Supreme Court says eastern half of Oklahoma is indigenous land

Crowds line up outside the Supreme Court as he resumes his oral arguments at the start of his new term in Washington, USA, on October 7, 2019.

Mary F. Calvert | Reuters

The Supreme Court ruled Thursday that a large swath of the state of Oklahoma is Native American land for certain purposes, alongside a Native American man who had challenged his conviction for rape by state authorities in the territory.

Decision 5-4, with an opinion by Judge Neil Gorsuch, supported the Muscogee (Creek) nation’s claim to land.

“Today we are asked whether the land promised by these treaties remains an Indian reservation for the purposes of federal criminal law,” Gorsuch wrote.

“Because Congress has not said otherwise, we keep the government on its word,” he wrote.

The case depended on the enforcement of the Major Crimes Act, which gives federal authorities, rather than state prosecutors, jurisdiction over crimes committed by or against Native Americans in Native American territory.

“For purposes of the MCA, the lands reserved for the Creek Nation since the 19th century remain ‘Indian country’,” wrote Gorsuch.

The case was brought by Jimmy McGirt, who was convicted by an Oklahoma court for raping a four-year-old boy in 1997.

McGirt, a member of the Muscogee (Creek) Nation, argued that Oklahoma lacked the jurisdiction to review his case because the crime took place within the confines of the Creek Nation’s historic territory.

Oklahoma argued that the former Creek Nation territory was not a reserve at all.

The state said that if the Supreme Court accepted McGirt’s reasoning, “it would cause the largest judicial repeal of state sovereignty in American history, dividing Oklahoma in half.”

But in court documents filed to back up McGirt’s claim, the Muscogee (Creek) Nation noted that while the tribe “had no role in the genesis of this litigation,” “it now finds its Reserve under direct attack.”

Riyaz Kanji, an attorney for the tribe, wrote that Oklahoma was “exaggerating” the jurisdictional issues that would guarantee if the state lost its case.

“To the extent that they retain water, the consequences raised by the State stem from the fact that both the executive branch and state officials actively sought to undermine the determination of Congress that the government and the territory of the Nation would endure,” he wrote. Kanji.

Gorsuch backed that argument in Thursday’s decision.

Writing for the majority, Gorsuch said: “Under our Constitution, states have no authority to reduce federal reserves within their borders. Imagine if they did.”

“A state could invade tribal boundaries or legal rights provided by Congress and, with enough time and patience, void promises made on behalf of the United States. That would be at odds with the Constitution, which entrusts Congress with the authority to regulate trade with Native Americans, and mandate that federal treaties and statutes be the ‘supreme law of the land,’ “he wrote.

Gorsuch added that if that happened, “it would also leave tribal rights in the hands of the same neighbors who might be less inclined to respect them.”

The case decided Thursday is formally known as McGirt v. Oklahoma, No. 18-9526.

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