July 24, 2020

SCOTUS Rules in Favor of Creek Nation Petitioner in Historic Tribal Lands Case

The 1866 boundaries of the former reservations of the Five Tribes in dispute in McGirt v. Oklahoma.

The 1866 boundaries of the former reservations of the Five Tribes in dispute in McGirt v. Oklahoma.

© Chipermc / Wikimedia Commons/ (CC BY-SA 4.0)

Nearly a year after hearing Carpenter v. Murphy, the U.S. Supreme Court held, in a 5-4 decision, that nearly half of Oklahoma is tribal land in the case of McGirt v. Oklahoma. Unlike in Murphy, from which Justice Gorsuch was recused due to his tenure on the Tenth Circuit Court of Appeals when that court heard the case, McGirt was heard by all nine justices. McGirt, like Murphy, raised questions of what constitutes tribal land. Under the Major Crimes Act, crimes committed on tribal land by tribal members fall under exclusive federal jurisdiction. The decision of the Court could have potentially far-reaching results, and as the dissenting opinion points out, may affect the validity of previous state prosecutions.

 In 1997, Jimcy McGirt was tried and convicted of multiple sexual offenses and sentenced to life imprisonment without parole. In 2018, Mr. McGirt filed a petition in Oklahoma state court which challenged Oklahoma’s jurisdiction over his case because he was a member of the Muscogee Creek Nation tribe and committed the crimes on Indian land per the boundaries drawn by a 19th century treaty with the federal government. Therefore, Mr. McGirt argued, under the Major Crimes Act, Oklahoma did not have jurisdiction to try his case. His petition for post-conviction relief was denied. In December 2019, the Court granted certiorari, and in May 2020 the Court held oral arguments remotely due to the COVID-19 pandemic.

The Oklahoma Solicitor General, arguing for the State, asserted that Oklahoma’s jurisdiction over Mr. McGirt’s case was proper because the Muscogee reservation was disestablished by a series of statutes passed by Congress. Rather than being a reservation, the Solicitor General argued that the land was a “dependent Indian community.” Unlike reservations, interest in this type of land can be sold, making the type of land substantively different from a reservation. As such, crimes committed on this land would not fall under the Major Crimes Act and therefore would not be subject to exclusive federal jurisdiction. The State’s argument rested on the original public meaning of the statutes when Congress first created the state of Oklahoma. Counsel for Mr. McGirt, from Jenner & Block, disagreed with the State’s analysis of whether the land was disestablished by Congress, arguing that disestablishment must be clear and unequivocal. Mr. McGirt’s attorney also argued that it is irrelevant if the disputed land is classified as a reservation or a dependent Indian community since the boundaries were set by the plain text of congressional statutes. Mr. McGirt’s counsel further pointed out that Congress had the ability to dissolve the tribe and chose not to. They argue that this is a clear indication that there was never a disestablishment.

The parties’ arguments also concerned the expected impact of the Court’s decision. The State argued that a decision in Mr. McGirt’s favor would open up the floodgates of litigation for previously convicted persons and render those convictions invalid. The State pointed out that 178 people had already sought relief following the Tenth Circuit’s ruling in Mr. Murphy’s favor, saying that this was just the tip of the iceberg if the Court sided with Mr. McGirt. Counsel for Mr. McGirt countered that the impact would not be as widespread as imagined, arguing that many would not choose to reopen their cases because they have already served a large portion of their sentences and because federal penalties are often higher than state penalties. Counsel for Mr. McGirt also pointed out that many prisoners’ ability to seek relief in federal court will be limited by the statute restricting federal habeas remedies, the Anti-Terrorism and Effective Death Penalty Act.. Mr. McGirt’s counsel also raised the general point that the State’s continuous abuse of its jurisdictional power in this context should not serve as a reason to ignore the plain text of congressional statutes.

The justices’ questions highlighted different concerns about this case. Justices Ginsburg and Alito focused on the impact the Court’s decision would have for tribal and non-tribal citizens living on the land. Justices Thomas and Breyer focused on creating distinctions between McGirt and previous cases, with questions focused on how narrower precedent could be applied to a case that seemed to encompass bigger issues such as sovereignty. Justice Gorsuch approached the two sides differently. When questioning counsel for Mr. McGirt, he focused on the “on the ground consequences” that the case’s issues would present for the city of Tulsa. When questioning the State, he tried to discern exactly when the disestablishment happened, saying he did not understand the State’s approach and questioned whether there would be a “tsunami of cases” if the Court sided with Mr. McGirt.

On July 9, 2020, the Court delivered an historic decision in which nearly half of Oklahoma was reaffirmed as Indian territory. In a 5-4 decision, the Court declared that the Creek reservation had never been disestablished. The opinion, written by Justice Gorsuch, acknowledged that only Congress has the ability to disestablish territory, and since it had not unequivocally stated otherwise, the territory in question was never disestablished. Therefore, under the Major Crimes Act, Oklahoma lacked jurisdiction to try McGirt’s case. The majority opinion recognized that for decades, Oklahoma courts have lacked jurisdiction to try crimes committed by Native Americans on tribal lands but stated that “the magnitude of a legal wrong is no reason to perpetuate it.” The dissenting opinion, written by Chief Justice Roberts and joined by Justices Alito, Thomas, and Kavanaugh, warned that this decision would lead to great uncertainty for the governance of Oklahoma. Additionally, the dissent warned that this decision inhibits the State’s ability to effectively prosecute crime, and that many previously decided cases may be overturned.

The same day that it announced McGirt, the Court affirmed the Tenth Circuit Court of Appeals’ decision in Carpenter v. Murphy in a one sentence per curiam opinion. The decision was 6-2, with Justice Gorsuch recused and Justices Alito and Thomas dissenting. The earlier Tenth Circuit opinion declared Patrick Murphy’s conviction and death sentence invalid for the same reasons later announced in McGirt. The case now returns to the district court, with instructions from the Tenth Circuit to grant Mr. Murphy’s petition for habeas relief.