McGirt v. Oklahoma Background Materials

Merits Briefs:

Petitioner’s Brief

Respondent’s Brief

2020 03 20 McGirt Joint Motion for Divided Argument and Enlargement of Time

Amicus Briefs in Support of Petitioner:

2020 02 11 Amicus Brief Brad Henry et al

2020 02 11 Amicus Brief Historians Legal Scholars Cherokee Nation

2020 02 11 Amicus Brief National Ass’n Criminal Defense Lawyers

2020 02 11 Amicus Brief National Indigenous Women’s Resource Center et al

2020 02 11 Amicus Brief NCAI

2020 02 11 Amicus Brief of Muscogee Creek Nation


Amicus Briefs in Support of Respondent:

2020 03 20 Amicus Brief of United States

2020 03 20 Environmenal Fderation of Oklahoma, et al, Amicus Brief

2020 03 20 Int’l Municipal Lawers and Nat’l Sheriffs’ Assn Amicus Br

2020 03 20 States’ Amicus Br

2020 03 20 Tulsa Merits Amicus Brief

Oklahoma District Attorneys Amicus Brief

Cert Stage Materials:




SCOTUS Grants Cert in McGirt v. Oklahoma [Creek Reservation Boundaries Criminal Appeal]

Here are the cert stage materials in McGirt v. Oklahoma:




Friday’s order list here.

News coverage here and here.

Oklahoma Court of Criminal Appeals Recognizes Authority of Tribal Officers Cross-Deputized under State Law to Enforce State Law Off-Reservation

Here is the summary opinion in State v. Ferguson:

2013-07-15 Summary Opinion-1

An excerpt:

“All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Oklahoma, by statute or by this Code.”  12 O.S.2011, § 2402. The appeal record in this case shows that Salkil and Murphy are CLEET certified deputies in Ottawa County. Nothing in the constitution or laws of this  State provides that evidence obtained by deputies is inadmissible. Id. Even if they had  been outside their jurisdiction, information from and observations made by Salkil and Murphy may be used in establishing probable cause to issue a search warrant. See Staller v. State, 1996 OK CR 48, ~ 12, 932 P.2d 1136, 1140. Judges Culver and Maxey erred by sustaining the Appellees’ motions to suppress relevant evidence in these cases.

Tenth Circuit Decides Seminole Indian Country Habeas Appeal (Effectively Reversing Oklahoma Criminal COA)

Here are the materials in Magnan v. Trammell:

CA10 Opinion

Magnan Opening Brief

Seminole Tribe Amicus

Oklahoma Answer Brief

Magnan Reply Brief

An excerpt:

Petitioner David Magnan pleaded guilty in Oklahoma state court to three counts of murder in the first degree and one count of shooting with intent to kill. Magnan was sentenced to  death for each of the murder convictions and to a term of life imprisonment on the remaining conviction. Magnan argued on direct review that the crimes occurred in “Indian country,” 18 U.S.C. § 1151, and that, as a result, the state trial court lacked jurisdiction  over the crimes. The Oklahoma Court of Criminal Appeals (OCCA) held, however, that a  1970 conveyance to the Housing Authority of the Seminole Nation of Oklahoma extinguished all Indian lands restrictions that had previously attached to the surface estate of the property where the crimes occurred. The OCCA further held that, even assuming that restrictions remained on 4/5ths of the mineral estate, such interest wasunobservable and insufficient to deprive the State of Oklahoma of criminal jurisdiction over the surface property at issue. In a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Magnan again asserted that the crimes at issue occurred in “Indian country” and that the state trial court was without jurisdiction. The district court denied Magnan’s petition but granted him a certificate of appealability. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we need only address the status of the surface estate to agree with Magnan that the location where the crimes occurred was “Indian country” because the requirements to extinguish the restrictions placed on Indian lands by Congress were not met and that, as a result, the state trial court lacked jurisdiction over the crimes. Consequently, we reverse the judgment of the district court and remand with instructions to grant Magnan’s petition for writ of habeas corpus.

State court decision, with our commentary, here.

State Supreme Court Outcomes: Oklahoma

And now to a big target, Oklahoma. Oklahoma’s highest court for civil cases is the Oklahoma Supreme Court, and for criminal cases is the Oklahoma Court of Criminal Appeals.

In Oklahoma, tribal interests have a 43 percent success rate.

Here are the cases:

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Oklahoma Ct. of Criminal Appeals Holds that Seminole Parcel Not Indian Country

In Magnan v. State, the Oklahoma Court of Criminal Appeals concluded that a parcel of land in which Seminole Indians retained 4/5 of mineral rights was still no longer Indian Country. The case is interesting for two reasons. First, the whole debate about Indian Country:

This Court considered a similar question in Murphy v. State, 2005 OK CR 25, 124 P.3d 1198.  In Murphy, a murder occurred on a state road that at one time had been Indian allotted land.  Over time, the surface estate on which the road was located, and 11/12ths of the mineral estate, had been conveyed to non-Indians.  Applying a contacts and interests analysis analogous to the familiar “minimum contacts” test set out in International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), the Murphy court concluded that the Oklahoma’s contacts and interests in the surface property overwhelmed any fractional interest the Indian heir of the original allottee owned in the unseen mineral estate.  According to Murphy, that conclusion was necessary because allowing an unobservable fractional interest to control the enforcement of laws on the surface of a property would lead to a checkerboard of alternating jurisdictions that would seriously burden the administration of state and local governments.  Murphy, ¶¶ 42-43, 1206.  Murphy held, therefore, that a fractional interest in an unobservable mineral interest is a contact with the surface estate that is insufficient to deprive the State of Oklahoma of criminal jurisdiction.  Id. ¶ 42, 1206.

But more amazingly, the court had the benefit of a federal court case reaching the same outcome 10 years earlier regarding the same property!:

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