McGirt vs. Oklahoma – Should I File a McGirt Motion to Dismiss My Case?

Hundreds, if not thousands of Oklahoma criminal defendants and convicts in Oklahoma may now be able to file a motion to dismiss their case due to a recent decision by the United States Supreme Court addressing criminal jurisdiction of Oklahoma state courts in tribal lands. Specifically, he Supreme Court ruled that the state of Oklahoma and its political subdivisions have no jurisdiction to investigate, detain, charge, arrest, prosecute, or take other legal actions against the Native American people of the Muscogee (Creek) Nation, within tribal lands.

The ruling, delivered in July 2020 in the McGirt vs. Oklahoma case, has now created an avenue for defendants and convicted felons – who have been arrested, prosecuted, convicted, and labeled as criminals by the state of Oklahoma and its political subdivision – to fight for their rights to have their cases dismissed and convictions overturned, especially as the state of Oklahoma and its political subdivisions initially had no jurisdiction over such cases based on the Supreme Court’s decision.

In the US Supreme Court ruling delivered by Honorable Justice Gorsuch, it was held that the state of Oklahoma had no jurisdiction to investigate or prosecute Indian people within the Muscogee (Creek) Reservation boundaries – which means the state’s laws do not apply across the Indian country, including Tulsa County and many county courts across the state.

What The McGirt vs. Oklahoma Ruling Means 

The ruling delivered by Honorable Justice Gorsuch on July 9th, 2020, has changed the trajectory of many past and present criminal cases, including all criminal cases that fall within the boundaries of Indian Country in Oklahoma.

In essence, the decision rules that state prosecutors and state law enforcement have no jurisdiction over tribal members within tribal lands. More specifically, the Muscogee (Creek) Nation has jurisdiction over all cases within its boundaries and all members of the tribe, including the accused and victims of crime. The decision thus overturns the illegal prosecution and judgment earlier delivered on members of the tribe by the state under Oklahoma Criminal laws and courts.

The largest real-world implication as a result of McGirt is two-fold: thousands of state court criminal cases and convictions must be overturned, or dismissed & thousands of cases once prosecuted in state court now fall under federal authority for prosecution or rejection of criminal charges. Tribal members accused of a “major crime” on Indian land are now to be prosecuted under Indian law by the tribe itself or the Federal Court under federal Major Crimes Act.

Jimmy McGirt, formerly convicted and sentenced under the Oklahoma law, was directly involved in the decision which has now set a precedent over the prosecution of Native Americans living in Oklahoma, across all five reservations, including Muscogee (Creek), Choctaw, Cherokee, Seminole, and Chickasaw nations.

McGirt vs. Oklahoma: Conviction and Prison Release

Oklahoma’s McGirt Decision has affected the outcome of this case and others involving the tribal members across the five Oklahoma Civilized Tribes. With the latest development, more tribal members arrested, charged, tried, sentenced, and convicted under the Oklahoma Criminal law have become eligible to seek case dismissal.

It is, however, important to note that although the conviction by the state of Oklahoma may be set aside, the tribe can decide to revisit the case under tribal law. Also, the Federal Government reserves the right to prosecute the case in Federal Court under Federal law, according to the plenary power doctrine. In fact, thousands of criminal cases have been filed in the three federal district courts in Oklahoma, because of the McGirt decision. To address the huge influx of cases into federal court, the Attorney General and the Director of the FBI have added hundreds of federal investigators and Assistant U.S. Attorneys across Oklahoma to address this increase in federal criminal prosecution. 

The effect of the McGirt vs. Oklahoma decision is far-reaching, and convicted defendants may now contact their criminal defense attorney to evaluate their cases for possible eligibility for a dismissal. 

Tribal members, however, will not be automatically released from prison or their convictions set aside. They must petition the courts for a release from their sentence or prison terms. In the absence of the petition, the judgment made under the Oklahoma Criminal Law will remain active until a court decides otherwise.

Affected tribal members can seek redress for their illegal convictions by the state of Oklahoma through the appropriate procedures for post-conviction relief.

Can I get my current state court criminal case dismissed based on McGirt?

The answer to whether you may be able to get your current Oklahoma state court criminal case dismissed based on McGirt is a fact intensive question and the answer depends on a number of factors. However, the biggest factor in whether or not you can have your current Oklahoma criminal case dismissed based on McGirt is whether or not the alleged crime occurred in identified tribal national land and whether or not the defendant and/or victim are members of an identified tribe.

Current prosecution cases may benefit from the recent development as defendants can now file a motion to dismiss their cases due to lack of jurisdiction, as set out in the McGirt decision by the Supreme Court. However, beware as federal prosecutors and federal investigation agencies have dedicated substantial resources to investigate and prosecute cases that fall outside of Oklahoma criminal jurisdiction, in order to protect victims and crimes from falling in the canyon created by the McGirt decision. 

Should I try to get my state criminal case dismissed based on McGirt?

The specific offense and punishment range in Oklahoma state court versus federal court plays a major role in whether or not you should seek to get your state criminal case dismissed in Oklahoma based on McGirt. 

Criminal sentencing in state court is decided in a completely different way that criminal sentencing in federal court. In Oklahoma state court criminal sentencing, there are three ways to receive your sentence. First, the common option is a plea agreement between defendants and prosecutors that is within the punishment range for the offense, including probation for a period of time allowed by statute. Second, comes as a result of being convicted at trial and the jury determines your sentence, and finally by blind plea sentencing, wherein the judge determines your sentence with the punishment range. 

Criminal sentencing in federal comes with only one option, sentencing by the federal judge over your case. The parties may reach an agreement on the offenses for plea; however, the federal judge will determine the Sentencing Guidelines and then an appropriate sentence within the sentencing guidelines or in some cases a variance or departure from the sentencing guideline range. The important take away for the purpose of this article is that you cannot control the sentence you receive in federal court. 

You and your federal criminal defense attorney can fight to minimize the sentencing guideline range and then work to convince the court for a downward variance or a departure. However, there is simply less control over your sentence in federal court. Additionally, probation is not really an option in federal criminal court. You will receive a conviction and you will be sentenced to federal prison for a period of time, if the Court accepts your plea or you are convicted at trial for an offense in federal court. 

In Oklahoma criminal state court proceedings, you may receive probation and potentially avoid a felony conviction, if your Oklahoma criminal defense attorney is able to convince the prosecutor that you should be given that opportunity. However, those options are not available in federal court. Therefore, in some criminal cases, it is better to remain in state criminal court, than to have your state court criminal case dismissed based on McGirt, for it to be picked up and filed by federal prosecutors. 

Despite the points above, being prosecuted for some offenses in federal court may be better than prosecution in state court, i.e. drug trafficking or armed robbery. Both drug trafficking and armed robbery often result in a lower advisory guideline punishment range in federal court than the plea offer from a state prosecutor. The potential for a lower advisory guideline range of punishment, the likely punishment received, in federal court is often lower for non-career criminals than comparable charges in state court.

Alternatively, many federal offenses have more serious advisory guideline ranges of punishment than the state court alternative. Many of our clients facing firearm offenses receive better outcomes in state criminal court than federal criminal. Under Oklahoma law, a felon in possession of a firearm may face up to life in prison; however, there are many diversion options available to avoid prison and probation is often an option we are able to obtain for clients in those types of cases in state court. However, a Prohibited Person in Possession of a Firearm in federal court is punishable under 18 U.S.C. Section 922, can receive up to ten years in prison without prior felony convictions and federal judges treat these offenses as very serious. 

Additionally, in some cases, having your state court case dismissed may result in no federal charges, if there is not an appropriate federal offense. Statutory rape, i.e. sex between a consenting minor and consenting adult is routinely prosecuted in state court criminal proceedings. However, consensual sex between a minor and adult is limited to strict age groups and is rarely prosecuted in federal court. Consult with an experienced federal criminal defense lawyer, prior to seeking dismissal of your state court criminal case based on the belief you will avoid prosecution in federal court. 

In conclusion on the question, “Should I try to get my state criminal case dismissed based on McGirt?” it depends on your charges in state court and the likely charges you would face, if prosecuted in federal court. You should work with an experienced federal criminal defense attorney to ensure you make an informed decision prior to getting your criminal case moved from state court to federal court. As discussed above, in many cases the punishment only increases by having your case dismissed and refiled in federal court. 

How does the McGirt Decision Affect Prosecution of Misdemeanor Cases?

The Supreme Court decision in McGirt arguably has the same effect on misdemeanor crimes committed by tribal members as it does on serious crimes. McGirt deals with crimes committed in the native Indian lands or Muscogee (Creek) Nation reservations by or against tribal members. The court’s decision ruled the State of Oklahoma has no legal jurisdiction over major crimes committed within the Indian Country; however, there is still room for confusion and a need for clarification.

The State of Oklahoma, argues it has the right to prosecute tribal members who have been arrested and charged with lesser offenses, including misdemeanors, that do not fall under the Major Crimes Act. Part of the reasoning by the State is that the federal government’s lack of authority over crimes, such as DUI that do not fall under the federal government’s authority will go unpunished.

Despite the state’s argument, the consensus remains that the state has no legal right to prosecute tribal members, even in misdemeanor cases. This along with many issues related to the Supreme Court’s decision in McGirt are subject to the Court’s future more particular analysis.

Do I Qualify for A Class Action Suit Against the State Of Oklahoma? 

One of the far-reaching consequences of the Oklahoma McGirt Decision is that tribal members who have been arrested, investigated, convicted, and sentenced under the Oklahoma Criminal Law can now seek redress for their losses, especially as the State of Oklahoma had no legal jurisdiction over their case. Affected tribal members may be eligible to seek relief against the state for their wrongful prosecution through the civil legal process.

How Can I get my conviction overturned based on McGirt?

In order to seek to have your state criminal conviction overturned based on McGirt, you must file a Motion for Post-Conviction Relief. You must get your Post-Conviction Motion to the prosecutor or office that may contest your motion, as well as the to appropriate judge to hear your McGirt Post-Conviction Motion. The Judge will set a hearing and your and your criminal defense attorney would need to present an argument showing the application of the McGirt decision to your case and that your conviction must be overturned based on the Supreme Court’s decision.

How Can I get my case dismissed based on McGirt?

If after reading the information above you believe seeking to have your case dismissed in state court based on McGirt is the right decision you must file a motion seeking dismissal of your case. In order to seek dismissal of your case based on McGirt, you must file a Motion to Dismiss stating the basis for your motion, including the application of McGirt to your circumstance and the authority from McGirt that supports your request for dismissal of your charges. Some courts require a tribal card as proof of being a person protected under McGirt; however, some courts require a certified letter from the tribe or other proof of your membership. 


Whether you decide to contact Your Fierce AdvocatesÆ at Cannon & Associates or not to assist you with seeking dismissal of your case based on McGirt, it is in your interest to invest in working with an experienced Oklahoma criminal defense attorney that understand the laws associated with McGirt and the process to seek dismissal of your case or Post-Conviction Relief in having your state court conviction overturned. 

Contact – Cannon & Associates: Oklahoma Fierce AdvocatesÆ for McGirt Cases

The Supreme Court’s decision in McGirt is the most substantial decision to impact Oklahoma and federal criminal justice in decades. It has opened many opportunities for those facing state prosecution to seek relief, which did not exist before in Oklahoma for current and former criminal. 

Your Fierce AdvocatesÆ and criminal defense attorneys at Cannon & Associates understand the meaning and impact of the McGirt decision and we can assist you in of these changes and can help you determine whether the McGirt decision affects your case. We look forward to speaking with you and answering your questions about the McGirt decision and any other issues with criminal defense in Oklahoma. Contact Cannon & Associates by completing the CONTACT FORM ON THIS PAGE NOW or CALL 405-883-4427 for a free confidential case strategy meeting.