Supreme Court says eastern half of Oklahoma is Native American land


May 12, 2010
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The Supreme Court on Thursday ruled that a huge swath of the state of Oklahoma is Native American land for certain purposes, siding with a Native American man who had challenged his rape conviction by state authorities in the territory.

The 5-4 decision, with an opinion authored by Justice Neil Gorsuch, endorsed the claim of the Muscogee (Creek) Nation to the land, which encompasses three million acres, including most of the city of Tulsa.

The decision means that only federal authorities, no longer state prosecutor, can lodge charges against Native Americans who commit serious alleged crimes on that land, which is home to 1.8 million people. Of those people, 15% or fewer are Native Americans.

“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Gorsuch wrote.

“Because Congress has not said otherwise, we hold the government to its word,” he wrote.

The case hinged on application of the Major Crimes Act, which gives federal authorities, rather than state prosecutors, jurisdiction over crimes committed by or against Native Americans in Native American territory.

“For MCA purposes, land reserved for the Creek Nation since the 19th century remains ‘Indian country,’ ” Gorsuch wrote in the opinion.

The conservative justice Gorsuch was joined in the majority by the court’s four liberal justices, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Chief Justice John Roberts dissented from the ruling, as did his fellow conservatives, Clarence Thoma,s Samuel Alito and Brett Kavanaugh.

In his dissent, Roberts warned that “across this vast area” now deemed to be Native American land, “the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.”

On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma,” Roberts wrote. “The decision today 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.”

“None of this is warranted,” Roberts added. “What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation. Congress disestablished any reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century. The Court reaches the opposite conclusion only by disregardingthe ‘well settled’ approach required by our precedents.”

Oklahoma Gov. J. Kevin Stitt had no comment on the bombshell ruling, his office said.

The case decided Thursday was brought by Jimcy McGirt, who was convicted by an Oklahoma state court of raping a four-year-old child in 1997. McGirt was sentenced to 1,000 years in prison, plus life, for the crimes.

McGirt, a member of the Muscogee (Creek) Nation, had argued in state courts that Oklahoma lacked the jurisdiction to review his case because the crime took place within the boundaries of the Creek Nation’s historic territory. He had appealed to the Supreme Court after state courts rejected his appeals.

The state Oklahoma in turn argued to the Supreme Court that the Creek Nation’s former territory was not a reservation at all.

The state said that if the Supreme Court accepted McGirt’s reasoning it would “cause the largest judicial abrogation of state sovereignty in American history, cleaving Oklahoma in half.”

In court filings to support McGirt’s claim, the Muscogee (Creek) Nation noted that although the tribe had “no role in the genesis of this litigation” it “now finds its Reservation under direct attack.”

Riyaz Kanji, an attorney for the tribe, wrote that Oklahoma was “exaggerating” the jurisdictional problems that would ensure if the state lost its case.

“To the extent they hold any water, the State’s posited consequences stem from the fact that both executive branch and state officials actively sought to undermine Congress’s determination that the Nation’s government and territory would endure,” Kanji wrote.

Gorsuch endorsed that argument in Thursday’s decision.

He noted in the majority opinion that, “No one disputes that Mr. McGirt’s crimes were committed on lands described as the Creek Reservation in an 1866 treaty and federal statute.”

“But, in seeking to defend the state court judgment below, Oklahoma has put aside whatever procedural defenses it might have and asked us to confirm that theland once given to the Creeks is no longer a reservation today.”

Gorsuch flatly rejected that request.

“Under our Constitution, States have no authority to reduce federal reservations lying within their borders. Just imagine if they did,” he wrote.

“A State could encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States. That would be at odds with the Constitution, which entrusts Congress with the authority to regulate commerce with Native Americans, and directs that federal treaties and statutes are the ‘supreme Law of the Land,’ ” he wrote.

Gorsuch added that if that happened, “It would also leave tribal rights in the hands of the very neighbors who might be least inclined to respect them.”

The case decided Thursday is formally known as McGirt v. Oklahoma, No. 18-9526.


Not Actually a Grackle
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Special Hen Supporter
Sep 9, 2007
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Wait I always thought the tribes have their own law enforcement and courts who take on these cases? So if something were to happen, any state level DAs will refer the case to the tribal court?


Special Hen
Jul 5, 2006
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Kingfisher County
Soon enough we will have to hit the reset button. Not Hillary's, mind you. Ours. The one that will remind everyone that the Constitution is the United States' government and that anyone in either of the three branches is an employee of the Constitution. Some of those employees of the Constitution have dropped the ball.

All matters dealing with the Indian tribes is specified in the Constitution as being in the purview of Congress (Article I, Section 8, Clause 3; and the President (Article II,Section 2, Clause 2). My point being that the Feral Government has dropped the ball regarding its obligations regarding the several Indian tribes. Oklahoma should not have had to get involved at all. This did happen on tribal land. If the victim of the crime was not a citizen of a tribe, an extradition agreement of some sort ought to exist to enable exacting justice. Treaties can and should exist between the tribes and the Feral Government regarding any and all such matters of this magnitude - and probably of a general nature as well. If any of the several tribes wish to maintain sovereignty, they must hold their citizens accountable same as the several states have laws and justice systems to hold their citizens accountable.

Proper treaties would assure the safety and accountability of all citizens. That said, I don't believe two or more sovereignties can lay claim to and exist on the same land. It is untenable. It ain't workin' for the Israelis and Palestinians, and won't work here.



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Special Hen Supporter
Jan 10, 2014
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Seems to me if that is the law of the land now all such future trials of native Americans for serious crimes MUST go to federal court.where penalties are often time mor harsh because the minimum time served for parole is higher AND time would be served IN a FEDERAL prison


Are you serious?
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Dec 31, 2013
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Logan County
This is just from a criminal justice perspective.

Shouldn't impact anything but tribal courts and tribal law enforcement.

I think there are more tribal courts than tribal police departments.

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