Introduction
Among the most egregious acts the United States has carried out on Native Americans was the Trail of Tears. In pursuit of clearing native populations out of Florida and other southern states, the federal government relocated 15,000 Creek Native Americans to Oklahoma.[1] The Creek tribe was forced to make the trek on foot where only three-quarters of the tribe would survive this journey.[2] Creek tribe members still mourn the loss of their ancestral land and remember the injustices the tribe has suffered.[3] After a history of losses and bad blood, the Creek tribe was able to celebrate a much deserved victory in the McGirt v. Oklahoma ruling.[4] In a 5-4 decision, the Supreme Court of the United States in McGirt v. Oklahoma ruled that about half of the land in Oklahoma is a Native American reservation.[5] While this ruling came as a shock to most, a quick search into the earlier treaties of the United States revealed that the Supreme Court’s decision was not a novel idea. The Court is simply upholding an 1833 Treaty that granted a “permanent home for the whole Creek Nation of Indians.”[6] This treaty promised that the United States “’would grant a patent, in fee simple, to the Creek nation of Indians for the [assigned] land’ to continue ‘so long as they shall exist as a nation, and continue to occupy the country hereby assigned to them.’”[7] A Treaty in 1856 promised that “’no portion’” of Creek lands ‘would ever be embraced or included within, or annexed to, any Territory or State,’… and that the Creeks would have the ‘unrestricted right of self-government,’ with ‘full jurisdiction’ over enrolled Tribe members and their property.”[8] Only Congress has the power to diminish or disestablish a federal reservation and doing so requires “a clear expression of congressional intent.”[9] As no such Congressional acts have been made, the Creek reservation persists today. Oklahoma state courts operated as if the Creek reservation had been disestablished and did not abide by the jurisdictional guidelines of the reservation.[10] This decision is tallied as a win for the members of the Creek tribe, but it presents a variety of jurisdictional issues.
McGirt v. Oklahoma
Jimcy McGirt, a member of the Creek Tribe, was convicted of sex crimes against a child in Oklahoma state court[11]. In postconviction proceedings, McGirt argued that the State did not have proper jurisdiction to prosecute McGirt because he is a member of the Seminole Nation of Oklahoma and his crimes took place on the Creek Reservation.[12] McGirt’s argument is supported by the Major Crimes Act which provides that, “within ‘the Indian country, any Indian who commits’ certain enumerated offenses ‘shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States.”[13] When applied, the Major Crimes Act gives the federal court jurisdiction to prosecute tribe members for serious crimes that that are committed on the reservation, and all other offenses committed by tribe members on the reservation are to be tried by tribal courts.[14] McGirt appealed to the Supreme Court seeking a new trial that he argued should take place in federal court, not Oklahoma state court.[15]
Oklahoma presented the Court with a multitude of arguments as to why McGirt was incorrect in asserting that his crimes took place on a Creek Reservation.[16] McGirt claimed that the land was granted to the Creek Tribe in a treaty and it was never explicitly disestablished by Congress, therefore it persists today.[17] The State countered by arguing that the language of the treaty was insufficient and did not ever establish a reservation, or alternatively that the reservation was disestablished decades ago.[18] With very little legal basis to their arguments, the majority opinion rejected each argument raised by the State.[19] The majority instead took a very cut and dry analysis to this case. The Court dissected the language of the original treaties that granted the land to the tribe and confirmed that the reservation was indeed established.[20] Next, the Court determined that at no point had Congress explicitly disestablished the reservation and concluded that, “because Congress has not said otherwise, we hold the government to its word.”[21] The majority emphasized that the United States made a promise to the tribe by granting the reservation, and it cannot break that promise simply because it is convenient.[22]
Jurisdictional Implications
The Supreme Court’s holding comes with major implications in the jurisdictional power of the Oklahoma state court. The state court now lacks the jurisdiction to prosecute serious crimes and misdemeanors that are committed on the reservation.[23] Serious crimes enumerated in the Major Crimes Act and committed by tribe members on the reservation will be prosecuted by the federal courts, and minor crimes will be handled by tribal courts.[24] This jurisdictional arrangement is common and used in other states such as Arizona and New Mexico.[25] Additionally, this ruling puts decades of prior state convictions at issue for lack of jurisdiction.[26] Presently, the Attorney General of Oklahoma has filed a brief to the Oklahoma Court of Criminal Appeals seeking guidance how to proceed with the many cases that are affected by the McGirt ruling.[27] Deciding how to handle the plethora of appeals that will inevitably result from this ruling is no small task. There is no doubt that however the Attorney General decides to handle the appeals and pending convictions, an enormous workload will result. To echo the sentiment of the majority’s opinion, the United States made a promise to the members of the Creek tribe and to go back on its word simply because fulfilling that promise will create an inconvenience or even considerable work is wrong. The members of the Creek tribe deserve to have their cases heard by the proper court, no matter how difficult the logistics may be.
Conclusion
The Supreme Court’s decision in McGirt v. Oklahoma to honor a treaty from 1833 that recognized more than half of Oklahoma as an Indian reservation took many by surprise. The Supreme Court reached their conclusion through a simple analysis of the treaty, and felt it was their duty to uphold the promises made in 1833.[28] As a result, the Oklahoma court system may be overwhelmed by appeals and hearings from tribe members who were convicted in a court that had no jurisdiction over them. In keeping with the promises made so many years ago, the Oklahoma state court should honor any valid appeals and allow every citizen in the United States a fair chance at justice.
FOOTNOTES
[1] Trail of Tears, HISTORY.COM, https://www.history.com/topics/native-american-history/trail-of-tears (last visited July 15, 2020).
[2] Id.
[3] Joy Harjo, After a Trail of Tears, Justice for ‘Indian Country’, N.Y. TIMES, https://www.nytimes.com/2020/07/14/opinion/mcgirt-oklahoma-muscogee-creek-nation.html (last visited July 15, 2020).
[4] McGirt v. Oklahoma, 591 U.S. ___ (2020).
[5] Laura Wamsley, Supreme Court Rules That About Half of Oklahoma Is Native American Land,
NPR, https://www.npr.org/2020/07/09/889562040/supreme-court-rules-that-about-half-of-oklahoma-is-indian-land (last visited July 15, 2020).
[6] McGirt supra note 4.
[7] Id. at 4.
[8] Id. at 1.
[9] Id.
[10] Id.
[11] Id. at 2.
[12] Id.
[13] Id.
[14] Id. at 36.
[15] Id. at 1.
[16] Id.
[17] Id.
[18] Id. at 28.
[19] Id. at 42.
[20] Id. at 30.
[21] Id. at 1.
[22] Id. at 42.
[23] Debra Cassens Weiss, SCOTUS rules for prose petitioner in tribal case that could upend hundreds of convictions, ABA JOURNAL, https://www.abajournal.com/news/article/supreme-court-decides-whether-part-of-oklahoma-is-a-tribal-reservation (last visited July 15, 2020).
[24] McGirt supra note 4.
[25] Wamsley, supra note 5.
[26] McGirt supra note 4.
[27] Alex Gerszewski, Attorney General Hunter Prepares Brief with Court of Criminal Appeals Seeking Guidance on Cases Affected by the McGirt Decision, OKLAHOMA ATTORNEY GENERAL, http://www.oag.ok.gov/attorney-general-hunter-prepares-brief-with-court-of-criminal-appeals-seeking-guidance-on-cases-affected-by-the-mcgirt-decision (last visited August 3, 2020).
[28] Id.