Expert Commentary

McGirt v. Oklahoma: The ongoing importance of a landmark tribal sovereignty case

A year ago, the Supreme Court ruled that Oklahoma cannot pursue cases against American Indians for crimes allegedly committed on tribal land. We explore that decision, as well as recent legal analysis on what the McGirt case means for criminal and civil jurisdiction.

(The Noun Project)

“More than thirty years before the Supreme Court reminded Oklahoma that the Muscogee (Creek) Nation still has a Reservation, my mom repeatedly took us to it. We would pile into the car and drive the thousand miles from our family home in Arizona to our Nation’s Reservation in what is today also known as the State of Oklahoma. When funds were short, we would take the bus. And when we would complain about the length of the drive (a trauma that is considerably less than what our ancestors endured on the Trail of Tears, but nonetheless difficult for a nine-year-old to endure), Mom would tell Creek stories. Her stories were timeless and seemed to transport us, not just to an understanding of our past, but ultimately to our destination.”

Jonodev Chaudhuri, “Reflection on McGirt v. Oklahoma.” Harvard Law Review Forum, November 2020.

It’s been just over one year since the Supreme Court’s landmark McGirt v. Oklahoma decision maintained Oklahoma does not have jurisdiction to pursue cases against American Indians for crimes allegedly committed on tribal land.

According to Justice Neil Gorsuch, writing for the 5-4 majority, 3.25 million acres of Oklahoma, including much of Tulsa, remain Muscogee (Creek) Nation land. State courts have since recognized Cherokee, Choctaw, Chickasaw and Seminole reservations, covering most of the eastern half of the state.

Muscogee land in Oklahoma was established by treaty with the U.S. government in 1866, four decades before Oklahoma achieved statehood. In that treaty, the federal government promised the land would “be forever set apart as a home for said Creek Nation.” Because Congress never explicitly disestablished the Muscogee reservation in Oklahoma, it still exists, the high court found.

“When McGirt was decided there was shock among all the state actors, and of course relief and celebration for the tribes impacted,” said law professor and Muscogee Nation district court judge Stacy Leeds during a July 8 forum hosted by the Indian Legal Program at Arizona State University’s Sandra Day O’Connor College of Law. “That of course was tempered with shock in the Indian law community that the plain language of the law had finally been applied to get the result for the Five Tribes in Oklahoma.”

The Major Crimes Act of 1885 gave the federal government jurisdiction over certain serious crimes alleged to have been committed by Native Americans on tribal land. In 1997, Oklahoma convicted Jimcy McGirt of sex crimes included in the Major Crimes Act.

He was sentenced to two 500-year prison terms without parole.

McGirt, in turn, argued in post-conviction proceedings that as a member of the Seminole Nation of Oklahoma who committed his crimes on Muscogee land, only the federal government could prosecute him.

The core question became: Did McGirt commit his crimes in Indian country? Here, we explore the court’s reasoning in answering that question, as well as recent legal analysis on what McGirt means for criminal and civil jurisdiction for matters affecting tribal citizens in Oklahoma and, potentially, beyond.

The Supreme Court recognizes the Muscogee reservation

In 1948, Congress defined “Indian country” as including “all land within the limits of any Indian reservation.”

“The U.S. Supreme Court has long held that Congress possesses the authority to abrogate Indian treaties and thus can unilaterally diminish (decrease in size) or disestablish (erase) Indian reservations,” writes Arizona State University law professor Robert Miller in “McGirt v. Oklahoma: The Indian Law Bombshell,” published in March 2021 in The Federal Lawyer, the magazine of the Federal Bar Association.

Oklahoma argued in part that Congress allowed Muscogee land to be parceled up and sold to Native and non-Native buyers. That meant, according to the state, that Congress intended to eliminate the reservation.

“For years, States have sought to suggest that allotments automatically ended reservations, and for years courts have rejected the argument … the relevant statute expressly contemplates private land ownership within reservation boundaries,” Gorsuch countered in the majority opinion.

Furthermore, state courts “generally have no jurisdiction to try Indians for conduct committed in ‘Indian country,’” Gorsuch wrote. But there are exceptions.

McGirt and Public Law 280

Public Law 280, enacted in 1953, gave Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin broad criminal and civil jurisdiction in Indian country.

Tribes did not consent to state jurisdiction, and they were not given the chance to give consent.

A handful of other states, including Florida, Idaho and Washington have since claimed jurisdiction over certain criminal and civil issues affecting tribal citizens.

Congress amended the law in 1968. Since then, states have had to gain consent from tribal citizens before claiming jurisdiction.

Oklahoma is not covered under Public Law 280.

No tribal nation has consented to state jurisdiction — and no vote on consent has even been taken — since 1968, according to University of California, Los Angeles law professor Carole Goldberg, writing in a policy brief on Public Law 280 published by the Harvard Project on American Indian Economic Development and the Native Nations Center at the University of Oklahoma.

Public Law 280 is “a complicated statute which has been very controversial since the time of its enactment in 1953,” write Jerry Gardner and Ada Pecos Melton in a primer on the law for the nonprofit Tribal Law and Policy Institute. “It has often been misunderstood and misapplied by both federal and state governments.”

Muscogee Nation Creative Manager Brian OnTheHill announced in a May 2021 video that the nation would drop “Creek” from its name.

“The British coined the misnomer ‘Creek,’” OnTheHill says in the video. “When this alias appears in parentheses alongside the proper name of the nation, it creates confusion amongst the general public and it is often mistaken as an interpretation of Muscogee, or the two are read together as if it were one name.”

“Muscogee (Creek) Nation” is still used for official business.

In this article, we use the official name on first reference.

We use “Muscogee” or “Muscogee Nation” on subsequent references. We do not change “Creek” to “Muscogee” in direct quotes.

McGirt does not address Public Law 280 and the law remains in force — but how it plays out by state and specific tribe can vary. Tribes and states may also make other arrangements. For example, the Umatilla Tribe in Oregon, which is covered by Public Law 280, hears child support cases in tribal rather than state court, according to Goldberg.

Importantly, Public Law 280 doesn’t mean tribes lose jurisdiction. It means that the state also has jurisdiction. “On the criminal side, the question arises whether double jeopardy would preclude a state prosecution following prosecution in tribal court,” Goldberg writes.

Double jeopardy is a situation where a defendant is tried twice for the same crime. The Fifth Amendment prohibits double jeopardy. Oklahoma is specifically precluded by state law from pursuing criminal matters following a conviction or acquittal in “another territory, county or state.”

‘Energies and moneys’: Natural resources and business concerns

While McGirt recognized the Muscogee Nation and led to the recognition of four of the other large tribes in Oklahoma, from a practical standpoint it specifically addressed federal and state criminal jurisdiction over tribal members.

Still, Chief Justice John Roberts, writing in dissent, expressed concern the majority ruling would create “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.”

In an amicus brief submitted for McGirt, groups representing Oklahoma oil producers, farmers, ranchers and other business concerns wrote that for the Supreme Court to recognize the Muscogee reservation would upset the “energies and moneys” they had invested “in their livelihoods and communities, in reliance on the commonly shared understanding of the regulatory, tax, and adjudicatory authority under which they live and operate.”

Governor Kevin Stitt has likewise recently voiced uncertainty over what McGirt means for industry and government in Oklahoma. His administration sued the U.S. Department of the Interior on July 19 in federal district court, months after the cabinet department re-took regulatory control from the state over coal mining in Muscogee Nation.

“With that one ruling, what we thought that’s happened over the last 114 years since statehood was that we were able to regulate industry, we were able to tax, we were able to prosecute crimes,” Stitt told Oklahoma City’s Fox 25 on May 17. “And that’s all kind of thrown up into question.”

Despite those concerns, analysis from several Indian law scholars indicate no major cause for alarm. The Supreme Court and state courts recognized that much of eastern Oklahoma remains Indian country, but that did not mean private land owners in the region suddenly lost their deeds. No land in Tulsa was ceded to Muscogee Nation. The question in McGirt was about criminal jurisdiction.

“Supreme Court precedent strongly indicates that future disputes regarding civil jurisdiction will likely result in outcomes similar to the pre-McGirt state of play,” write law professors Dylan Hedden-Nicely and Monte Mills in August 2020 in Natural Resources Law Insights, an online publication of the non-profit Rocky Mountain Mineral Law Foundation.

Indeed, regarding concerns Oklahoma’s attorneys raised during the McGirt arguments about what the court’s majority decision would mean for past convictions, as well as civil and regulatory matters, Gorsuch offered that “Oklahoma and its tribes have proven time and again that they can work successfully together as partners, and Congress remains free to supplement its statutory directions about the lands in question at any time.” Seth Davis, a law professor at the University of California, Berkeley, put it in straightforward terms in “Tribalism and Democracy,” published November 2020 in the William & Mary Law Review:

“The Court rejected the State of Oklahoma’s argument that recognizing the Reservation would have devastating consequences for governance there. It explained that the Creek Nation is a flourishing democracy that provides a variety of public services.”

It is still unknown, however, how the Supreme Court itself will interpret McGirt moving forward.

“While there is always the possibility that courts will interpret the McGirt decision to only apply to the Major Crimes Act and criminal jurisdiction, Justice Gorsuch never explicitly limits the decision in this way,” write law professors Elizabeth Ann Kronk Warner and Heather Tanana in an in-depth analysis — published in September 2020 as a University of Utah College of Law Research Paper — on how McGirt could affect oil and gas leasing, taxation, rights of way and environmental regulation. “Moreover, the definition of ‘Indian Country’ in Indian criminal law has historically been used in numerous other contexts, including civil regulatory areas.”

Tribal and federal legal caseloads in Oklahoma have skyrocketed

Tribal nations in Oklahoma have significantly ramped up their criminal justice spending in the year since McGirt. The Cherokee Nation, for example, has invested some $35 million to expand its legal capacity, according to the Tahlequah Daily Press. The nation is also updating its criminal, traffic and juvenile codes for the first time in decades.

Chrissi Ross Nimmo, deputy attorney general for Cherokee Nation, underscored the need for the investment during the July 8 forum. In 2019, Nimmo said her office filed roughly 60 charges against Native Americans for crimes allegedly committed on Cherokee land. In 2020, the COVID-19 pandemic dropped that number down to 35. But, since March of this year, filed charges have skyrocketed to more than 1,200.

The spike in charges followed a March 11 Oklahoma Court of Criminal Appeals ruling in Hogner v. Oklahoma, which found Congress never disestablished the Chickasaw and Cherokee nations — the same logic the Supreme Court used in McGirt.

Just as McGirt did for the Muscogee Nation, Hogner maintained the federal government and the tribes as the only entities that can pursue criminal cases against tribal citizens on Chickasaw and Cherokee land.

Prior to McGirt, the Cherokee attorney general’s office had one prosecutor for all criminal and juvenile cases covering the nation’s 7,000 square miles in northeastern Oklahoma, Nimmo said. Now, the office has six full-time prosecutors, has doubled its support staff, hired two full-time judges and nine new police officers and is creating a standalone juvenile justice department. Cherokee Nation is also establishing several satellite court locations apart from its main court location in Tahlequah.

Federal authorities have also seen large spikes in caseloads. The FBI field office in Oklahoma City is now handling thousands of cases involving American Indians, up from about 50 per year pre-McGirt. That includes cases involving tribal citizens that occurred on tribal lands, which were heard and closed in state and local courts but re-opened following McGirt because they now fall under federal jurisdiction.

McGirt himself was retried in federal court and found guilty on November 6, 2020 of two counts of aggravated sexual abuse following a jury trial.

“Today’s verdict is a result of a courageous victim who for the sake of justice was willing to once again relive the horrific acts the defendant perpetrated against her over 24 years ago,” U.S. Attorney Brian J. Kuester said in a new release after the verdict.

The see-sawing relationship between federal and tribal governments

Since the U.S. was founded, the federal government has vacillated between periods of government-to-government cooperation with Native American nations and periods marked by blatant disregard that those nations exist, explains Mitchell Hamline School of Law professor Angelique EagleWoman in “Permanent Homelands Through Treaties with the United States: Restoring Faith in the Tribal Nation-U.S. Relationship in Light of the McGirt Decision,” published April 2021 in the Mitchell Hamline Law Review.

The “foundational relationship” between tribal governments and the U.S. government “is the sovereign-to-sovereign relationship,” EagleWoman writes. “In exercising sovereign authority to enter into treaties and other agreements with the United States, the Tribal Nations did not relinquish their status as tribal governments, capable of all the characteristics of nation-states as understood in the international political community.”

A series of Supreme Court rulings beginning in 1823 illustrate how the relationship changed since the Revolutionary War. The Marshall Trilogy, named for Chief Justice John Marshall, “handed down a framework of diminished property and sovereignty rights of tribal governments that remain in place today,” EagleWoman writes.

The first decision, Johnson v. M’Intosh, formally introduced the “doctrine of discovery” into U.S. law. Sixteenth century Spanish Roman Catholic theologian Francisco de Vitoria established the doctrine as a framework for how colonizers should interact with indigenous people in the Americas. Indigenous people could claim their land, and Europeans could decide how they reacted to those claims, whether with treaty or force. Marshall, delivering the majority opinion in Johnson, explained the European nations claiming land from indigenous nations in the Americas agreed to a sort of “first come first served” approach in order to avoid war with one another. After the U.S. prevailed in the Revolutionary War, Britain’s past claims of discovery became America’s, the court reasoned.

For the federal government, “that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest,” Marshall wrote.

The next case in the trilogy, Cherokee Nation v. Georgia, was decided in 1831. Georgia state officials claimed Cherokee lands after the federal government was slow to act on a side deal with the state promising them the tribal nation’s territory. Marshall reasoned the Constitution treated foreign nations and Native tribes separately, so the Cherokee nation had no standing to bring federal suit.

“Their relation to the United States resembles that of a ward to his guardian,” Marshall further contended in the majority opinion. In the final case, Worcester v. Georgia, Marshall’s court in 1832 established that federal law prevailed over the states when it came to dealings with Native Americans.

Yet, as EagleWoman points out, since the 1960s tribes have contracted with the federal government for services, indicating a sovereign-to-sovereign relationship. McGirt may signal a further return to the foundational relationship between the federal government and tribal nations.

“Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished,” Gorsuch wrote. “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.”

Further reading

McGirt and Rebuilding of Tribal Nations Toolbox. From the Harvard Project on American Indian Economic Development and the Native Nations Center at the University of Oklahoma, the McGirt Toolbox covers major historical legal events in Indian law and court cases leading to McGirt, treaties between the U.S. government and tribal nations in Oklahoma and policy briefs on a range of topics, including:

Permanent Homelands through Treaties with the United States: Restoring Faith in the Tribal Nation-U.S. Relationship in Light of the McGirt Decision
Angelique EagleWoman. Mitchell Hamline Law Review, April 2021.

“The Rule of the Strong, Not the Rule of Law”: Reexamining Implicit Divestiture After McGirt v. Oklahoma
Joseph Palandrani. Fordham Law Review, April 2021.

McGirt v. Oklahoma: The Indian Law Bombshell
Robert Miller. The Federal Lawyer, March 2021.

Slouching Towards Autonomy: Reenvisioning Tribal Jurisdiction, Native American Autonomy, and Violence against Women in Indian Country
Joseph Mantegani. Journal of Criminal Law and Criminology, spring 2021.

Reflection on McGirt v. Oklahoma
Jonodev Chaudhuri. Harvard Law Review Forum, November 2020.

Tribalism and Democracy
Seth Davis. William & Mary Law Review, November 2020.

Textualism’s Gaze
Matthew Fletcher. Michigan Journal of Race and Law, winter 2020.

Indian Country Post McGirt: Implications for Traditional Energy Development and Beyond
Elizabeth Ann Kronk Warner and Heather Tanana. University of Utah College of Law Research Paper, September 2020.

Who is an Indian Child? Institutional Context, Tribal Sovereignty, and Race-Making in Fragmented States
Hana Brown. American Sociological Review, August 2020.

This Land Is Whose Land? The McGirt v. Oklahoma Decision and Considerations for Congress
Congressional Research Service, July 2020.

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