The Supreme Court’s 5-4 decision in McGirt v. Oklahoma received less attention than two other decisions handed down the same day, which concerned whether President Trump is immune from congressional or state criminal investigation. But McGirt is a tremendously significant decision, especially for Native Americans and, ultimately, for anyone concerned with whether the United States must honor its past obligations.
McGirt asks whether a significant swath of land covering the eastern half of the state of Oklahoma is part of what federal law anachronistically refers to as “Indian country” — that is, Native American reservations where tribal governments retain considerable sovereign authority. The holding of McGirt is that this land, which has 1.8 million residents, most of whom are not Native American, is reserved land. Oklahoma must honor a treaty from nearly two centuries ago setting aside this land for Native peoples.
(Many federal statutes and other legal documents refer to Native Americans as “Indians,” and the opinions in McGirt are peppered with references to “Indians” and “Indian country.” Accordingly, many quotes in this article will also use those terms.)
The Court’s decision in McGirt, which was written by conservative Justice Neil Gorsuch and joined by his four liberal colleagues, has already produced its share of hyperbolic conclusions — some of them suggesting that the Supreme Court just ceded control of a good-size chunk of the United States.
The reality is much more nuanced. 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.
The case concerns Jimcy McGirt, a member of the Seminole Nation of Oklahoma who was convicted of rape in state court. McGirt’s crime took place within land that, according to Gorsuch’s majority opinion, is part of the Creek Reservation.
The fact that McGirt is a member of a tribe, and that his crime took place on a reservation, matter because of the federal Major Crimes Act (MCA). That law provides that “any Indian who commits” certain offenses “against the person or property of another Indian or any other person” is subject to “the exclusive jurisdiction of the United States” if that crime was committed “within the Indian country.”
Thus, Oklahoma lacks authority to try McGirt for raping someone on a Native American reservation. Only the federal courts may try such a crime.
On the surface, in other words, McGirt seems to involve a fairly minor issue. No one questions that McGirt may be convicted of rape. And no one questions that he can face a stiff penalty for such a conviction. The question is which court may try the case against him.
But in order to answer this question, the Supreme Court must determine whether McGirt’s crime did, indeed, occur on a reservation. And the answer to that question turns out to have significant implications.
The Muscogee (Creek) Nation had a great deal at stake in this case. As the Creek Nation noted in a brief to the Supreme Court, it “had no role in the genesis of this litigation, but now finds its Reservation under direct attack.” It elects its own government and operates its own court system. As Gorsuch’s opinion notes, it “operates a police force and three hospitals; commands an annual budget of more than $350 million; and employs over 2,000 people.”
McGirt, according to Riyaz Kanji, one of the authors of the Creek Nation’s brief, “will if anything enhance the Nation’s ability to offer robust governmental programs and services throughout the Reservation (both for Nation citizens and non-citizens).” By contrast, if McGirt had gone the other way, much of these services could have potentially been endangered.
McGirt is a case about whether the federal government must honor its obligations to Native Americans — but only up to a point
Gorsuch begins his opinion by referencing the Trail of Tears, an atrocity in 1838 during which the US government forced thousands of Native Americans out of their homes and ordered them to march more than 1,000 miles to relocate to Oklahoma. More than 4,000 victims of this act of barbarism died along the way.
Yet the federal government also sought to give this forced march a patina of legitimacy by entering into treaties with the displaced people. Under the terms of the United States’ treaty with the Creek Nation, that nation ceded, in an 1832 treaty’s words, “all their land, East of the Mississippi river” in return for a promise that “the Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.”
A subsequent 1833 treaty established the borders of Creek country, which it described as a “permanent home to the whole Creek nation.” The borders of Creek country were later reduced by a 1866 treaty.
As it turns out, the federal government’s promise to respect these new lands wasn’t worth very much. Congress made several incursions on the Creek people’s sovereign rights, many of which are detailed in Gorsuch’s opinion. Beginning in 1893, for example, the federal government started pressuring tribes to divide their land up into small, privately owned portions. Due to this pressure, the Creek people eventually agreed to allot the land into “160-acre parcels to individual Tribe members who could not sell, transfer, or otherwise encumber their allotments for a number of years.”
Much of this land has since been sold to people who are not Native American.
Moreover, in Lone Wolf v. Hitchcock (1903), the Supreme Court held that, in Gorsuch’s words, Congress “wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties.” The upshot of Lone Wolf is that Congress may wipe away its treaties with Indigenous peoples at any time, and it may dissolve a Native American reservation on a whim.
But despite its many incursions on the Creek people’s tribal sovereignty, McGirt concludes that Congress has never taken the ultimate step of dissolving its original treaty with the Creek people. That means that Creek lands remain a reservation — including the place where McGirt committed his crime.
And that means that McGirt must be tried in federal court.
So what does this mean for Oklahoma?
Kanji, the lawyer for the Creek Nation, told me that McGirt is unlikely to disrupt the lives of non-Native Americans. “Given the constraints that exist on the exercise of tribal jurisdiction over non-Indians on non-Indian land (even within Reservations),” Kanji predicted, McGirt “will not lead to a sea change in taxing or regulatory authority on the Reservation.”
Nevertheless, in its own brief, Oklahoma claimed that the state could face terrible consequences if the Supreme Court determines that half of its land is part of a reservation. “The State generally lacks the authority to tax Indians in Indian country,” that brief claims, “so turning half the State into Indian country would decimate state and local budgets.” Additionally, “all adoptions and custody disputes involving Indian children residing or domiciled within the 1866 boundaries would fall within the exclusive jurisdiction of tribal courts, even over both parents’ objections.”
In response to these fears, Gorsuch effectively replies that it doesn’t matter, because the law says what it says. “Dire warnings are just that,” he writes, “and not a license for us to disregard the law.”
In this sense, McGirt also resembles Gorsuch’s recent decision in Bostock v. Clayton County, which held that an existing ban on “sex” discrimination in employment extends to discrimination against LGBTQ workers.
At oral argument in Bostock, the conservative Gorsuch expressed concerns that, while he was sympathetic to the argument that the text of federal civil rights law points in a pro-LGBTQ direction, a federal ban on such discrimination could lead to “massive social upheaval.” Ultimately, however, Gorsuch ruled that the text of the law must control in Bostock. And so he ruled as well in McGirt.
It’s also far from clear that the state won’t be able to work out a deal with the Creek people and the other tribes that will benefit from the McGirt decision. In a joint statement released shortly after the decision was handed down, Oklahoma and the Native American nations said that they “are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights.”
So, while McGirt gives these tribes far more bargaining power in their effort to reach an agreement with the state, it is unlikely to throw half of Oklahoma in chaos. And it certainly does not mean that the Supreme Court “just gave away” half of a state, as Sen. Ted Cruz (R-TX) suggested.
But it does reveal a great deal about Gorsuch, who has made very clear that he cares little about the consequences of his decisions once he’s decided what the text of the law requires. On occasion, that leads him to form alliances with the Court’s liberal wing, as he did in Bostock and McGirt, even though his voting record remains quite conservative.
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