by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”), in a 5-4 decision, ruled in favor of a defendant who argued that the State of Oklahoma (“Oklahoma”) lacked jurisdiction to prosecute him because he is a Native American, and his alleged crime occurred on tribal land. The decision has the potential for far reaching and profound implications for many, as it could result in hundreds of other convictions being overturned as prisoners argue that Oklahoma lacked subject matter jurisdiction to try them as well.

In 1997, Oklahoma convicted Jimcy McGirt of raping, molesting, and sodomizing a 4-year-old girl. He was sentenced to life plus 1,000 years in prison. He subsequently filed, pro se, a post-conviction petition arguing that Oklahoma lacked subject matter jurisdiction to try him because he was an enrolled member of the Seminole Nation of Oklahoma, and his charged offenses occurred on the Creek Reservation. Oklahoma courts rejected his arguments, and SCOTUS granted certiorari.

Justice Neil Gorsuch, joined by Justices Elena Kagan, Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer, wrote that the appeal rested on the federal Major Crimes Act (“MCA”), 18 U.S.C. § 1153(a). The MCA provides that within “the Indian country … [a]ny Indian who commits” certain enumerated offenses “against the person or property of another Indian or any other person … shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” Consequently, state courts generally have no jurisdiction to try Indians for conduct committed in Indian country. Negonsott v. Samuels, 507 U.S. 99 (1993). Such cases, depending in general on the nature of the offense committed, are tried either in the federal courts or in tribal courts. The key question to resolving McGirt’s claim was: Did he commit his crimes in Indian country?

Indian country includes, among other things, “all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.” 18 U.S.C. § 1151(a).

Oklahoma conceded that McGirt’s crimes occurred on land that Congress described as the Creek Reservation in the Treaty Between the United States and the Creek Nation of Indians, June 14, 1866, 14 Stat. 786. The land area covered much of Northeastern Oklahoma and included most of the present-day city of Tulsa. But Oklahoma argued that the land once given to the Creeks was no longer a reservation. And Oklahoma courts had rejected any suggestion that the lands in question remained a reservation.

After concluding that “there can be no question that Congress established a reservation for the Creek Nation,” Justice Gorsuch wrote, “[t]o determine whether a tribe continues to hold a reservation, there is only one place we may look: the Acts of Congress. This Court long ago held that the Legislature wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties.” Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). But that power belongs to Congress alone, and SCOTUS will not lightly infer a breach once Congress had established a reservation. Solem v. Bartlett, 465 U.S. 463 (1984). States have no authority to reduce federal reservations lying within their borders because the U.S. Constitution, Art. I, § 8 and Art. VI, cl. 2, grants Congress the sole authority to regulate commerce with Native Americans and directs that federal treaties and statutes are the “supreme Law of the Land.”

Similarly, courts have no proper role in the adjustment of reservation borders. “[O]nly Congress can divest a reservation of its land and diminish its boundaries.” Solem. In the past, Congress has passed legislation that “[e]xplicit[ly] reference[d] ... cession” or an “unconditional commitment ... to compensate the Indian tribe for its opened land.” Id. Congress had also used language directing that tribal lands shall be “restored to the public domain.” Hagen v. Utah, 510 U.S. 399 (1994). Congress had also spoken of a reservation as being “discontinued,” “abolished,” or “vacated.” Mattz v. Arnett, 412 U.S. 481 (1973). Disestablishment of a reservation does not require any particular form of words. Hagen. But it does require that Congress clearly express its intent to do so with an “[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests.” Nebraska v. Parker, 577 U.S. 481 (2016).

In an attempt to show that Congress had done exactly that, Oklahoma first argued that the General Allotment Act of 1887 (“Allotment Act”) demonstrated Congress’ intent to disestablish the reservation. That is, when Congress initially established the reservation, the land was given to the Creek Nation to be communally owned. Under the Allotment Act, Congress required that the land be broken up into tracts owned by individual members of the tribe, which could then be sold to members and non-members of the tribe.

But SCOTUS has repeatedly rejected this argument, explaining that Congress does not disestablish a reservation simply by allowing the transfer of individual plots, whether to Native Americans or others. Mattz. The Allotment Act did no more than provide a way for non-Indian settlers to own land on the reservation. Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351 (1962).

Oklahoma next argued that in the Curtis Act of 1898 (“Curtis Act”), Congress disestablished the reservation when it abolished the Creek’s tribal courts, diminishing their sovereignty over the land. The Curtis Act transferred all pending civil and criminal cases from the tribal courts to the U.S. Courts of the Indian Territory. But SCOTUS rejected that argument as well because the Curtis Act just as plainly provided that the Creek Nation retained power to collect taxes, operate schools, and legislate through tribal ordinances. Further, in 1936, Congress authorized the Creek to adopt a constitution and bylaws, enabling the Creek government to resume many of its previously suspended functions. Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439 (D.C. Cir. 1988). The Creek Nation has since done exactly that.

Unable to find an explicit act of Congress to support its position, the State next argued that historical practice and demographics proved disestablishment. The State went so far as arguing that when approaching the question of disestablishment, SCOTUS was required to follow three steps: (1) examine the laws passed by Congress, (2) examine contemporary events at the time those laws were passed, and (3) examine the demographics. The Court flatly rejected this proposal, observing “[w]hen interpreting Congress’s work in this arena, no less than any other, our charge is usually to ascertain and follow the original meaning of the law before us.” New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019). Only when an ambiguous term appears in a statute will the Court look to contemporaneous usages, customs, or practices to shed light on the meaning of the term. The State had shown no ambiguous terms in the relevant statutes. Neither SCOTUS nor any court may favor a contemporaneous practice instead of the laws Congress passed.

Oklahoma argued, based on a passage from Solem, that “[w]here non-Indian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character, [SCOTUS] ha[s] acknowledged that de facto, if not de jure, diminishment may have occurred.” But the Court rejected this as taking the quote from Solem out of context. Solem itself found that arguments of that sort were of “no help” in resolving the dispute.

Oklahoma next argued that since its acceptance into the Union as a State in the early part of the 20th century, it had prosecuted Indians for crimes committed on Indian allotments because Oklahoma believed the MCA did not apply to Oklahoma. Since it has been longstanding practice, it constitutes evidence that the MCA doesn’t apply to Oklahoma. But SCOTUS explained that the MCA is clear and observed “Oklahoma state courts erroneously entertained prosecutions for major crimes by Indians on Indian allotments for decades, until state courts finally disavowed the practice in 1989.” State v. Klindt, 782 P.2d 401 (Okla. Crim. App. 1989). Since Oklahoma itself had come to recognize the practice as wrong, why should SCOTUS consider it evidence that the MCA doesn’t apply, the Court asked rhetorically.

Finally, SCOTUS rejected Oklahoma’s last argument, viz., a ruling against the State would be too high of a price. According to Oklahoma, if SCOTUS ruled that the Creek reservation was never disestablished, other tribes might vindicate similar treaty promises. Half of Oklahoma’s land and up to 1.8 million of its residents would wind up within Indian country. An adverse ruling would unsettle an untold number of convictions and frustrate the State’s ability to prosecute crimes in the future. “Thousands” of convicted persons like McGirt “wait[ed] in the wings” to challenge the basis of their state-court convictions, the State warned.

But Justice Gorsuch pointed out that the MCA applies only to certain offenses committed by or against Indians on Indian territory. Oklahoma could still prosecute crimes committed in Indian country where the defendant and victim are not Native Americans. Only 10% to 15% of Oklahoma’s population identifies as Native American. The vast majority of Oklahoma’s prosecutions would be unaffected by the Court’s decision.

As for those defendants already convicted, again, the Court’s ruling applies only to Native Americans convicted of crimes in Indian country. Many of them might wish to finish their state sentences rather than risk a lengthier sentence in federal court. Defendants who do choose to challenge their state convictions will face significant procedural hurdles and federal limitations in post-conviction review proceedings. In any event, the MCA — which Oklahoma has ignored — provides that only the federal government may try a Native American for major crimes committed in Indian Country. “[T]he magnitude of a legal wrong is no reason to perpetuate it,” the Court chided.

Justice Gorsuch concluded: “[M]any of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking.... Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.” Accordingly, the Court reversed the judgment of the Court of Criminal Appeals of Oklahoma.

Chief Justice John Roberts, Jr., joined by Justices Clarence Thomas, Brett Kavanaugh, and Samuel Alito, Jr., authored a dissenting opinion. He accused the Majority of “discover[ing] a Creek reservation that spans three million acres and includes most of the city of Tulsa.”

According to the Chief Justice, no one knew of this reservation for the past century, and “the Court’s reasoning portends that there are four more such reservations in Oklahoma. The rediscovered reservations encompass the entire eastern half of the State — 19 million acres that are home to 1.8 million people, only 10% to 15% of whom are Indians. Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.”

The dissenting opinion argues that no reservation existed in Oklahoma past statehood, citing Hagen, South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998), and Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977). However, Chief Justice Roberts was unable to point to any explicit statement where Congress disestablished the Creek reservation, writing instead that “the notion that express language in an Act is the only method by which congressional action may result in disestablishment is quite inconsistent with our precedents.” (Internal quotations omitted.)

One of Chief Justice Roberts’ main concerns was: “[T]he Court’s decision draws into question thousands of convictions obtained by the State for crimes involving Indian defendants or Indian victims across several decades. This includes convictions for serious crimes such as murder, rape, kidnapping, and maiming. Such convictions are now subject to jurisdictional challenges, leading to potential release of numerous individuals found guilty under state law of the most grievous offenses.”

Roberts argued that the Majority’s reliance on procedural bars to post-conviction challenges didn’t account for the fact that “issues of subject matter jurisdiction are never waived and can therefore be raised on collateral appeal.” Wallace v. State, 935 P.2d 366 (Okla. Crim. App. 1997). He added that if a convicted prisoner were successful, the federal government would be able to re-prosecute only some of those crimes due to lack of resources, passage of time, dead witnesses, and fading memories. And in the cases of defendants with sentences like McGirt’s, it wasn’t likely they would “adopt a strategy of running out the clock on their state sentences.” See: McGirt v. Oklahoma, 2020 U.S. LEXIS 3554 (2020).

Writer’s note: Regarding governance of the area ruled to be a Creek Nation reservation, Justice Gorsuch pointed to a long and mutually beneficial relationship between the Tribes and Oklahoma in coming to agreement regarding all sorts of issues. Oklahoma Attorney General Mike Hunter released a statement before the case was decided, stating: “Regardless of the outcome in this case, I want to assure both tribal and non-tribal citizens, my office will work with our tribal partners to uphold our longstanding mutually beneficial relationship to benefit all Oklahomans.” 

Additional source: kosu.org

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