Supreme Court Rules Eastern Oklahoma is an American Indian Reservation for Purposes of Criminal Prosecutions

What’s the story?

• The Supreme Court on Thursday ruled that the state of Oklahoma can’t prosecute major crimes involving American Indians within the historical boundaries of the Creek Indian Reservation in eastern Oklahoma.
• The case, known as McGirt v. Oklahoma, concerned Jimcy McGirt, a member of the Seminole Nation who was convicted in an Oklahoma state court of three serious sexual offenses that occurred on the Creek Reservation. 
• McGirt argued that the state lacked jurisdiction to prosecute him because of his tribal membership & the location of his crimes, and sought a new trial in federal court. The state contended that it, the Creek Nation, and Congress intended to disestablish the reservation prior to Oklahoma becoming a state in 1907 as evidenced by various statutes and court rulings.
• In a 5-4 decision, the Court ruled that for the purposes of prosecution under the Major Crimes Act, the Creek Reservation remains “Indian Country” because Congress never officially disestablished the reservation. As a result, McGirt’s conviction in state court was reversed, although federal prosecutors may seek to try him in federal court.

What did the justices say?

• Justice Neil Gorsuch wrote the majority opinion, which was joined by Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan. Gorsuch’s opinion read in part:

“In reaching our conclusion about the law demands of us today, we do not pretend to foretell the future and we proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long. But it is unclear why pessimism should rule the day. With the passage of time, Oklahoma and its Tribes have proven they can work successfully together as partners. Already, the State has negotiated hundreds of intergovernmental agreements with tribes, including many with the Creek. These agreements relate to taxation, law enforcement, vehicle registration, hunting and fishing, and countless other fine regulatory questions. No one before us claims that the spirit of good faith, “comity and cooperative sovereignty” behind these agreements will be imperiled by an adverse decision for the State today any more than it might be by a favorable one. And, of course, should agreement prove elusive, Congress remains free to supplement its statutory directions about the lands in question at any time. It has no shortage of tools at its disposal.

The federal government promised the Creek a reservation in perpetuity. 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. 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. If Congress wishes to withdraw its promises it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

• Chief Justice John Roberts filed a dissenting opinion that was joined by Justice Samuel Alito, Justice Brett Kavanaugh, and partially joined by Justice Clarence Thomas (who authored a dissent of his own). Roberts’s dissent read in part:

“In 1997, the State of Oklahoma convicted petitioner Jimcy McGirt of molesting, raping, and forcibly sodomizing a four-year-old girl, his wife’s granddaughter. McGirt was sentenced to 1,000 years plus life in prison. Today, the Court holds that Oklahoma lacked jurisdiction to prosecute McGirt ― on the improbable ground that, unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians like McGirt. Not only does the Court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma. 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.

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 governance of eastern Oklahoma. The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.

None of this is warranted. What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation. Congress disestablished any reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century. The Court reaches the opposite conclusion only by disregarding the “well settled” approach required by our precedents.”

— Eric Revell

(Photo Credit: iStock.com / Scott Wurzel)