Supreme Court Determines New Jurisdiction in McGirt v. Oklahoma

McGirt v. Oklahoma
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The Major Crimes Act (MCA) stipulates that on Native American land, any Native American who commits any major crimes “shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States.” That is to say that the person charged of such crimes shall be charged in federal court as opposed to state court. The law also holds that Native American land includes “all land within the limits of any [Native American] reservation under the jurisdiction of the United States Government.”

Jimcy McGirt was convicted by Oklahoma state court for three severe sexual offenses. But because he holds membership to the Seminole Nation and argues that his crimes took place on the Creek Reservation, he posited in postconviction hearings that the state of Oklahoma does not have jurisdiction to prosecute him as enumerated in the MCA. Oklahoma state denied his argument. McGirt then appealed to the Tenth Circuit Court of Appeals, which reversed the state’s decision.


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Now, the Supreme Court must decide if McGirt committed these crimes in Native American country or if the land on which the crimes were committed belongs to the state of Oklahoma.

In a 5-4 decision, the Court found that, in regard to the MCA, the land on which McGirt had committed these crimes had been reserved for the Creek Nation since the 19th century. This means that McGirt and every other Native American tried by Oklahoma state court for serious crimes committed on Native American land must either continue their current conviction or be retried by federal court.

Justice Gorsuch authored the majority opinion and was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts wrote the dissenting opinion in which Justices Alito and Kavanaugh joined. Justice Thomas joined in all parts of the dissent save for one in which he authored his own dissenting opinion.


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Ultimately, the Court found that the land apportioned for Native American reservation in Oklahoma has always been Native American land regardless of whether it’s been sold or allotted to people who aren’t Native American. Referring to a series of treaties established in the 1830s, Justice Gorsuch notes that in part of the 1832 treaty, “Congress not only ‘solemnly guarantied’ the land but also ‘establish[ed] boundary lines which will secure a country and permanent home to the whole Creek Nation of Indians.’” Because this new land for the Native Americans was offered in exchange for other land to be taken by the United States in 1830, “Congress authorized the President ‘to assure the tribe… that the United States will forever secure and guaranty to them… the country so exchanged with them.’” These statues are the basis for the majority’s argument as they establish that the land is a “country and permanent home” for the Creek Nation and because Congress “forever secure[d] and guarantee[d]” them that land.

In response to Oklahoma’s argument that the MCA explicitly concerns Native American “reservations” and that the Creek land in Oklahoma cannot be considered a reservation, Justice Gorsuch looks to the language in subsequent treaties. In the Treaty of 1856, Congress further ensured the sovereignty of Native American lands, stating that “‘no portion’ of the Creek Reservation ‘shall ever be embraced or included within, or annexed to, any Territory or State.’” The Creeks were to be “‘secured in the unrestricted right of self-government,’ with ‘full jurisdiction’ over enrolled Tribe members and their property.” Because they were given “the unrestricted right of self-government” and with “full jurisdiction,” Justice Gorsuch says that “under any definition, this was a reservation.”

In another argument, the state of Oklahoma refers to the “allotment era” in the 1880s in which Congress pressured many tribes to rid of their communal lifestyles and apportion their land into smaller lots that were to be owned by individual tribe members so as to “disestablish” Native American reservations. After pushback from the Tribe, the United States government came to an agreement in 1901 that “established procedures for allotting 160-acre parcels to individual Tribe members who could not sell, transfer, or otherwise encumber their allotments for a number of years.” However, after 1908, Congress relaxed these restrictions and allowed Native Americans to sell their land to anyone who wanted to buy it, whether Native American or not.

While Oklahoma, in this case, argued that the selling of Native American land to non-Native American people constituted a cession of the “Native American reservation” status, the Court rejected this argument. Referring to precedent, Justice Gorsuch states “this Court has explained repeatedly that Congress does not disestablish a reservation simply by al­lowing the transfer of individual plots, whether to Native Americans or others” unless “Congress explicitly indicates otherwise.” Justice Gorsuch refers to parallel instances in which the federal government issued land patents to homesteaders in the West. While these patents transferred legal title and are the basis for private ownership in many states today, “no one thinks any of this diminished the United States’s claim to sovereignty over any land.”


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As a caveat, Justice Gorsuch’s language implies that, historically, the nation’s treatment of Native American populations is far from just and that these treaties are not entirely exempt from that truth given the fact that in the 1800s, Native American populations did not have equal negotiating power with the United States government. So, while these treaties do seem magnanimous, the imbalance of power left no choice for Native American leaders to do anything but agree to them.

It didn’t take long for this imbalance of power to be acted upon, which Oklahoma also used to argue that Congress “disestablished” the Creek reservation. While Justice Gorsuch agrees that Congress breached these agreements by doing such things as “abolish[ing] the Creeks’ tribal courts” and ordered “that tribal ordinances ‘affecting the lands of the Tribe, or of individuals after allotment, or the moneys or other property of the Tribe, or of the citizens thereof’ would not be valid until approved by the President of the United States,” they still left the Tribes with sovereign functions. For example, the “Creek Nation retained the power to collect taxes, operate schools, legislate through tribal ordinances, and, soon, oversee the federally mandated allotment process.” The Creek nation even adopted their own constitution and bylaws in the 1930s. But what is most important for Justice Gorsuch is that these abuses of power “fell short of eliminating all tribal interests in the land,” and he makes clear that “there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation.”

For these reasons, the land on which McGirt committed his crimes was ruled to be Creek reservation. The other arguments that Oklahoma presented such as its historical practice of trying people regardless of the land’s status or the national status of the person tried did not sway the Court because they hold that the law is paramount to practice, especially when the law bars that kind of practice.

But the dissent disagrees primarily based on a different interpretation of history and precedent. Writing for the dissent, Chief Justice John Roberts asserts that “Congress disestablished any reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century.” He holds that during the Civil War, the Tribes, who owned about 8,000 slaves collectively, signed a treaty aligning themselves with the confederacy and enlisted their slaves to fight alongside it. After the confederacy lost, however, the Tribes signed new treaties that stated that “the Tribes had ‘ignored their allegiance to the United States’ and ‘unsettled the [existing] treaty relations,’ thereby rendering themselves ‘liable to forfeit’ all ‘benefits and advantages enjoyed by them’—including their lands.”

While the Tribes had to give up the majority of their land because of this treaty, Chief Justice Roberts states that “the new treaties promised that the reduced [Native American] Territory would be ‘forever set apart as a home’ for the Tribes,” thereby ensuring, at least for some time, that the Tribes still had some sovereign land.

But after the war, about 300,000 white Americans moved onto this land and, as the Chief Justice states, “coexistence proved complicated” because “the new towns had no municipal governments” and “no one had meaningful access to private property ownership.” As a result, Congress decided to make the Native American territory into a state. In doing so, as Chief Justice Roberts enumerates, Congress establishes separate courts in which Native American could be tried called “the U. S. Courts for the Indian Territory;” Congress also dismantles tribal governments by abolishing their courts, gutted tribal lawmaking power, and stripped the Tribes of levying taxes; additionally, Congress eliminated tribal sovereignty, took away the Creek Nation’s title to their lands, and finally, “made the tribe members citizens of the United States and incorporated them in the drafting and ratification of the constitution for their new State, Oklahoma.”

Because of this reversal of power at the hands of the United States, Chief Justice Roberts says that the state of Oklahoma assumed jurisdiction over criminal cases so that “if a reservation had continued to exist, [it] would have belonged in federal court.” But the Chief Justice makes sure to state that “a century of practice confirms that the Five Tribes’ prior domains were extinguished” and that “the State has maintained unquestioned jurisdiction for more than 100 years.”  Finally, Chief Justice Roberts states that “as the Tribes, the State, and Congress have recognized from the outset, those ‘reservations were destroyed’ when ‘Oklahoma entered the Union.’” This recognition ceded the land from the Creek nation to the state of Oklahoma, which has now allowed the state, as the dissenters argue, to try and persecute McGirt and others under Oklahoma law.

Not only does a different interpretation of history lead the dissent to come to such a conclusion, but they also justify their decision based on a divergent interpretation of court precedent. Responding directly to the majority’s opinion, Chief Justice Roberts argues that no one contends that “any individual congressional action or piece of evidence, standing alone, disestablished the Creek reservation.” Rather, he states, “Oklahoma contends that all of the relevant Acts of Congress together, viewed in light of contemporaneous and subsequent contextual evidence, demonstrate Congress’s intent to disestablish the reservation.” This is claim is counter to Justice Gorsuch’s assertion based on his interpretation of precedent that “once a reservation is established, it retains that status ‘until Congress explicitly indicates otherwise.’” Conversely, the Chief Justice quotes precedent from Hagen that states “’[O]ur traditional approach . . . requires us’ to determine Congress’s intent by ‘examin[ing] all the circumstances surrounding the opening of a reservation.’” So while the majority takes a more explicit interpretation of precedent, the dissent sees a broad, more contextual application of precedent appropriate.

Because of the majority’s ruling, the dissent fears that “the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out” and that “the Court has profoundly destabilized the governance of eastern Oklahoma,” citing uncertainty now in laws related to taxation, zoning, and environmental law.

But the majority ensures that “each tribe’s treaties must be considered on their own terms, and the only question before us concerns the Creek.” Thus, the decision made in this case is only applicable to the Creek Nation.

Regarding the dissent’s fear that Oklahoma’s ability to prosecute serious crimes and unsettle other convictions, Justice Gorsuch makes sure to say that “federal law applies to a broader range of crimes by or against [Native Americans] in [Native American] country” and that states are “free to apply their criminal laws in cases of non-[Native American] victims and defendants, including within [Native American] country.” Likewise, already convicted defendants may either choose to finish their state sentences to avoid reprosecution at the federal level or, for those who do try to challenge their state convictions, they will face obstacles given the state and federal limitations on post-conviction review in criminal cases.

Responding to the dissent’s claim that the Court’s decision will disrupt the governance of eastern Oklahoma, the majority makes sure to note that “Already, the State has negotiated hundreds of intergovernmental agreements with tribes, including many with the Creek” that “relate to taxation, law enforcement, vehicle registration, hunting and fishing, and countless other fine regulatory questions.”

At base, however, the Court states that “the magnitude of a legal wrong is no reason to perpetuate it. When Congress adopted the MCA, it broke many treaty promises that had once allowed tribes like the Creek to try their own members… All our decision today does is vindicate that replacement promise.”

Michael Galati

Michael Galati is an editorial intern with Attorney at Law Magazine. He is currently enrolled at New York University, College of Arts and Science, pursuing a Bachelor of Arts in English and American Literature. He is expected to graduate May 2022.

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