Indian inmate files opening brief in Supreme Court sovereignty case

Wednesday, February 5, 2020

By Acee Agoyo

An opening brief has been submitted on behalf of Jimcy McGirt, the Indian inmate whose U.S. Supreme Court case is poised to resolve the sovereign status of millions of acres in Oklahoma.

McGirt, a 71-year-old citizen of the Seminole Nation, has been sentenced by the state to serve 500 years in prison, as well as life without parole, in connection with the sexual assault of a child. But his legal team told the Supreme Court on Tuesday that Oklahoma can't prosecute him.

The argument is based on the location of McGirt's alleged crimes. Since they occurred within the reservation promised to the Muscogee (Creek) Nation by treaty, and since Congress never disestablished those lands, the state lacked jurisdiction over him, his attorneys said.

"Congress, in short, never legislated to disestablish the Creek reservation," the team led by attorney Ian Gershengorn wrote for the opening brief in McGirt v. Oklahoma. "And because the Creek reservation endures, the federal government— not Oklahoma—has jurisdiction over petitioner’s alleged crimes."

Jimcy McGirt is currently serving time in the Oklahoma correctional system for crimes committed in 1997. Source: Source: OK Offender / OK Department of Corrections

McGirt's attorneys further answer a question raised by the Supreme Court during consideration of Sharp v. Murphy, a similar case arising from state prosecution of a tribal citizen. The justices, before they punted and failed to issue a decision in Murphy, wondered whether Oklahoma could still exercise criminal authority on Creek lands even if the reservation still exists.

The answer, according to McGirt's legal team, is no. Congress never granted Oklahoma jurisdiction over crimes committed by Indians in Indian Country, the attorneys said.

"Under the Major Crimes Act, the United States has exclusive jurisdiction over qualifying crimes on 'any Indian reservation' or 'Indian country' within 'any State,'" the 54-page brief reads. "Nowhere did Congress exempt Oklahoma from this rule."

Additionally, the brief addresses alarmist arguments advanced by the Trump administration regarding federal prosecution in Oklahoma. During consideration of Murphy, the Department of Justice said it would be unable to handle crimes committed by Indians on lands promised not only to the Muscogee (Creek) Nation but also to the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation. Collectively, an estimated 19 million acres is at issue.

"There is no credible claim that the federal government cannot handle the additional prosecutions," the brief asserted. "And if the Justice Department prefers not to do so, it will find an attentive audience in Congress."

The state of Oklahoma will be able to respond to McGirt's opening brief. Once it is received by the Supreme Court, McGirt will get a chance to file a reply to the state.

Other interested parties are also able to submit briefs. Both McGirt and the Oklahoma filed blanket consents, opening the doors for just about anyone to present their views about the controversy.

The Muscogee (Creek) Nation and the Trump administration have already told the court that they plan to do just that. On Tuesday, they were given permission to file longer than usual briefs, according to an entry in the Docket No. 18-9526.

A date for oral arguments in McGirt has not been set. The earliest one could occur is sometime in April, as the Supreme Court currently has hearings scheduled through April 1.

The Supreme Court's current term, which began in October, is expected to conclude by the end of June, giving the justices only a couple of months to hear arguments and come up with a decision, assuming they stick to their usual schedule.

In comparison, the court had several months to mull over Murphy. Oral arguments took place on November 27, 2018, and were quickly followed by an unusual request for supplemental briefs focused on state jurisdiction in Indian Country.

A map created by the U.S. Department of the Interior shows the boundaries of the Creek Reservation intact in 1914. Additional maps, dating from 1900 through 1917, submitted to the U.S. Supreme Court as part of *McGirt v. Oklahoma*, show the existence of similar boundaries.

Despite the submissions, the justices failed to issue a decision in Murphy seven months later, at the end of June 2019. Speculation centered on the absence of Justice Neil Gorsuch, who did not participate in the case and was therefore unable to use his extensive experience in Indian law to help his colleagues come to consensus.

This time it's different. Gorsuch will be participating, presumably leaving the justices with the standard options. They could side with McGirt, opening him up to federal prosecution for his crimes, or rule in favor of Oklahoma, leaving him behind bars for the rest of his life.

The outcome would presumably have an impact on Patrick Dwayne Murphy, the Indian inmate whose case sent the Supreme Court down its current path. He's been sentenced to death by the state of Oklahoma for a murder that occurred on lands promised to the Muscogee (Creek) Nation.

If the Supreme Court rules for McGirt, Murphy could instead federal prosecution for the murder of a fellow Creek citizen. The death penalty might not be on the table as a result.

Indianz.Com on SoundCloud