In rare victory, SCOTUS upholds treaty with the Muscogee (Creek) Nation in Oklahoma


Eric Citron, in a comment on SCOTUSblog this morning noted “Among Indian law lawyers, particularly those who represent tribes, there is a dark joke that the “real Indian canon” is that the Indians always lose.  The reason is often the kinds of concerns about consequences that this opinion rejects. That might mark the real sea change that this opinion creates.”

The U.S. Supreme Court on Thursday ruled that the eastern half of Oklahoma is, and has been for nearly two centuries, a Native American Indian reservation. Justice Gorsuch Sides with Liberals and in 5-4 Decision in Favor of Native American Rights (correction: Gorsuch enforced the plain language of the treaty):

The 5-4 decision fell along ideological lines, with Justice Neil Gorsuch, the only justice from the western U.S., siding with the court’s liberal bloc.

In a 42-page opinion penned by Justice Gorsuch, the court reasoned that because Congress never disestablished the Native American reservation—established through a series of treaties with granting all land West of the Mississippi River to the “the Creek Nation of Indians—that land remains a Native American reservation.

“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word,” Gorsuch wrote.

For purposes of the Major Crimes Act, land reserved for the Creek Nation since the 19th century remains “Indian country.”

The controversy stemmed from the prosecution of Jimcy McGirt, a member of the Muscogee (Creek) Nation tribe who in 1997 was convicted by state authorities on charges of sex crimes against a child. McGirt’s attorneys argued that because Congress never terminated the Muscogee reservation, the eastern half of Oklahoma remained sovereign territory, McGirt should have been tried in federal court.

The court first attempted to address the issue over the territorial dispute in 2018, following an appeal from a ruling of the Tenth Circuit Court of Appeals which held that the land was indeed a tribal reservation. The justices heard arguments in Sharp v. Murphy in 2018, but took on McGirt’s case instead, likely because Justice Gorsuch–who participated as a federal appellate judge when the case was in circuit court—had to recuse himself.

Oklahoma’s solicitor general argued there was no need for Congress to disestablish the reservation and transfer authority to the state because the land was never a legally established reservation; ruling otherwise would throw the state into chaos, the argument went.

The decision has significant implications for Oklahoma’s 1.8 million residents, as state authorities have no jurisdiction to prosecute crimes committed on Native American territory, and many previously state convictions are likely to be called into question.

Gorsuch addressed this point head-on, saying “the magnitude of a legal wrong is no reason to perpetuate it.”

“Looking to the future, Oklahoma warns of the burdens federal and tribal courts will experience with a wider jurisdiction and increased caseload,” the opinion said. “But, again, for every jurisdictional reaction there seems to be an opposite reaction: recognizing that cases like Mr. McGirt’s belong in federal court simultaneously takes them out of state court. So while the federal prosecutors might be initially understaffed and Oklahoma prosecutors initially overstaffed, it doesn’t take a lot of imagination to see how things could work out in the end.”

Gorsuch last year also provided the decisive vote when the court ruled in favor of Native American rights, holding that a nineteenth century treaty did not expire when Wyoming became a U.S. state.

How is this playing in Oklahoma? The Oklahoman reports, US Supreme Court rules against Oklahoma in Creek Nation case:

The U.S. Supreme Court ruled Thursday that the Muscogee (Creek) Nation’s reservation was not officially terminated at Oklahoma statehood, as justices issued a decision that may upend state jurisdiction in much of the former Indian Territory.

“The federal government promised the Creek a reservation in perpetuity,” the 5-4 decision states.

“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.”

The decision is expected to have huge implications for criminal, and possibly civil, matters in most of eastern Oklahoma.

The state attorney general’s office has warned of hundreds of criminal convictions being overturned.

Chief Justice John Roberts, in a dissenting opinion, wrote Thursday, “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. On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma.

“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 long-awaited decision overturned the conviction of a child rapist who was tried in an Oklahoma state court.

The case focused on whether Jimcy McGirt should have been tried in a federal court because he is Native American and the crime was committed on land that was part of the historical Creek reservation.

The issue raised by the case was whether the Creek reservation, which includes eight counties and most of Tulsa, was ever officially terminated or whether the tribe and the federal government still exercise authority over some matters.

Congress never explicitly terminated the Creek reservation. But the state argued that Congress took steps, including allotting the land to tribal members, that had the effect of terminating the reservation.

But the majority opinion, written by Justice Neil Gorsuch, says the high court “has explained repeatedly that Congress does not disestablish a reservation simply by allowing the transfer of individual plots, whether to Native Americans or others.”

Though the case concerns the Muscogee (Creek) Nation, the decision is expected to apply to the other members of the Five Tribes — the Cherokee, Chickasaw, Choctaw and Seminole Nations.

The Five Tribes and Oklahoma Attorney General Mike Hunter, apparently anticipating the high court might declare the Creek reservation still exists, issued a joint statement on Thursday saying they had already made “substantial progress” toward an agreement resolving jurisdictional issues raised by the decision.

The agreement will be presented to Congress and the U.S. Justice Department, according to the statement.

“The Nations and the State are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused. We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma,” the tribes and state said.

“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. We will continue our work, confident that we can accomplish more together than any of us could alone.”

The conviction of death row inmate Patrick Murphy was also overturned on Thursday, as the court resolved that case with the McGirt decision.

The U.S. attorneys for Oklahoma’s three judicial districts issued a statement on Thursday, saying “As Oklahoma’s United States Attorneys, we are confident tribal, state, local, and federal law enforcement will work together to continue providing exceptional public safety under this new ruling by the United States Supreme Court.”

So, as Justice Gorshuch says, “it doesn’t take a lot of imagination to see how things could work out in the end.”


  1. I wonder if Moscow Mitch is enjoying the latest SCOTUS rulings as much as I am.

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