To What Historic Reservation Boundaries Does the McGirt Precedent Apply?

Both McGirt and Murphy dealt with crimes alleged to have occurred within the historic boundaries of the Muscogee (Creek) Nation; however, the circumstances of that tribe’s land and treaties are almost identical to that of the other “Five Civilized Tribes.” Therefore, the Wirth Law Office has been advising from the beginning that the McGirt precedent would almost certainly apply to those tribe’s historic reservations.  Nonetheless, many prosecutors and some judges held out and waited for appellate court decisions specific to the individuals tribes before dismissing cases or vacating convictions for crimes alleged to have occurred on those reservations.  As of April 1, 2021, the Oklahoma Court of Criminal Appeals has applied McGirt to each of the “Five Civilized Tribes” (Muscogee (Creek) Nation, Cherokee Nation, Chickasaw Nation, Choctaw Nation, and Seminole Nation) and cases are still pending regarding the application of McGirt to other Federally recognized tribe’s historic reservations.

• Muscogee (Creek) Nation. The United States Supreme Court in both McGirt and Murphy held that the historical Muscogee (Creek) Nation reservation of the tribe was never disestablished. As the decision by the highest court of the land was directly on point to this this tribe, Wirth Law Office has already been able to obtain the dismissal of pending charges in State courts within the Muscogee (Creek) Nation reservation. However, the State is still contesting some attempts to vacate convictions against Indians” for crime which occurred within the Muscogee (Creek) Nation.
  • Shannon James Kepler v. Oklahoma. After several jury trials resulted in mistrials for Mr. Kepler, the State obtained a conviction for 1st Degree Murder and two convictions for Shooting with Intent to Kill. The defendant filed a direct appeal to the Oklahoma Court of Criminal Appeals, which was still pending when McGirt was decided. The Oklahoma Court of Criminal Appeals remanded the case back to the trial court for an evidentiary hearing on whether defendant is an “Indian” and whether the crime occurred in Indian Country. Per stipulations agreed upon by the parties, the court found both of these questions in the affirmative and now the case is awaiting a decision from the Oklahoma Court of Criminal Appeals. Despite having no clear grounds to object to overturning defendant’s convictions for lack of subject matter jurisdiction, the State is still fought the appeal.
    • Tulsa County CF-2014-3952.
    • Oklahoma Court of Criminal Appeals F-2017-1186.
• Cherokee Nation. Judges in Tulsa County District Court are transferring all cases where McGirt arguments are being made to a special docket that Judge Tracy Priddy is overseeing. Although Judge Priddy has dismissed cases alleged to have occurred within the Muscogee (Creek) reservation; she has continued many cases where crimes are alleged to have occurred within the historic Cherokee Nation reservation, which covers the northernmost part of the county. On Friday, October, 13, 2020, she continued 123 such cases to February of 2021, as she is awaiting further guidance from the Oklahoma Court of Criminal Appeal regarding whether the McGirt precedent applies to the Cherokee Nation reservation. Wirth Law Office is objecting to the court keeping Indian defendants in jeopardy with pending cases when it is clear the State lacks jurisdiction to prosecute. The Judge should use existing precedent, apply it to the facts of the Cherokee Nation and dismiss these cases rather than delay proceedings to get a decision from a court with substantially less authority than the United State Supreme Court. Let us not forget that the Oklahoma Court of Criminal Appeals denied relief to both Murphy and McGirt before being overruled the US Supreme Court.
  • Travis John Hogner.
  • Craig County CF-2015-263. The defendant was convicted of possession of a firearm after former conviction of a felony in 2017. On September 14, 2020, the Amicus Brief of Cherokee Nation was filed with the trial court. Remand hearing occurred on September 21, 2020 and through a September 30, 2020, Order on Remand the trial court found that the defendant “(1) has some Indian blood and (2) is recognized as an Indian by a tribe or the federal government.” The trial court additionally found that the Cherokee Nation reservation was never disestablished and therefore the crime occurred in “Indian Country.”
• Chickasaw Nation.  NOT DISESTABLISHED.  The Oklahoma Court of Criminal Appeals ruled in Bosse v. State, 2021 OK CR 3, that the Chickasaw Nation reservation was never disestablished and remains “Indian Country” where the State of Oklahoma lacks jurisdiction to prosecute Indians or non-Indians who commit crimes against Indians.  The Mandate in Bosse has been stayed until May 30, 2021 and the State of Oklahoma has filed a request to appeal (writ of certiorari) with the United States Supreme Court.
  • Shaun Michael Bosse v. Oklahoma. The defendant was charged with multiple counts of 1st degree murder on July 26, 2010 in McClain County District Court and later convicted of the charges. After various appeal attempts, on August 12, 2020, the Oklahoma Court of Criminal Appeals, citing McGirt, remanded the case back to the trial court in McClain County for a hearing to determine whether the victims were Indians (the defendant in this case is not an Indian) and whether the crime occurred in Indian County (i.e. whether the Chickasaw Nation reservation has been disestablished). The trial court’s October 13, 2020, Findings of Fact and Conclusions of Law holds that the crime victims were Indians and that this crimes occurred in “Indian Country.” That is, the trial count found that the Chickasaw Nation reservation has not been disestablished.  On March 3, 2021, the Oklahoma Court of Criminal Appeals ruled that the State lacked jurisdiction to prosecute Bosse and that the State’s procedural defenses (waiver, laches, et cetera) are ineffective against claims that the Court lacked subject matter jurisdiction.
    • McClain County CF-2010-213.
    • Oklahoma Court of Criminal Appeals PCD-2019-124.
    • United States Supreme Court 20A161.  The State of Oklahoma for for Writ and request for stay of mandate with the United States Supreme Court on April 26, 2021.  Bosse’s response was filed on May 7, 2021.  The Chickasaw Nation filed a motion for leave to file an amicus brief on May 7, 2021.  The United States filed a request to file amicus brief siding with the defendant.  On May 26, 2021, the United States Supreme Court granted a stay of the mandate pending Oklahoma’s request for writ of certiorari to the United States Supreme Court.  It is important to note, though, that the United States Supreme Court has not yet granted cert to hear the case.
  • Miles Sterling Bench v. Oklahoma. Defendant is appealing his conviction and death sentence, arguing among other things that the court lacked jurisdiction to prosecute him based on the Chickasaw Reservation never being disestablished. The Oklahoma Court of Criminal Appeals ordered a remand hearing to determine “whether (1) Appellant has some Indian blood, and(2) is recognized as an Indian by a tribe or the federal government” and whether Congress established reservation for the Chickasaw Nation, and if so, whether Congress specifically erased those boundaries and disestablished the reservation.” On November 5, 2020, the trial court held that the defendant is an Indian and that the Chickasaw Nation reservation was never disestablished.  This decision is now awaiting review by the Oklahoma Court of Criminal Appeals.
    • Stephens County CF-2012-172.
    • Oklahoma Court of Criminal Appeals PCD-2015-698.
  • Clarissa Marie Mars. On October 13, 2020, Defendant filed for Post-Conviction Relief asserting the court lacked jurisdiction to prosecute her based on McGirt precedent. As of November 19, 2020, no hearing date has been set.
    Garvin County CF-2014-419.
• Choctaw Nation.
  • Keith E. Davis v. Oklahoma. The defendant was convicted of forcible sodomy, among other things, in 2005. On the same day that McGirt was decided, the United States Supreme Court vacated the order from the Oklahoma Court of Criminal Appeals in this case. On October 7, 2020, the Oklahoma Court of Criminal Appeals remanded the case back to the trial court for evidentiary hearing regarding jurisdiction given the decision in McGirt. Said hearing is set for November 20, 2020.
    • Latimer County CF-04-65.
    • Oklahoma Court of Criminal Appeals PC-2019-451.
    • United States Supreme Court 19-6428.
  • Devin Sizemore v. Oklahoma. On October 28, 2020, Judge Tim Mills of the Pittsburg County District Court made a finding of fact for a remand order, finding that the Choctaw Nation reservation was never disestablished. The case is now pending a final ruling from the Oklahoma Court of Criminal Appeals.
    • Pittsburg County CF-2016-593
    • Oklahoma Court of Criminal Appeals F-2018-1140.
• Seminole Nation.
  • Joe Johnson v. Oklahoma.  The defendant was charged with 1st degree murder back in 1977 and convicted. On July 24, 2018, the Oklahoma Court of Criminal Appeals denied defendant’s 11th application for post-conviction relief. Two years later, on the same day that McGirt was decided, The United States Supreme Court vacated the order from the Oklahoma Court of Criminal Appeals and remanded the case back to that court. On November 23, 2020, the Oklahoma Court of Criminal Appeals remanded the case back to the trial court (Seminole County District Court) for a hearing within sixty (60) days to determine whether the defendant is an “Indian” and whether the crime occurred in “Indian Country.” The fact that the Oklahoma Court of Criminal Appeals remanded the case appears to indicate that it is not inclined to allow technical/procedure defects to prevent these McGirt appeals, despite the Attorney General’s arguments otherwise. After all, the original case here is from 1977 and it was the defendant’s 11th post-conviction appeal. If the AG cannot win on technical/procedural defenses (waiver, estoppel, laches) in this case, how can it on any other case?
    • Seminole County CF-1977-65. Not available online due to its age.
    • Oklahoma County of Criminal Appeals PC-2018-343.
    • United States Supreme Court 18-6098.