A tribal sovereignty issue that has been winding its way through the courts for two decades may be heading toward a final decision before a home-bound U.S. Supreme Court.
McGirt v. Oklahoma oral arguments will be held in front of the Supreme Court despite the coronavirus pandemic which has caused massive shutdowns nationwide. Arguments are scheduled for Monday, May 11.
The Supreme Court has announced it will hear 10 cases that were previously postponed due to coronavirus safety concerns by telephone conference May 4-6 and May 11-13.
McGirt v. Oklahoma was thought to be off the table for the Supreme Court’s 2020 term owing to coronavirus developments, but the court has come up with a plan to continue remotely — the first time since the Supreme Court first convened in 1790.
Now it is up to the court to decide whether the state of Oklahoma had jurisdiction to prosecute Jimcy McGirt. The SCOTUS’ teleconference hearings will extend the severity of the coronavirus pandemic by posing new hurdles in the judicial process.
Jonathan Turley, an attorney, legal scholar and analyst, tweeted about this announcement saying, “The Supreme Court just announced it will hold virtual hearings in May, as I previously called for. I hope that the move into the 21st century will not stop there.“
Turley linked to his blog about the reluctance of Congress and the Supreme Court to allow remote technology in times of absence.
“Democracy at a distance is better than no democracy at all in times of emergency,” Turley said.
News media will be allowed to listen to a live audio feed of the arguments, but there is still no word on how or if the public will be able to observe. As the situation develops, more information will be released on the SCOTUS blog.
The Five Civilized Tribes and the state of Oklahoma both thought they were near resolution of the jurisdiction issue last year with the appeal to the murder case involving Patrick Murphy.
However, the court failed to settle the case of Murphy, a convicted murderer now on death row.
Instead of rehearing the Murphy case, the Supreme Court took up McGirt v. Oklahoma, which is centered on the argument of jurisdiction of the state and federal law when it comes to enrolled members accused of committing crimes within historical tribal boundaries.
This is different from the Murphy case that was centered on whether the 1866 territorial boundaries of the Creek Nation constitute an “Indian Reservation”.
McGirt v. Oklahoma: An argument of jurisdiction
Historical tribal boundaries created in 1866 will once more be argued in the highest court 154 years later as tribal justice is in question.
Lawyers for McGirt argued Oklahoma prosecutors had no authority to try him, a convicted child rapist, under the Indian Major Crimes Act.
Originally convicted by a Wagoner County jury over two decades ago of first-degree rape, lewd molestation and forcible sodomy, McGirt was sentenced to 500 years for each of the rape and molestation counts and life without parole for the forcible sodomy charge.
McGirt’s attorneys have appealed, arguing the crimes took place on the Creek reservation and that only tribal and federal courts had jurisdiction to try him. They argue the state had no authority to prosecute McGirt, an enrolled member of the federally-recognized Seminole and Muscogee (Creek) Nations of Oklahoma. The state is now arguing that the tribe’s land was a “dependent Indian community.”
Multiple amicus briefs have been filed on behalf of the petitioner, including those from U.S. Rep. Tom Cole (R-OK4), former Oklahoma Gov. Brad Henry and multiple tribal nations.
A reply brief from McGirt filed Friday, April 10, stated the federal government gave the Muscogee (Creek) Nation a reservation and that they were not a “dependent Indian community.” Furthermore, it argues Congress never de-established the reservation and never transferred the jurisdiction of the Muscogee (Creek) Reservation to Oklahoma.
If upheld in court, that claim could have a devastating impact to state prosecutions dating back years, lawyers for the state have argued.
This potential consequence could also retroactively affect past crimes committed by native people currently in state holding like Murphy, said Oklahoma Attorney General Mike Hunter, who attended the previous Murphy arguments.
“The uncertainty that it would create with regard to state prosecutions, convictions, finality, the parties that are affected by crimes, is certainly something that we are deeply concerned about,” Hunter said after the Murphy hearing.
(Clarification: This story was updated at 12:05 p.m. Wednesday, April 15, to clarify reference to the term “dependent Indian community.” The story was updated again at 11:11 a.m. Thursday, April 16, to add the May 11 date for scheduled arguments.)