McGirt v. Oklahoma
Can Oklahoma prosecute an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries?Advocates
- Ian H. Gershengorn, for petitioner
- Riyaz A. Kanji, for the Muscogee (Creek) Nation as amicus curiae
- Mithun Mansinghani, for the respondents
- Edwin S. Kneedler, for the United States as amicus curiae
McGirt v. Oklahoma is, in essence, the re-argument of Carpenter v. Murphy from last term. In both cases, the question presented is whether Oklahoma courts can exercise criminal jurisdiction over an Indian defendant accused of committing major crimes within the historical boundaries of the Creek tribal lands. Under the Major Crimes Act, serious offenses listed in the the statute and occurring within “Indian Country” are subject to exclusive federal jurisdiction. Therefore, in deciding whether Oklahoma has prosecutorial jurisdiction over the defendant, the Court must determine whether the boundaries of the Creek Reservation, as established in 1866, continue to define Indian Country today. The determination is important, as a matter of policy, because it will dictate whether the Creek Nation and the federal government jointly control a substantial portion of Oklahoma.
In Murphy, the Tenth Circuit unanimously held that Congress never disestablished the Creek reservation. Therefore, Murphy’s (major) crime occurred on Indian land, and the federal courts maintained exclusive jurisdiction. The Supreme Court granted certiorari and heard oral argument on November 27, 2018, but the decision is still pending. Importantly, Justice Gorsuch had recused himself from considering Murphy because he was a judge on the Tenth Circuit when that court of appeals decided Murphy. McGirt, by filing his petition for post-conviction relief, removed that obstacle to the full Court’s consideration of the very same question.
Here, for the State to exercise criminal jurisdiction over McGirt, Oklahoma will have to show that the Indian defendant’s crime occurred outside of Indian country; McGirt maintains that the crime occurred within the boundaries of the reservation, thus depriving the State of jurisdiction. The State insists that actions by Congress when readying Oklahoma for statehood disestablished the Creek reservation. The leading cases on reservations diminishment are Solem v. Bartlett, 465 U.S. 463 (1984), and Nebraska v. Parker, 136 S. Ct. 1072, 1078–79 (2016). These cases lay out a framework for interpreting Congressional intent. The test starts with the express language of the statute; if and only if there is ambiguous textual authority, a court will work through a series of interpretive conventions such as examining the demographic factors of the region at issue.
Because no language in any treaty or statute supports diminishment, Oklahoma tried three other gambits. First the State argued that, read together, all of the statutes and treaties show that the “overall thrust” of Congressional intent supported diminishment. Second, the State noted that the federal statutes from the allotment era had converted much of the reservation territory to fee simple parcels and argued that individual land ownership is (somehow) inconsistent with tribal governance. Third, the State argued that the demographic makeup of Oklahoma showed that people on the ground understood tribal authority to be at an end. Finally, turning to policy, the State Solicitor General marched out a parade of horribles that would descend on Oklahoma should the Court find exclusive federal criminal jurisdiction over major crimes committed in the reservation.McGirt v. Oklahoma on Oyez: https://www.oyez.org/cases/2019/18-9526