The amount of land the federal government officially recognized as Native American land under tribal jurisdiction changed in the blink of an eye from 55 million acres (just 2% of all land in the United States) to 75 million acres. On July 9, 2020, the Supreme Court of the United States issued an incredible win in McGirt v. Oklahoma to Native Americans whose land has been continuously diminished over the last two hundred years.
As Justice Gorsuch recognized, this case quickly became two-fold. The issue of the case centered around a man named Jimcy McGirt; the case appeared before the Court as Mr. McGirt appealed a criminal conviction from the Oklahoma state courts. The case quickly transformed into something much greater: Who owns the large portion of land in northeastern Oklahoma? The United States or the Creek Nation? As the Court decided, the land belongs (and has belonged) to the Creek Nation since 1832.
This issue first appeared in Murphy v. Royal in 2017. 876 F.3d 896 (10th Cir. 2017). There, a man named Murphy was accused of killing another man in Oklahoma. He was tried and convicted in the Oklahoma state courts and was sentenced to death. Id. at 904-05. Though it proceeded through a complicated appeal, it ended up in the Tenth Circuit Court of Appeals discussing one issue: did the Oklahoma state courts have jurisdiction over the case? Id. at 911. Mr. Murphy’s argument was, essentially, that because the crime occurred on land that belonged to Creek Nation (as a part of the Creek Reservation), only federal courts maintained jurisdiction over the case; the state courts never had jurisdiction over his case at all. Though the Tenth Circuit agreed with Mr. Murphy, the case was then appealed up to the Supreme Court of the United States where it remained without an opinion for two years.
McGirt v. Oklahoma then brought the issue to the Supreme Court following Murphy. Mr. McGirt’s case is similar to Mr. Murphy’s – Mr. McGirt, a member of the Seminole Nation of Oklahoma, was prosecuted and convicted in the Oklahoma state courts. He challenged their jurisdiction on appeal, much like Mr. Murphy, arguing that the state courts could not have maintained jurisdiction over his case because his crimes took place on land within the Creek Reservation.
To boil down this complex issue into a blog post (certainly, the Court’s Opinion comprised forty-two pages to discuss this), the issue underlying these cases is jurisdictional. Essentially, a statute titled the Major Crimes Act provided that, “within Indian country,” “[a]ny Indian who commits” certain enumerated offenses “against the person or property of another Indian or any other person” “shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153(a). That is, a Native American who commits a crime on tribal lands is subject solely to federal jurisdiction.
So, the question then becomes: to whom does the land belong? If it belongs to Native American tribes, such as the Creek Nation in Oklahoma, only federal courts may hear the criminal matter. If it does not, nor does it belong to the federal government otherwise, state courts may hear the matter. And thus, down the rabbit hole we go.
In 1832 and 1833, Congress established a reservation for the Creek Nation in its effort to move the Nation. 1832 Treaty, Art. XIV, 7 Stat. 368; 1833 Treaty, preamble, 7 Stat. 418. In kicking the Creek off their land (during the Trail of Tears), Congress promised to give the Creek Nation its own land to settle in what is now Oklahoma. The Creek accepted, with the treaty’s language stating there would be fixed borders to create a “permanent home to the whole Creek nation of Indians.” 1833 Treaty, preamble, 7 Stat. 418. It further established that the “United States will grant a patent, in fee simple, to the Creek nation of Indians for the land assigned said nation by this treaty.” Art III, id., at 419. This means that Congress created a reservation for the Creek Nation and gave ownership of said reservation to the Creek Nation, including the right to self-government.
However, despite these promises, the federal government has perpetually chipped away at the Creek Nation’s land. These efforts include pressuring tribes to split their land into individual parcels, where each individual would own his land, making it easier to alienate the land from them. Eventually, each member was able to sell his own parcel of land and, so the argument goes, if the land is no longer owned by the Creek Nation member, it is no longer Creek Nation land. However, the Court is quick to disregard this argument – because Congress created the reservation, only an act of Congress can diminish or remove the reservation status. The Court likened to argument to the actions of the federal government: “The federal government issued its own land patents to many homesteaders throughout the West. These patents transferred legal title and are the basis for much of the private land ownership in a number of States today. But no one thinks any of this diminished the United States’ claim to sovereignty over any land.” McGirt at *7.
Moreover, even if Congress passed its allotment laws (causing the land to be parceled to individuals) intending to disestablish the Creek Reservation, Congress never passed a law that expressly disestablished the reservation. Oklahoma also argued that Congress intended to disestablish the Creek Nation reservation by pointing to times where Congress intruded on the right to self-government. For example, in 1898, Congress abolished all tribal courts and transferred those cases to the U.S. Courts of the Indian Territory. Curtis Act of 1898, § 28, 30 Stat. 504-505. The Court rejected this as well, because, despite this incursion, Congress had not entirely removed all ability to self-govern.
Oklahoma largely rested its argument for the disestablishment of the reservation on an announcement in 1901 from Congress that the Creek tribal government “shall not continue” past 1906. §46, 31 Stat. 872. However, when 1906 arrived, Congress instead adopted the Five Civilized Tribes Act. Rather than dissolving the tribal government, Congress limited the tribal government’s power by allowing the President to remove and replace the principal chief of the Creek, placed limits on how often the tribal council could meet, and assigned control over tribal schools to the Secretary of the Interior. Despite this though, the Court found no evidence that Congress intended to disestablish the reservation. In fact, the Court noted that “Congress expressly recognized the Creek’s ‘tribal existence and present tribal government[t]’ and ‘continued [them] in full force and effect for all purposes authorized by law.” McGirt at *8 (citing §28, id. at 148).
Despite Congress’ efforts to control the Creek reservation or to diminish it, Congress has never explicitly disestablished the reservation; indeed, Congress is the only entity who has such power to do so. And so, as the Court opens, “[b]ecause Congress has not said otherwise, we hold the government to its word.” The land belongs to the Creek Nation, and the Creek Nation alone.
What does this all mean? For Mr. McGirt, it means that he was improperly and illegally prosecuted in the Oklahoma state courts, and he is entitled to a trial in federal court. Because the land belongs to Creek Nation, only federal courts have jurisdiction to hear the case. Beyond Mr. McGirt though, this case has incredible implications, though not terribly widespread. Other Native people who have suffered similar wrong prosecutions – like Murphy – will likely be reviewed and possibly retried in federal court. The states and the Creek Nation have been holding discussions for new agreements about criminal jurisdiction, sales, and taxes. Ultimately though, this decision begins to give power back to the Creek Nation and Native Americans generally. Though they have long been attacked and oppressed, establishing clear boundaries to the land that rightfully belongs to them is a step forward in their equality.