Supreme Court Gives Major Win to Creek Nation
AP Photo/Evan Vucci
On July 9th, the Supreme Court delivered a decision in the case of McGirt v. Oklahoma that was perceived as a great victory for Indian rights advocates. The story has been extensively covered, however, the implications for the court decision risk being subject to extreme, or even misguided, speculation.
The Supreme Court reversed a decision granted writ of certiorari from the Oklahoma Criminal Court of Appeals in a 5-4 vote, with Justice Gorsuch breaking from the Conservative bloc and writing the majority opinion. Gorsuch, a Trump appointee, was promoted to the Supreme Court from the 10th U.S. Circuit Court of Appeals which has regularly and favorably handled Native American litigation.
The case in question involved a member of the Seminole Nation, Jimcy McGirt, who was convicted of sexual offenses against a child on a Creek reservation. However, McGirt’s attorneys argue that it was improper for the Oklahoma state court to preside over the conviction of McGirt since the crime occurred on an Indian reservation, which is protected by US law to maintain jurisdiction within its region of self-governance.
At first, Oklahoma had argued that the “allotment era” had resulted in the disestablishment of Indian reservations in Oklahoma; the “allotment era” was a period that saw the federal government renege on treaties created with Indian communities and seek to break up reservations. Reservations were broken up by the General Allotment Act of 1889, which sought to divide up the property into lands of individual ownership by local leaders. The historical intentions of the act are disputed, however, it did seem to suit the interests of railroads that sought federal land grants.
However, the Court rejected this argument asserting that no legal provision had officially ended reservations. Having this argument struck down, Oklahoma argued that the US never formally defined the Indian lands set aside as legal reservations, and they maintained that the US actually created a “dependent Indian community”.
While this fact is not entirely untrue, the Court decided that the legal wording surrounding the protections of the Indian lands back to the 1856 Treaty was an obvious evocation of reservation designation. Furthermore, the Court opinion decided that Oklahoma lacked the jurisdiction to decide on criminal cases within Indian territory since Congress had promised jurisdiction to tribal and federal courts rather than state and local courts.
According to Gorsuch, “holding that the Creek never had a reservation would require us to stand willfully blind before a host of federal statutes”. This position would be considered so ignorant, that the dissent refused to even address that argument in their refutation of the decision, which Gorsuch blatantly acknowledges.
The Major Crimes Act, a law passed by Congress, was referred to by Gorsuch in his opinion for Oklahoma’s delinquent ignorance of the federal law made it’s unjustified claim of jurisdiction the only instance within the nation that the MCA does not apply. Gorsuch delivered a rather scathing review of past US behavior in treatment of Indian sovereignty and protections.
Chief Justice John Roberts begins his dissent by asserting that the court’s decision was a recognition of a reservation nobody had known about for over a century. Roberts asserts that the treaty that gave the Tribes their legal protections was subject to change after the Civil War, in which slave-holding Native American communities allied with the Confederacy and had betrayed their agreements with the United States.
The subsequent punishment and reorganization of Tribal lands required new treaties, which abandoned the idea of separate Indian and White societies as well as ceding territory in western Oklahoma to US citizens. Essentially, Roberts argues that the majority has evaluated the history of US treatment of Indian treaties in a vacuum and failed to identify the Congressional laws that justify the jurisdiction of Oklahoma.
The dissent asserted that Congress had been in favor of diminishment of Indian lands following the Civil War, and the Supreme Court justified these positions in the cases of Solem v. Bartlett and Hagen v. Utah, cases which no longer serve as a precedent, however, they justify the actions of Congress and the Court in their handling of Indian territory.
Justice Clarence Thomas agreed with Roberts' dissent, however, he claims that the Supreme Court lacked the jurisdiction for the case in the first place. Thomas asserted that the court was overstepping its constitutional limitations by making the excuse that they would hear a case before it entered the necessary legal channels even though the court might hear it eventually in the future.
Overall, the dissent warned that such a decision in favor of the appellant would not only require dramatic reorganization of jurisdiction, but it would cause further concern and doubt over the handling of legal matters in other Indian reservations.
Gorsuch dismissed these worries as unreasonable since he asserts that the decision will only affect the jurisdiction of cases involving Indian individuals on Indian land. Lower level crimes will be handled by tribal courts, but more serious offenses would likely be subject to federal jurisdiction. Furthermore, the states would not have to cede land to Indian reservations, but they would still maintain legal jurisdiction over non-Indian offenses and past collaboration with tribal courts would because to dismiss significant issues in the future.
The court’s decision was very favorably received by the local Indian population that issued a statement in support of the decision. However, despite its popular reception, it will be very interesting to observe how this court decision could set a precedent for further litigation of Native issues since Gorsuch evoked the necessity of upholding treaties made with Tribal nations.
