SCOTUS McGirt ruling favors Muscogee (Creek) Nation

BY D. SEAN ROWLEY
Senior Reporter
07/09/2020 01:00 PM
Main Cherokee Phoenix
A U.S. Supreme Court exhibit shows a pre-statehood Oklahoma, which was called Indian Territory. COURTESY
Main Cherokee Phoenix
Jimcy McGirt
WASHINGTON – After deadlocking on a similar case in 2019, the U.S. Supreme Court ruled on July 9 that the Muscogee (Creek) Nation reservation was never officially dissolved when Oklahoma achieved statehood.

The 5-4 decision overturns the child rape conviction of Muscogee (Creek) citizen Jimcy McGirt because it was tried in Oklahoma’s court system, and is expected to affect hundreds of other criminal convictions of American Indian defendants.

With its decision, the Supreme Court is suggesting that McGirt’s case – and others involving Native Americans committing serious crimes within the boundaries of historical tribal reservations in Oklahoma – fall within federal jurisdiction. 

The argument that the historical MCN reservation was never terminated could expand tribal and federal authority into some affairs normally handled by the state. The ruling is expected to also apply to the Cherokee, Chickasaw, Choctaw and Seminole nations, and the tribes released a joint statement in response.

“The State, the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations have made substantial progress toward an agreement to present to Congress and the U.S. Department of Justice addressing and resolving any significant jurisdictional issues raised by the U.S. Supreme Court’s decision in McGirt v. Oklahoma,” the statement read. “The Nations and the State are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused. We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma.”

With Justice Neil Gorush recusing himself in 2019, the court deadlocked 4-4 on the case of Murphy, a death row inmate and MCN citizen. The McGirt decision also overturns Murphy’s conviction.

Speaking for the Cherokee Nation, Principal Chief Chuck Hoskin Jr. said he was in agreement with the opinion of Gorush, who wrote that “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.”

“The Cherokee Nation is glad the U.S. Supreme Court has finally resolved this case and rendered a decision which recognizes that the reservation of the Creek Nation, and by extension the reservations of the Cherokee Nation, Chickasaw Nation, Choctaw Nation and Seminole Nations, were never diminished and that our respective governments were never dissolved,” Hoskin said. “This ruling does not mean that those who commit crimes on reservation lands will not face justice, no tribe would ever welcome that, and now we will continue to work with the state of Oklahoma and our tribal partners on legal parameters under the decision today.”

Joining Gorsuch were Justices Ruth Bader Ginsburg, Sonya Sotomayor, Elena Kagan and Stephen Breyer. Justices Samuel Alito, Brett Kavanaugh, John Roberts, and Clarence Thomas voted in favor of Oklahoma.

“A century of practice confirms that the Five Tribes’ prior domains were extinguished,” Roberts wrote in his dissent. “The State has maintained unquestioned jurisdiction for more than 100 years. Tribe members make up less than 10%–15% of the population of their former domain, and until a few years ago the Creek Nation itself acknowledged that it no longer possessed the reservation the Court discovers today.”

The Oklahoma Office of the Attorney General said acknowledgement of an extant Creek reservation would require many federal retrials of Oklahoma criminal convictions.

Mithun Mansinghani, Oklahoma solicitor general, told justices in May: “We have currently over 1,700 inmates whose crimes were committed in the former Indian Territory who identify as Native American. The state presumptively would not have jurisdiction over those people and would have to release them.”

In their statement, the tribes said they would continue to work on cooperative jurisdiction with non-Indian agencies, “confident that we can accomplish more together than any of us could alone.”

“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,” the statement said.

Also issuing a joint statement were the state’s U.S. attorneys – Brian Kuester of the Eastern District, Trent Shores of the Northern District and Timothy Downing of the Western District.

“As Oklahoma’s United States Attorneys, we are confident tribal, state, local, and federal law enforcement will work together to continue providing exceptional public safety under this new ruling by the United States Supreme Court,” they said.

And in another joint statement, Oklahoma’s congressional delegation said it was “carefully” reviewing the decision. “(We) stand ready to work with both tribal and state officials to ensure stability and consistency in applying law that brings all criminals to justice. Indeed, no criminal is ever exempt or immune from facing justice, and we remain committed to working together to both affirm tribal sovereignty and ensure safety and justice for all Oklahomans.”

Stacy Leeds, former Cherokee Nation Supreme Court justice, said the decision confirms what many Native legal experts have long argued.

“The boundaries of the Muscogee (Creek) Nation survived statehood and remain as valid jurisdictional markers for the tribe today and into the future,” Leeds said. “When it comes to criminal jurisdiction over tribal citizens, Oklahoma has repeatedly overstepped and stretched its power beyond what the law provides. Although this case is factually limited to criminal cases within the Muscogee (Creek) Nation, the history and legal status of all Five Tribes are very similar and this decision will likely have far-reaching impacts. It’s a great day for the enforcement of treaty rights and tribal sovereignty.”
About the Author
Sean Rowley was hired by the Cherokee Phoenix at the beginning of 2019. Sean was born a long time ago in Tulsa, where he grew up and attended Booker T. Washington High School as a freshman before moving to Pawnee County and graduating from Cleveland High School in 1987. 

He graduated sans honors from Northeastern State University in 1992 with a bachelor of arts in mass communication with emphases in advertising and public relati ...
david-rowley@cherokee.org • 918-453-5560
Sean Rowley was hired by the Cherokee Phoenix at the beginning of 2019. Sean was born a long time ago in Tulsa, where he grew up and attended Booker T. Washington High School as a freshman before moving to Pawnee County and graduating from Cleveland High School in 1987. He graduated sans honors from Northeastern State University in 1992 with a bachelor of arts in mass communication with emphases in advertising and public relati ...

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