Supreme Court says eastern half of Oklahoma is Native American land

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

The 5-4 decision, with an opinion authored by Justice Neil Gorsuch, endorsed the claim of the Muscogee (Creek) Nation to the land.

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

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

The case hinged on application 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 MCA purposes, land reserved for the Creek Nation since the 19th century remains ‘Indian country,’ ” Gorsuch wrote in the opinion.

The conservative justice Gorsuch was joined in the majority by the court’s four liberal justices, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Chief Justice John Roberts dissented from the ruling, as did his fellow conservatives, Clarence Thoma,s Samuel Alito and Brett Kavanaugh.

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

McGirt, a member of the Muscogee (Creek) Nation, had argued in state courts that Oklahoma lacked the jurisdiction to review his case because the crime took place within the boundaries of the Creek Nation’s historic territory. He had appealed to the Supreme Court after state courts rejected his appeals.

The state Oklahoma in turn argued to the Supreme Court that the Creek Nation’s former territory was not a reservation at all.

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

In court filings to support McGirt’s claim, the Muscogee (Creek) Nation noted that although the tribe had “no role in the genesis of this litigation” it “now finds its Reservation under direct attack.”

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

“To the extent they hold any water, the State’s posited consequences stem from the fact that both executive branch and state officials actively sought to undermine Congress’s determination that the Nation’s government and territory would endure,” Kanji wrote. 

Gorsuch endorsed that argument in Thursday’s decision.

He noted in the majority opinion that, “No one disputes that Mr. McGirt’s crimes were committed on lands de-scribed as the Creek Reservation in an 1866 treaty and federal statute.”

“But, in seeking to defend the state court judgment below, Oklahoma has put aside whatever procedural defenses it might have and asked us to confirm that theland once given to the Creeks is no longer a reservation today.”

Gorsuch flatly rejected that request.

“Under our Constitution, States have no authority to reduce federal reservations lying within their borders. Just imagine if they did,” he wrote.

“A State could encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States. That would be at odds with the Constitution, which entrusts Congress with the authority to regulate commerce with Native Americans, and directs that federal treaties and statutes are 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 very neighbors who might be least inclined to respect them.”

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

This is breaking news. Check back for updates. 

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