McGirt v. Oklahoma

LII note: the oral arguments in McGirt v. Oklahoma are now available from Oyez. The U.S. Supreme Court has now decided McGirt v. Oklahoma .


Can the State of Oklahoma prosecute a defendant for crimes committed on historic lands of the Muscogee (Creek) Nation, or may only the federal government do so?

Oral argument: 
May 11, 2020

This case asks the Supreme Court to determine whether the State of Oklahoma has, for decades, been improperly exercising criminal jurisdiction over land within the historical boundaries of the Muscogee (Creek) Native American tribe in Eastern Oklahoma. The Oklahoma Court of Criminal Appeals held that Oklahoma had jurisdiction to prosecute a Native American defendant, Jimcy McGirt, for crimes that he committed within Oklahoma’s borders but entirely on the Muscogee (Creek) Nation’s historically tribal lands. McGirt, as the Petitioner, argues that because his crime took place on the Muscogee (Creek) reservation and he is an enrolled Seminole-tribe member, only the federal government has jurisdiction to prosecute him in this case. Oklahoma, as the Respondent, counters that the land on which McGirt committed his crimes was never an Indian reservation—instead, Congress classified the land as a dependent Indian community until Congress removed this classification and gave Oklahoma criminal jurisdiction over the community’s land. From a policy perspective, this case is important because it will likely determine whether a substantial portion of Oklahoma is exclusively controlled by the Muscogee (Creek) Nation and the federal government, which in turn would have enormous legal, economic, and social implications

Questions as Framed for the Court by the Parties 

Whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.


In 1997, an Oklahoma jury convicted Jimcy McGirt of committing multiple crimes, including first-degree rape, against a four-year-old girl. McGirt v. Oklahoma at 1; see also Brief for Petitioner, Jimcy McGirt at 16; Brief for Respondent, Oklahoma at 4. Both McGirt and the girl are enrolled members of the Seminole Nation. Brief for Petitioner at 16; Brief for Respondent at 4. The trial court sentenced McGirt to life imprisonment without the possibility of parole. McGirt v. Oklahoma at 1. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed McGirt’s sentence. Id. at 2.

Twenty-one years later, in 2018, McGirt filed a petition for post-conviction relief in Oklahoma state court. McGirt v. Oklahoma at 1; see also Brief for Respondent at 4. In his petition, McGirt challenged the authority of the Oklahoma state courts to convict him because he had committed his crimes in Indian Country. McGirt v. Oklahoma at 2. More specifically, McGirt had committed the crimes within the Muscogee (also known as the Creek) Nation, which he claimed is a reservation located in Eastern Oklahoma that was first established in 1866. Brief for Petitioner at 16. To support this claim, McGirt relied on Murphy v. Royal, a 2017 decision by the United States Court of Appeals for the Tenth Circuit. McGirt v. Oklahoma at 3. In Murphy, the Tenth Circuit found that the Muscogee (Creek) reservation had never been disestablished by Congress, and therefore, only the Muscogee (Creek) Nation or the federal government—not Oklahoma—could adjudicate crimes committed within that tribe’s territory. See Murphy v. Royal, 875 F.3d 896, 966 (10th Cir. 2017); Brief for Petitioner at 15–16.

The Supreme Court subsequently granted certiorari to review the Tenth Circuit’s decision in Murphy. Brief for Petitioner at 16. Justice Gorsuch recused himself from participating in Murphy because of his previous involvement with the case while serving as a judge on the Tenth Circuit. See December 4, 2018 Order, Sharp v. Murphy, No. 17–1107. The Supreme Court heard oral argument in Murphy, but; it never issued a decision. Brief for Petitioner at 16.

Meanwhile, the Oklahoma District Court of Wagoner County denied McGirt’s application for post-conviction relief. McGirt v. Oklahoma at 1. The OCCA affirmed again, for two reasons. See id. at 2–3. First, the OCCA found that post-conviction review only allowed petitioners like McGirt to raise new grounds for relief if they were unable to do so before that time. Id. at 2. The OCCA reasoned that there was no reason why McGirt could not have raised his tribal sovereignty claim before; thus, he had waived that claim. Id. Second, the OCCA found that the Oklahoma Constitution grants the state district courts “unlimited original jurisdiction of all justiciable matters in Oklahoma,” that McGirt’s crimes occurred within Oklahoma, and that McGirt had cited no authority to the contrary. Id. at 2–3. While conceding that McGirt’s argument mirrored the one made by the defendant in Murphy, the OCCA found that the Tenth Circuit’s decision in Murphy was not final because the Supreme Court’s review of that case was still pending. Id. at 3.

McGirt appealed the OCCA’s decision. The Supreme Court granted certiorari of McGirt’s case on December 13, 2019, to re-hear the issue it had heard in Murphy with the Court at full strength. See December 13, 2019 Order, McGirt v. Oklahoma, No. 18–9526.



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.


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.



The Cherokee Nation, along with a group of historians and scholars (“Cherokee Nation”), in support of McGirt, note that Native tribes have faced continuous state-sanctioned suppression for centuries, including their forced removal on the Trail of Tears from Georgia to present-day Oklahoma. Brief of Amici Curiae Historians, Legal Scholars, and Cherokee Nation, in Support of Petitioner at 4­–8. In spite of this history, the Cherokee Nation argues that tribal nations have steadfastly “refused to abandon” their political systems. Id. at 24­–25. Accordingly, the Muscogee (Creek) Nation itself, in support of McGirt, asserts that it retains a “paramount interest in maintaining law and order within its Reservation” that the Supreme Court should recognize. Brief of Amicus Curiae Muscogee (Creek) Nation, in Support of Petitioner at 41. Additionally, the Muscogee (Creek) Nation contends that removing Oklahoma jurisdiction over tribal lands would not lead to a mass release of state prisoners, because those prisoners could always be re-tried in federal court. Id. at 43.

The Oklahoma District Attorneys Association and a group of seventeen Oklahoma District Attorneys (“District Attorneys”), in support of Oklahoma, counter that upholding tribal sovereignty over large parts of Oklahoma could lead to major problems in prosecuting criminals. Brief of Amici Curiae Seventeen Oklahoma District Attorneys and the Oklahoma District Attorneys Association, in Support of Respondent at 34. In fact, the District Attorneys note that Oklahoma has successfully prosecuted major crimes involving members of Oklahoma tribal nations for over one-hundred years. Id. The United States agrees and comments in support of Oklahoma that removing state jurisdiction would force the federal government to investigate all crimes by or against tribal members, with some exceptions. Brief of Amicus Curiae United States of America, in Support of Respondent at 38. In this vein, the United States predicts that federal prosecutors in Oklahoma could be overwhelmed by a thirteen-fold increase in felony cases if such a ruling applied to all of the land within historical tribal boundaries across the state. Id. at 38–39. Further, the City of Tulsa, in support of Oklahoma, cautions that this problem with prosecutions would extend to policing as well. Id. at 29–31. Tulsa contends that its own police officers would not be able to enforce state law within the city if only federal and tribal laws applied, and that the Creek Nation’s smaller police force would not be able to adequately police a city of over 400,000 people. Brief of Amicus Curiae City of Tulsa, in Support of Respondent at 29–31.


A group of Oklahoma politicians, together with the Chickasaw and Choctaw Nations (“Chickasaw and Choctaw Nations”), in support of McGirt, argue that reaffirming tribal sovereignty would reinforce a delicate system of governance between states and the tribal nations. Brief of Amici Curiae Oklahoma Politicians, the Chickasaw Nation, and the Choctaw Nation, in Support of Petitioner at 5. The Chickasaw and Choctaw Nations contend that tribal nations within Oklahoma exercise their power in ways that accommodate outside interests and promote social and economic growth. Id. at 7. The Chickasaw and Choctaw Nations note that tribal nations provide governmental services—such as public safety and healthcare—to both Indians and non-Indians alike. Brief of Chickasaw and Choctaw Nations at 8, 10–13. Conversely, the Muscogee (Creek) Nation maintains that non-Native citizens living within the reservation would face minimal civil disruption because Oklahoma would still retain “considerable power” to take governing actions such as levying taxes on tribal land. Brief of Muscogee (Creek) Nation at 44. Indeed, the National Congress of American Indians Fund, in support of McGirt, asserts that non-tribal cities on tribal lands in states such as Arizona, New York, and Washington, have thrived in light of such unique sovereignty arrangements. Brief of Amicus Curiae National Congress of American Indians Fund, in Support of Petitioner at 24–30. Finally, the National Indigenous Women’s Resource Center et al. (“NIWRC”), in support of McGirt, notes that Native American women and children suffer from a “crisis” of the highest rates of violence in the United States, and that Congress has passed federal laws to protect these citizens. Brief of Amici Curiae National Indigenous Women’s Resource Center et al., in Support of Petitioner at 11–13. Consequently, the NIWRC warns that disestablishing the Muscogee (Creek) Reservation would remove these protections and place vulnerable populations at risk. Id. at 28–30.

The City of Tulsa, in support of Oklahoma, responds that the Supreme Court’s ruling could place the vast majority of the city under Muscogee (Creek) sovereignty, subjecting its citizens to a new system of laws and practices. Brief of City of Tulsa at 27­–28. Such disruptions, Tulsa argues, would extend into a plethora of areas including taxation and land zoning. Id. at 31–34. Indeed, a Group of Oklahoma Trade Organizations, in support of Oklahoma, emphasize that “ranchers, farmers, oil and gas developers, and companies of all stripes” within the Muscogee (Creek) Nation’s traditional borders have relied for decades on Oklahoma’s laws and court system to order their affairs. Brief of Amici Curiae Environmental Federation of Oklahoma, Inc., et al., in Support of Respondent at 16, 30–31. Kansas and other western states (“Kansas”), in support of Oklahoma, emphasize that these complicated jurisdictional questions could impact tribal-state relations across the United States, not just in one state. See Brief of Amici Curiae States of Kansas et al., in Support of Respondent at 15. Finally, Kansas suggests that “reservation policing is in crisis,” and that a unified system of state prosecution helps to protect Native American women and children from domestic violence. Id. at 20.

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