Emily Harwell on the Effects of McGirt

Emily N. Harwell has published “Judicial Discretion Across Jurisdictions: McGirt’s Effects on Indian Offenders in Oklahoma” in the Cornell Law Review. PDF.


Here is the abstract:

Oklahoma’s exercise of criminal jurisdiction over crime committed on tribal reservations remained unchecked until 2020. In McGirt v. Oklahoma, the Supreme Court held that the Muscogee Creek Nation’s reservation had in fact never been disestablished and remains in existence today. In doing so, the Court restored criminal prosecution authority to tribal and federal courts. McGirt received praise throughout the United States from tribal nations and federal Indian Law practitioners for Justice Gorsuch’s strong affirmation of the Muscogee Creek’s sovereignty over its reservation and the honoring of treaties made between the United States and the Muscogee Creek Nation. Similarly situated tribes in Eastern Oklahoma including the Cherokee, Choctaw, and Chickasaw have already joined the Muscogee Creek Nation in asserting the changes that McGirt brings.

In the wake of this change, legal and political discussion has centered around practical matters: Does the Tribe have adequate resources for managing criminal jurisdiction within its reservation? Will the increase in cases overload the federal court system? The question of how the change in prosecutorial authority will affect Native American criminal defendants has yet to be asked, though. This Note assesses the effects of McGirt on the sentencing of Native Americans who commit crimes on a reservation in Oklahoma. Oklahoma state court judges exercise discretion in areas of sentencing different from federal court judges. Existing empirical studies suggest federal sentencing produces harsher, lengthier sentences than state courts. By comparing Oklahoma and federal court sentencing data, this study attempts to answer whether McGirt‘s celebration of tribal sovereignty is simultaneously a devastating blow to Native American criminal defendants committing crimes on tribal reservations in Oklahoma.

New Student Scholarship on Right to Counsel in Tribal Justice Systems

Samuel Macomber has published “Disparate Defense in Tribal Courts: The Unequal Rights to Counsel as a Barrier to Expansion of Tribal Court Criminal Jurisdiction” in the Cornell Law Review. Full article PDF here.

An excerpt:

Michael Bryant, Jr. was a defendant in the Northern Cheyenne Tribal Court.1 He pled guilty to committing domestic abuse in violation of the Northern Cheyenne Tribal Code and was sentenced to a term of imprisonment. Although he was indigent, Bryant was not appointed counsel.2 Meanwhile, Frank Jaimez was a defendant in the Pascua Yaqui Tribe of Arizona Tribal Court.3 A jury found Jaimez guilty of committing domestic violence, and he was sentenced to a term of imprisonment. Jaimez was indigent and was represented by a public defender.4

Bryant appeared without counsel while Jaimez received a court-appointed attorney. Why? Because Bryant is Indian, and Jaimez is not.5 Indians do not have the same right to counsel in tribal court as non-Indians do.6 Moreover, Bryant was prosecuted in tribal court because tribes have “inherent power” to “exercise criminal jurisdiction over all Indians.”7 But tribal courts do not have general criminal jurisdiction over non-Indians—Jaimez was only prosecuted by the Pascua Yaqui Tribe because U.S. Congress granted tribal courts limited criminal jurisdiction over non-Indians for certain crimes of domestic violence.8 Thus, both a tribe’s authority to prosecute and a defendant’s subsequent right to counsel can vary depending on the defendant’s Indian status.

This Note argues that modifying the right to counsel for Indians will help expand tribal court criminal jurisdiction over non-Indians. Fixing the discrepancy in representation between Bryant and Jaimez may increase U.S. Congress’s faith in tribal courts and thus encourage Congress to extend tribal jurisdiction over more non-Indian offenders. This Note arises from a deeply held belief in both the rights of the accused as presumptively innocent and the rights of tribes as sovereign nations.9