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Posted by Unknown | Jul 15, 2020

On July 9, 2020, the U.S. Supreme Court delivered a major victory for the Muscogee (Creek) Nation in the case of McGirt v. Oklahoma, No. 18-9526. The Court ruled that the Creek Nation's reservation was not diminished by Congress, and so the state of Oklahoma lacked criminal jurisdiction over crimes committed by an Indian within the reservation boundaries. The decision has potentially wide-reaching implications for state and tribal jurisdiction in eastern Oklahoma. The Court's opinion is available here.

The case was filed by Jimcy McGirt, who challenged his convictions in Oklahoma state court for three serious crimes. McGirt argued that the state lacked jurisdiction to prosecute him because he is an enrolled member of the Seminole Nation and his crimes took place on the Creek Nation's reservation. Under the Major Crimes Act, Indians who commit certain serious offenses in “Indian country” are subject to the exclusive jurisdiction of federal courts. 18 U.S.C. § 1153(a). “Indian country” is defined to include all land within the limits of an Indian reservation, regardless of title. 18 U.S.C. § 1151. The question presented to the Supreme Court was whether the land where the crime occurred was within the Creek Nation's reservation. The Court ruled that it was.

The Supreme Court first found that the Creek Nation's reservation had been established by a series of treaties with the United States beginning in 1932. The Court then strongly affirmed the principle that only Congress could diminish or disestablish a reservation, and only by a clear expression of congressional intent. The Court reviewed the history of the reservation, including Congress's actions during the Allotment Era and the state's historic practice of prosecuting Indians in state courts, and determined that the reservation had not been diminished or disestablished by Congress. The Court also rejected the state's alternative arguments that Congress had never established a reservation and that the Major Crimes Act never applied in eastern Oklahoma. The Court thus ruled in favor of McGirt and reversed the Oklahoma Criminal Court of Appeals.

The McGirt decision does not affect ownership of any of the lands within the reservation boundaries, but it does have a major impact on criminal jurisdiction within these boundaries. Crimes committed by or against Indians on the reservation are subject only to federal or tribal jurisdiction, depending on the crime, but not state jurisdiction. The validity of some prior convictions in Oklahoma state courts are likely to be called into question by the ruling, although such challenges may face procedural hurdles, and defendants could potentially be re-tried in federal or tribal courts. The Court's ruling could also affect the state's civil and regulatory jurisdiction on the reservation, but the nature and scope of those effects remains to be seen.

Although the Court's ruling was limited to the Creek Nation's reservation, the decision could also have significant implications for other tribes in eastern Oklahoma, including the Cherokee, Chickasaw, Choctaw, and Seminole Nations. It is likely that there will be further legal proceedings to determine the status of these other tribes' reservations, which potentially encompass the entire eastern portion of the state. There are many passages of the McGirt decision that may also provide useful precedent for tribes outside of Oklahoma, including the Court's strong statements that extra-statutory evidence could not provide a basis for finding extinguishment of a tribe's treaty rights.

The case was decided by a 5-4 vote. The majority's decision was written by Justice Gorsuch, and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The dissent, authored by Justice Roberts and joined by Justices Alito, Kavanaugh and Thomas, argued that Congress had disestablished the Creek Nation's reservation by a series of statutes prior to Oklahoma statehood. Justice Thomas also wrote separately to assert that the Supreme Court lacked jurisdiction over the case because there was an adequate and independent state ground for the decision.

For further information or questions regarding this decision, please contact any of the attorneys in the firm's Indian law practice group.

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