WASHINGTON — In a 5-4 decision Thursday, the U.S. Supreme Court held that Congress never disestablished the Muscogee (Creek) Nation reservation, thus barring state prosecution of criminal cases against American Indians across a sweeping chunk of Eastern Oklahoma.
Writing for the majority in McGirt v. Oklahoma, Justice Neil Gorsuch said that since Congress did not take explicit formal action to terminate its 19th-century treaties with the Muscogee (Creek) Nation, the tribe’s reservation is still intact.
The 3 million-acre swath of land promised to the tribe in those treaties include most of what is now Tulsa and Muskogee, as well as all of Broken Arrow, Jenks and Tulsa’s other southern suburbs.
“Today we are asked to consider whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Gorsuch wrote. “Because Congress has not said otherwise, we hold the government to its word.”
Gorsuch participated in arguments in a separate but related case, Sharp v. Murphy, while on the 10th Circuit Court of Appeals.
Joining him in the majority were Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor.
The Muscogee (Creek) Nation celebrated the decision in a statement released Thursday morning.
“The Supreme Court today kept the United States’ sacred promise to the Muscogee (Creek) Nation of a protected reservation. Today’s decision will allow the nation to honor our ancestors by maintaining its established sovereignty and territorial boundaries. We will continue to work with federal and state law enforcement agencies to ensure that public safety will be maintained throughout the territorial boundaries of the Muscogee (Creek) Nation.”
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. He is currently serving a 500-year prison sentence.
Citing the 10th Circuit Court ruling in Sharp v. Murphy 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 an earlier 2018 case, the U.S. Supreme Court heard arguments in Sharp v. Murphy. However, with only eight justices hearing that case, it did not issue a ruling and instead asked for additional arguments. On Thursday, the Supreme Court issued an unsigned per curium opinion, upholding the 10th Circuit Court’s ruling by a 6-2 margin with Gorsuch recusing and dissents from justices Clarence Thomas and Samuel Alito.
Attorneys for both the state of Oklahoma and the Trump administration had 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. Instead, they maintained, that the only place where the state does not have authority is small, individually allotments held by tribal citizens.
Citing noted Oklahoma historian Angie Debo, Gorsuch dismissed that claim as unhelpful when trying to discern what was, and is, actually in the law.
“Whatever else may be said about the history and demographics placed before us, they hardly tell a story of unalloyed respect for tribal interests,” he wrote.
The decision is specifically targeted at criminal felonies committed by American Indians within the Muscogee (Creek) Nation’s boundaries.
With few exceptions, federal law prevents tribal governments from exercising civil or regulatory jurisdiction over non-Natives. Additionally, a previous U.S. Supreme Court case, Suquamish v. Oliphant, limits tribes’ jurisdiction over non-Natives in criminal cases.
However, the Cherokee, Chickasaw, Choctaw, and Seminole nations also were subjected to similar treaties and Congressional actions as was the Muscogee (Creek) Nation. The potential impact of the court’s decision for those tribes and their reservation land is unclear.
A joint statement from the state of Oklahoma and the leaders of the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole nations reiterated that they will work together on resolving any jurisdictional issues related to the decision, including the prosecution of McGirt and a second man, Patrick Murphy, who also is at the center of the case.
“The nations and the state are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused. We have a shared commitment to maintaining public safety and long-term economic prosperity for the nations and Oklahoma.
“The nations and the state are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights. We will continue our work, confident that we can accomplish more together than any of us could alone,” the tribes wrote.
Though the high court’s decision is a game-changer for criminal prosecutions on tribal land, legal experts say the court’s decision will not affect zoning laws or property ownership anywhere in Oklahoma.
Joseph Thai, a professor of Constitutional Law at the University of Oklahoma’s law school, said worries about land ownership were a gross exaggeration.
“The fact is that the existence of a reservation doesn’t change ownership,” he said. “If you hold a fee simple title to your land, then it’s still your land.”