On July 9, 2020, the U.S. Supreme Court issued its opinion in McGirt v. Oklahoma, 591 U.S. ___, 140 S. Ct. 2452 (2020), a case involving state jurisdiction in Indian Country. Petitioner McGirt, an Indian, contended the sexual offenses that were the subject of his state conviction occurred in Indian Country—the reservation of the Muscogee (Creek) Nation—where the state had no jurisdiction.
Oklahoma asserted the crime was under state jurisdiction because there are no reservations in Oklahoma. Oklahoma argued that the Muscogee (Creek) Nation Reservation and its tribal government had been disestablished by multiple pieces of congressional legislation passed before and after 1906.
By careful examination of this legislation, the Supreme Court concluded that despite these multiple pieces of legislation (beginning in the 1880s) directed at the Muscogee (Creek) Nation, which provided for the division of the reservation into homestead allotments to tribal members, none of the legislative language disestablished the reservation.
After the decision was announced, Governor Kevin Stitt of Oklahoma denounced the result as an attack on Oklahoma sovereignty. Law professors who specialized in federal Indian law rushed to explain the huge impact the decision had made. If one judged by the volume of public statements, press releases, news articles, and law review articles, it was as though the Big One hit California and the entire state had dropped into the sea.
In actuality, the decision put Oklahoma on the same footing as the other 49 states. Congress provided the federal government exclusive authority to prosecute crimes that occur in Indian Country when committed by or against Indians in 1885, Major Crimes Act (MCA), 18 U.S.C. § 1153. Contrary to the “chicken little” theories of those who opposed and those who supported the decision, the sky was not falling.
The novel aspect of McGirt was the studied examination of the legislation that brought about allotment. The wording in the statutes that provided for allotment of tribal lands did not disestablish the Muscogee (Creek) Nation Reservation. See Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017) for a review of the allotment legislation and the general reference work F. Cohen, Handbook of Federal Indian Law (2012).
The term “Indian Country” traces its heritage back to the Royal Proclamation of 1763 issued by the British Crown after the French and Indian War (1754–1763). The Royal Proclamation defined Indian Country (essentially everything but the 13 colonies) and put tribal relations and land purchases in the hands of the central government, the Crown. The United States of America adopted this central control policy by placing Indian affairs in the hands of the federal government under Article I, Section 3 of the U.S. Constitution.
Two years after the Declaration of Independence, the young United States government needed to prove its legitimacy as a government. They chose to do this by seeking acknowledgment from two venerable and long-established governments. This was accomplished by two treaties in 1778—one with France and the other with the Delaware Nation.
American growth and expansion resulted in 400 treaties and agreements with tribal governments, largely moving tribes from their original homelands or reducing the size of the lands the tribes reserved for their own use, thus the term “reservation” or Indian Country. These treaties and the federal statutes to carry out the treaties are based on the political status, not racial status, of Indian nations under the U.S. Constitution.
Under federal law, Indian Country is defined as an Indian reservation, trust, or restricted allotments of individual Indians and dependent Indian communities, 18 U.S.C. § 1151. Generally speaking, only tribal governments and/or the federal government have jurisdiction in Indian Country to the exclusion of the states. The federal Major Crimes Act provides that only the federal government can prosecute certain named Major Crimes in Indian Country when committed by or against an Indian. The legal title of Indian Country is with the federal government, which holds the land in trust for the tribes or tribal members.
In the 1880s, the new policy goal of non-Indians to “benefit” Indians was to do away with tribal governments, break up the reservations into homestead allotments, and turn the Indians into farmers. The lands not divided into allotments among tribal members were declared open to white settlement. Two federal territories, Oklahoma Territory and Indian Territory, were to be merged, not into an Indian state as the tribes proposed, but into a new state of the Union controlled by non-Indians and called Oklahoma. The tribes objected and actively opposed these goals.
Oklahoma statehood came in 1907, and with it came the presumption that the dismantling of tribal governments and tribal reservations had succeeded. All the tribal objections were smothered by the “bureaucratic imperialism” of the Department of the Interior and the Bureau of Indian Affairs, a phrase coined in Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976).
In the seven decades following statehood, the treaty lands of Oklahoma tribes were described as “former reservations,” and the popular notion was that any trust lands the tribes owned or trust allotments tribal members owned were not subject to federal or tribal jurisdiction but to state jurisdiction, despite multiple treaties and federal legislation confirming tribal jurisdiction or precluding state jurisdiction. Overlooked was the Oklahoma Constitution provision which declared that lands held by any Indian tribe or nation, “shall be and remain subject to the jurisdiction, disposal and control of the United States.” Article 1, Section 3, Oklahoma Constitution.
A massive 1952 Congressional Report of 1,594 pages from the House Committee on Indian Affairs characterized the tribal properties in Oklahoma as reservations and cautioned that although the state exercised jurisdiction over Indian Country, the practice was subject to court attack “due to absence of congressional authority. . . .” H.R. Rep. No. 2503, 82d Cong., 2 Sess. 834 at 109 (1952).