McGirt v. Oklahoma (2020) Jimcy McGirt, a citizen of the Seminole Nation, which is geographically situated within the state of Oklahoma, was convicted in 1997 in Oklahoma State Court of molesting, raping, and sodomizing a four-year-old girl. McGirt was found guilty and received a sentence of 1,000 years “plus life in prison.” The crimes occurred within the Muskogee (Creek) Nation’s historical territory, also located within Oklahoma boundaries. The Muskogee have inhabited these reserved lands since they were compelled in the early 1830s to sign removal treaties with the federal government and vacate their ancestral homes in the Southeastern United States.
After his conviction, McGirt filed an appeal in state district court asserting that because his crimes had not occurred on Oklahoma land but on the reserved lands of the Muskogee nation, the state lacked jurisdiction over him or his crimes. He argued that because Indian lands are deemed “Indian Country,” criminal offenses committed therein by or against an Indian are subject only to tribal or federal jurisdiction. Thus, the appeal was not in regard to the individual heinous crime but rather the broader issue of the exercise of state power over Native peoples within federally recognized Native reservations, a question that carried the potential to affect all Native nations located within the United States. The district court denied McGirt’s petition by asserting that, as the Muskogee Nation had not retained its original, treaty-ratified reservation status, the crime had been committed on state land. Thus, Oklahoma had acted within its authority in prosecuting the crime. The Oklahoma Court of Criminal Appeals affirmed.
McGirt and his attorney, joined by the Creek Nation as amicus curiae, appealed the state’s ruling to the U.S. Supreme Court and, on July 9, 2020, the high court issued its much-anticipated decision. In a 5-4 ruling, they declared the Muskogee Nation’s three-million-acre reservation, which happens to include much of the city of Tulsa, was, in fact, still in existence. Having been established by the 1832 ratified treaty and never formally disestablished by Congress, the reservation constituted Indian Country for purposes of criminal jurisdiction.
Associate Justice Neil Gorsuch wrote the majority opinion (joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan) overturning McGirt’s state court conviction. In his opinion, Gorsuch staunchly affirmed the Creek nation’s several treaties (1832, 1833, 1856, and 1866) that over time had both established and diminished the reserved lands of the Creek people. While subsequent passage of federal laws, like land allotments and termination of Creek tribal courts, had reduced the area within the exterior boundaries of the Creek Nation’s territory, Congress had never explicitly withdrawn the reservation. As the crime was committed within the reserved boundaries of the Creek Nation and not on state land, the federal Major Crimes Act (1885) applied here. For this reason, McGirt should have been prosecuted by the federal government, not by the state.
The two central questions before the court, as Gorsuch stated them, were: 1) “whether the land these treaties promised remain an Indian reservation for purposes of federal Indian law” and 2) did McGirt commit his crimes in Indian Country? Gorsuch answered both questions in the affirmative. Thus, the state of Oklahoma had no right to prosecute McGirt, or any other Native person, for crimes committed anywhere within the boundaries of the three-million-acre Creek reservation.
Chief Justice John Roberts, joined by Associate Justices Alito and Kavanaugh, wrote the principal dissent while Justice Thomas wrote a separate dissent. Although Roberts acknowledged that the Creek nation historically inhabited a “reservation,” he emphasized that the Creek’s treaty alliance with the Confederacy during the Civil War had significantly weakened their claims to their lands. He further argued that a series of congressional statutes preceding Oklahoma statehood in 1906 had effectively “disestablished any reservation” in eastern Oklahoma, including that of the Creeks. Moreover, Roberts contended that federal statutes extending U.S. citizenship to Creek members had also effectively allowed state jurisdiction to supplant tribal and federal jurisdiction. Finally, the chief justice expressed grave concerns about the profound implications of the majority’s ruling, a decision he feared could “destabilize the governance of vast swaths of Oklahoma.”
Already hailed as one of the most consequential modern decisions for US-based Native nations, McGirt is important for several reasons. First, it dramatically reaffirms the dignity and sanctity of treaties, regardless of their historical vintage. Second, it serves as a vivid reminder to states that their jurisdictional authority inside Indian Country is limited, and that Congress is the only actor constitutionally authorized to deal directly with Native nations. Third, Native-reserved lands that have been set aside via treaty, statute, or executive order as the permanent homes of indigenous peoples cannot be terminated, ignored, or disestablished by states or any other entity save Congress in an explicit and unequivocal act. It should be noted here that, while a powerful decision, McGirt does not return any land to the Creek Nation, nor does it restore tribal court criminal jurisdiction over non-Indians. It does, however, raise questions about previous state court convictions of Native defendants who committed major crimes, and will require the state, the Creek nation, and U.S. attorneys to work together to find a path forward.
Finally, and perhaps most interestingly, there are implications for other tribal nations. The Muskogee Creek Nation is one of the so-called Five Civilized Tribes–the other four being the Cherokee Nation, the Choctaw Nation, the Chickasaw Nation, and the Seminole Nation. In the nineteenth century, each was violently removed from their southeastern homelands and forced onto what became Indian Territory, lands currently within the state of Oklahoma.
These nations all negotiated similar removal treaties and were guaranteed permanent reserved homes as a result. The McGirt precedent will likely apply to them, as well, meaning that cumulatively some 19 million acres, approximately 47 percent of the state of Oklahoma, remains Native land and, insofar as criminal jurisdiction is concerned, are subject only to tribal and federal authorities.
Blue Clark, Lone Wolf v. Hitchcock: Treaty Rights and Indian Law at the End of the Nineteenth Century (Lincoln, NE: University of Nebraska Press, 1994); Angie Debo, And Still the Waters Run: The Betrayal of the Five Civilized Tribes (Norman, OK: University of Oklahoma Press, 1940, 1989); and Deborah A. Rosen, American Indians and State Law: Sovereignty, Race, and Citizenship, 1790-1880 (Lincoln, NE: University of Nebraska Press, 2007).