Tribe Wins U.S. Supreme Court Decision
In a historic ruling, the Supreme Court holds that the Muscogee Creek Nation Reservation is still intact.
About the Authors: Joe Keene is
an enrolled member of the Osage Nation and Cherokee Nation of Oklahoma.
Candace French is an enrolled member
of the Wichita and Affiliated Tribes and is of Navajo, Comanche, and
On July 9, 2020, the United States Supreme Court issued
its ruling on
McGirt v. Oklahoma, 591 U.S. __(2020). The 5-4 opinion authored by
Justice Gorsuch reversed a Seminole Nation of Oklahoma member's Oklahoma state
court conviction by holding that the Muscogee Creek Nation's 1866 treaty lands
are still intact as the Muscogee Creek Nation Reservation (Reservation). Justice
Gorsuch was joined by the Court's four liberal leaning justices in his opinion
(Ginsburg, Breyer, Sotomayor, and Kagan). The decision will create profound
consequences for tribal and state relations because the Reservation is located
in a large swath of territory in northeast Oklahoma and covers a large portion
of the Tulsa metropolitan area.
The case arose from the 1997 state sexual assault conviction of Jimcy McGirt, a
citizen of the Seminole Nation of Oklahoma. Under federal law, namely the Major
Crimes Act (18 U.S.C. § 1153(a)), states cannot prosecute Indians who commit
specifically enumerated major crimes on Indian lands. Prosecution of these major
crimes is reserved for federal and/or tribal courts. In his application for
post-conviction relief, McGirt argued that Oklahoma could not prosecute him
because his crimes occurred on Creek Nation land. The Oklahoma Court of Criminal
Appeals dismissed this argument and upheld the conviction. The U.S. Supreme
Court agreed to take the case this term to decide the question of whether
Oklahoma could prosecute a tribal member on land within the 1866 Creek Nation
Treaty, which was the Reservation.
In his opinion, Justice Gorsuch first reviewed the removal and subsequent
mistreatment of the Creek Nation by the United States. He noted "[o]n the far
end of the Trail of Tears was a promise," and that the Creek Nation was "[f]orced
to leave their ancestral lands in Georgia and Alabama." Justice Gorsuch then
cited the 1866 Treaty that established the Reservation which promised the land
would "be forever set apart as a home for said Creek Nation."
In determining whether the Reservation still existed, which Oklahoma hotly
disputed by arguing that the Reservation had been disestablished, Gorsuch relied
on prior precedent and highlighted that the only place to look "to determine
whether a tribe continues to hold a reservation" is an "Act of Congress."
Gorsuch then cited to the Court's seminal opinion on reservation
disestablishment, Solem v. Bartlett, 465 U.S. 463 (1984), which held that "only
Congress can divest a reservation of its land and diminish its boundaries." Gorsuch further highlighted that "[i]f Congress wishes to break the promise of a
reservation, it must say so." After scanning the historic record between the
Creek Nation and Congress, Gorsuch found no explicit Congressional
disestablishment and held that the Creek Reservation was still intact. As
Gorsuch colorfully stated in his opening, "[t]oday 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
In his analysis, Gorsuch cogently laid to rest the numerous Oklahoma arguments
that disestablishment did occur.
First, Oklahoma argued that the late 19th-20th century allotment acts showed
that Congress intended to disestablish the Reservation, but Gorsuch emphasized
that prior case law explicitly held that allotment acts do not disestablish a
reservation. Additionally, Gorsuch specifically referenced two neighboring
tribes whose reservations were terminated during the allotment era, the Ponca
and Otoe tribes, to show that if Congress intended to disestablish the
Reservation, it could have clearly done so.
Second, Oklahoma pointed to other early 20th century acts of Congress that
intruded on the Creek Nation's right to self-governance and argued that these
acts showed that Congress disestablished the Reservation. Gorsuch dismissed this
argument by noting that while Congress may have weakened the Creek Nation's
government, Congress never explicitly terminated the Reservation as required by
Finally, Oklahoma argued that historical practice and demographics showed that
the Reservation was terminated because (a) the State had previously exercised
jurisdiction over the Reservation and (b) many non-Indians now live in the area.
Gorsuch dismissed these arguments by noting that any reliance on "historical
practice" or "demographics" arises only when there is ambiguity in a statute or
treaty per Solem. In other words, if it is not certain that Congress intended to
disestablish a reservation, then reference to historical practice and
demographics is permitted. However, because it was clear in the historical
record that Congress never disestablished the Reservation, any reliance on these
"extratextual sources" is improper. Gorsuch underscored the dangers of relying
on "historical practice" as states could "exercise jurisdiction over Native
Americans with such persistence that the practice seems normal," and that if
this "continues for long enough" a reservation "that was once beyond doubt
becomes questionable, and then even farfetched."
Chief Justice Roberts's dissent joined by Justices Alito, Kavanaugh, and
Thomas focused on the consequences of the decision and noted that "past
convictions could well be thrown out," and argued that the Court has "profoundly
destabilized the governance of eastern Oklahoma." Roberts stated that the
decision 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."
Immediate Consequences of the Decision
The decision decided only whether the Muscogee Creek Nation Reservation still
exists. The other Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, and
Seminole) may share a similar history with the Creek Nation, but their
reservation status has yet to be adjudicated. News reports stating that "half
of Oklahoma" is a reservation are inaccurate and misleading. See New York Times
article, “U.S. Supreme Court Deems Half of Oklahoma a Native America
With respect to criminal consequences, all Indians who commit crimes within the
Reservation will now be subject to tribal and federal court jurisdiction and not
state court jurisdiction. Additionally, all non-Indians who commit crimes
against other non-Indians within the Reservation will still be subject to state
criminal law and with prosecution in Oklahoma state court.
With respect to civil consequences, it is yet to be determined how this decision
will play out for the Muscogee Creek Nation or for non-Indians owning property
within the Reservation. Under Montana v. United States, 450 U.S. 544 (1981),
Indian tribes have civil jurisdiction over non-members only if:
the non-member enters into a "consensual relationship" with the tribe or its
the non-member's conduct "threatens or has some direct effect on the political
integrity, economic security, or the health and welfare of the tribe."
These two exceptions, known as the Montana exceptions, are very narrow, and
courts routinely deny tribal jurisdiction over non-members. Thus, if the Creek
Nation were to try to regulate non-members or non-Indians, they would have to
meet one of these two exceptions and would likely lead to litigation.
Sacks Tierney has qualified Indian law attorneys to answer your questions about
Federal Indian Law and the decision above.
 It is worth noting that the Supreme Court considered whether the Reservation
still existed last term in an almost similar case, Sharp v. Murphy, but in a
highly unusual move, the Court did not issue an opinion in that case. Chief
Justice Gorsuch had recused himself from the Murphy case, and the thinking was
that the Justices were deadlocked (4-4).
 Thomas joined except as to a footnote therein.
 Based on this decision, it is suggested that a majority of the Supreme Court
is likely to support treaty language notwithstanding centuries of state conduct
and federal inaction regarding reservation status lands.
 Any analysis of state criminal convictions committed on Indian reservations
is very complex analysis and is beyond the scope of this article.
 Non-Indians who currently own property within the Reservation will retain
their property interests as the decision does not change this. However, any
property interests could be subject to tribal law/regulations if the Montana
exceptions are met.