This Land Is Whose Land? The McGirt v. Oklahoma Decision and Considerations for Congress

This Land Is Whose Land? The McGirt v. Oklahoma Decision and Considerations for Congress

Legal Sidebari

This Land Is Whose Land? The McGirt v.
Oklahoma Decision and Considerations for
Congress
July 24, 2020
On July 9, 2020, the Supreme Court announced its decision in McGirt v. Oklahoma—hailed by some as
the “most significant Indian Law case of the century.” In a 5-4 ruling, the Court held that land reserved
for the Muscogee (Creek) Nation in the 19th century remained “Indian country” for criminal jurisdiction
purposes. In an opinion authored by Justice Neil Gorsuch, the Court held that Congress had established a
reservation for the tribe (Creek Nation). Despite creating the State of Oklahoma and limiting tribal
sovereignty within that area in the intervening years, the Court further held that Congress had never
disestablished the Creek reservation in eastern Oklahoma. This Legal Sidebar explains the origins of the
case, sketches the contours of the decision, explores what remains undecided or unknown, and discusses
what Congress could do to clarify, change, or cement this new status quo.
How the Question Came to the Supreme Court
In 2018, the Supreme Court granted certiorari to consider an appeal from an Oklahoma death penalty case
involving Patrick Murphy, a Creek Nation member. Murphy killed a fellow tribal member in eastern
Oklahoma. The validity of Murphy’s murder conviction turned on whether he committed his crime on the
Creek reservation—a reservation that Oklahoma argued no longer existed.
Justice Gorsuch recused himself from the Murphy case—presumably because he participated in
discussions about it while he was a judge on the Tenth Circuit Court of Appeals. When the 2018 Term
expired without a decision, many commentators assumed the remaining eight members of the U.S.
Supreme Court (Court) had split 4-4 and tabled the case rather than issue an opinion without a majority.
In the 2019 Term, although Murphy was due to be reargued, the Court decided to hear another case—in
which all nine Justices would participate—that raised a similar question. Jimcy McGirt, a member of the
Seminole Nation of Oklahoma, was convicted for serious crimes committed in a part of Oklahoma that he
claimed was within the still-existing Creek reservation. McGirt argued that the Major Crimes Act barred
Oklahoma from prosecuting him for those crimes. The question facing the Court, then, was whether the
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Major Crimes Act applied in this case—and the answer to that question depended on whether Creek land
in Oklahoma was “Indian country.”
The Major Crimes Act and the Definition of Indian Country
States generally may not prosecute Indians for crimes committed in Indian country, absent a grant of
jurisdiction from Congress. Most relevant to this case, the Major Crimes Act reserves federal jurisdiction
over certain serious crimes, like murder and kidnapping, committed by an Indian within Indian country.
Exceptions such as those created by Public Law No. 83-280 have extended state criminal jurisdiction over
major crimes in some states, but not Oklahoma.
In McGirt, Oklahoma argued that eastern Oklahoma had always been exempt from the Major Crimes Act
because of its unique history, but the Court squarely rejected that proposition: “When Oklahoma won
statehood in 1907, the [Major Crimes Act] applied immediately according to its plain terms.” Oklahoma
could not identify any subsequent grant of jurisdiction. Thus, so long as McGirt committed his crimes in
Indian country, Oklahoma lacked the authority to prosecute him.
The relevant federal criminal statute defines “Indian country” to mean (1) all land within an Indian
reservation, (2) all dependent Indian communities, and (3) all Indian allotments that still have Indian
titles. An area qualifies as Indian country if it fits within any of these three categories, meaning a formal
designation of Indian lands as a “reservation” is sufficient, but not necessary, for those lands to be
considered Indian country. Accordingly, the Court examined whether the Creek lands in Oklahoma were
once, and continued to be, a reservation.
The Establishment of a Creek Reservation
The Oklahoma land where McGirt and Murphy committed their crimes has a complex history. As the
Court put it, “One thing everyone can agree on is this history is long and messy.” In the 1820s, the federal
government relocated the Creek Nation and several other tribes (often referred to collectively as the Five
Tribes) to what is now present-day Oklahoma. As part of that relocation, the government signed a series
of treaties with the Five Tribes, ultimately giving them a vast area of land in present-day Oklahoma in
exchange for the cession of tribal homelands further east. That tract of land was reduced by later treaties.
The final reduction occurred after the Civil War, when the Treaty of 1866 required each of the Five Tribes
to surrender the “west half” of their new lands.
In McGirt, the State of Oklahoma made an argument it had waived in Murphy: that the Creek lands were
never a reservation at all, because the treaties predated the widespread use of the term “reservation” and
its accompanying policies. The Court, however, found that argument unconvincing, noting that neither the
Solicitor General’s amicus brief on behalf of Oklahoma nor the dissent had adopted it. Instead, Justice
Gorsuch wrote, it “should be obvious” that “Congress established a reservation for the Creeks” because of
the nature of the promises it made about the land.
The Continued Existence of the Creek Reservation
The question remained, then, whether Congress had ever disestablished the reservation. Though the Creek
Nation experienced many changes in its relationship with the federal government—most notably related
to tribal governance and a push for individual ownership of the land—the boundaries of its land remained
generally unchanged until at least the early 1900s. At that point, Oklahoma began to transition toward
statehood, effectively including eastern Indian lands and western non-Indian lands within a single
geographic entity. In its brief to the Supreme Court, Oklahoma claimed that no one (including state law
enforcement and prosecutors) had treated the relevant land like a reservation since 1907, after Oklahoma

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statehood. It also argued that because Congress broke certain promises in the treaties that had established
the reservation, Congress must have intended to disestablish it.
To determine whether Congress intended to disestablish the Creek reservation land, the Court clarified a
three-step test first announced in Solem v. Bartlett in 1984. Under the Solem framework, courts may
examine: (1) the language of the governing federal statute; (2) the historical circumstances of the statute’s
enactment; and (3) subsequent events, such as Congress’s later treatment of an affected area. The Solem
framework instructs courts to resolve any uncertainty in favor of the tribes: if the evidence is not clear, the
reservation continues to exist.
The majority explained that steps 2 and 3 exist only to clarify statutory texts, so
[t]here is no need to consult extratextual sources when the meaning of a statute’s terms is clear. Nor
may extratextual sources overcome those terms. The only role such materials can properly play is
to help “clear up . . . not create” ambiguity about a statute’s original meaning . . . . And, as we have
said time and again, once a reservation is established, it retains that status “until Congress explicitly
indicates otherwise.”
The Court further warned that states—“often in good faith, perhaps sometimes not”—have often
overstepped their authority in Indian country, underscoring “the danger of relying on state practices” to
evaluate reservation status. Thus, the majority concluded, Oklahoma’s arguments that eastern Oklahoma
had not been considered or treated like a reservation for more than a century could not change the Court’s
assessment that Congress had “plainly ... left the Tribe with significant sovereign functions over the lands
in question.” Because, the governing federal statutes plainly did not disestablish the Creek reservation, the
Solem analysis was finished at step 1 and the area’s subsequent treatment was not relevant.
Oklahoma argued that the Solem analysis was inapplicable because the Creek land became a “dependent
Indian community” rather than a reservation once the Creek Nation received fee title to its land. But fee
title is not incompatible with reservation status, and the Court rejected the “untenable” assertion that the
Creek Nation’s choice to receive fee title to its lands “made their tribal sovereignty easier to divest rather
than harder.”
The McGirt Dissent
Chief Justice Roberts, joined by three other Justices, dissented from the Court’s opinion. In the dissent’s
view, “Congress disestablished any reservation possessed by the Creek Nation through a relentless series
of statutes leading up to Oklahoma statehood,” a view which the dissent accused the majority of avoiding
by refusing to look at the statutes cumulatively rather than individually. Then, instead of stopping at the
first part of the Solem test, the dissent would have proceeded to examine contemporaneous and
subsequent treatment of the Creek lands, concluding that “no reservation persisted past statehood.”
Considerations for Congress
One certain consequence of McGirt is that the burden of prosecuting many serious offenses involving
Indian offenders or victims in eastern Oklahoma will shift to the federal and tribal governments—at least,
absent other federal statutory authority allowing the state to prosecute. Congress could pass a law
expressly giving Oklahoma jurisdiction to prosecute the crimes named in the Major Crimes Act, perhaps
through a vehicle similar to Public Law No. 83-280. Alternatively, Congress could appropriate funds to
offset the financial costs of increased federal and tribal prosecutions, which may include the retrials of
individuals who were convicted of major crimes in Oklahoma state courts. The majority and the dissent
disagreed about the likely magnitude of this burden. The majority pointed out that “even Oklahoma
admits that the vast majority of its prosecutions will be unaffected” by this ruling, while the dissent
posited that “thousands of convictions ... across several decades” will be drawn into question.

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Reprosecutions are unlikely to run afoul of the Double Jeopardy Clause, but could face other hurdles,
such as lapsed statutes of limitations or limited resources. McGirt’s dissent noted that the federal
government “may lack the resources to reprosecute all of” the convictions unsettled by the majority
opinion, and the “odds of convicting again are hampered by the passage of time, stale evidence, fading
memories, and dead witnesses,” which may also translate to a need for more prosecutorial resources.
Other consequences are less certain. McGirt holds only that the Creek reservation remains Indian country
for the purposes of the Major Crime Act, but the majority’s analysis seems likely to lead to
determinations that other Five Tribes’ reservations are likewise Indian country, possibly for purposes
beyond the Major Crimes Act. An in-depth examination of those possibilities is beyond the scope of this
Sidebar, and some of the issues will likely be resolved through litigation. The State of Oklahoma offered a
lengthy list of potential legal implications, including new or altered applicability of various federal
statutes and programs in areas such as: homeland security grants; nutritional programs; drug enforcement;
tobacco regulation; timber protection; disability programs; schools; highway funding; primary care
clinics; cultural artifacts; housing assistance; and historical preservation. Some observers have speculated
that the McGirt ruling could affect oil and gas regulation in the state. Congress could enact legislation to
provide clarity on application of these laws and programs to the Creek or Five Tribes’ reservations.
Tax implications are also likely, as states generally lack authority to tax Indians in Indian country, and
tribes may in some circumstances tax non-Indians on reservation land. The Five Tribes may gain more
exclusive jurisdiction over adoptions and custody disputes involving Indian children, though they have
had the right to intervene in such proceedings or petition for transfer regardless of a child’s location. Also,
at least one lawsuit has been filed seeking disgorgement of fines and court costs levied by the State of
Oklahoma against tribal members found guilty of misdemeanors and traffic offenses.
Some of the open jurisdictional questions may be resolved through agreements and negotiations between
states and tribal governments, though congressional actions remain an option. On July 15, 2020, the State
of Oklahoma publicly released an apparent agreement with the Five Tribes titled Murphy/McGirt
Agreement-in-Principle, which stated that “intergovernmental cooperation will best serve our shared
interests in consistency, predictability, and a mutual respect for sovereign rights and interests.” The
agreement called on Oklahoma’s congressional delegation to implement legislation that would primarily
restate existing federal Indian law principles, but also provide Oklahoma with jurisdiction over all
offenders “with the exception of crimes involving Indians committed on Indian trust or restricted
lands”—i.e., on a fraction of the original reservations. However, on July 17, two of the Five Tribes
repudiated the call for federal legislation.
Beyond Oklahoma, McGirt may have ramifications for other tribes who were once promised lands by
treaty, but whose reservations Congress never clearly disestablished. It is difficult to assess how
widespread such cases may be, and each will likely be separately litigated because the Solem inquiry,
even as clarified by McGirt, requires a fact-intensive investigation of the federal actions affecting each
tribe. At least one tribe has already invoked McGirt in an attempt to reestablish sovereignty that had
previously been considered lost.
On the broadest level, the choice of whether to disestablish any reservation still lies solely with Congress.
Congress could enact a statute disestablishing the Creek reservation (including or excluding the other Five
Tribes’ reservations), which would severely limit this decision’s applicability in the future. If Congress
chooses not to act, the uncertainties of jurisdiction may be settled among Oklahoma and the Five Tribes
over time, whether by mutual agreement or through litigation in the courts.

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Author Information

Mainon A. Schwartz

Legislative Attorney

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