High Court Backs Tribal Designation for Wide Swath of Oklahoma Land

Image credit: Muscogee (Creek) Nation via Smithsonian Institution

WASHINGTON (CN) — In a decision that reclassifies a large swath of eastern Oklahoma as land belonging to Native Americans driven from their ancestral home during the Trail of Tears, the Supreme Court ruled 5-4 Tuesday that a Seminole man sentenced to 500 years in prison for rape and sodomy should have been tried in federal court.

Jimcy McGirt, turning 72 in October, contends that the crimes of which he was convicted in 1997 occurred on Muscogee or Creek Nation land. McGirt himself is a member of the Seminole Nation of Oklahoma and applied in 2018 for post-conviction relief based on the successful appeal of Patrick Dwayne Murphy, a Creek member whose death-row conviction was vacated after the 10th Circuit held that Congress never explicitly erased the Creek Nation’s boundaries when Oklahoma was granted statehood.

Murphy’s case had been pending before the Supreme Court after the justices ordered last year that it be reargued. They affirmed for Murphy on Tuesday after handing down the ruling in McGirt — a case that the justices heard via livestream teleconferences in the midst of the global Covid-19 pandemic.

“The federal government promised the Creek a reservation in perpetuity,” Justice Neil Gorsuch wrote for the majority. “Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

Ian Gershengorn, a Jenner & Block attorney representing McGirt, lauded the court Thursday for affirming that, when “the United States makes promises, the courts will keep those promises.”

“Congress persuaded the Creek Nation to walk the Trail of Tears with promises of a reservation — and the court today correctly recognized that that this reservation endures,” Gershengorn said in a statement.

Because Gorsuch participated in the 10th Circuit’s handling of Murphy’s case, he recused himself from proceedings at the high court level. In McGirt, Gorsuch was joined in the majority by the liberal wing of the court: Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer.

The decision explains the Creek Reservation’s history in a period of the 1880s known as the allotment era, where Congress tried pressuring tribes to abandon their lifestyles and lands.

Critical to Gorsuch, however, was that no statute passed in this time “evinc[ed] anything like the ‘present and total surrender of all tribal interests’ in the affected lands.”

Gorscuch emphasized that such decisions were not necessarily altruistic as some members of Congress at the time were concerned that putting Creek lands into the public domain would let them fall into the hands of “powerful railroad interests.”

“But whatever the confluence of reasons, in all this history there simply arrived no moment when any act of Congress dissolved the Creek tribe or disestablished its reservation,” Gorsuch wrote. “In the end, Congress moved in the opposite direction.”

Oklahoma had warned that extending the jurisdiction of the Creek Nation would have ramifications for resident safety, but Gorsuch called the argument “self-defeating.”

He emphasized that states are still permitted to apply criminal and civil statutes against non-Indian defendants within Indian country, and that many services for the Creek Nation and the state already overlap.

Furthermore, large sections of the population living among Native Americans on a reservation is hardly unheard of.

“Oklahoma replies that its situation is different because the affected population here is large and many of its residents will be surprised to find out they have been living in Indian country this whole time,” Gorsuch wrote. “But we imagine some members of the 1832 Creek Tribe would be just as surprised to find them there.”

Chief Justice John Roberts wrote a seething dissent that the court’s remaining conservative members, Justices Samuel Alito, Brett Kavanaugh and Clarence Thomas, joined.

With the majority’s holding, Roberts wrote, Oklahoma’s “ability to prosecute serious crimes will be hobbled,” and decades of past convictions could be thrown out. Roberts said the decision weaves uncertainty into a range of issues, “from zoning and taxation to family and environmental law.”

“None of this is warranted,” he added. “What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not Creek Indian reservation.”

Picking up the thread of obliterated state prosecutions later in his dissent, Roberts asked if the federal government would necessarily have the resources necessary to reprosecute some of these cases.

Some 10-15% of Oklahoma’s population identify as Native American, but Roberts emphasized that “the share of serious crimes committed by 10%–15% of the 1.8 million people in eastern Oklahoma, or of the 400,000 people in Tulsa, is no small number.”

“At the end of the day, there is no escaping that today’s decision will undermine numerous convictions obtained by the state, as well as the state’s ability to prosecute serious crimes committed in the future,” Roberts wrote.

Joining together for a statement on the ruling, the state and five Native American tribes said Thursday they are committed to ensuring McGirt and Murphy face justice for their accused crimes.

“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,” they said.

Thomas joined all but a footnote of the chief justice’s dissent and wrote separately to argue that the court heard the case without proper jurisdiction.

“I agree with the Chief Justice that the court misapplies our precedents n granting petitioner relief,” Thomas wrote. “But in doing so, the court also overrides Oklahoma’s statutory procedural bar, upsetting a violent sex offender’s conviction without the power to do so. The state of Oklahoma deserves more respect under our Constitution’s federal system.”

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