WASHINGTON — The Supreme Court ruled Thursday that a large chunk of eastern Oklahoma remains an American Indian reservation, a decision that state and federal officials have warned could throw Oklahoma into chaos.
The court's 5-4 decision, written by Justice Neil Gorsuch, means that Oklahoma prosecutors lack the authority to pursue criminal cases against American Indian defendants in parts of Oklahoma that include most of Tulsa, the second-largest city.
“Today 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,” Gorsuch wrote in a decision joined by the court's liberal members.
The court’s ruling could cast doubt on convictions won by local prosecutors. But Gorsuch suggested optimism.
“In reaching our conclusion about what the law demands of us today, we do not pretend to foretell the future and we proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long. But it is unclear why pessimism should rule the day. With the passage of time, Oklahoma and its Tribes have proven they can work successfully together as partners,” he wrote.
The case, argued by telephone in May because of the coronavirus pandemic, revolved around an appeal by an American Indian who claimed state courts had no authority to try him for a crime committed on reservation land that belongs to the Muscogee (Creek) Nation.
The reservation once encompassed 3 million acres, including most of Tulsa.
The Supreme Court, with eight justices taking part, failed to reach a decision last term when it reviewed a federal appeals court ruling in a separate case that threw out a state murder conviction and death sentence. In that case, the appeals court said the crime occurred on land assigned to the tribe before Oklahoma became a state and Congress never clearly eliminated the Creek Nation reservation it created in 1866.
The case the justices decided Thursday involved 71-year-old Jimcy McGirt, who is serving a 500-year prison sentence for molesting a child. Oklahoma state courts rejected his argument that his case does not belong in Oklahoma courts and that federal prosecutors should instead handle his case.
McGirt could potentially be retried in federal court, as could Patrick Murphy, who was convicted of killing a fellow tribe member in 1999 and sentenced to death. But Murphy would not face the death penalty in federal court for a crime in which prosecutors said he mutilated the victim and left him to bleed to death on the side of a country road about 80 miles southeast of Tulsa.
There is not necessarily wide agreement with the argument that decades of state criminal convictions could be re-opened and possibly thrown out.
Jonodev Chaudhuri, ambassador of the Muscogee (Creek) Nation and a former chief justice of the tribe's Supreme Court, said the argument about legal havoc in the state was overblown.
“All the sky-is-falling narratives were dubious at best," Chaudhuri said. “This would only apply to a small subset of Native Americans committing crimes within the boundaries.
“This case didn’t change ownership of any land. It didn’t impact the prosecutions of non-Indians in any way. All it did was bring clarity to jurisdictional questions regarding the border, and it enhanced the Creek Nation's ability as a sovereign nation to work with other sovereign interests to protect people and to work in common interests."
Forrest Tahdooahnippah, a Comanche Nation citizen and attorney who specializes in tribal law, said the ruling's short-term implications are largely confined to the criminal context and that serious felonies committed by Native Americans in parts of eastern Oklahoma will be subject to federal jurisdiction.
“In the long term, outside of the criminal context, there may be some minor changes in civil law," he said. “The majority opinion points out assistance with Homeland Security, historical preservation, schools, highways, clinics, housing, and nutrition programs, as possible changes. The Creek Nation will also have greater jurisdiction over child welfare cases involving tribal members."
An analysis published in The Atlantic notes of a possible estimated 1,887 impacted cases, fewer than 10% appeared to qualify for a new trial based on a statutory one-year time limit to file for relief.
The State of Oklahoma, Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations joint statement:
"The State, the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations have made substantial progress toward an agreement to present to Congress and the U.S. Department of Justice addressing and resolving any significant jurisdictional issues raised by the U.S. Supreme Court’s decision in McGirt v. Oklahoma.
"The Nations and the State are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused. We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma.
"The Nations and the State are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights. We will continue our work, confident that we can accomplish more together than any of us could alone.
U.S. Sen. James Lankford:
“Today’s Supreme Court ruling determines that the Muscogee (Creek) Nation’s reservation was not dis-established when Oklahoma became a state. The work will continue in the days ahead to clarify a framework for criminal and civil regulatory jurisdiction that provides consistency and predictability for all people living and doing business within the state. However, I am grateful for the commitment from the state and the 5 Tribes to work with the delegation to craft legislation that ensures that the ruling has a minimal impact on individuals and businesses throughout Oklahoma. Our greatest priority should be to provide for the safety of communities by ensuring those serving time for crimes continue to do so, and individuals that commit crimes are prosecuted to the fullest extent under the law. I look forward to working with the tribes, the state, and other members of the Oklahoma congressional delegation to finding a solution acceptable to all parties.”
U.S. Sen. Jim Inhofe
"As we move forward, I have no doubt we can work together with state officials, tribal organizations, and the delegation to find a workable solution for everyone that ensures criminals are prosecuted and brought to justice in the most appropriate manner. We have a duty to all American citizens to uphold the Constitution and stand up for victim’s rights. Our number one priority will always be the safety of each and every Oklahoman.”
Tulsa Mayor G.T. Bynum: