indeed, we often learn important information by crowdsourcing - putting out a general request, and then getting information from a number of people that hopefully leads to the answer we need.

As with everything in life, there are good and bad things about this part of our lives.  While sometimes the information is good, sometimes it is bad.  Just because your cousin who barely graduated high school shares a meme on Facebook doesn’t mean that he knows what he’s talking about, nor does it mean the person who created the meme knows what they’re talking about.

One example of this is the widely-shared post about denying Facebook permission to use your pictures.  The most-recent version starts off “The new Facebook/Meta rule starts tomorrow where they can use your photos. Don't forget the deadline is today! This could be used in lawsuits against you. Everything you've ever posted is posted today - even messages that have been deleted. It doesn't cost anything, just copy and post, better than regretting later.”  What follows in this excessively-long post is a bunch of nonsense, much of which mis-cites the Uniform Commercial Code (the UCC), purportedly explaining how Facebook can’t use your photos.  Can’t hurt to post it, right?

The problem with this is that, like most non-lawyer sources that cite to the UCC (or for that matter, are rife with typos), it’s nonsense.  You cannot use Facebook and then deny them the right to use your photos - that’s part of your user agreement that you probably clicked through without reading (like all of us do).  Specifically, a part of that agreement reads as follows: “When you share, post, or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings.”  This boils down to if you share it on their site, they can use it. Posting that nonsense about purportedly denying Facebook permission to use your pictures just makes you sound dumb.

Another example is the often-shared meme that reads something like this: “The Constitution actually says you can overthrow the government if it’s tyrannical.”  The problem is that the U.S. Constitution says precisely the opposite.  Article 3, Section 3 of the Constitution defines the crime of treason as “levying war against [the United States].” After the Civil War, Section 3 of the Fourteenth Amendment barred many of those who “engaged in insurrection or rebellion against [the United States]” from holding federal office.  Not one word in the Constitution authorizes overthrowing a tyrannical government.

So where does this come from? Sadly, probably half-remembered lessons from history classes.  While the Constitution does not recognize any right of revolution, the Declaration of Independence does.  In explaining why they felt it necessary to revolt, the Founding Fathers declared: “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”  The Declaration is a hallowed document in American tradition, and is rightly revered for its place in American history.  However, it is not a part of the Constitution, or even a part of American law.  So if you do something excessively foolish, like storming the Capitol, don’t go thinking that your citation of this meme is going to cut any ice with the federal judge deciding whether you should go to prison.

The thing to remember is to treat information you see on the Internet like you would if someone just said something to you in person.  If it sounds too good to be true, or if it sounds like they are just repeating something they don’t actually know anything about, then you’re probably better off not relying on it.  The Internet, like fire, is a good servant but a bad master. 

A version of this article was published in the December 2, 2021 edition of The Madill Record, and it is republished here by permission.

 Last summer, the U.S. Supreme Court decided the case of McGirt v. Oklahoma,  _____ U.S. _____, 140 S.Ct. 2452 (2020), which has proven one of the most impactful criminal law decisions in the history of this state.  This decision has been under assault politically by Oklahoma Governor Kevin Stitt, as well as legally by the Oklahoma Attorney General’s Office.  Those parties secured their biggest win to date on August 12, when the Oklahoma Court of Criminal Appeals held that McGirt would only apply to cases which did not involve a final conviction.

In McGirt, the High Court determined that the reservation of the Muscogee (Creek) Nation had never been abolished by Congress or by treaty with the tribe, and thus still existed.  This meant that the Nation was still “Indian Country” as that term is used in the federal laws known as the General Crimes Act and the Major Crimes Act, found at 18 U.S.C. §§ 1151, 1152 and 1153 (for nonlawyers, read that as Title 18 United States Code Sections 1151, 1152 and 1153). Thus, certain serious crimes listed in the Acts, such as murder, kidnapping, rape and the like committed by or against an Indian can only be prosecuted by federal authorities in a federal court, while other crimes committed by or against Indians must be prosecuted in the tribal court for that particular reservation.  In McGirt, the Court voided the conviction of a member of the Seminole tribe by an Oklahoma state court, because the crime was committed within the boundaries of the Muscogee (Creek) Nation and the State of Oklahoma lacked jurisdiction to convict or punish an Indian in that reservation.

Initially, after a substantial delay, the Oklahoma Court of Criminal Appeals (Oklahoma’s highest state court for criminal cases), began to apply McGirt to other tribes. On March 11, the Court decided Bosse v. State, 2021 OK CR 3, 484 P.3d 286, which extended McGirt to the Chickasaw Nation (which includes Marshall County) and Hogner v. State, 2021 OK CR 4, _____ P.3d _____, which did the same for the Cherokee Nation.  On April 1, the Court did the same for the Choctaw Nation in Sizemore v. State, 2021 OK CR 6, 485 P.3d 867, and the Seminole Nation in Grayson v. State, 2021 OK CR 8, 485 P.3d 250.  In Bosse, and several other less-heralded decisions, the Court determined that since Oklahoma had never had jurisdiction, old convictions were void.  At the request of the Attorney General, the Court stayed Bosse, and the State has appealed the decision to the U.S. Supreme Court, seeking, among other things, an outright reversal of McGirt.  

Meanwhile, the State sought to attack McGirt on other bases. In Pushmataha County, Clifton Parish filed an application for post-conviction relief, seeking to set aside his 2012 conviction for second-degree murder.  Associate District Judge Jana Wallace, following the decisions of the Court of Criminal Appeals, granted that application on April 13, 2021.  District 17 District Attorney Mark Matloff filed a petition seeking a writ of prohibition (a type of injunction against a judge, seeking to have them ordered not to do something) with the Court of Criminal Appeals.  Finding an opportunity to reverse course, the Court of Criminal Appeals decided State ex rel. Matloff v. Wallace, 2021 OK CR 21, _____ P.3d _____, and held that McGirt would not be applied to convictions that had become final prior to that decision being rendered.

In order to reach that conclusion, the Court’s three-judge majority determined that McGirt announced a new rule of criminal procedure, which would normally not be retroactive.  After an extended discussion, most of which argued the burdens of vacating old convictions, the Court held that McGirt should not be applied to cases where convictions had become final.  Thus, in Wallace, since Clifton Parish’s appeal was denied in 2014, his conviction was final, and McGirt did not apply.  The Court then issued the writ of prohibition, barring Judge Wallace from enforcing her order vacating Parish’s conviction.  As of press time, Parish’s attorneys have filed a motion seeking reconsideration of that decision, which has yet to be decided.

The decision in Wallace should have no impact on pending criminal cases.  Any Indian accused of committing a crime within the Five Tribes, whether speeding or murder, should be able to get their case dismissed from state court.  Likewise, any non-Indian committing a crime against an Indian in those reservations is entitled to the same relief.  This also extends to those cases which are currently on appeal, or for which the appeal time had not expired (ten days after sentencing) as of the decision in McGirt on July 9, 2020.  Any person charged with a crime in these circumstances is clearly immune from prosecution in Oklahoma state courts.

However, Wallace is a dramatic shift in the legal landscape with regards to old convictions.  Reversing decades of prior decisions, the Court has declared that even though the State of Oklahoma never had authority to prosecute those persons, because it did anyway, and because of the passage of time, it will not disturb those otherwise-unlawful convictions.  In a bit of breathtaking honesty, Judge Gary Lumpkin, writing separately to explain why he agreed with the Court’s result and not its reasoning, frankly admitted that the old convictions should be void, but that this law should not be applied because of the harm applying the law could cause.  As Judge Lumpkin argued, “This is hard to explain in an objective legal context but provides a just and pragmatic resolution to the McGirt dilemma.” Wallace, 2021 OK CR 21 at ¶ 6 (Lumpkin, J., specially concurring).

This area of the law is far from settled.  The Oklahoma Attorney General is frankly attempting to reverse McGirt or to limit its application in any way possible.  The primary hope for reversing McGirt appears to be a change in the Supreme Court’s membership; Justice Ruth Bader Ginsburg, who was part of the 5-4 majority in McGirt, was replaced after her death in September 2020 by Justice Amy Coney Barrett by then-President Trump.  However, it is far from clear what will happen going forward.  Likewise, it seems likely that Parish’s attorneys will appeal the Wallace decision, so it may well be that this area of the law will once again be reviewed by the Supreme Court.  It is unlikely, however, that any decision on whether the Court will even consider these issues will occur before 2022.

Meanwhile, the Court of Criminal Appeals is plainly hostile to McGirt and its results.  The Court ignored its own rules to consider District Attorney Matloff’s request for a writ, and then with a wave of the judicial hand reversed decades of decisions which required a different result.  This results in a fair amount of uncertainty going forward for lawyers, judges, and everyone else involved in the criminal justice system, as these ongoing developments continue.  

UPDATE: On August 31, 2021, the Court of Criminal Appeals issued an order in Bosse v. State, vacating the original opinion in light of the holding in Wallace.  Bosse v. State, 2021 OK CR 23, _____ P.3d _____.  Note that while Bosse was the first case recognizing the Chickasaw Nation's continuing reservation, this withdrawal of that opinion does not mean the Court does not recognize the Chickasaw Nation.  Wallace affirmed that part of the Court's prior holding, expressly recognizing the continuing existence of the Chickasaw Nation reservation (as well as the Choctaw and Cherokee reservations).  Wallace, supra at ¶ 15.  The new order in Bosse appears to be just cleanup by the Court, attempting to reconcile its cases, which is indeed a challenging task the way the Court has whipsawed back and forth on this issue.

A version of this article was published in the August 25, 2021 edition of The Madill Record, and it is republished here by permission. 

You’ve seen it on the news; a crime is reported, the police have made an arrest and the court system takes over. On your average police procedural that’s all she wrote - the criminal goes to jail and everyone else goes on with their lives. In the real world, however, it’s never that tidy. All too often, news reports - written by reporters who aren’t acquainted with the criminal justice system - do more to muddle the issues than to inform the public.  This article will try to give a rundown of Oklahoma criminal procedure to help sort out these confusing issues.  It should be noted that this is limited to Oklahoma, as there are significant variations from state to state, and from jurisdiction to jurisdiction.  Thus, an explanation of Oklahoma procedure would be of limited application to Texas,  or a federal court, or even a tribal court.

All criminal prosecutions start with some sort of report by law enforcement.  A citizen calls in a complaint about a theft, neighbors report a domestic dispute, or police discover a crime during a routine traffic stop.  What happens next often depends on whether the crime involved is a felony or a misdemeanor.  Felonies are serious crimes, often involving violence, such as murder, rape, kidnapping, robbery or burglary.  Misdemeanors are less serious crimes, such as traffic offenses, public intoxication and so forth.  Some crimes can be misdemeanors or felonies, depending on the circumstances.  For instance, domestic abuse and driving under the influence are misdemeanors for the first offense, while they are felonies on the second and all subsequent offenses; for most theft offenses, if the amount stolen is below a certain amount (fixed individually for that crime), then it is a misdemeanor, but theft of something above the designated value is a felony.  

Determination of what the proper charge is, at least initially, helps a police officer determine what happens next.  If a police officer has probable cause (a reasonable belief that a person has probably committed a crime) to believe a felony has been committed, then he can arrest the suspect if he finds him.  On the other hand, even if he has probable cause to believe a misdemeanor has been committed, a police officer can generally only arrest a suspect for a misdemeanor committed in his presence.  

Whether or not the suspect is immediately arrested, the police officer will submit a report to the local District Attorney’s Office, where a prosecutor will review it and decide what charges, if any, are to be filed.  The prosecutor can return the report back to the police officer for further investigation, can decline to file charges, or can file charges, either the charges recommended by the officer or different charges.  These charges are most commonly filed as a document called an Information, because the document is the means by which the prosecutor informs the court that he believes the suspect, now called the defendant, has committed a crime.  If the defendant is not in jail, then the judge will usually issue a warrant for their arrest.  In some misdemeanors, sometimes the defendant will be sent a notice by mail to turn himself in before a certain date, or else a warrant will be issued.

In other states or in the federal system, for serious charges, the charges will be referred to a grand jury, a group of people drawn from the community who must decide whether to file charges, and if so, what charges will be filed.  Grand juries have broad powers to investigate crimes, including the power to bring their own witnesses in to testify.  If the grand jury decides to file charges, they return a True Bill of Indictment, which is a document that specify the charges against the defendant.  If they do not decide to do so, then that is referred to as a “no-bill” and the charges are dismissed.  In Oklahoma, grand juries are an option for the prosecutors which are rarely used; most district attorneys prefer to simply file their charges as Informations and avoid dealing with the trouble and expense of impaneling a grand jury.

Once arrested, either initially during the investigation or on a warrant after charges are filed, the defendant is brought before a judge for what is called an initial appearance or arraignment.  There, the defendant is advised of his rights in the case, advised of the charges filed against him, and set for his next court date.  Since the right to be released on bail is guaranteed to all criminal defendants (except in certain very limited circumstances, for very serious crimes) the judge will also set an amount for bail.  Some defendants will be released on their promise to reappear for their next court date, without any further cost; this is referred to as a personal recognizance (PR) or own recognizance (OR) bond, depending on which county it occurs in.  Others will have a dollar amount set that they must post in order to be released; a defendant with sufficient cash or property can post that with the court clerk in order to be released, or more commonly, just hire a bail bondsman for a lesser amount to post the bond for him.  In the event the defendant cannot post bond, he remain in jail while the charges are pending.

Next, in a felony case, the defendant has the right to a preliminary hearing.  Prior to that hearing, in most counties, the judge will set the case for a preliminary hearing conference (PHC), which will allow the parties to decide whether that hearing will even be necessary.  This also gives a defendant time to hire an attorney if he can afford one, or apply for a court-appointed attorney if he cannot; all criminal defendants, except in very minor crimes, are guaranteed the right to a court-appointed attorney if he cannot afford one.  Usually, the prosecutor and the defense attorney will meet and discuss the case at PHC, and seek to find a resolution that both sides can agree on.  Such an agreed resolution that involves probation or a jail sentence for less than the maximum allowed, or on a lesser charge, is referred to as a plea agreement or plea bargain.  If the parties can reach an agreement, then generally the defendant will waive, or give up, his right to preliminary hearing, and proceed next to formal arraignment, the next step in the process.  If they cannot, then the parties will generally advise the judge to set the case for the hearing, and see what the witnesses say when they actually appear in court (as opposed to what the police report says).  At the preliminary hearing, the State will call witnesses and present evidence in an effort to show that there is probable cause to believe the defendant committed the crime.  The defense can question those witnesses, or on some occasions, call their own witnesses.  If the judge decides there is enough evidence to meet the low probable cause standard, he will order the defendant bound over for trial, meaning he has found that there is sufficient evidence.  If not, he will order the case dismissed; this result is most common when the State’s witnesses decide after the fact that they do not want to cooperate with the prosecution and do not appear for the hearing.

Assuming the defendant is bound over, either by waiving preliminary hearing or by having lost at the preliminary hearing, the next step is formal arraignment.  At formal arraignment, the defendant appears before another judge, and is once again advised of the charges, his rights, and generally enters a plea to the charge.  In Oklahoma, a defendant can choose between Not Guilty, Guilty, or No Contest, or he can choose to remain silent, and the judge will enter a plea of Not Guilty for him.  If the parties have a plea agreement, then the defendant will generally plead Guilty or No Contest at that hearing, and receive the agreed-on sentence.  If not, then the defendant will enter a plea of Not Guilty.  If he pleads Not Guilty, then the judge will set the case for the next step, usually called disposition.

A disposition hearing is generally intended to be a last chance for the parties to tell the court whether they genuinely want a trial, and if so, what kind of trial.  A trial can either be a bench trial, where the judge makes the decisions as to guilt and punishment, or a jury trial, where a jury is called in to hear the evidence and make those decisions.  Disposition usually gives the attorneys one last chance to meet, discuss their case, and decide if they can reach an agreement.  If not, then the parties tell the judge whether they want a bench trial or a jury trial.  The judge will also often set deadlines for the parties to file any motions they have, for discovery and other necessary matters.  The matter is then set for trial.

In cases that are being tried, the parties will be required to exchange a list of their witnesses, and provide any evidence they have to the other side.  This process is called discovery.  Generally, if a party does not disclose his evidence before the discovery deadline, then that evidence cannot be used at trial.  The purpose of this procedure is to prevent either of the parties from obtaining an unjust verdict by unfairly surprising the other party, rather than a just result based on a fair presentation of all the evidence.  Additionally, the judge will hear motions challenging evidence at trial, as to whether it was legally obtained and thus can be used.  Evidence obtained by police in violation of a defendant’s constitutional rights cannot generally be used against that person.  Thus, if the police violate a defendant’s right to remain silent by torturing him to obtain a confession, then that confession cannot be used in evidence. Likewise, evidence obtained in violation of the law as to search and seizure cannot be used either.  Whether evidence was lawfully obtained and can be used, or whether some exception to the rules applies, is often a hotly-disputed issue in the proceedings leading up to trial.

Assuming that the parties comply with the court’s discovery orders, and the prosecution still has evidence it can use, then the parties proceed to a trial.  If a jury trial is held, in a felony case, then twelve jurors will be selected to hear the evidence.  Their decision as to whether or not the defendant is guilty must be unanimous.  If the jurors cannot agree, that is called a hung jury and they are dismissed; the prosecutor will then decide whether he wants to proceed with another trial or just abandon the effort and dismiss the charges.  If the jury agrees on a verdict of Not Guilty, then the judge will dismiss the charge; this is referred to as acquittal.  If the jury agrees on a verdict of Guilty, they will then generally recommend a punishment.  In that situation, the judge will set the case for one last hearing, called sentencing, and revoke the defendant’s bond, jailing him immediately.  In a bench trial, the same thing happens, except that it is only the judge making those decisions, and not a jury.

At sentencing, the judge must generally follow the jury’s recommendation, and sentence the defendant accordingly. However, he has the option of converting some or all of that sentence to probation as a suspended or deferred sentence.  The parties can produce evidence at sentencing as to whether or not this should be done, and then the judge issues his sentence.  From the date the judge announces the sentence, the defendant has ten days to file an appeal with the Oklahoma Court of Criminal Appeals if he wishes to appeal.  The appeals court will then review the record to see whether to uphold the verdict and sentence, reverse for a new trial, or modify the sentence.  If the appeal is not filed, or when the appeal is concluded, then the case is over.

This description is a good general outline for your average felony case.  In murder cases, if the State wishes to seek the death penalty, then the State must file an additional charging document, called a Bill of Particulars, before the formal arraignment hearing (noted above).  That document will outline why the prosecution believes that this crime deserves a death sentence.  If filed, then the trial becomes a two-stage proceeding.  In the first stage, the jury simply determines guilt.  If the jury finds the defendant guilty, then there will be a second stage (essentially another trial), where the jury hears evidence as to whether the death penalty ought to be imposed.

In a misdemeanor case, the procedures are somewhat simpler.  The preliminary hearing stage is completely skipped, and the defendant (if he pleads Not Guilty at his arraignment, that first appearance before the judge) proceeds immediately to disposition.  A jury in a misdemeanor case is composed of only six people, rather than twelve for a felony, and four of those six can render a verdict in a case where the crime charged is punishable by no more than six months in jail.  

Hopefully, this incredibly simplified explanation of the criminal justice system is helpful to understanding news reports about the status of criminal charges.  It should go without saying that relying on this for more than general informational purposes is a poor idea.  Even worse, this should not be used in an effort to navigate the criminal justice system in your own criminal case, without an attorney’s assistance.  An old adage in the law is that “the man who is his own lawyer has a fool for his client.”  If you have questions about criminal proceedings, you should definitely consult an attorney, as each case is very different, and the resolution of difference cases often turn on their particular facts.  Hopefully, however, the next time you hear a news reporter telling you about a prominent case, this will give you an idea of what is going on in the process. 

The foregoing article was originally published in the July 1, 2021, edition of The Madill Record, and is republished here by permission.

In the news, we’ve seen story after story talking about a Supreme Court decision that decided that parts of Oklahoma were still Indian reservations. Some reports indicate that hundreds, maybe thousands of prison inmates are on the verge of being released.  Some wonder whether law enforcement still has any power in eastern Oklahoma.  Given that level of uncertainty, it’s high time that someone actually tried to explain what’s going on to the general public in a way that can make sense to the average person.

First, a little history.  Oklahoma’s first settlers were Native Americans, members of what were once commonly referred to as the Five Civilized Tribes, the Choctaw, Chickasaw, Cherokee, Muscogee (Creek) and Seminole Nations.  Those tribes resided in territories that encompassed much of the southeastern United States, and white settlers wanted their land.  While the tribes had treaties with the federal government that theoretically guaranteed and protected their territories, State authorities often refused to enforce those treaties or protect the tribes.  Under President Andrew Jackson, who had fought both against and alongside the tribes in various conflicts, Congress passed in 1830 the Indian Removal Act, which authorized President Jackson to negotiate treaties with the tribes to exchange their lands for different territories west of the Mississippi River, and then transport them to their new lands, thus (at least temporarily) resolving the problem; at this time, the new lands, part of the Louisiana Purchase, were largely unsettled and beyond the frontier.  

The first treaty was signed with the Choctaws, the 1830 Treaty of Dancing Rabbit Creek.  One by one, each of the Five Tribes, left with little choice in the matter, signed treaties exchanging their lands for lands in what was known as Indian Territory, and then the majority of those tribes were relocated by the federal government to that new territory.  The relocation was thoroughly mishandled by uncaring and incompetent federal agents, and resulted in the deaths of thousands, now known as the “Trail of Tears.”  The survivors were resettled in their new lands, in what is now most of Eastern Oklahoma, lands that were guaranteed to them in perpetuity by the federal government.  Those lands were then owned by the tribes in common - no Indian held title to any specific part of their region, but could use any portion of those lands as though it were their own.  As time passed, and settlement advanced, Congress eventually “altered the deal” to allow for white settlement in the Indian lands.  In 1887, Congress passed the Dawes Act, which provided for the distribution of individual tracts, called “allotments,” to members of the tribes.  This led to the creation of the Dawes Commission, whose job it was to identify each member of the Five Tribes, add them to the rolls for their tribe, and assign them an allotment.  Some allotments could not be sold without permission of the federal government, and were referred to as “restricted.”  Those restrictions on transfer could not be lifted without the authorization of the Department of the Interior, and some still exist today.  In any event, the tribal members were enrolled, assigned allotments, and then the balance was sold to incoming settlers, and the State of Oklahoma was eventually formed from the Indian Territory and the Oklahoma Territory (most of western Oklahoma).  While the laws enacting this transfer contemplated that the tribal governments in the Indian Territory would be abolished, that was never completed, and the tribal governments still exist today as sovereign nations within the State of Oklahoma.

This all becomes relevant to us because of federal laws known as the General Crimes Act and the Major Crimes Act.  Because, as demonstrated by the experience of many Indians (including the Five Tribes), state authorities could not be trusted to deal fairly with Indians who resided within state borders, the Crimes Acts restricted state jurisdiction over crimes committed by Indians or against Indians on their lands. Found at 18 U.S.C. §§ 1151, 1152 and 1153 (read that as Title 18 United States Code Sections 1151, 1152 and 1153), these laws provide that in “Indian Country,” certain listed major crimes (such as murder, manslaughter, kidnapping, rape and the like) can only be prosecuted by federal authorities in a federal court, when they are committed by or against an Indian.  Other crimes committed by or against Indians must be prosecuted on or in tribal court.  

These laws mean that the definition of “Indian Country” takes on substantial importance.  Section 1151 defines “Indian Country” as “all land within the limits of any Indian reservation,” any “dependent Indian community,” and “all Indian allotments” still held by Indians.  In Oklahoma, state courts largely ignored those laws, but beginning in 1989 with the decision in State v. Klindt, 1989 OK CR 75, 782 P.2d 401, the Oklahoma Court of Criminal Appeals (Oklahoma’s highest state court for criminal cases) recognized the state had been erroneously prosecuting cases for years, and held that “the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country.”   In the ensuing 30 years, the Court’s opinions reflected that the only property they recognized as “Indian Country” in Oklahoma was restricted Indian allotments.  Such has been the state of the law in Oklahoma since 1989.

This began to change, however, with the 2017 decision of the U.S. Court of Appeals for the Tenth Circuit (the federal appeals court which includes Oklahoma)  in Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017).  In Murphy, the Tenth Circuit dealt with the case of Patrick Murphy, who was convicted of killing his girlfriend’s ex-boyfriend, and sentenced to death in Oklahoma state court.  After his initial appeals were denied, Mr. Murphy raised a claim in federal court that the State lacked jurisdiction over his crime, since both he and the victim were members of the Muscogee (Creek) Nation, and the crime was committed in the territory of the Muscogee (Creek) Nation, and was thus in “Indian Country.”   After his claim was denied by the federal district judge, he appealed to the Tenth Circuit.  After an extensive review of the treaties, laws, and history of dealings between the federal government and the Muscogee (Creek) Nation, the Tenth Circuit reached the conclusion that when the federal government had granted the tribe their lands under the Indian Removal Act, it had created a reservation for the tribe.  That reservation could only be abolished, or “disestablished” to use the language of the Court, by Congress, which had never expressly done so.  This meant that, contrary to the prevailing assumption, the Muscogee (Creek) Nation remained “Indian Country” for purposes of federal law.  Accordingly, the Tenth Circuit decided that since Murphy’s crime had been committed both by and against an Indian in Indian Country, he could only be prosecuted in federal court.  Since Oklahoma did not have the jurisdiction to try or punish him, his conviction was reversed, to be dismissed.  The Court was very clear that the only body with the power to change that result going forward was Congress, which could pass legislation disestablishing the reservation any time it chose.

The State appealed the Murphy decision to the U.S. Supreme Court. A decision was delayed, however, because of the death in 2016 of Justice Antonin Scalia, and the appointment of Justice Neal Gorsuch by President Trump to fill his seat.  Justice Gorsuch recused from consideration of the Murphy appeal, since he had been a member of the Tenth Circuit when that case was decided.  The other eight justices of the Supreme Court, apparently split 4-4 on how to rule on the issue, delayed deciding the Murphy case until they could hear a case dealing with that issue which could be heard by all 9 justices.  Thus, this issue languished unresolved by the Court until 2020.

On July 9, 2020, the High Court decided the case of McGirt v. Oklahoma, _____ U.S. _____, 140 S.Ct. 2452 (2020).  McGirt presented the case of Jimcy McGirt, who, as a member of the Seminole tribe, had been convicted by an Oklahoma state court of serious sexual offenses which had occurred in the territory of the Muscogee (Creek) Nation.  In a 5-4 decision, written by Justice Gorsuch, the Court followed the reasoning of the Tenth Circuit in Murphy, holding that the Muscogee (Creek) Nation had been established as a reservation, and had not been disestablished by Congress.  In the words of Justice Gorsuch’s opinion, “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.”  As a result, the Court held that McGirt could only be prosecuted in a federal court, as an Indian who had committed a crime falling under the Major Crimes Act in Indian Country, and his conviction was ordered reversed.  The same day, the Court issued a summary opinion affirming the Tenth Circuit’s opinion in Murphy, based on its reasoning in McGirt.

The Murphy and McGirt decisions had gained the attention of attorneys and judges all over the State of Oklahoma, because of their potential to not only impact ongoing and future criminal charges, but past ones as well.  Since the State had never had jurisdiction over the crimes themselves (known to the law as subject-matter jurisdiction), past convictions in contravention of the Crimes Acts were invalid.  The Court of Criminal Appeals had held for years that subject-matter jurisdiction could never be waived, and so legal practitioners waited to see if that Court would both continue to recognize that principle in the face of post-McGirt challenges. If so, then those who had previously been unlawfully convicted of crimes (such as Patrick Murphy and Jimcy McGirt) could raise those challenges, and at worst, get a new trial in either federal or tribal court.  

Another issue that awaited resolution was the issue of whether this applied to other tribes.  While each tribe’s reservation status required evaluation on a case-by-case basis, it seemed likely to most observers that the rest of the Five Tribes would all hold a similar status to the Muscogee (Creek) Nation, given that they were often dealt with as a group by the federal government, and even when dealt with separately, their treaties often contained very similar language to that noted in the McGirt opinion.

After months of waiting, the Oklahoma Court of Criminal Appeals began recognizing that other tribes also maintained reservations.  On March 11, 2021, the Court decided Bosse v. State, 2021 OK CR 3, _____ P.3d _____, which decided that the Chickasaw Nation maintained its status as a reservation, and Hogner v. State, 2021 OK CR 4, _____ P.3d _____, which made the same decision as to the Cherokee Nation.  This was followed on April 1 by Sizemore v. State, 2021 OK CR 6, _____ P.3d _____, which extended that ruling to the Choctaw nation, and Grayson v. State, 2021 OK CR 8,  _____ P.3d _____, which extended it to the Seminole Nation.  As a result of these decisions, within the territory of the Five Tribes (a map of those territories is available here), a crime committed by an Indian or against an Indian is beyond the subject-matter jurisdiction of an Oklahoma state court, and any such charges must be dismissed.  Additionally, any old convictions rendered in violation of this rule must be vacated, and the defendant can be retried in either federal court or tribal court, depending on the crime of which they are accused.  Meanwhile, as the Court noted in Bosse, the State retains jurisdiction over crimes committed by non-Indians against non-Indians within these territories

This ruling has, as of this date, not been extended to the territories of other tribes.  There are some tribes in Oklahoma that likely have had their reservations disestablished, and thus McGirt is inapplicable to their territories.  However, there may well be other tribes that still maintain that status, which will result in litigation for years to come over those issues.

Unsurprisingly, the ruling in McGirt has led to a fair amount of public comment about its impacts on the administration of justice within the State of Oklahoma.  Much of this comment has been ill-informed or not thoughtful, and so there are a number of questions typically posed by the general public about those impacts.  Those include:

Does this mean that the State of Oklahoma no longer exists in the tribal reservations?
If land was within the State of Oklahoma before McGirt was decided, that land still remains in the State of Oklahoma.  Oklahoma can and does still conduct a wide range of governmental functions in the reservation lands, and rightfully so.  As noted above, if a non-Indian commits a crime that either lacks a victim (such as drug possession) or with a non-Indian as a victim, that person is as liable to punishment in state court now as they were before McGirt.  In this manner, the State of Oklahoma is no different than other states that have large tribal reservations; those states coexist with their tribes, and Oklahoma will continue to do so.

Can I still call local law enforcement, or do I have to call tribal law enforcement when I have an emergency?
In short, you can and should still call 911 if you have an emergency.  Most local law enforcement agencies were cross-deputized with the tribes before McGirt was decided, and since the decisions in Murphy and McGirt, only the most stubborn would not be at this point.  When an officer is cross-deputized, that means that officer can be treated as an officer of either agency, depending on the circumstances; thus, a local city policeman or deputy sheriff who is cross-deputized is treated by the law as a tribal officer if he is investigating a crime that falls under McGirt or arresting a tribal member.  At worst, an officer can summon tribal law enforcement if needed, but still deal with an emergency situation in a manner necessary to protect public safety.

What about criminal charges in State court?
This is the biggest impact of the McGirt decision.  Any tribal member, or defendants who are accused of committing crimes against tribal members, within the tribal territories, have a right to have their cases dismissed in state court.  This does not mean that the defendant automatically escapes punishment for their crimes.  In cases under the Major Crimes Act, it will be up to a federal prosecutor (for our practice area in southeastern Oklahoma, that would be the U.S. Attorney for the Eastern District of Oklahoma, based in Muskogee) to decide whether to refile the charges in federal court.  For other crimes, it will be up to a tribal prosecutor (for where we practice, either the Choctaw Nation in Durant, or the Chickasaw Nation in Ada, depending on where it occurred) to make that determination.  Those agencies have had since last summer’s McGirt decision to begin preparing to handle the caseloads that they have expected to have sent to them.  

What about convicted defendants being released?
The biggest elephant in the room, of course, will be old state convictions.  It should be noted that, as of this writing, the decisions in Bosse, Hogner, Sizemore and Grayson have not become final.  However, local courts have already started applying Bosse to cases before them.  Ultimately, it will be up to the US Attorney’s office/tribal prosecutor’s office to decide what to do about those with old convictions, whether the defendants are in prison, have been released after completing their sentences, or are on some form of probation, who now can challenge their state convictions and obtain, at a minimum, a new trial.

For these prosecutors, there are issues with prosecuting old cases.  First, in some cases, especially the less-serious misdemeanors, the statute of limitations (the time period in which criminal charges can be filed after a crime is committed) may well have expired.  If the limitations period has expired, then charges cannot be refiled.  The second issue is witnesses and evidence.  In cases that are sufficiently old, there will undoubtedly be problems with witnesses who have forgotten key details, or in locating witnesses who have moved, remarried, or even died.  If those witnesses have testified before, but now are unavailable, it is possible to use their prior testimony in a new prosecution for the same offense.  Whether these issues are something a particular prosecutor wants to try to overcome in a particular case will be a decision to be made on a case-by-case basis.

For criminal defendants, there is a risk, if the statute of limitations has not expired, that they could be reprosecuted and then reimprisoned for their crimes, without receiving any credit against their sentences for the time they have served.  For defendants like Patrick Murphy, who was sentenced to death, this obviously is not much of a risk, as he had little to lose in challenging his sentence.  However, a defendant who is merely facing probation or who has completed probation will want to weigh the risks of being incarcerated on a refiled charge with a different prosecutor.  This issue is not an automatic “Get Out of Jail Free Card” for defendants in these matters, and so the decision whether to raise this issue will be a matter for criminal defendants to discuss with their attorneys.

Do I have to be a member of that specific tribe to be able to take advantage of this decision?
No. A member of any federally-recognized Indian tribe is subject to the ruling in McGirt as long as the crime in question is committed within the boundaries of the tribal reservation.  Take for example Jimcy McGirt, who was a Seminole, but was convicted of crimes committed in the Muscogee (Creek) Nation. Neither the defendant nor the victim (if any) has to be a member of the tribe whose reservation is at issue, so long as a federally-recognized tribe has granted them membership status.

Does this apply to traffic tickets?
Yes it does.  Traffic citations in Oklahoma are misdemeanor criminal charges, and so would fall under tribal jurisdiction.

Who can change this?
As noted by the Tenth Circuit, the U.S. Supreme Court, and the Court of Criminal Appeals, only Congress has the power to unilaterally change the status of the tribal reservations.  Otherwise, the tribes are capable of voluntarily ceding their sovereignty to the State through new treaties with the federal government, or by agreements with the State.  Given that there has been absolutely no movement in that direction in the four years since Murphy was decided, it seems highly unlikely that any of the parties with the power to change this result will do so in the foreseeable future.  Even if they did, none of them have the power to retroactively grant jurisdiction to Oklahoma state courts, so the problem with the old convictions would still be there to resolve.

What about other areas of the law?  
The holding in McGirt is based on particular federal statutes that only govern criminal cases.  Whether the reservation status will impact other areas, such as civil court jurisdiction, taxes, and so forth, has yet to be decided.  In the meantime, residents of these areas would be well-advised to continue complying with court orders and paying their taxes, and to consult with an attorney about what impact, if any, this has on those responsibilities. 

A version of this article was published in the April 7, 2021 edition of The Madill Record, and it is republished here by permission.  The full version that ran in the Record can be found here.