Oklahoma Bar Journal
McGirt v. Oklahoma: A Primer
By Conor P. Cleary
In McGirt v. Oklahoma, the U.S. Supreme Court concluded that the reservation of the Muscogee (Creek) Nation has never been disestablished and remains in existence. The court’s holding has been extended to affirm the reservations of the Cherokee, Chickasaw,
Choctaw and Seminole nations as well.1 As a result, the state of Oklahoma does not have jurisdiction to prosecute crimes committed by Indians within the exterior boundaries of these reservations. Instead, such crimes must now be prosecuted in either federal or tribal court depending on the nature of the offense.
This article briefly summarizes the McGirt decision and is intended to provide helpful context for the other articles in this issue that discuss the meaning and impact of McGirt.2 It begins with a historical overview of the Five Tribes of Oklahoma, allotment of their tribal lands and Oklahoma statehood. It then summarizes criminal jurisdiction in Indian country as well as the Supreme Court’s reservation disestablishment jurisprudence. Finally, it analyzes the court’s majority opinion in McGirt, highlighting the key arguments central to the court’s ultimate holding.
A BRIEF HISTORY OF THE FIVE TRIBES, ALLOTMENT AND OKLAHOMA STATEHOOD
The Five Tribes of Oklahoma – the Cherokee, Chickasaw, Choctaw, Muscogee (Creek) and Seminole nations – historically resided in the southeastern United States. In the 1830s, they were forced to leave their homelands and journey on the Trail of Tears to the Indian Territory in present-day Oklahoma.3 Each tribe executed various treaties with the federal government that guaranteed lands in the Indian Territory for use as a permanent homeland. The Creek Nation’s treaties, for example, “solemnly guarantied” the land to “secure a country and permanent home to the whole Creek Nation of Indians.”4 As part of these treaty promises, the tribes each received a fee patent to their lands.5 After the Civil War, each of the Five Tribes executed a treaty with the United States that reduced their territories but preserved reservations for them.6
In the 1880s, the federal Indian policy of the United States changed from one granting tribes separate reservations to one of assimilation. The principal tool of the federal government was the policy of allotment whereby the collective and communal landholdings of the tribes were broken up, and individual tribal members received separate parcels of land.7 Although the Five Tribes were exempted from the first general allotment statute,8 within a few years, demographic and economic pressures9 in the Indian Territory led Congress to apply the allotment policy to the lands of the Five Tribes. Congress created the Dawes Commission in 1893,10 and in 1898, it passed the Curtis Act, which abolished the tribal courts and threatened the forcible allotment of tribal lands.11 To avoid the harshest effects of allotment provided for in the Curtis Act, each tribe negotiated an allotment agreement with the Dawes Commission. The commission created rolls of tribal citizens12 and proceeded to give each citizen an allotment of tribal lands pursuant to the terms of each tribe’s allotment agreement.13
In 1906, after most of the allotments had been completed, Congress passed the Five Tribes Act that provided for the final disposition of tribal affairs.14 It abolished all tribal taxes, closed tribal schools and directed the secretary of the Interior to distribute the tribes’ remaining monies to tribal members on a per capita basis.15 Importantly, however, the Five Tribes Act did not terminate the tribes’ existence or governments but expressly preserved and continued them “in full force and effect for all purposes authorized by law.”16 The next year, in 1907, Oklahoma was admitted to the Union as the 46th state.
CRIMINAL JURISDICTION IN INDIAN COUNTRY AND THE SUPREME COURT’S DISESTABLISHMENT JURISPRUDENCE
Under the Major Crimes Act, the federal government has jurisdiction exclusive of the states to prosecute a series of enumerated “major” crimes committed by Indians within “the Indian country.”17 As the statute’s terms make clear, a threshold question that must be answered is whether the crime occurred in “Indian country.” If the location of the major crime is within Indian country, prosecution must occur in federal court.18 But if an Indian commits a major crime outside Indian country, the state will have jurisdiction.19
Indian country is a statutory term defined in 18 U.S.C. §1151 as 1) all land within Indian reservations, 2) dependent Indian communities or 3) Indian allotments.20 In determining whether the federal or state government has jurisdiction to prosecute a major crime committed by an Indian, courts must often determine whether the situs of the crime is located within one of the three categories of Indian country.
A common argument made by those resisting federal criminal jurisdiction is that the crime did not occur in Indian country because the Indian reservation has been disestablished. Congress has the power to remove land from Indian country, but its intent to do so must be clearly expressed.21 When a court examines whether a statute disestablished a reservation, it considers three factors.22 Most important is the text of the statute at issue. Congress does not have to use magic words to disestablish a reservation, but it must “clearly express its intent to do so, commonly with an explicit reference to cession or other language evidencing the present and total surrender of all tribal interests.”23 Second, courts may consider the circumstances surrounding the passage of the statute at issue and the contemporaneous understandings of those at the time.24 Finally, courts can examine subsequent developments, particularly demographic statistics in the area.25 Importantly, though, the second and third factors should only be used to clarify the meaning of the statutory text, not as a substitute for it.26
MCGIRT V. OKLAHOMA
Jimcy McGirt, a citizen of the Seminole Nation,27 was charged and convicted in Oklahoma state court for the sexual abuse of a minor.28 The crime occurred in Wagoner County, within the boundaries of the Muscogee (Creek) Nation’s historic reservation. He challenged the state’s jurisdiction to prosecute him because he is an Indian, and his crime occurred in Indian country, specifically the Creek Nation’s Reservation. He argued, instead, that he should have been prosecuted in federal court pursuant to the Major Crimes Act. After the Oklahoma Court of Criminal Appeals affirmed his state court conviction, the Supreme Court granted certiorari and reversed.29
“On the far end of the Trail of Tears was a promise” now famously began Justice Gorsuch’s majority opinion.30 Emphasizing that the nation had been promised a reservation in a series of treaties with the United States, the court concluded that Congress had never clearly disestablished the reservation, and it remains in existence. As a result, McGirt’s crime occurred in Indian country, and the state of Oklahoma did not have jurisdiction to prosecute him.31 There are a few key arguments underlying the majority’s ultimate holding that the reader should appreciate.
First, the court concluded that the treaties between the nation and the United States granted the nation a reservation.32 Although some of the treaties did not expressly use the word “reservation” to describe the nation’s granted territory, the court concluded the language guaranteeing the nation a permanent homeland was sufficient to constitute a grant of a reservation.33 By affirming that the Five Tribes were granted reservations, the court dispensed with conventional wisdom that “Oklahoma is different,” and tribes in Oklahoma, particularly the Five Tribes, never had reservations.34
The court also rejected an argument advanced by the state that rather than having a reservation, the nation’s lands were instead a dependent Indian community, another category of Indian country enumerated in the statutory definition.35 The state’s argument was premised on the fact that the Five Tribes had received fee patents to their lands rather than the traditional arrangement where the United States holds title to reservation lands in trust for the benefit of the Indian tribe.36 The court found this argument unpersuasive for two reasons. One, the court reasoned that the nation’s fee title to its lands, if anything, strengthened its claim to a reservation.37 It would be a perverse result if the Five Tribes’ fee title to their lands somehow resulted in less protection. Two, because dependent Indian communities are also Indian country, it was unclear what Oklahoma would gain by demonstrating that the nation’s lands were dependent Indian communities instead of reservations. The subtext of the state’s argument seemed to be that dependent Indian communities are easier to disestablish than reservations, a proposition the court rejected.38
Second, the court refined its disestablishment analysis, singularly focusing on whether any statutory text clearly expressed an intent to disestablish the reservation.39 Rather than being a discrete, three-part analysis, the court reasoned that because only Congress may disestablish a reservation, examination of the statutory text was the only “step.”40 To be sure, the court noted it could “consult contemporaneous usages, customs, and practices” but only if the statute is ambiguous.41 The court emphasized, however, it could not “favor contemporaneous or later practices instead of the laws Congress passed.”42
Although there was no single statute the state of Oklahoma could point to disestablishing the reservation, it argued that a series of statutes that eroded tribal sovereignty and institutions in effect resulted in disestablishment.43 Similarly, Chief Justice Roberts’s dissent argued the majority failed to appreciate that the court’s disestablishment inquiry is a “highly contextual” one that considers not just the relevant acts passed by Congress but “the contemporaneous understanding of those Acts as well as the subsequent understanding of the status of the reservation and the pattern of settlement there.”44 The majority was unpersuaded and rejected the state and dissent’s evidence not as contextual but as “extratextual.”45 Emphasizing that “Oklahoma does not point to any ambiguous language in any of the relevant statutes,” the majority concluded consideration of contemporaneous understandings and subsequent developments was improper.46
Finally, the court found warnings of potential consequences of its decision unpersuasive. Principally, the court felt that “dire warnings are just that, and not a license for us to disregard the law.”47 It also pointed to compacts the state and tribes have previously entered addressing a variety of issues and emphasized that Congress is free to alter the allocation of criminal jurisdiction. The court did leave open the possibility of “reliance interests” and similar legal doctrines being a barrier to future assertions of federal or tribal jurisdiction but left those questions “for later proceedings crafted to account for them.”48
In light of McGirt and its progeny, the state of Oklahoma lacks jurisdiction to prosecute crimes committed by Indians within the reservations of the Five Tribes. Major crimes committed by Indians must be prosecuted in federal court, while lower-level offenses committed by Indians will be prosecuted in tribal court.
Author’s Note: The views expressed are those of Mr. Cleary and do not necessarily represent the views of the Department of the Interior or the United States government.
ABOUT THE AUTHOR
Conor P. Cleary is the field solicitor for the U.S. Department of the Interior. He has an LL.M. in American Indian and Indigenous Law from the TU College of Law and a J.D. from the OU College of Law.
- See Hogner v. State, __ P.3d __, 2021 WL 958412 (Mar. 11, 2021) (Cherokee Reservation); Bosse v. State, __ P.3d __, 2021 WL 4704316 (Okla. Crim. App. Oct. 7, 2021) (Chickasaw Reservation); Sizemore v. State, 485 P.3d 867 (Okla. Crim. App. 2021) (Choctaw Reservation); Grayson v. State, 485 P.3d 250 (Okla. Crim. App. 2021) (Seminole Nation); The Muscogee (Creek) Nation, Cherokee Nation, Chickasaw Nation, Choctaw Nation and Seminole Nation are often referred to as the Five Civilized Tribes. This article will refer to them as the Five Tribes.
- The opinions about the meaning and impact of McGirt expressed in other articles in this issue do not necessarily represent the views of the Department of the Interior or the United States Government.
- See McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020).
- Treaty With the Creeks, Art. XIV, Mar. 24, 1832, 7 Stat. 366, 368; Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418.
- McGirt, 140 S. Ct. at 2475.
- See, e.g., Treaty with Choctaw and Chickasaw, Apr. 28, 1866, 14 Stat. 769; Treaty with the Creek Indians, Jun. 14, 1866, 14 Stat. 785.
- McGirt, 140 S. Ct. at 2463.
- The first general allotment statute was the General Allotment Act (sometimes known as the Dawes Act) in 1887. See 24 Stat. 388. The exception of the Five Tribes from the General Allotment Act stemmed from a belief that because the tribes owned their lands in fee, the federal government did not have the power to forcibly allot their lands. See McGirt, 140 S. Ct. at 2463.
- In 1887, for example, a report from the commissioner of Indian Affairs estimated the population of the Indian Territory was approximately 100,000, two-thirds of who were Indian. Just three years later, the proportions had reversed, and the same report estimated the population of Indian Territory to be over 200,000, two-thirds of who were white. These demographic changes were precipitated by rapid economic and industrial developments – principally, the construction of railroads and the discovery of coal – that attracted whites to the Indian Territory. See H. Craig Miner, The Corporation and the Indian (1989).
- See Act of March 3, 1893, chap. 209, §16, 27 Stat. 612, 645.
- Ch. 517, 30 Stat. 495 (June 28, 1898).
- There were separate roles for Indians by blood, intermarried white citizens and freedmen (descendants of African Americans enslaved by the tribes).
- See, e.g., Cherokee Allotment Agreement, chap. 1375, 32 Stat. 716 (July 1, 1902); Seminole Allotment Agreement, ch. 542, 30 Stat. 567 (July 1, 1898).
- Five Tribes Act, chap. 1876, 34 Stat. 137 (April 26, 1906).
- Id., §11, 17, 34 Stat. at 141, 143-44.
- Id., §28, 34 Stat. at 148.
- See 18 U.S.C. §1153. The Major Crimes Act applies only where the alleged perpetrator of the major crime is Indian. But it is not the only statute pertaining to criminal jurisdiction in Indian country. Jurisdiction to prosecute non-major crimes committed by Indians, for example, as well as crimes committed by non-Indians against Indian victims is addressed by other statutes. See, e.g., Indian Country Crimes Act, 18 U.S.C. §1152. On the other hand, states have jurisdiction to prosecute crimes committed by non-Indians against non-Indians, including in Indian country. See U.S. v. McBratney, 104 U.S. 621, 624 (1882). The court also recently granted a petition for a writ of certiorari to consider whether states have jurisdiction to prosecute non-Indians for crimes committed against Indians within Indian country. See Oklahoma v. Castro-Huerta, cert. granted, No. 21-429 (Jan. 21, 2022). Determining whether the federal, state or tribal government has jurisdiction in any given case is a complicated inquiry that depends on the identities of the perpetrator and victim and the nature of the offense. A complete discussion of criminal jurisdiction in Indian country is beyond the scope of this article. For a summary of the allocation of criminal jurisdiction in Indian country, the U.S. Department of Justice has assembled a helpful chart. See www.justice.gov/usao-wdok/page/file/1300046/download (last accessed Oct. 27, 2021).
- One exception to this rule is in so-called “Public Law 280” states where a federal statute has given certain states jurisdiction over crimes committed by or against Indians within Indian country. See 18 U.S.C. §1162. Oklahoma is not a Public Law 280 state. Additionally, although this article characterizes federal jurisdiction under the Major Crimes Act as exclusive, the Supreme Court has not definitively decided whether tribes have concurrent jurisdiction to prosecute the Indian offender. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 203 n.14 (1978). In practice, however, prosecutions under the Major Crimes Act almost exclusively occur in federal court because the Indian Civil Rights Act limits the power of tribal courts to sentence offenders to no more than three years imprisonment per offense and in no event more than nine years total. See 25 U.S.C. §1302(a)(7)(C)-(D).
- See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49 (1973). This principle is not limited only to major crimes. States have exclusive jurisdiction over crimes committed by or against Indians outside of Indian country unless there is some other basis for federal jurisdiction, such as a statute making the conduct at issue a federal crime.
- The complete definition of Indian country is “(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.” 18 U.S.C. §1151(a)-(c).
- See McGirt, 140 S. Ct. at 2463.
- See Solem v. Bartlett, 465 U.S. 463, 470-72 (1984).
- McGirt, 140 S. Ct. at 2463 (cleaned up).
- Id. at 2468.
- Id. at 2468-69.
- Id. at 2459. Although McGirt was not a member of the tribe on whose reservation he committed his crime, that factor is irrelevant. Under the Major Crimes Act, the federal government has criminal jurisdiction over any Indian committing a major crime within Indian country. For non-major crimes committed by Indians within Indian country, the tribal court will most often have jurisdiction. Although the U.S. Supreme Court initially ruled that tribal courts do not have jurisdiction over nonmember Indians, Duro v. Reina, 495 U.S. 676, 679 (1990), Congress overruled that holding via an amendment to the Indian Civil Rights Act, and the court subsequently upheld Congress’ power to restore tribal courts’ power to adjudicate crimes committed by tribal members and nonmembers alike. See U.S. v. Lara, 541 U.S. 193, 210 (2004).
- McGirt, 140 S. Ct. at 2459.
- Id. at 2459-60, 2482. In an earlier case, the 10th Circuit Court of Appeals ruled the Muscogee (Creek) Reservation had never been disestablished. Murphy v. Royal, 875 F.3d 896, 907–909, 966 (2017). The Supreme Court originally granted certiorari to review the 10th Circuit’s decision. However, Justice Gorsuch was recused from that case, and the court was unable to reach a decision, likely because it deadlocked 4-4. After the Oklahoma Court of Criminal Appeals’ decision in McGirt’s appeal, the Supreme Court again granted certiorari to resolve the contrary results reached by the 10th Circuit and Oklahoma court.
- Id. at 2459.
- McGirt was subsequently prosecuted and convicted in federal court and sentenced to life in prison.
- Id. at 2460, “Start with what should be obvious: Congress established a reservation for the Creeks.”
- Id. at 2461, “These early treaties did not refer to the Creek lands as a ‘reservation’ … [b]ut we have found similar language in treaties from the same era sufficient to create a reservation.” (citation omitted).
- None other than the great Indian law historian Father Francis Paul Prucha declared “[t]here are no Indian reservations in Oklahoma” and “the reservation experience that was fundamental for most Indian groups in the twentieth century was not part of Oklahoma Indian history.” Prucha, The Great Father 262 (abridged ed., 1986).
- McGirt, 140 S. Ct. at 2474. Although the United States also argued the Muscogee (Creek) Reservation had been disestablished, it did not endorse the state’s argument that the Creek Nation lands were a dependent Indian community rather than a reservation. See id., “The Solicitor General, who supports Oklahoma's disestablishment argument, refuses to endorse this alternative effort.”
- Id. at 2475.
- Id. at 2474.
- Id. at 2468. Also underscoring the need for a clear expression of congressional intent was the fact that the reservations were guaranteed by treaty. See id. at 2473 n.14 (characterizing extratextual evidence as “thin gruel to set against treaty promises”).
- Id. (emphasis in original).
- Id. at 2465-68. Typically, the court examines a single statute’s text and determines whether the statute disestablished the reservation. Statutes disestablishing a reservation must use unequivocal language. For example, a statute whereby a tribe agrees to “cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation” is sufficient to disestablish a reservation. See DeCoteau v. District Court, 420 U.S. 425, 439 n.22 (1975) (also collecting examples of other statutes). In McGirt, the state argued that multiple statutes in their totality resulted in disestablishment.
- Id. at 2485 (Roberts, C.J., dissenting).
- Id. at 2469.
- Id. at 2468; see also id. at 2469, “To avoid further confusion, we restate the point. There is no need to consult extratextual sources when the meaning of a statute's terms is clear. Nor may extratextual sources overcome those terms.”
- Id. at 2481.
Oklahoma Bar Journal – OBJ 93 Vol 3 (March 2022)