McGirt v. Oklahoma

DETERMINING RESERVATION STATUS

McGirt argues that the Muscogee (Creek) Nation reservation remains in existence today and that Congress has not disestablished it by statute or any other means. Brief for Petitioner, Jimcy McGirt at 19. McGirt contends that for an Indian reservation to be disestablished, there must be clear and unequivocal evidence of Congress’s intent to do so, and that such evidence is best evaluated by directly examining statutory text. Id. at 19–20. Using this analysis, McGirt asserts that no Congressional statute relevant to the Indian Territory or Oklahoma unambiguously disestablishes the Muscogee (Creek) Nation’s reservation. Id. at 21. McGirt points to prior instances where Congress clearly and definitively changed the borders of Muscogee (Creek) Nation—as well as other instances in which Congress eliminated the existence of other reservations in Oklahoma—as evidence that Congress could have expressly restricted or eliminated the Muscogee (Creek) Nation’s reservation, but chose not to do so. Id. at 24–25.

McGirt also contends that the historical context surrounding congressional action supports the assertion that the Muscogee (Creek) Nation reservation was never disestablished. Id. at 26. Specifically, McGirt highlights evidence that Congress sought “cession” from the Muscogee (Creek) Nation, and that as a result of the tribe’s rejection of that option, Congress backed off of seeking “cession” because they did not believe that a tribe needed to disestablish in order for Oklahoma to obtain statehood. Id. at 27–28, 8–9. McGirt further notes that Congress did not demand the dissolution of the Muscogee (Creek) Nation’s government and instead actively avoided that outcome, further evidencing Congress’s decision not to disestablish. Id. at 28–29. McGirt argues that disestablishment of the Muscogee (Creek) Nation reservation was not necessary for Oklahoma to become a state, as evidenced by other states like Tennessee and North Dakota which were formed with large numbers of firmly established Indian reservations existing within. Id. at 38–39.

Oklahoma counters that the area of land known as “Creek country” was never a reservation in the first place. Brief for Respondent, State of Oklahoma at 8. Oklahoma claims that the United States’ treaty with the Muscogee (Creek) Tribe established a distinct land allotment called “Indian country,” different from Indian reservations, which were established decades later and were subject to different land ownership policies. Id. at 9–10. This distinction is significant, according to Oklahoma, because it means that the Muscogee (Creek) Nation had a fee simple title to the land they were allotted and did not have land that was reserved from sale to the public. Id. at 12. Oklahoma argues that the Muscogee (Creek) Nation’s title in the land was broken when the tribe agreed to the allotment of its land in the early 1900s. Id. at 14–15. From this point, argues Oklahoma, “Creek country” no longer qualified as a dependent Indian community, let alone a reservation. Id.

Oklahoma continues that even if “Creek country” were to have been considered a reservation at one point, Congress acted to disestablish it as such. Id. at 29. Oklahoma challenges McGirt’s assertion that there is a clear-statement rule applied to assessing the disestablishment of a reservation, and instead claims that the focus is on the intent of Congress to divest land “of all Indian interests.” Id. Oklahoma contends that just because the word “cession” was not used in the allotment agreement between the United States and the Muscogee (Creek) Nation, does not mean that the allotment itself did not provide for the disestablishment of the tribe’s reservation. Id. at 32. Instead, Oklahoma asserts, the allotment made by the Muscogee (Creek) Nation had the effect of divesting the tribe of its fee simple interests in the land, precisely what a “cession” of the land would achieve in any case. Id. Oklahoma contests the idea that the preservation of tribal government indicates the preservation of the tribe’s reservation, arguing that the remaining tribal government was a shell of its former self, without much of its former power. Id. at 37–38. Oklahoma also notes that the inclusion of the Indian Territory in the makeup of Oklahoma was significant because it violated Congress’s prior promise that states would not include tribal land. Id. at 31.

OKLAHOMA’S CRIMINAL JURISDICTION

McGirt refutes the United States’ argument from Murphy that Congress ever gave Oklahoma criminal jurisdiction over Muscogee (Creek) Nation land. Brief for Petitioner at 43–44. McGirt points to the Major Crimes Act as the statute which dictates that the United States has “exclusive jurisdiction” over certain crimes on Indian reservations and on “Indian country” within all 50 states. Id. at 44. He emphasizes that the Major Crimes Act’s plain text includes no exception for Oklahoma and that federal jurisdiction over such crimes must preempt state jurisdiction. Id. at 44–45. McGirt acknowledges that while Congress has occasionally granted criminal jurisdiction to certain states over Indian country in exemption to the Major Crimes Act, when it does so it uses clear and explicit language to confer such jurisdiction. Id. at 46. According to McGirt, Congress has not issued any such clear and express statute with respect to Oklahoma, in stark contrast to other states like Kansas, North Dakota, and Iowa. Id. at 46–47.

McGirt argues that Congress’s Enabling Act for Oklahoma did not place Native Americans in the Indian Territory under the criminal jurisdiction of the State of Oklahoma. Id. at 49. Pointing to the language of the Enabling Act itself, McGirt asserts that Congress used the act to extend state law only to those areas federal law did not already apply, such as the types of criminal acts covered by the Major Crimes Act. Id. at 50. McGirt also refutes the idea that just because Oklahoma prosecuted reservation crimes in the past means that it has the legal right to continue to do so. Id. at 51. McGirt accuses Oklahoma of systematically defying federal law when it comes to Indians in the state and asserts that Oklahoma is one of numerous states who have exercised criminal jurisdiction over Indian land without congressional authority. Id. McGirt suggests that the United States has been aware for decades of the jurisdictional problems created by states like Oklahoma exercising criminal jurisdiction over Native Americans in the Indian Territory without any congressional statute to support that power. Id. at 51–52.

Oklahoma responds that Congress in fact did, across a series of statutes, subject all tribal members in the Indian Territory to the jurisdiction of Oklahoma courts. Brief for Respondent at 21, 26. Tracing a line from congressional statutes enacted prior to Oklahoma’s statehood, Oklahoma asserts that Congress systematically removed jurisdictional distinctions between Native Americans and non-Native Americans within tribal lands, eventually creating a state which governed all those within it “irrespective of race.” Id. at 22. To illustrate this, Oklahoma points to laws enacted in the late 1800s aimed at providing citizenship rights to Native Americans in the Indian Territory by disbanding tribal courts and eliminating distinctions between white and Native American residents of the Indian Territory. Id. at 22–24. Also, notable according to Oklahoma was the grant of citizenship to all Native Americans living in the Indian Territory, making them legally indistinguishable from other citizens except for minor differences in property and tax rights. Id. at 24–25.

Oklahoma also argues that the Major Crimes Act did not apply in the Indian Territory prior to Oklahoma’s statehood because Congress had instituted a race-neutral judicial system within the Territory which ran counter to the racially distinctive system created by the Act. Id. at 26. Oklahoma asserts that this exemption from the Major Crimes Act did not disappear after the Enabling Act went into effect, claiming that the Indian Territory’s admission into the Union was distinct from that of other states because it had already done away with race-based jurisdiction. Id. at 27. Oklahoma points out that it did not unilaterally take control of criminal jurisdiction from the federal government; instead, federal courts were eager to transfer all of their cases to a reluctant Oklahoma state-court system. Id. Additionally, Oklahoma contends that it would make no sense for Congress to exempt Native American from state law when Congress had rendered Native Americans subject to municipal law, specifically allowing them to participate in forming the Oklahoma state government Id. at 28.