Tribe Wins U.S. Supreme Court Decision

July 14, 2020 Candace D. French Indian Law

In a historic ruling, the Supreme Court holds that the Muscogee Creek Nation Reservation is still intact.

About the Author: Candace French is an enrolled member of the Wichita and Affiliated Tribes and is of Navajo, Comanche, and Blackfeet descent.

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.[1]

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 its word.”

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 Solem.

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[2] 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.[3] 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 Reservation.”

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.[4]

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.[5] 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 members, or
  • 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.

[1] I/practices/indian-law/t 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).

[2] Thomas joined except as to a footnote therein.

[3] 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.

[4] Any analysis of state criminal convictions committed on Indian reservations is very complex analysis and is beyond the scope of this article.

[5] 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.