What a New Supreme Court Decision Means for Native American Sovereignty

On Thursday, the Supreme Court of the United States ruled in the case McGirt v. Oklahoma that much of the eastern half of Oklahoma falls within Native American territory. The decision—which places criminal cases involving Native Americans on the Muscogee (Creek) Nation reservation under federal, rather than state, jurisdiction—is “one of the most consequential” legal wins for tribal rights in decades, report Jack Healy and Adam Liptak for the New York Times.

The case hinged on a key question: Did the reservation, established by U.S. treaties during the 1830s, continue to exist after Oklahoma officially became a state in 1907?

In a 5-4 decision, the court declared that the land promised to the Creek remains a reservation for the purposes of legal jurisdiction. Justices Neil Gorsuch, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer supported the ruling, while Justices John Roberts, Brett Kavanaugh, Samuel Alito and Clarence Thomas dissented.

Officials from the Creek Nation celebrated the legal victory in a statement released Thursday.

“This is a historic day,” Principal Chief David Hill tells the Times. “This is amazing. It’s never too late to make things right.”

Gorsuch penned the court’s majority decision, which invoked the country’s long history of mistreating Native Americans. “On the far end of the Trail of Tears was a promise,” he wrote. “Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. … Today 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.”

In a dissenting opinion, Chief Justice Roberts argued that the decision will “destabilize” Oklahoma’s justice system. He added, “The state’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.”

The ruling in McGirt has far-reaching implications for the state’s criminal justice system. Most notably, it ensures that tribal members who commit major crimes will receive trials in federal court. Native Americans accused of less serious crimes on reservation land will be tried in tribal courts, reports Laurel Wamsley for NPR.

Defendants convicted of major crimes on reservation lands now have new grounds to challenge their verdicts—a fact that could potentially result in “hundreds” of new appeals, reports Chris Casteel for the Oklahoman. The change in jurisdiction may also impact zoning, taxation and other laws in the region.

Though the decision specifically addresses the Creek Nation reservation, many media outlets have broadly applied it to four other Native American reservations established by 19th-century treaties. These lands encompass much of the state’s eastern half, including Tulsa, Oklahoma’s second-largest city, reports Ann E. Marimow for the Washington Post.

On Thursday, the State of Oklahoma and the five tribal nations affected by the ruling—the Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole—released a joint statement detailing “substantial progress toward an agreement … resolving any significant jurisdictional issues raised” by the ruling. The statement went on to reiterate the six parties’ commitment to “maintaining public safety and long-term economic prosperity.”

Kevin Gover, director of the Smithsonian’s National Museum of the American Indian, acting under secretary for museum and culture, and a citizen of the Pawnee Tribe of Oklahoma, tells Smithsonian magazine that the court’s decision is a “welcome” one because it upholds the principle that Native American treaties should be honored unless Congress explicitly revokes them. Still, he preaches caution in interpreting the ruling, pointing out that it centers on jurisdiction, not land ownership.

“The headlines are wrong,” says Gover in an emailed statement. “The Court did not give eastern Oklahoma back to the Tribes. Nobody will lose their land or their home. The decision simply means that Indians in that part of the state are subject only to the criminal jurisdiction of the Tribes and the United States, as is true on Indian reservations in many other states.”

Jimcy McGirt, a member of the Seminole Nation who in a state trial was convicted of sex crimes against a child, brought the case at the center of the ruling to the Supreme Court. Because the crime occurred on tribal land, McGirt argued that he should be re-tried in a federal court.

Per the Post, both McGirt and Patrick Murphy, a member of the Creek Nation convicted of murder in 1999 and the subject of a related case called Sharp v. Murphy, will now receive new federal hearings.

Jonodev Chaudhuri, a tribal ambassador for the Creek Nation, tells Kolby KickingWoman of Indian Country Today that the ruling is a huge win for the tribe. “Many folks are in tears,” he says. “Despite a history of many broken promises, as is true with many tribal nations, the citizens feel uplifted that for once the United States is being held to its promises.”

Summarizing the ruling’s overall significance for Vox, Ian Millhiser concludes, “The primary impact of McGirt is that Oklahoma loses much of its power to enforce certain laws against members of Native American tribes within the borders of tribal lands. But the decision will have far less impact on non-Native Americans.”

Nora McGreevy | | READ MORE

Nora McGreevy is a former daily correspondent for Smithsonian. She is also a freelance journalist based in Chicago whose work has appeared in Wired, Washingtonian, the Boston Globe, South Bend Tribune, the New York Times and more.