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Politics and Government

U.S. Supreme Court Sides With Tribes In Stunning 5-4 Ruling

Mark Fischer
Flickr Creative Commons

In a 5-4 vote, the United States Supreme Court sided with Oklahoma tribes in deciding one of the most closely watched cases, McGirt v. Oklahoma.

Justice Neil Gorsuch joined Justices Elena Kagan, Ruth Bader Ginsberg, Sonia Sotomayor and Stephen Breyer to issue the 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."

The Supreme Court argued the case in early May after punting on the Carpenter v. Murphy case last year.

The central question in this case: Were the Muscogee Creek Nation's boundaries as set by the 1832 Treaty ever dissolved by Congress? Though the federal government largely dismantled Tribal courts in Oklahoma after the Civil War, if the 1832 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 (have) result(ed) in 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.

Unlike on some Tribal reservations, such as the Navajo Nation, Tribal land in Oklahoma is an overlay of the state. In function, this means law enforcement officers are cross-deputized, and state officers can make traffic stops and arrests in Tribal territories. After 1866, the United States government started dismantling their communal lands. So, Tribal governments were dwarfed and communal lands were divided up into farms owned by individuals. The rest of the land was given to white settlers.

However, the U.S. Government forgot one detail. Congress did not disestablish the Treaties with the Tribes that guaranteed them permanent lands. States don't have jurisdiction over crimes committed by Indians on Indian land. Only the federal government does.

The initial case, Carpenter v. Murphy, was argued before the U.S. Supreme Court in 2019, but Justice Gorsuch had to recuse himself because he previously considered the case when he was a judge on the U.S. Tenth Circuit Court of Appeals.

So, the U.S. Supreme Court issued no decision in the Carpenter v. Murphy case. Instead, the Court took up the McGirt v. Oklahoma case, which presents the same argument.

The Nation's highest court has ruled on the issue of disestablishment of treaties with Tribal Nations before. In 2016, the Court ruled in favor of the Omaha Tribe in Nebraska v. Parker.

"The rule is that a reservation does not cease to exist until Congress explicitly makes that clear," said Sara Deer, who co-authored an amicus brief in the McGirt 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.

The State of Oklahoma disagrees. They argue that, in function, the treaty ceased to exist because the Tribal governments were at least temporarily dismantled and the State of Oklahoma assumed jurisdiction. They argue a ruling in favor of the Creek Nation would undo more than 100 years of precedent.

After oral arguments in May, Oklahoma Attorney General Mike 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."

Justice Gorsuch authored the majority opinion and was a pivotal vote in the case, even though he is typically thought of as socially conservative. He issued opinions that favored the Tribes as a judge on the U.S. Tenth Circuit Court of Appeals. He also hired an Indian law clerk.

During the oral arguments in May, lawyers and those who'd been closely watching the case, say most of the members of Nation's highest court are not prepared to argue or decide Indian law.

Justices Gorsuch and Sotomayor asked very detailed questions about federal Indian law during the oral arguments. Justice Gorsuch grilled Oklahoma Solicitor General Mithun Mansinghani on key arguments the state presented.

"Why the fact that the land is in fee simple would lead to a less stringent disestablishment test than Solem? I guess I don't understand why that would be the case," Gorsuch asked.

Mary Kathryn Nagle is Cherokee and an attorney with Pipestem Law, a firm who has offices in Tulsa and Washington D.C. and is dedicated to Tribal sovereign law. She says that Federal Indian law isn't often taught in law school or even offered as an elective.

"It's not considered a 'serious subject,' even though it is very serious, right? It's life or death for us Native folks," said Nagle.

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 report was produced by the Oklahoma Public Media Exchange, a collaboration of public media organizations. Help support collaborative journalism by donating at the link at the top of this webpage.


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