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February 18, 2020
Tom Heffelfinger and Former U.S. Attorneys File U.S. Supreme Court Amicus Brief on behalf of Muscogee Nation

On Monday, February 10, 2020, Best & Flanagan’s Tom Heffelfinger and seven other former United States attorneys submitted an amicus brief to the U.S. Supreme Court regarding the need for congressional action in addressing the jurisdictional division of authority among tribal and state law enforcement on the Muscogee (Creek) Nation’s historical reservation.

In December 2019, the Supreme Court agreed to hear the case McGirt v. Oklahoma. In their brief, the former U.S. attorneys recommend the high court reverse Jimcy McGirt’s state court convictions as his alleged crimes took place on the Creek reservation. In a similar case, Sharp v. Murphy, the Tenth Circuit found the Creek tribe’s reservation boundaries had never been reduced nor eliminated, and therefore the tribe and the federal government, not the state, had the authority to prosecute.

According to the brief, “questions as to how law enforcement and prosecution resources can be most effectively allocated among federal, state and tribal officials and institutions do not fall within the province of judges; they are rather the essence of lawmaking.” The Violence Against Women Act Amendments of 2013 and the Tribal Law and Order Act of 2010 are two such examples of how Congress has regularly exercised its authority to adjust the scope of criminal jurisdiction on reservations.

Moreover, they write, “even if the Court believes Congress has been unclear or delinquent as to the status of the Reservation, it is not for this Court to fashion a remedy – that is the sole province of Congress.” 

Amici Curiae include Troy A. Eid, Barry R. Grissom, Thomas B. Heffelfinger, David C. Iglesias, Brendan V. Johnson, Wendy Olson, Timothy Q. Purdon, and Danny C. Williams. All have extensive direct experience prosecuting crimes arising on tribal land and are well-versed in the jurisdictional interplay among federal, state and tribal law enforcement.

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