McGirt v. Oklahoma

No. 18-9526 - Argued May 11, 2020
At Issue

Can Oklahoma prosecute an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries?

  • 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
Background and Case Commentary

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:

Key Questions from Oral Argument

Justice Thomas to Petitioner (6:00): [I]n Parker, we were only dealing with one allotment statute that was disposing of surplus land. Here, we’re dealing with a series of statutes that go both to land, the allotment of land, and to the reduction in the authority of the tribe. That’s what I mean. [Have we decided any cases like that?]

Gerald Torres: Your Honor, the reason this case is consistent with Solem and Parker does not reside in questions about surplus land, but in whether there is sufficient textual evidence that Congress intended to disestablish or diminish the reservation and with it tribal and federal authority. The statutes you reference point to decisions by Congress to preserve the tribe when it could have dissolved the tribe; Congress has eliminated other Oklahoma reservations, and could have done so here as well. The statutes also demonstrate that Congress knows the difference between proprietary and sovereign power, and that tribes do not need the former to validate the latter. Despite opening up the land for ownership by individual tribal owners, the 1906 Five Tribes Act not only disavowed dissolution, it continued tribal government. Congress, at every turn, preserved the sovereign authority of the Creek Nation—and the Solem line of cases cares only about these kinds of Congressional statements and actions recognizing sovereign authority. Those cases hinge on the text and what the text reveals about Congress’s intention toward the tribes in question. Solem does not ask how or even who owns the land.

Justice Gorsuch to Respondent (58:55): Counsel, I have four questions. I’m going to tick them off as fast as I can, and you can choose which ones you want to respond to in the time you have.

First, can you explain to me why the fact that the land is in fee simple would lead to a less stringent disestablishment test than Solem? I guess I don’t understand why that would be the case.

Second, at least in the briefs, you make a lot of later demographics and evidence about what has happened. I guess I’m struggling to think why that should be relevant in an interpretation of statutes from the last century, especially when later demographic evidence sometimes shows nothing more than that states have violated Native American rights, including for example, Oklahoma’s enforcement of its state laws on tribal lands against tribal members in the past.

Third, practical impossibility arguments, if you could address what is wrong with what is in the brief by Robert Henry about how states often work with tribal entities.

Finally, fourth, I would have thought that after Carpenter v. Murphy, we might have seen a tsunami of cases if there were a real problem here that we haven’t seen.

Gerald Torres: First, your Honor, the hallmark of the disassembly of a reservation is its division into private hands, especially non-Indian hands. Asking whether land has gone out of tribal ownership is consistent with the inquiry demanded by Solem. Moreover, it reflects the intent of Congress through the various statutes to diminish the sovereign reach of the tribe over territory that was formerly tribally held and within the boundaries of the Creek Nation. This shift in ownership is consistent with the change of authority in Oklahoma from the federal territorial power to the new state government. It is also compatible with interpretations of Indian Country in section 1151.

Second, without excusing past actions by non-Indians in Oklahoma, the historical and current demographic facts demonstrate that the people in the territory, Indian and non-Indian, understood that the land was open for settlers in the new State. The failure of the federal government or the tribe to contest this demographic change shows what everyone understood the legal situation to be.

Third, Mr. Henry is right that the tribes and the State have worked well together, and we will continue to honor the agreements we have. Some will be reinterpreted in light of a decision in our favor, but our willingness to meet tribes half-way has never been more evident.

Finally, 178 cases are currently being contested in light of Carpenter. Because the mandate has been stayed, some people are waiting for your decision before they challenge their convictions. These events are not like the dog that hasn’t barked. They are more like the quiet before the storm.