McGirt v. Oklahoma

The former reservations of the Five Civilized Tribes in dispute in this case

Prior to its statehood in 1907, about half of the land in Oklahoma in the east, including the Tulsa metro area today, had belonged to the Five Civilized Tribes.[3][4] There had been several decades of warfare and conflict during the 19th century over these lands between the Native Americans and the United States, including the Trail of Tears.[5] By 1906, the United States Congress passed the Oklahoma Enabling Act, which had been taken to disestablish the reservations, and enabling Oklahoma's statehood.[6] The former reservation lands, those of the Five Civilized Tribes as well as the other tribes in the state, were allocated into areas by tribe that were given suzerainty governing rights to the tribe to handle internal matters for Native Americans within the boundaries, but otherwise the state retained jurisdiction for non-Native Americans and for all other purposes such as law enforcement and prosecution.

In Sharp v. Murphy, Patrick Murphy, a descendant of the Native Americans, admitted to committing murder in the state of Oklahoma, and was subsequently tried by the state courts around 2015. During these trials, Murphy argued that the language of the Oklahoma Enabling Act did not specify that the Native American reservations were disestablished, and because he had committed the murder within the Muscogee reservation territory, that his crime was subject to federal jurisdiction and not state under the Major Crimes Act. This argument was rejected by the state and on its first appeal within the federal courts, but at the Tenth Circuit in 2017, the court found in favor of Murphy's argument that the Enabling Act did fail to disestablish the territories, and thus Murphy should have been prosecuted by the federal courts. The state petitioned to the Supreme Court in 2018, which accepted to hear the case. However, as Justice Neil Gorsuch was part of the Tenth Circuit panel that heard the case on appeal, he recused himself from all hearings on the case. Because only eight Justices heard the case, it remained unresolved at the end of the 2018–2019 term; the Court had stated plans to hold another hearing on the case in the 2019–20 term but had not set a date. Many court analysts believed the case to be deadlocked due to Gorsuch's recusal.[7][8]

Jimcy McGirt had been tried and convicted of performing sex crimes against an underage child in 1996 in Oklahoma, and was serving a life sentence for the crime. When the Tenth Circuit delivered its verdict on Murphy's case in 2017, McGirt was one of several convicts who had similar cases to Murphy's, Native American descendants that had been tried and convicted in state courts for crimes committed on lands that were part of the former reservations, who sought appeals based on the new ruling from the Tenth Circuit after the state denied him relief.[7] The Supreme Court granted McGirt's petition in December 2019.[8]

McGirt was one of a dozen cases in which the Supreme Court opted to use teleconferencing for oral arguments for the first time in the court's history due to the COVID-19 pandemic.[9] The arguments for McGirt were heard on May 11, 2020. Observers to the court stated that some justices raised concerns of how ruling in favor of McGirt, in recognizing that the reservations were never disestablished, would impact not only existing convicted prisoners within the state but how the federal courts would subsequently need to handle approximately 8,000 felonies that occur annually on those lands, as well as the impact on legal matters related to businesses and other civil actions that would fall under tribal regulations rather than the state's. Attention was given to the stance of Justice Gorsuch, who appeared to doubt Oklahoma's argument that the lands were effectively disestablished. Justice Sonia Sotomayor stated that should the Court find in favor of McGirt, ruling that the reservations were never formally disestablished, Congress would be able to easily remedy the situation with legislation to affirm the disestablishment.[10][11]

The Court issued its decision on McGirt as well as a per curiam decision on Sharp following the basis of McGirt on July 9, 2020. The 5–4 majority opinion was written by Justice Neil Gorsuch and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, and determined that for purposes of the Major Crimes Act, Congress had failed to disestablish the Indian reservations and thus those lands should be treated as "Indian country". Gorsuch wrote, "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."[12] Gorsuch further assessed that disestablishment was a power only Congress could exercise, affirmed by Lone Wolf v. Hitchcock.[13][5] He wrote "Under our Constitution, States have no authority to reduce federal reservations lying within their borders. Just imagine if they did. 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'."[12] Gorsuch wrote further on the impact of this decision, "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."[14]

Chief Justice John Roberts wrote a dissent which was joined by Justices Samuel Alito and Brett Kavanaugh, as well as in part by Clarence Thomas. Roberts wrote that the majority decision "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."[15]

The Court's judgment reversed McGirt's denial for relief by the Oklahoma criminal court, which potentially would withdraw the state convictions and prosecute him anew in federal courts.[16]

The decision by the Supreme Court was seen as a significant win for Native American rights, which have generally been denied by courts in recent years. Gorsuch's opinion was seen to acknowledge that many of the promises that Congress had made to the Native Americans in turning over reservations have gone unfulfilled, and rejected the argument presented by the state and federal government that he summarized as: "Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye."[17]

The Supreme Court's decision directly impacts Native American tribal citizens that are currently convicted under state law for crimes committed on the former reservation lands, as well as for any future descendants that may be arrested for similar crimes covered by the Major Crimes Acts, as their prosecution would become a matter of the federal courts and not the state. At the time, about 1,900 of the prisoners in the Oklahoma system met these conditions, but only around 10% qualified for rehearings to transfer to the federal system as they were still within the statute of limitations.[18][19]

The majority decision left open other potential impacts between territorial rights that may arise, which the Court put to the state and the tribes to resolve amicably should conflicts occur. Roberts had cautioned in his dissent that this could stretch to include taxation, adoption, and environment regulation rights.[18] Lawyers for the tribal groups asserted that the decision was narrow in affecting only Native American descendants within the lands as no land ownership changed hands.[1] The state and the five tribes issued a joint statement after the decision, stating "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."[14]

Gorsuch siding with the four more liberal Justices in McGirt was seen to be a continuation of his textualist interpretation of the law, first presented in his majority decision related to LGBTQ and employment discrimination in Bostock v. Clayton County.[20][21][17] Whereas Chief Justice Roberts had sided with Gorsuch and the majority in Bostock as a textualist statutory interpretation of the law supported the legal precedent that Roberts had tended to support, the textualist position in Bostock put Gorsuch at odds with Roberts' precedent in McGirt, and reflects potential conflicts that may arise between the two Justices in future cases.[17]

• Aboriginal title in the United States
• Former Indian reservations in Oklahoma
• Indian country jurisdiction
• Native American reservation politics
• Off-reservation trust land
• Oklahoma Tribal Statistical Area
• Tribal sovereignty in the United States

• Text of McGirt v. Oklahoma, No. 18-9526, 591 U.S. ___ (2020) is available from:  Justia  Oyez (oral argument audio)  Supreme Court (slip opinion)