McGirt v. Oklahoma isn’t the only landmark case for Native Americans accused of crimes in eastern Oklahoma, district attorneys say.
Tribal territories in eastern Oklahoma have their own cases that are likely to have the same impact on them as McGirt v. Oklahoma had on Creek Nation defendants in the region. The July 9 McGirt decision prompted the United States Supreme Court to rule virtually all of eastern Oklahoma remains an Indian reservation, meaning members of federally recognized Native American tribes will likely be prosecuted at a federal level for alleged offenses in that part of the state.
Supreme Court justices in their reasoning of the case cited the Reconstruction Treaty of 1866, which determined the Creek, Chickasaw, Choctaw, Cherokee and Seminole tribes retained the eastern part of Oklahoma. The Reconstruction Treaty was reached after the tribes were removed from their homes to present-day Oklahoma during the Indian Removal Act of 1830.
Law enforcement officials in eastern Oklahoma are largely operating as they had before the decision, especially when arresting Native Americans who are not members of the Creek Nation. But district attorneys expect decisions like McGirt involving Native American defendants in their own respective districts to have a similar impact.
“Each of the four (remaining) civilized tribes has its own issues going forward,” said District 16 Attorney Jeff Smith, whose district is in Choctaw Nation land.
District 27 Attorney Jack Thorp, whose district is on Cherokee land, said he expects the outcome of Bose v. Oklahoma to clear up questions throughout eastern Oklahoma — namely, regarding the specifics of who would be prosecuted at a federal under the ruling. Plaintiff Shaun Michael Bose alleged the state violated his eighth amendment rights in the procedures of his 2012 death penalty case for triple homicide and arson in McClain County, which is on Chickasaw land.
“The defendant has the burden of proving Indian status and that the location of his crime fell within the boundaries of the purported reservation,” the Oklahoma Criminal Appeals supplemental brief on the case reads.
Smith said the outcome of Bosse could impact criminal proceedings for Native Americans in his district as well as those in districts on Chickasaw land. This is because the Chickasaw and Choctaw tribes were “almost treated identically” in their treaties with the federal government.
If not, the Choctaw Nation still has State v. Harold McCurtain, which District 16 Associate Judge Marion Fry ruled could not proceed because of the defendant’s membership to the tribe. McCurtain is accused of lewd molestation in LeFlore County.
Thorp estimates 20,000-30,000 cases could potentially be turned over from state prosecutorial districts to the Eastern District of Oklahoma from the outcome of McGirt and other similar cases. Cherokee Nation Principal Chief Chuck Hoskin Jr. on Thursday announced the proposal of the Cherokee Nation Reservation, Judicial Expansion and Sovereignty Protection Act, which would allow his tribe to apply for federal funding to pay for the legal services necessary for the potential increase in federal prosecution.
In the meantime, most district attorneys in eastern Oklahoma “are just trying to find out what the rules are,” Smith said.
“If McGirt makes one thing clear, longstanding assumptions cannot substitute for clear text,” the Bosse brief reads.