Appeals court reverses McGirt conviction

Jun. 21—MUSKOGEE — The 10th Circuit Court of Appeals on Tuesday, June 20, reversed the November 2020 federal jury conviction of Jimcy McGirt, whose case prompted the U.S. Supreme Court's landmark decision restoring prosecutorial authority to Native tribes in Eastern Oklahoma.

McGirt will have to be retried, but officials said the decision will not affect the Supreme Court decision.

McGirt was convicted of two counts of aggravated sexual abuse in Indian Country and one count of abusive sexual contact in Indian Country. But the appellate court determined an improper instruction of law was given to the jury. According to the office of U.S. Attorney Christopher Wilson, that could have impacted the verdicts and remanded the case to the district court.

In the appellate case, the defense argued the district court erred when it instructed the jury that the government witnesses' prior inconsistent statements could only be used to evaluate their credibility, not as proof of anything else.

"The role of the prosecution is to seek justice under the law," said Wilson. "We are disappointed by the ruling, but we respect the opinion of the court. If a critical error occurred during the trial, then our goal was not achieved. The U.S. Attorney's Office will, however, continue pursuing justice for the victim."

In 1997, McGirt was convicted for the first-degree rape by instrumentation, lewd molestation, and forcible sodomy of a 4-year-old in the District Court of Wagoner County. McGirt was ordered to serve two 500-year sentences and a life sentence without parole in the Oklahoma Department of Corrections.

McGirt later challenged the conviction, arguing that the State of Oklahoma did not have the jurisdiction to prosecute him because the crime had occurred on the Muscogee (Creek) Nation Reservation, which had never been disestablished by Congress. McGirt is an enrolled member of the Seminole Nation. The Supreme Court ruled in favor of McGirt on July 9, 2020, vacating his state convictions.

McGirt was then charged by the U.S. District Court for the Eastern District of Oklahoma and found guilty by a federal jury in November 2020. He was sentenced to three life sentences without parole for the sexual assault of a child in August 2021. This conviction was overturned Tuesday.

The McGirt case is the centerpiece of the U.S. Supreme Court's ruling that state courts may no longer prosecute crimes committed by or against Oklahomans who are also tribal members, since the tribes were never formally "disestablished." Hundreds of criminal cases were dismissed in the wake of the decision that the state can't try and convict criminals on tribal lands. The ruling was later modified to allow the state to prosecute cases committed against tribal citizens by non-Natives.

The ruling will not impact the Supreme Court decision or change jurisdiction for prosecution of major crimes, officials said.

"This ruling is the result of improper jury instructions in a federal trial and is in no way related to the substance of the Supreme Court's decision, which led to the affirmation of our reservation and of tribal sovereignty over tribal land," said Cherokee Nation Attorney General Sara Hill. "The Cherokee Nation looks forward to a resolution of this case in the retrial that will provide justice for the victims."

Cherokee Nation Principal Chief Chuck Hoskin, who is also an attorney, has long argued that the Cherokee Nation reservation was never disestablished. Since the high court's McGirt ruling, the tribe has substantially expanded its law enforcement arm, adding more marshals and prosecutors to the staff.

The Choctaw Nation of Oklahoma declined comment as the appeals court's decision did not affect the nation's sovereignty affirmed in the landmark McGirt v. Oklahoma case. Choctaw Nation Director of Public Relations Randy Sachs, however, said the Choctaw Nation remained positive justice would prevail for the victims affected by the court's decision as they face another potential trial.

The office of State Attorney General Gentner Drummond declined comment for the same reason.

Kim Poindexter and Derrick James contributed to this story.