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  • Writer's picturemrprice2015

Still stumbling in the dark in a post-McGirt world

Updated: Jan 1

On July 9, 2020, the United States Supreme Court issued an opinion in McGirt v. Oklahoma, 591 U.S. ___ (2020). The Court came to the conclusion that the territory of the Muscogee Nation was never disestablished by Congress. This simple idea plugged back into all existing precedent relating to the Major Crimes Act and the meaning of Indian Country. Basically, the State of Oklahoma has no right to prosecute American Indians with a degree of Indian blood who were alleged to have committed crimes in Indian Country.

Based on the Oklahoma Court of Criminal Appeals cases that followed, Indian Country came to include almost all of the eastern half of Oklahoma. Indians with criminal cases in these jurisdictions began filing and receiving numerous dismissals, even on cases they had already been convicted. In an attempt to stop the hemorrhaging criminal justice system in Oklahoma, the Oklahoma Court of Criminal Appeals issued a ruling in State Ex Rel. Matloff v. Wallace, 2021 OK CR 21. This time saying McGirt wasn't retroactive and didn't apply to final convictions.

The US Supreme Court took another shot at clarifying the limits of McGirt in Oklahoma v. Castro-Huerta, 597 U.S. ___(2022) holding that state courts have concurrent jurisdiction with federal courts over crimes committed by non-Indian defendants and against Indian victims.

But even after all these decisions, it is still clear that a citizen of a tribe with a degree of Indian blood cannot be prosecuted by the State of Oklahoma if the crime was alleged to have been committed in Indian Country...until now.

In a puzzling, brief opinion by the Oklahoma Court of Criminal Appeals, State v. Crosson, 2023 OK CR 18, the Court has decided that even if a judge has been presented information that a tribal citizen with a degree of Indian blood was alleged to have committed a crime in Indian Country, he must issue an arrest warrant in a STATE OF OKLAHOMA case number without question. Not requiring the particular county's DA to forward the case to a federal or tribal prosecuting agency, but exercise an arrest warrant that the judge has no legal authority to issue. What's worse, in this case, the judge knows he doesn't have jurisdiction.

Crosson involved a Rogers County judge who refused to issue an arrest warrant for an Indian with a degree of Indian blood in Indian Country. In the few paragraphs the Court committed to paper on this deeply important issue, the Court was only concerned with 22 O.S. 2021 § 171 requiring a complaint, verified by oath, laid before a magistrate, of the commission of a public offense, and if he believes that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, issue a warrant of arrest. The Court even went so far as to say, "This is where Judge Crosson's inquiry should have ended."

The Court unintentionally or intentionally has now placed us in a world where jurisdiction only matters after someone has been arrested and filed a motion saying it was illegal to arrest them. Since anyone can now accuse someone of a crime, an arrest warrant must be issued, and jurisdiction is something we'll just take up later, I'm wondering what unforeseen results this will lead. All I can say is this attorney is still stumbling in the dark in a post-McGirt world thanks to this decision.

--- Matt Price

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