Fisher: McGirt having little effect in Osage County

Robert Smith
Pawhuska Journal-Capital

Osage County’s district attorney said last week that the U.S. Supreme Court’s July 2020 decision in McGirt v. Oklahoma is having only a marginal influence on his office.

In the McGirt case, a five-justice majority of the U.S. Supreme Court decided that for purposes of the federal Major Crimes Act, land in eastern Oklahoma that was reserved for the Muscogee (Creek) Nation in the 19th century remains Native American territory. The Muscogee reservation was not officially disestablished.

Mike Fisher

The decision could also have effects regarding taxation, zoning and business regulations.

With regard to the criminal justice system, the practical effect of the McGirt decision is that federal and tribal authorities have jurisdiction over crimes alleged to have been committed by tribal members. Federal prosecutors have been called upon to handle new criminal matters arising in Indian Country, and to refile old cases in which verdicts have been vacated.

Osage County District Attorney Mike Fisher said there has been a little bit of paperwork as a result of McGirt, most of it submitted by people seeking to have old cases reconsidered, but his office has taken the view that McGirt is not applicable to Osage County.

“Until an appellate court tells us otherwise, we will continue to take that position,” Fisher said.

He said there is one matter on appeal in the Oklahoma Court of Criminal Appeals. Regarding the status of the Osage reservation, Fisher mentioned the 2010 decision of the 10th Circuit Court of Appeals in Osage Nation v. Irby[RS1] . The 10th Circuit decided the Osage reservation had been disestablished and the U.S. Supreme Court declined to review the decision.

Fisher said Gov. Kevin Stitt has been to Washington, D.C., to confer with members of the state’s federal legislative delegation, but he doubted any Congressional attempt to resolve the issues raised by the McGirt case would be quickly forthcoming.

“I believe it may be some time before we see anything happen,” Fisher said.

He also noted that one of the thorny complications that can occur when state court convictions are overturned because of McGirt is that the statute of limitations may already have run in regard to an alleged crime, rendering it impossible to file a new case.

“That’s a phone call that I hope I don’t have to make,” Fisher said, referring to prosecutors having to let crime victims know that a crime or crimes cannot be reprosecuted.

Fisher’s current situation – where he has little McGirt-related paperwork – differs markedly from what state prosecutors are experiencing in counties not far away.

Brian Surber, an assistant district attorney in Rogers, Mayes and Craig counties, last week told the Journal-Capital that unanticipated consequences of McGirt are a regular, and concerning, occurrence.

Surber said the public safety of Oklahoma communities is in jeopardy and “the most difficult part is telling victims that the case against their offender is being dismissed.”

“The lucky victims will get a do over in federal or tribal court,” Surber said, “while many cases will not be filed again because of an expired statute of limitations, unavailable evidence, or simply an inability to prosecute due to the passage of time.”