On July 9, 2020, the U.S. Supreme Court decided McGirt v. Oklahoma, No. 18-9526, holding that the Creek Nation’s reservation in northeastern Oklahoma, which includes most of the city of Tulsa, has never been disestablished.
“In a series of treaties” in the 1800s, the Creek Nation agreed to relocate to what is now Oklahoma — and the United States “solemnly guarantied” the Tribe ownership of its new lands, and agreed that “it would hold legal title to its lands” in fee simple. The Creek relocated to Oklahoma as part of what has become known as the Trail of Tears. Since that time, Congress has “broken more than a few of its promises to the Tribe.” The Creek Nation’s original lands are now part of Oklahoma and heavily settled by non-members of the Tribe, including most of the city of Tulsa.
James McGirt, an enrolled member of the Seminole Nation of Oklahoma, was convicted in Oklahoma state court of serious sexual offenses, based on conduct within the historic Creek lands. The federal Major Crimes Act makes certain crimes in “Indian country” subject to “the exclusive jurisdiction of the United States.” Therefore, McGirt argued in post-conviction proceedings that his state-court conviction was invalid because the Creek reservation was never disestablished, and so his crime was committed in Indian Country and subject to exclusive federal jurisdiction. The Oklahoma courts disagreed and upheld the conviction.
The Supreme Court reversed by a 5-4 vote. The Court noted the major changes to the reservation lands over the decades, but it held that “unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.” Thus, although Congress can disestablish an Indian reservation — even one granted by treaty — “if Congress wishes to break the promise of a reservation, it must say so.”
The Court held that, as to the Creek reservation, Congress has never said so. Although Congress in the early 1900s transferred much of the Creek Nation’s lands to individual Tribe members (who often re-conveyed them to non-members), the Major Crimes Act expressly defines “Indian country” as including reservation lands “notwithstanding the issuance of any patent.” And although Congress in the same period restricted Creek self-governance in many ways, it still “left the Tribe with significant sovereign functions over the lands in question.”
The Court then rejected Oklahoma’s argument that no express disestablishment was required because the United States did not hold the Creek lands in trust (as it often does for Indian reservations) but instead granted them to the Creek Nation in fee simple. The Court noted that, with the fee-title grant, “the federal government agreed to offer more protection for tribal lands,” and rejected the contention that “it really provided less.”
The Court also rejected Oklahoma’s alternative argument that the statute admitting Oklahoma to the Union created an exception to the Major Crimes Act by transferring federal criminal jurisdiction over Indian Country to the state courts. To the contrary, the Court held, the admission statute simply “sent state-law cases to state court and federal-law cases to federal court,” and cases under the Major Crimes Act fall into the latter category.
Finally, the Court acknowledged that its decision could implicate “reliance interests,” partly because it would call into question other state-court convictions and partly because “many federal civil laws and regulations do currently borrow from” the Major Crimes Act “when defining the scope of Indian country.” But the Court held that “the magnitude of a legal wrong is no reason to perpetuate it.” It concluded that reliance interests could be protected by “many other legal doctrines—procedural bars, res judicata, statutes of repose, and laches, to name a few.”
Justice Gorsuch authored the opinion of the Court, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts filed a dissenting opinion, joined by Justices Alito and Kavanaugh, and joined in part by Justice Thomas, who also filed a separate dissent.