Supreme Court decides McGirt v. Oklahoma

Supreme Court decides McGirt v. Oklahoma

Today, in a 5-4 decision, in McGirt v. Oklahoma, the Supreme Court held that a large swath of eastern Oklahoma, including most of the city of Tulsa, is “Indian country” for the purposes of the Major Crimes Act (MCA).  In a decision that was as much a history lesson as a debate over statutory text and interpretation, the majority concluded that Congress never disestablished the Creek Nation reservation in Oklahoma and therefore, the state of Oklahoma lacked jurisdiction to criminally prosecute members of the Creek Tribe for crimes committed on the reservation under the MCA.  With today’s decision, four Justices in dissent are concerned that “the Court has profoundly destabilized the governance of eastern Oklahoma.”

The facts of this case involve a heinous sex crime committed by the petitioner, Mr. McGirt.  He was convicted of sex crimes in Oklahoma state court and sentenced to life in prison.  He argued that the State lacked jurisdiction to prosecute his crimes because the area where he committed those crimes is an Indian reservation, meaning under the MCA only the federal government or the Tribe could try him for his crimes.  The MCA provides that, within “the Indian country,” “[a]ny Indian who commits” certain enumerated offenses “against the person or property of another Indian or any other person” “shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U. S. C. §1153(a).  Although the case involved this particular prisoner seeking to overturn a conviction, the ultimate question in the case was the status of the Creek Nation reservation.

Justice Gorsuch penned the decision for the majority, concluding that “[o]n the far end of the Trail of Tears was a promise” of new lands which were guaranteed to the Creek Nation by the U.S. government “forever” and that because Congress has not said otherwise, the Court would “hold the government to its word.”  In a barbed opinion, the majority notes that Congress has broken many promises to Native Americans throughout this country’s history, but that if Congress wanted to break this particular promise, it must “clearly express its intent to do so,” in a way that would explicitly reference cession or “other language evidencing the present and total surrender of all tribal interests.”  Because the text was clear in this case, meaning that Congress never unambiguously disestablished the reservation as required by the Court’s precedents, the majority explains that there is “no need to consult extratextual sources…”

The majority suggests that its ruling is fairly narrow.  Oklahoma had argued that a decision finding in favor of the Tribe could have far reaching impacts.  For example, if all five Tribes that settled in Oklahoma in the 1830s had existing reservations, Oklahoma argues that roughly half its land and 1.8 million of its residents would reside in “Indian country.”  To this, the majority counters that each treaty must be considered on its own terms.  Oklahoma and IMLA’s amicus brief also warned that a ruling against the State could have significant consequences for civil and regulatory issues like taxation, zoning, and public safety.  Again, the majority brushes these concerns aside, concluding that the question before it was a narrow one, solely focused on the issue of jurisdiction under the MCA and further that “dire warnings are just that, and not a license for us to disregard the law.”

The majority concludes by conceding that there is a “potential for cost and conflict around jurisdictional boundaries,” but that it did not think “pessimism should rule the day.”  The court points out that the State and Tribes have worked together as partners through hundreds of intergovernmental agreements on issues such as taxation, law enforcement, and other regulatory matters, and there is no reason, according to the majority, that they should not continue to do so.

Chief Justice Roberts wrote a dissent, joined by Justices Alito and Kavanaugh and Justice Thomas (except as to a specific footnote), in which he echoed many of the concerns made by the State and IMLA.  Specifically, the dissent states:

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 decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.

The dissent also rejects the majority’s optimistic outlook that the Tribe and State can form intergovernmental agreements to handle disputes on these issues, noting that “those agreements are small potatoes compared to what will be necessary to address the disruption inflicted by today’s decision.”

To read the decision, click here.

We would like to thank our authors at the Emory Supreme Court law clinic, Professor Sarah Shalf, and Professor Paul Koster, for authoring amicus briefs for us in this case and the prior version of this case, Sharp v. Murphy.  (Sharp was held over from last term and today, the Court affirmed the Tenth Circuit’s decision based on its analysis in McGirt).