On July 9, 2020 the Supreme Court released its long-awaited decision in the landmark case McGirt v. Oklahoma, voting 5-4 in favor of the Muscogee Nation.[1] Writing for the majority, Justice Neil Gorsuch delivered one of the most powerful pro-tribal decisions in the history of the Supreme Court. The Court held that nearly 19 million acres of land in Eastern Oklahoma, which was reserved to the Muscogee (Creek) Nation in the 19th century, will remain “Indian Country.”[2]
The question in McGirt was whether reservation land once granted via treaty to the Creek Nation retains that status today. The majority answered in the affirmative. The Court held that the State had no jurisdiction to convict petitioner Jimcy McGirt of offenses that took place on the Oklahoma reservation because McGirt is a member of the Seminole Nation of Oklahoma.[3] The ruling means that Oklahoma no longer has jurisdiction to convict Native Americans of crimes committed on tribal lands.
The Court held the federal government to its word by reaffirming the continued existence of the reservation that the government promised to the Five Civilized Tribes in the 1830s.[4] After forced relocation of an estimated 60,000 Native Americans from their ancestral homes in the Southeastern U.S., including a march along what became known as the “Trail of Tears,” the government granted the lands at issue to the Muscogee (Creek) Nation in perpetuity.[5]
The majority reasoned that Congress had never passed a statute that explicitly terminated the reserved status of the land. The dissent argued that Congress intended to disestablish the reservation because the State had taken over criminal prosecution on the reservation, and due to allotment, there are currently more non-Natives living on the reservation than Muscogee Indians. The majority was unpersuaded and held that Congress has the sole power to disestablish a reservation and they had failed to do so here. Justice Gorsuch wrote that the State failed to point to even one case where a congressionally-recognized reservation has been disestablished without a statute explicitly requiring it.[6] Because of this, and the clear promises in the 1866 treaty, the majority held the reservation lands in Oklahoma remain Indian Country.
The decision is sure to have lasting impact on Federal Indian Law. The ruling does not give tribal authorities jurisdiction over non-Natives; rather it means that state prosecutors lack the authority to prosecute Native defendants for major crimes committed on Indian reservations. The ruling also potentially places in doubt previous convictions of Native Americans in state courts. The full impact of McGirt will be determined as time goes on, but Oklahoma’s attorney general and all five major tribes inhabiting the reservation have already announced that they will work together to implement legislation regarding criminal jurisdiction that recognizes both tribal sovereignty and the respective tribal boundaries outlined in their treaties with the federal government.[7]
Authors: Rudy E. Verner and R.J. DuFour
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[1] McGirt v. Oklahoma, No. 18-9526, 2020 (U.S. July 9, 2020), https://d2qwohl8lx5mh1.cloudfront.net/kKj4BdK6PajTt4Q_WYZgkQ/content.
[2] Id.
[3] [3] Ronald Mann, Opinion analysis: Justices toe hard line in affirming reservation status for eastern
Oklahoma, July 9, 2020, https://www.scotusblog.com/2020/07/opinion-analysis-justices-toe-hard-line-in-affirming-reservation-status-for-eastern-oklahoma/.
[4] Supra note 1.
[5] Id.
[6] Id.
[7] Oklahoma AG Reaches Jurisdiction Agreement with Five Tribes, AP, (July 16, 2020), https://www.thestar.com/news/world/us/2020/07/16/oklahoma-ag-reaches-jurisdiction-agreement-with-five-tribes.html.