With arguments now in the rearview mirror, the wait continues for a ruling on whether a substantial part of Oklahoma is still a reservation.
For almost 90 minutes Monday morning, the U.S. Supreme Court heard arguments in McGirt v. Oklahoma over whether Congress formally dissolved the Muscogee (Creek) Nation’s reservation in its efforts to merge Oklahoma and Indian territories more than a century ago.
With the federal government taking similar actions toward the Cherokee, Seminole, Choctaw and Chickasaw nations prior to statehood, up to 43 percent of Oklahoma could potentially be considered a reservation depending on the exact wording of the justices’ ruling.
A citizen of the Seminole Nation of Oklahoma and of Creek descent, Jimcy McGirt was convicted in 1997 in Wagoner County District Court of first-degree rape, sodomy and lewd molestation of his wife’s underage granddaughter.
Citing a 10th Circuit Court ruling in a related case that the U.S. Congress never formally disestablished the Muscogee (Creek) Nation’s reservation, McGirt argued in his appeal that since the crime happened within the Muscogee (Creek) Nation’s boundaries established via treaty, the state does not have jurisdiction.
Instead, that authority would fall to either the federal government or the tribal judicial system, depending on the specific nature of the crime in question. Under the terms of the Major Crimes Act, states do not have jurisdiction over felonies committed by tribal citizens on Indian land, including reservations.
In 2018 the U.S. Supreme Court heard arguments in that related case – Sharp v. Murphy. However, with only eight justices hearing that case, it did not issue a ruling and instead asked for additional arguments. To date, that second round of arguments has not happened and a stay remains in place, preventing the 10th Circuit Court’s decision from taking full effect.
The ninth justice, Neil Gorsuch, was serving on the 10th Circuit Court when it considered the Murphy case, thus prompting him to recuse himself from the high court’s arguments. However, he participated in Monday’s session, showing skepticism of claims that the Muscogee (Creek) Nation’s reservation was abolished, including state and federal attorneys’ reliance on demographic data. The majority of the residents of the Muscogee (Creek) Nation’s jurisdictional area are not tribal citizens.
“Relying on demographic evidence is dangerous,” he said. “It incentivizes people to ignore the plain terms of the law.”
Should the U.S. Supreme Court side with McGirt and by extension allow the 10th Circuit Court’s ruling in Sharp v. Murphy to stand, it could potentially alter which court systems have authority to prosecute what cases moving forward within the 11 counties at least partially within the Muscogee (Creek) Nation’s re-affirmed reservation. Three of Oklahoma’s largest cities – Tulsa, Broken Arrow and Muskogee – are either partially or wholly within those boundaries.
Depending on the exact wording of the Supreme Court’s ruling, it could also potentially open an untold number of state convictions to be retried in the federal court system, including that of McGirt, the man in the middle of the case. The 71-year-old is still in state custody, serving a 500-year sentence.
“We don’t know exactly how many cases this would impact,” McGirt’s attorney, Ian Gershenhorn, told the justices. “The state has never provided a number.”
In response to queries from Gorsuch, Oklahoma Solicitor General Mithun Masinghani advised the court that 178 criminal appeals have been filed in Oklahoma that cite the 10th Circuit Court’s ruling in the Murphy case.
“I would have thought after the Murphy case we might have seen a tsunami of cases, if there were a real problem here, that we haven’t seen,” Gorsuch said.
Should the justices agree with the 10th Circuit Court that the reservation was never disestablished, it would also potentially exempt tribal citizens living in that area from paying state income taxes.
When pressed by Justice Samuel Alito, Muscogee (Creek) Nation attorney Riyaz Kanji said that should the justices rule that the reservation remains, little if anything would change for non-tribal citizens living in the area. Contract disputes involving non-Creek citizens would not be heard in tribal court. Existing adoption and foster care placements would not be interrupted.
“State law will not just completely evaporate,” he said. “Especially with respect to non-tribal citizens.”
Attorneys for both the State of Oklahoma and the Trump administration argued that whatever reservation the Okmulgee-based tribe had was substantially diminished by the time Oklahoma received statehood in 1907 due
to actions taken by Congress to accommodate the surge of non-tribal citizens living in Indian Territory.
Among the specific steps cited by both attorneys was the Curtis Act. Passed in 1898, that law stripped the Muscogee (Creek) Nation, Chero- kee Nation, Seminole Nation, Choctaw Nation and Chickasaw Nation of a combined 90 million acres of communal lands and called for abolishment of their governments by March 1906.
“In preparing for Oklahoma statehood, Congress broke up the hallmarks of tribal government,” Deputy Solicitor General Edwin Kneeler said. “They eliminated the tribal courts. They prohibited enforcing tribal law.”
Thanks to the ongoing COVID-19 pandemic, Monday’s arguments were heard via teleconference. The case is one of 10 from the court’s spring docket to be considered remotely rather than postponed to the fall term.
The justices did not offer a date for when they will render their opinion. Traditionally, opinions from the spring term are released by the end of June.