U.S. Supreme Court finds Muscogee (Creek) Nation’s Reservation Remains Intact For Purposes of Criminal Jurisdiction

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The U.S. Supreme Court in a 5-4 decision on July 9, 2020 held that the State of Oklahoma lacked jurisdiction to prosecute an enrolled member of the Seminole Tribe of Oklahoma because the crimes he was accused of committing occurred within the Muscogee (Creek) Reservation.

The Court’s opinion, written by Justice Gorsuch, held that Congress established the Creek Reservation by treaty as a permanent home for the tribe in 1833 and had never in subsequent treaties and federal acts clearly expressed a congressional intent to disestablish the reservation.  Consequently, the Court found, the land in question was “Indian country” as defined in the federal Major Crimes Act, which provides exclusive jurisdiction to the federal government for prosecution of crimes that are specified in the statute.[1] The Court’s opinion, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, reverses a decision of the Oklahoma Court of Criminal Appeals denying defendant Jimcy McGirt’s bid for a new federal trial.  Justice Roberts wrote a dissenting opinion, joined by Justices Kavanaugh, Alito, and in party by Thomas, who wrote a separate dissent.

While the decision is limited to criminal jurisdiction over offenses committed by a tribal member defendant occurring within Indian country and is specific to the Muscogee Creek Nation, Oklahoma tribes or members of such tribes that are most likely to have similarly worded treaties and federal statutes are the other “Five Civilized Tribes” of Oklahoma: Chickasaw, Seminole, Cherokee and Choctaw.  These tribes or their members might be in a position to seek a similar legal ruling through separate litigation.  Under established federal law, however, states are otherwise free to apply their criminal laws to cases of non-Indian victims and non-Indian defendants, including within Indian country, and the McGirt decision does not affect that law.[2]  Thus, the vast majority of state prosecutions will be unaffected by the decision.

The impact of the decision on other jurisdictional aspects of State-Tribal relations in Oklahoma is yet to be determined.  In general, states have no jurisdiction within Indian country. The State of Oklahoma and Oklahoma tribes are currently in a dispute over the renewal of State-Tribal Gaming Compacts, and water rights litigation between Oklahoma’s political subdivisions and tribes is ongoing. In addition, the criminal definition of “Indian country” also is used in a number of federal civil statutes applicable to tribes in Oklahoma and across the country.  If subsequently extended to apply in a civil context, the region eligible for federal programs and services within a defined “Indian country” might be expanded.

The Court’s analysis was based upon the text of a series of treaties with the Muscogee (Creek) Nation, subsequent federal statutes concerning the tribe and agreements between the United States and the tribe to allot certain portions of the reservation.  The Court drew upon precedent to find that the text of the treaties and statutes concerning the tribe showed no clear intent of Congress “evidencing the present and total surrender of all tribal interests,” quoting two reservation disestablishment cases, Solem v. Bartlett, 465 U.S. 453, 470 (1984) and Nebraska v. Parker, 577 U.S. 481, ___ (2016).

The Court’s decision is notable in its reliance on the text of the relevant treaties and statutes and its disinclination to provide weight to non-textual factors urged by the State of Oklahoma to determine whether the Creek Reservation exists, such as the state’s contemporary and historical practices of exercising criminal jurisdiction over the Creek Reservation, contemporary events, later events and the changing demographics of the area.  Such reliance would be mistaken, the Court stated. “When interpreting Congress’ work in this arena, no less than any other, our charge is usually to ascertain and follow the original meaning of the law before us. [Internal citations omitted.]  That is the only ‘step’ proper for a court of law.”[3]

Extratextual factors would only be of assistance in interpreting the treaties and statutes if there were an ambiguity in the text, the Court said, and Oklahoma failed to point to any ambiguous language.[4]  Allowing extratextual sources to overcome the clear terms of a statute, as Oklahoma and the dissent urged, would result in allowing States and courts to finish work that Congress has left undone, usurping the legislative function and treating Native American claims of statutory right as less valuable than others, the Court noted.[5]  Giving weight to Oklahoma’s practices, prior prosecutions, selective historical accounts and demographics do not assist in discerning the law’s meaning, the Court said.

How much easier it would be, after all, to let the State proceed as it has always assumed it might.  But just imagine what it would mean to indulge that path.  A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal.  Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was.  All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and even far-fetched.  Sprinkle a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished.  None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here.  That would be the rule of the strong, not the rule of law.

While the dissent amplified the State of Oklahoma’s concerns that recognition of federal criminal jurisdiction would have significant consequences for civil and regulatory law, the Court reiterated that the only question presented and decided today was the statutory definition of “Indian country” as it applies in federal criminal law under the Major Crimes Act.[6]  Other federal civil statutes concerning tribes borrow the definition of Indian country, the Court noted, but the potential consequences of the McGirt decision aren’t certain or clear and are not a license to disregard the law.[7]  Recognizing the potential for cost and conflict around jurisdictional boundaries, the Court noted that the State of Oklahoma and its tribes have worked successfully in negotiating intergovernmental agreements that address taxation, law enforcement, vehicle registration, hunting and fishing and other regulatory questions.[8]  Congress also “remains free to supplement its statutory directions about the lands in question at any time.”[9]

The majority concluded its opinion by noting that the United States promised the Muscogee (Creek) Nation a reservation and has never withdrawn the reservation.

As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so.  Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.[10]

The McGirt case was considered a companion case to Sharp v. Murphy, which was pending before the U.S. Supreme Court in the 2019 term and presented the same issue of criminal jurisdiction and the disestablishment of the Creek Reservation.[11]  The U.S. Court of Appeals for the 10th Circuit had applied the Solem factors in the Murphy case and found that the Creek Reservation had not been disestablished and the prosecution fell under the Major Crimes Act.  The Murphy case was decided today in a per curium opinion that affirmed the decision of the Tenth Circuit for the reasons set forth in McGirt.  Justices Thomas and Alito dissented.  Justice Gorsuch, who joined the court from the Tenth Circuit, did not take part in the deliberations in 2019 or in 2020.

FOOTNOTES

[1] See 18 U.S.C. § 1151 (definition of Indian country); § 1153(a) (providing for exclusive federal jurisdiction for enumerated crimes).

[2] United States v. McBratney, 104 U. S. 621, 624 (1882).

[3] Slip op. at 18.

[4] Id.

[5] Slip op. at 20-21.

[6] Slip op. at 39-40.

[7] Slip op. at 41.

[8] Id.

[9] Id.

[10] Slip op. at 42.

[11] Case No. 17-1107.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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