In a stunning blow to Oklahoma’s state government, the U.S. Supreme Court ruled Thursday that much of eastern Oklahoma is located on an Indian reservation.
In a 5-4 ruling, the justices declared that Congress never diminished or disestablished the land as a reservation. Major crimes committed by a tribal member on their own reservation, in effect, must be prosecuted by the federal government in accordance with the Major Crimes Act.
“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,” Justice Neil Gorsuch wrote in the majority opinion.
“While there can be no question that Congress established a reservation for the Creek Nation, it’s equally clear that Congress has since broken more than a few of its promises to the Tribe,” he wrote. “Not least, the land described in the parties’ treaties, once undivided and held by the Tribe, is now fractured into pieces.”
The ruling in McGirt v. Oklahoma could have major implications for the long-running dispute over who has jurisdiction to prosecute crimes by enrolled tribal members on tribal land, as well as what constitutes tribal land. The state of Oklahoma and tribes in the state have been waiting for a Supreme Court ruling on the matter for years.
Chief Justice John Roberts wrote the dissenting opinion and was joined by Justices Samuel Alito, Brett Kavanaugh and Clarence Thomas. Thomas also wrote a separate dissent.
Roberts said the court’s ruling will have major consequences for the area’s residents, who are largely not part of any tribe, and state laws, including those pertaining to zoning, taxation, family and environmental law.
“The rediscovered reservations encompass the entire eastern half of the State—19 million acres that are home to 1.8 million people, only 10%–15% of whom are Indians,” he wrote. “Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the Court has profoundly destabilized the overnance of eastern Oklahoma.”
Roberts went on to argue that Congress did disestablish Indian territory by dismantling tribal governments, tribal courts and tribal sovereignty, as well as by making the tribal members U.S. citizens.
“In taking these transformative steps, Congress made no secret of its intentions. It created a commission tasked with extinguishing the Five Tribes’ territory and, in one report after another, explained that it was creating a homogenous population led by a common government,” he wrote.
Forrest Tahdooahnippah, a member of the Comanche Nation of Oklahoma and a lawyer who specializes in businesses in Native American country, said the decision could change how many things operate on tribal lands.
“In the long term, outside of the criminal context, there may be some minor changes in civil law, the majority opinion points out assistance with homeland security, historical preservation, schools, highways, clinics, housing, and nutrition programs, as possible changes. The Creek Nation will also have greater jurisdiction over child welfare cases involving tribal members,” Tahdooahnippah said in a statement. “The short term implications of McGirt are largely confined to the criminal context in which the case arose.”
He added that individuals convicted by the state may not want to challenge their convictions again. “Federal penalties may be harsher than the state penalties,” he said.
The Muscogee (Creek), Cherokee, Choctaw, Seminole and Chickasaw Nations — which make up the Five Civilized Tribes — were hoping for a ruling that would uphold their sovereignty and the status of their lands as reservations, which currently make up around 19 million acres and nearly the entire eastern half of Oklahoma.
The court punted on the matter last year when it failed to come to a decision in Sharp v. Murphy. That case involved Patrick Murphy, a member of the Muscogee (Creek) Nation who is on death row for murder. The court sought to establish whether land within the 1866 territorial boundaries of the Creek Nation in eastern Oklahoma, formerly known as Indian Territory, could still be considered an Indian reservation. But the court failed to settle the case, with only eight justices participating in the deliberations. Gorsuch recused himself because of his involvement in the 10th Circuit Court of Appeals, which ruled on the matter previously.
With its ruling in McGirt v. Oklahoma, the Supreme Court sided with that appeals court by ruling that the Creek Nation’s reservation was never disestablished and remains Indian country.
The McGirt case gave the court another opportunity to consider tribal boundaries and sovereignty. More than two decades ago, Jimcy McGirt was convicted in Oklahoma’s Wagoner County District Court of lewd molestation, first-degree rape and forcible sodomy. He was sentenced to 500 years each for the rape and molestation counts and to life without parole for the forcible sodomy charge.
McGirt argued that as an enrolled member of the federally recognized Seminole and Muscogee (Creek) Nations, the state of Oklahoma could not prosecute him, according to the Major Crimes Act of 1885. That law states that the federal government alone has the authority to prosecute any major crime committed by an enrolled member of a tribe on their own reservation.
McGirt’s legal team argued that the Major Crimes Act of 1885 qualified McGirt for an appeal because the state government had no jurisdiction to prosecute him in the first place. Instead, his lawyers argued, McGirt should have been prosecuted in federal court.
Eventually, the case made its way to the Supreme Court, which heard oral arguments on May 11 via teleconference due to the coronavirus pandemic.
The oral arguments centered around whether the Creek Nation ever had a reservation and, if so, if it was ever disestablished. Federal Indian reservations are usually exempt from state jurisdiction since Native American tribes have the right to govern their own internal affairs. The Constitution gives the federal government, not state governments, the authority to deal with tribes as governments.
As white colonizers moved West, they forced Indigenous people from their lands and onto reservations across the U.S. Eventually, Native Americans were even forced off their original reservations as colonizers continued to settle and did not want to live among Indigenous people.
In both the Murphy and McGirt cases, petitioners argued that Congress never disestablished their tribal reservations or changed their boundaries and that those lands are still reservation land. That means that the men in question should be prosecuted by federal courts and not the state.
The state of Oklahoma, meanwhile, argued that those lands were "Dependent Indian Communities” and not reservations. This would disqualify them from being considered a reservation and mean that the state had the authority to prosecute the men’s cases.
“The federal government promised the Creek a reservation in perpetuity,” Gorsuch wrote. “Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation.”
Much of Eastern Oklahoma will now remain classified as a reservation.
Supreme Court rules much of Eastern Oklahoma is tribal land
Landmark case upholds claim by Muscogee Nation the territory, now home to 1.8 million people, is Native American land.
The United States Supreme Court has ruled that much of Eastern Oklahoma is tribal lands in a landmark decision that overturned a tribe member's rape conviction because, they determined, it technically occurred outside the reach of state criminal law.
The justices ruled five to four in favour of the man, named Jimcy McGirt, and agreed that the site of the rape should have been recognised as part of a reservation based on the historical claim of the Muscogee (Creek) Nation, and was thus beyond the jurisdiction of state authorities.
Conservative Justice Neil Gorsuch joined the court's four liberals in the majority.
"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," Justice Gorsuch wrote in the majority opinion
McGirt was convicted in an Oklahoma state court of sexual assault and rape of a four-year-old child in 1996. He does not dispute his guilt, but had argued the court did not have jurisdiction to convict him, as the crime occurred on Muscogee (Creek) tribal lands. McGirt is a member of the Seminole tribe.
Federal law states when a crime is committed on a Native American reservation they must be tried in federal courts. However, Oklahoma argued much of the Muscogee (Creek) Nation territory was dissolved when Oklahoma was given statehood in 1907.
Oklahoma and the administration of President Donald Trump argued there was never a reservation and relied on historical evidence to make its case.
The Supreme Court siding with McGirt meant that an area home to 1.8 million people, including the entire city of Tulsa and its population of 400,000, would be a Native American reservation.
Tribe members who live within the boundaries are now set to become exempt from certain state obligations such as paying state taxes, while certain Native Americans found guilty in state courts may be able to challenge their convictions on jurisdictional grounds. The tribe also may obtain more power to regulate alcohol sales and expand casino gambling.
The ruling could also affect the other four of the Five Civilized Tribes in Oklahoma: the Cherokee, Chickasaw, Choctaw and Seminole tribes.
"The federal government promised the [Muscogee (Creek) Nation] a reservation in perpetuity," Gorsuch continued in the majority opinion.
"As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking."
Broad implications
Justices heard arguments on the case on May 11.
Some justices expressed concern over the broad implications such a designation would mean for the state. Justice Sonia Sotomayor said any problems would be "easily fixable by Congress".
Justice Ruth Bader Ginsburg observed that what made the case "difficult" was that designating much of Eastern Oklahoma as tribal lands would undo "hundreds" of similar cases.
Ian Gershengorn, the lawyer arguing on behalf of McGirt, said while there are concerns over the undoing of prosecutions, Oklahoma had not provided firm numbers on how many prosecutions could be challenged.
This concern still would not have undone McGirt's challenge, he added, which hinges on the existence of a Muscogee (Creek) reservation in Oklahoma.
Gorsuch, a conservative appointed by Trump, often sides with Native Americans in legal disputes.
"I guess I'm struggling to think why that should be relevant in an interpretation of statutes from the last century," Gorsuch said, going on to acknowledge that "states have violated Native American rights", at times.
Painful history
The case has roots in an historical event known as the "Trail of Tears", the forced march of roughly 60,000 Native Americans from their ancestral homes to lands designated "Indian Territory" by Congress in the 1830s.
Five tribes, including the Creek, Cherokee, Choctaw, Chickasaw and Seminole, were forcibly removed, with the support of former President Andrew Jackson. The move killed between 2,500-6,000 Native Americans.
A similar case appeared before the court last year, involving a Muscogee (Creek) Nation member convicted of murder. The case was also argued by Gershengorn.
Gorsuch recused himself and the court failed to issue a ruling. This suggests the court was deadlocked 4-4.
T-shirts available now from M to XXL $20.00 plus Shipping
Order on The Credible Mohawk Facebook Page, by email at decolonize@thecrediblemohawk.com or head over and pick one up @ The Pot Shoppe