Editor's Note: While McGirt remains an important decision in Native Peoples law, it is important to note that the 2022 Supreme Court ruling in Oklahoma v. Castro-Huerta undercut the powers granted to tribal authorities and the federal government in McGirt. FindLaw's Supreme Court blog provides coverage of how the latest decision impacts this important precedent.
In 2020, the U.S. Supreme Court handed down its decision in McGirt v. Oklahoma. In its opinion, the justices held that crimes committed by Native Americans on tribal lands must be prosecuted by either the tribal authorities or the federal government - not the state government. At the same time, it observed that under treaties from the 1800s, much of eastern Oklahoma should legally be considered reservation lands.
Media coverage of the case focused on the court's conclusion that much of Oklahoma could be returned to Native tribes under the McGirt decision. However, legal scholars agree that the case is primarily centered on jurisdiction.
Background of the Case
Jimcy McGirt, a member of the Seminole Nation of Oklahoma, was convicted of several serious sex crimes in an Oklahoma state court in 1997. The state court sentenced him to two 500-year sentences and a life sentence for his various crimes. McGirt sought post-conviction relief, a type of appeal where a criminal defendant asks the courts for a new trial or modification of their sentence. In postconviction proceedings, McGirt asked to have his conviction vacated, arguing that the state of Oklahoma violated the Major Crimes Act by prosecuting him.
The Major Crimes Act requires that certain crimes committed by Native Americans within “Indian country" must be prosecuted by the federal government. Federal law defines “Indian country" as all land within the limits of any Indian reservation under the jurisdiction of the U.S. government. The statute from which this definition is derived only addresses criminal prosecutions, but the Supreme Court has adopted it for other types of cases as well.
McGirt argued that because he is Native and his crimes occurred in “Indian Country“ (the Muscogee Nation reservation), the state lacked jurisdiction to prosecute him. The Oklahoma Court of Criminal Appeals disagreed and upheld his conviction. He appealed to the United States Supreme Court, asking for a new trial that would take place in federal court.
Around the same time, the United States Court of Appeals for the Tenth Circuit attempted to answer this same question in Carpenter v. Murphy. In that case, the court of appeals held that Congress had not shown explicit intent to disestablish the Muscogee Creek reservation and therefore vacated Patrick Murphy's death sentence. However, the Supreme Court failed to reach a decision on Murphy's case during its 2018-2019 term as planned. Instead, it became a companion case to McGirt the following term.
When McGirt's appeal reached the Supreme Court, the primary question was whether certain treaties that addressed the boundaries of the Creek Reservation were still in effect. If they were, that would mean McGirt's crimes occurred on reservation lands, and his assertion that his prosecution should be handled by the feds was correct.
As is the case with many disputes involving Indian law, the Creek Nation was not actually a party to the lawsuit. The dispute was technically between McGirt and the state of Oklahoma. However, because the issues at play could have a significant impact on Oklahoma's native population, the Muscogee (Creek) Nation joined McGirt as an “amicus curiae." Amicus curiae is a Latin phrase meaning “friend of the court," which allows outsiders to a lawsuit to bring their arguments before the court.
History of the Creek Reservation
In 1832, the Muscogee Nation agreed to leave lands in Alabama and Georgia and move to lands set aside in Oklahoma. The Muscogee Nation was one of five tribes, along with the Choctaw, Chickasaw, Seminole, and Cherokee Nations, forced to leave their homes during the Trail of Tears. The land they were given in Oklahoma was known as the Creek Reservation, the name white settlers used for the Muscogee tribe because they lived near water.
In most cases, the title to reservation land is held in trust by the federal government. However, the land given to the Muscogee (Creek) Nation was not held in trust, like most Native reservations. Instead, it was held in "fee simple." Fee simple amounts to permanent and absolute ownership of a piece of land.
Then, in 1833, another treaty fixed the borders of the Creek Reservation as a "permanent home to the whole Creek nation." An 1856 treaty promised that the Creek Reservation would never "be embraced or included within, or annexed to, any Territory or State."
In the late 1800s, the federal government toyed with the idea of beginning a process known as "allotment" on the Creek reservation. But those negotiations were abandoned when the Creek Nation refused to cede or sell any land.
Today, the Muscogee Nation is the fourth largest Native tribe in the United States, with more than 86,000 citizens.
What Is Allotment?
When Native reservations were initially created, they were generally contiguous blocks of "trust land." However, in the late 1800s, the federal government used a policy known as "allotment" in an attempt to assimilate Native tribes into the non-Native population.
For many years, the Supreme Court has grappled with the question of whether allotment and sale of land keep reservation boundaries intact. If it doesn't, then tribes would only have jurisdiction over land still held in trust by the government.
How Do Courts Decide Where Reservation Boundaries Are?
Only Congress can establish or dissolve a reservation, and only Congress can enter into treaties with Native tribes. So courts must look at statutes passed by Congress to determine what powers and rights different reservations have.
Before McGirt, the Supreme Court examined treaties and statutes regarding reservations using a test it developed in Solem v. Bartlett. The Solem test asked courts to examine three things: the language of the statute, its legislative history, and what happened after Congress passed the statute.
Where a statute includes language about "ceding" land, the courts will assume Congress meant to dissolve reservation boundaries. Alternatively, courts interpret a straightforward sale of land as keeping reservation boundaries intact.
The legislative history piece often focuses on negotiations between Native tribes and the federal government. Was there an agreement between Congress and the Native tribe? Were reservation boundaries discussed? Courts weigh these questions when trying to determine whether Congress intended for a piece of land to remain a reservation.
Generally, the Supreme Court does not consider things that happen after Congress enacts a new law. Examining subsequent events is unique to Indian law, specifically in cases involving the disestablishment of reservations. Under Solem, the courts will consider questions such as: Was there a shift in population after the statute? Who exercised jurisdiction, federal, state, or tribal governments? Did Congress say anything about the reservation afterward?
The Decision in McGirt v. Oklahoma
The main question presented to the court in McGirt was whether the Creek Reservation still exists today. If it did, the federal Major Crimes Act would give jurisdiction over McGirt's criminal prosecution only to tribal authorities and the federal government.
In a 5-4 vote, the Supreme Court held that the Creek Reservation remains intact.
Oklahoma argued that the boundaries of the Creek Reservation no longer exist because the state had been exercising criminal jurisdiction over the area for more than 100 years. Essentially, they argued that the third prong of the Solem test should control. However, the Supreme Court had already held that cases should not turn on the third prong alone.
The majority's opinion was authored by Justice Neil Gorsuch, joined by Justices Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan. A staunch textualist, Gorsuch writes that the treaty must be interpreted according to the original meaning of the law.
Justice Gorsuch's opinion begins with the history of the relationship Native tribes have had with the federal government - and how it has by no means been a good relationship.
“On the far end of the Trail of Tears was a promise," the opinion begins. "Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever."
Gorsuch points out that, in an 1856 treaty, Congress promised that “no portion" of Creek lands would “ever be embraced or included within, or annexed to, any Territory or State."
"Because Congress has not said otherwise," Gorsuch wrote, “[W]e hold the government to its word."
Chief Justice Roberts dissented in the case, joined by Justices Samuel Alito, Brett Kavanaugh, and Clarence Thomas. Roberts argued that because only 10-15% of the population living on land Justice Gorsuch characterized as reservation lands are actually Native tribal members, the state should be able to carry out criminal prosecutions.
Impact of McGirt and Later Cases
Recognition of a reservation means that Native defendants will be prosecuted by the federal or tribal governments, not the state government. As Justice Gorsuch writes in the majority opinion, “nothing we might say today could unsettle Oklahoma's authority to try non-Indians for crimes against non-Indians on the lands in question."
However, Oklahoma Governor Kevin Stitt filed numerous challenges to the court's decision in McGirt, arguing that it created a public safety issue because state officials were prevented from prosecuting crime. One of those challenges reached the Supreme Court in 2021, and the Supreme Court agreed to hear oral arguments in Oklahoma v. Castro-Huerta. The court released a decision in June 2022 that rolled back the tribal and federal jurisdiction granted by McGirt.