WASHINGTON (CN) — The Supreme Court appeared unwilling Monday to side with a Native American convict who argued that most of eastern Oklahoma should be classified as protected tribal land.
This is the broad question the high court will answer as it more specifically looks at jurisdiction in relation to the case of Jimcy McGirt, a member of the Seminole Nation of Oklahoma, who was convicted in 1997 of rape and other charges for acts allegedly committed within reservation boundaries first drawn in 1866.
Just like Patrick Murphy – another Native American charged with murder in Oklahoma, whose case the Supreme Court initially heard in November 2018 – McGirt contends that since he is a member of a tribe and the crime took place on Indian lands, his case should be tried in federal court. The Major Crimes Act gives the federal government jurisdiction over crimes on such territories.
While three lower courts brushed this argument aside in Murphy’s case, the 10th Circuit ruled Congress had never explicitly erased the boundaries of the Creek Nation, also known as the Muscogee, reservation when Oklahoma was granted statehood. The Supreme Court has ordered the case to be argued again.
Ian Gershengorn, a Jenner & Block attorney representing McGirt, wrote in a brief to the court that it would not be catastrophic for justices to rule in his client’s and the Creek Nation’s favor. One section titled, “The Sky Is Not Falling,” the brief outlines that many services would continue to rural Oklahomans if the court were to reinstate Native American protections for the land “because Creek government is so embedded in the community.”
“If an accident occurs on the Nation-paved roads that crisscross Creek country, Creek police officer may be the first responders and injuries may be treated at a community hospital built and run by the Creek,” for example, according to the brief.
Fielding questions from Justice Neil Gorsuch — who recused himself from Murphy’s case after participating in the 10th Circuit decision — Gershengorn ceded during a telephone hearing Monday that there would be consequences if the court found a large swath of Oklahoma land remained a reservation, but said they were not “existential nor indeed overly serious.”
The attorney further argued that tribal issues are often squared with congressional direction that typically outlines which authority has jurisdiction in a certain part of the country.
“Congress knows how to do this and the job to fix any consequences, if the court perceives them, is with Congress,” Gershengorn said.
Oklahoma Solicitor General Mithun Mansinghani, however, said Gershengorn was wrong to assume there would not be a dramatic impact to the state’s criminal or civil proceedings. There are currently 1,700 Oklahoman inmates being held in the state for criminal offenses in Indian territories that would have to be released, Mansinghani claimed, saying the shifting jurisdiction would make many state prosecutions invalid.
That number does not include crimes committed against Native Americans, which the state also would lose jurisdiction over, he said.
“As far as future cases go, there were 32,000 felonies committed in the former Indian territory, an area that is about 12% Native American. So only including crimes committed by Native Americans, that’d be 4,000 new felonies a year that the federal government would have to prosecute. Including crimes where the Native American is the victim, you can take that to about 8,000,” Mansinghani said.
Riyaz Kanji, an attorney representing the Creek Nation, wrote in an amicus brief to the court the state’s claim a reservation was never established for Native Americans in eastern Oklahoma “is divorced from both text and history.”
Making the same argument Monday, Kanji said the 1852 issuance of a fee patent for land did not absolve the tribe of its sovereignty, as there was no federal law stating a tribe couldn’t possess its fee title to a reservation.
Tribal-state cooperatives also would remain in effect, he said, and state law within Native American reservations would not evaporate. In fact, many people who are not Native Americans would benefit from the jurisdictional change, Kanji said.
“Under this court’s doctrine, state law applies in many situations, especially with respect to the non-Indians in the area and that’s what leads to these cooperative agreements,” he said.
Justice Samuel Alito posed a hypothetical question to Kanji about the extent of tribal authority, asking whether litigation could proceed if a tribal member tried to sue someone who is not a Native American in tribal court for a contract violation.
“No, your honor,” Kanji said. “Assuming that this takes place on fee lands, which as you’ve noted is the majority of lands in the reservation, under this court’s precedents it’s clear that absent of affirmative consent, no, that case would proceed in state court. Tribal law presumptively would not apply to non-Indians with respect to activities taking place on fee land.”
Deputy U.S. Solicitor General Edwin Kneedler, representing the Justice Department, said Congress already broke up the Creek Nation’s reservation in preparing the territory for statehood. Abolishing tribal courts was additional evidence Congress intended the reservation be dissolved, he said.
“At the same time, Congress eliminated the distinct treatment of Indians under federal law, instead subjected all persons in the territory irrespective of race to the same courts and body of law, largely incorporated from the state law of Arkansas,” Kneedler said.
The Supreme Court is expected to issue a ruling in the case by the end of June.
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