In a 5-4 vote, the United States Supreme Court on Thursday sided with Oklahoma tribes in McGirt v. Oklahoma, saying much of the eastern half of Oklahoma is still an Indian reservation.
Justice Neil Gorsuch joined Justices Elena Kagan, Ruth Bader Ginsberg, Sonia Sotomayor and Stephen Breyer to issue the majority opinion.
"Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word."
IS THE EASTERN HALF OF OKLAHOMA A RESERVATION?
The central question in this case: Were the Muscogee (Creek) Nation's boundaries as set by the 1866 Treaty ever dissolved by Congress? Though the federal government largely dismantled Tribal governments in Oklahoma in the late 1800s, if the 1866 and subsequent Treaties are still valid, then a large portion of Eastern Oklahoma is still Indian Country. The State of Oklahoma believes this would fundamentally change law enforcement and could resultin thousands of criminal cases being overturned.
The defendant in this case, Jimcy McGirt, is a citizen of the Seminole Nation. He claims he was prosecuted by the wrong court. Because he is a Tribal citizen and committed his crime in on Creek Tribal land, he says the State of Oklahoma never had jurisdiction to try him.
His guilt isn't in question in this case — he's serving a life sentence for sex crimes he committed against a four year-old child. The argument is that McGirt believes he should have been prosecuted in federal court, not state court, because of where his crime was committed.
In the majority opinion, Gorsuch wrote about how this criminal case is actually a matter of Tribal sovereignty.
“At another level, then, Mr. McGirt’s case winds up as a contest between State and Tribe. The scope of their dispute is limited; nothing we might say today could unsettle Oklahoma’s authority to try non-Indians for crimes against nonIndians on the lands in question,” Gorsuch wrote. “If Mr. McGirt and the Tribe are right, the State has no right to prosecute Indians for crimes committed in a portion of Northeastern Oklahoma that includes most of the city of Tulsa. Responsibility to try these matters would fall instead to the federal government and Tribe.”
A LONG AND MESSY HISTORY
Determining whether or not much of the eastern half of Oklahoma is still a reservation requires a trip into a complicated history full of broken promises made by the United States Government. In its opinion, the Court sought to clarify the matter.
In 1832, when the U.S. Government removed the Creek Nation from its ancestral lands in Alabama, it promised the Tribe several things: that it would be able to govern itself, that it would be granted and guaranteed a ‘permanent home’ in modern day Oklahoma. This was before statehood and the Civil War.
This agreement didn’t last long.
In the late 1800s, the federal government tried to assimilate the Tribes into state governments as Oklahoma prepared to become a state. Traditional communal lands that resemble reservations in other states were divided up into individual ‘allotments’ or farms that were granted to people who could prove they were members of Tribes. The rest of the land was given to white settlers.
In addition, Congress passed several laws dismantling Tribal governments including removing their authority to legislate and a dissolution of the Tribal court system.
However, the U.S. Government forgot one detail. Congress did not specifically disestablish the Treaties with the Tribes that guaranteed them permanent lands.
In the dissenting opinion by Chief Justice John Roberts, he wrote that all the context and other laws Congress passed should have been considered by the Court. This is the same argument the State of Oklahoma made.
“The 'notion' that 'express language in an Act is the only method by which congressional action may result in disestablishment' is 'quite inconsistent' with our precedents,” Roberts wrote.
“By stripping the Creek Nation of its courts, lawmaking authority, and taxing power, Congress dismantled the tribal government. By extinguishing the Nation’s title, Congress erased the geographic boundaries that once defined Creek territory. And, by conferring citizenship on tribe members and giving them a vote in the formation of the State, Congress incorporated them into a new political community. 'Under any definition,' that was disestablishment,” Roberts continued.
WHO HAS JURISDICTION?
The majority, however, contends that historical practice in Oklahoma does not equate legal precedent.
“How much easier it would be, after all, to let the State proceed as it has always assumed it might. But just imagine what it would mean to indulge that path. A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched,” wrote Gorsuch in the majority opinion.
Gorsuch recused himself from a similar case (Carpenter v. Murphy) in 2019 because he had considered that case during his time as a justice on the U.S. Tenth Circuit Court of Appeals.
States don't have jurisdiction over crimes committed by Indians on Indian land. Only the federal government does according the Major Crimes Act (MCA).
"The rule is that a reservation does not cease to exist until Congress explicitly makes that clear," said Sarah Deer, who co-authored an amicus brief in the McGirt v. Oklahoma case and is an expert in tribal and criminal law.
Deer is a citizen of the Muscogee (Creek) Nation of Oklahoma and a professor of women, gender and sexuality studies and public affairs and administration at the University of Kansas. She says the court was very clear about the rule that it was using in deciding that case.
Deer maintains that the Muscogee (Creek) Nation was never dissolved.
"There were certainly efforts by Congress to try to extinguish the Creek Nation," said Deer. "They did a lot of really horrible things — shut down schools and burn, destroy property. And so they did everything except the part where they needed to say, 'the Creek reservation is hereby extinguished'."
She says Congress never provided that kind of explicit direction, which gives the Creek Nation jurisdiction.
WHAT HAPPENS NEXT?
In the majority and dissenting opinions justices agree that Thursday’s ruling has the potential to overturn some convictions and upset other forms of state government.
The dissenting justices agreed with the State of Oklahoma.
“At the end of the day, there is no escaping that today’s decision will undermine numerous convictions obtained by the State, as well as the State’s ability to prosecute serious crimes committed in the future. Not to worry, the Court says, only about 10%–15% of Oklahoma citizens are Indian, so the 'majority' of prosecutions will be unaffected, wrote Roberts in the dissent. "But the share of serious crimes committed by 10%–15% of the 1.8 million people in eastern Oklahoma, or of the 400,000 people in Tulsa, is no small number."
“In addition to undermining state authority, reservation status adds an additional, complicated layer of governance over the massive territory here, conferring on tribal government power over numerous areas of life—including powers over non-Indian citizens and businesses. Under our precedents, tribes may regulate non-Indian conduct on reservation land, so long as the conduct stems from a 'consensual relationship with the tribe or its members' or directly affects 'the political integrity, the economic security, or the health or welfare of the tribe,'" Roberts continued.
In the majority opinion, Gorsuch said that regardless of the Court’s ruling, some crimes tried in federal court could be overturned, and the same would be true for state courts in Oklahoma.
However, Gorsuch pointed to a long and successful relationship between the Tribes and Oklahoma in coming to agreement around all manner of governing issues. While that cooperation has recently been called into question surrounding a gaming compact dispute, state officials including Oklahoma Attorney General Mike Hunter believe the two groups will be able to continue to work together.
After oral arguments in May, Hunter released a statement saying, "Regardless of the outcome in this case, I want to assure both tribal and non-tribal citizens, my office will work with our tribal partners to uphold our longstanding mutually beneficial relationship to benefit all Oklahomans. I remain committed to growing these partnerships to uphold our history of goodwill."
Lawyers for the State of Oklahoma have said that a ruling in favor of the Creek Nation will lead to a "tidal wave" of convictions being overturned and that someone like McGirt could walk free.
In 2018, Lisa Blatt, the lawyer for Oklahoma said that a ruling for the defendant Murphy would mean that, "155 murderers, 113 rapists, and over 200 felons who committed crimes against children," would go free.
Deer says that worry is not based in reality.
"The fact of the matter is that almost all of the government entities within the area of the Creek reservation today already work cooperatively," she explained.
This is a developing story. Check back later for updates.
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