The day Murphy won in federal court, Jimcy McGirt was serving life without parole for sex crimes against a 4-year-old child. Although Murphy’s case was still pending before the Supreme Court, Native inmates at the James Crabtree Correctional Center in Oklahoma were filing petitions claiming that their crimes had happened on reservations too. McGirt was one of them. With only eight justices (Neil Gorsuch had recused himself), the Supreme Court was unable to reach a decision last summer in Carpenter v. Murphy (now called Sharp v. Murphy). It appears that McGirt’s case got picked this term so the Court could answer the reservation question with all nine justices weighing in.
Generally speaking, states don’t have jurisdiction over crimes committed by Indians on Indian land—only the federal government and tribes do. But Oklahoma has been exercising criminal jurisdiction in the disputed territory for well over a century. Oklahoma argues that because a total of five tribes share a very similar legal history, the Supreme Court’s decision—depending on how it is worded—could impact a total of 19 million acres, or 43 percent of the state. Murphy and McGirt are not the only Indians who’ve been prosecuted there.
In a brief in McGirt v. Oklahoma, Oklahoma warned that if the Supreme Court rules that the state’s eastern half is Indian country, “thousands of state convictions” could be thrown out and have to be retried in federal court. But “because of statutes of limitations, stale evidence, or insufficient resources,” those new trials may not result in new convictions, but rather, the implication was, violent criminals—such as McGirt and Murphy—walking free. “That’s 155 murderers, 113 rapists, and over 200 felons who committed crimes against children,” Lisa Blatt, a lawyer for Oklahoma in the 2018 oral arguments for Murphy, said of the convictions that could be reopened.
The justices seemed alarmed by Blatt’s numbers when—in a rare move—they asked both sides to answer additional questions, including whether any law exists that would allow Oklahoma to maintain criminal jurisdiction, regardless of whether or not the land is a reservation.
But I couldn’t find any public record for the numbers Blatt cited—even in the briefings for both cases. When reached for comment, Blatt said she couldn’t speak for the state and directed me to Oklahoma’s current counsel. I had already asked the Oklahoma attorney general’s office where the numbers had come from, but it also declined to comment. So I decided to find out for myself.
In response to an open-records request, the Oklahoma Department of Corrections provided a list of 1,887 Native Americans incarcerated as of December 31, 2019, for crimes that occurred in counties in the treaty territory of all five tribes. With the help of a paralegal, I spent months looking up the court records for approximately 300 of these inmates. While Oklahoma seems to count all 1,887 inmates, or something close to that, in its warnings to the Supreme Court, our research showed a small fraction—fewer than 10 percent of the cases we investigated—would actually qualify for a new trial.