- The Washington Times - Thursday, July 9, 2020

The Supreme Court ruled Thursday that 3 million acres of eastern Oklahoma, including the state’s second-largest city, is part of a reservation of the Muscogee (Creek) Nation, effectively ending the state’s prosecution of American Indians on that land.

The 5-4 decision could undo dozens, maybe hundreds of prosecutions by state law enforcement of tribal residents who can appeal to have cases reheard in federal or tribal courts. Legal experts said the ripple effects of the ruling in McGirt v. Oklahoma could impact oil and gas exploration, environmental regulation, and taxation.

“McGirt was widely expected to be a controversial decision, and SCOTUS did not disappoint,” said Troy Eid, president of the Navajo Nation Bar Association and former U.S. attorney for Colorado. “The longer-term impact of McGirt on other treaty rights cases remains to be seen.”

Justice Neil M. Gorsuch joined the court’s four liberal justices in the majority decision, which could apply to other tribes in eastern Oklahoma such as the Chocktaw, Seminole, Chicasaw and Cherokee nations. The area encompasses nearly 2 million people and includes the city of Tulsa, population 400,000.The case was spurred by Jimcy McGirt, a member of the Seminole Nation who had appealed to federal court his state-court sentence of 1,000 years in prison for sexual assault.

McGirt’s lawyers argued that state courts didn’t hold jurisdiction over him because the crime took place on land that historically had belonged to the Muscogee (Creek) Nation, even though that claim to the land was thought to have been terminated by Oklahoma’s statehood in 1907.

Oklahoma officials and the Trump administration had challenged McGirt’s claim, saying recognizing the reservation would profoundly upend state, federal and tribal prosecutions.

Justice Gorsuch wrote that the federal government established the reservation in the 1830s with the Creek in exchange for their homeland east of the Mississippi and only Congress can disestablish the reservation, which never occurred.

“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever,” Justice Gorsuch wrote for the majority. “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.”

In a dissenting opinion, Chief Justice John G. Roberts Jr. said the court’s ruling is based on “improbable ground.”

“Unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation,” Justice Roberts wrote. “Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.”

The majority opinion noted that arrangements between the state and tribes have long governed criminal justice in Oklahoma, with the the Muscogee (Creek) tribal courts gaining standing in Oklahoma more than 25 years ago.”[W]hile the federal prosecutors might be initially understaffed and Oklahoma prosecutors initially overstaffed, it doesn’t take a lot of imagination to see how things could work out in the end,” Justice Gorsuch wrote.

McGirt’s conviction will be handed over to federal courts, but broader implications for the state and the region’s five tribal nations remain.A joint statement issued on Thursday by the tribes and the state of Oklahoma reiterated that they are “committed to ensuring that Jimmy McGirt” and other offenders “face justice for the crimes for which they are accused.”

Reaction came swiftly from tribal nations, including the Muskogee (Creek) Nation, who had not participated as a petitioner in Thursday’s case but supported McGirt’s claims of the reservation’s boundaries.

“The Supreme Court today kept the United Staes’ sacred promise to the Muskogee (Creek) Nation of a protected reservation,” the tribe said in a press statement. “Today’s decision will allow the Nation to honor our ancestors by maintaining our established sovereignty and territorial boundaries.”

Fawn Sharp, president of the National College of American Indians, called Thursday’s decision “historic,” saying land guaranteed to Indians should “forever be considered Indian country.”

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