At the center of McGirt v. Oklahoma is Jimcy McGirt, a citizen of the Seminole Nation of Oklahoma. During these trials, Murphy argued that the language of the Oklahoma Enabling Act did not specify that the Native American reservations were disestablished, and because he had committed the murder within the Muscogee reservation territory, that his crime was subject to federal jurisdiction and not state under the Major Crimes Act. Id. Brief for Petitioner at 16; Brief for Respondent at 4. 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. at 24–25. Compared with members of other demographic groups, Native Americans endure extraordinarily high levels of violent crime and are more likely to report their attackers as belonging to a different demographic group than their own. McGirt appealed the OCCA’s decision. 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. 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. Meanwhile, the Oklahoma District Court of Wagoner County denied McGirt’s application for post-conviction relief. at 38–39. 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.
Gorsuch's opinion was seen to acknowledge that many of the promises that Congress had made to the Native Americans in turning over reservations have gone unfulfilled, and rejected the argument presented by the state and federal government that he summarized as: "Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. The 2010 Tribal Law and Order Act amended the ICRA to give tribes the power to sentence Native American defendants to not just one but up to three years per offense. McGirt was related to Sharp v. Murphy, 591 U.S. ___ (2020), heard in the 2018–19 term on the same question but which was believed to be deadlocked due to Justice Neil Gorsuch's recusal; Gorsuch recused because he had prior judicial oversight of the case. 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. The Department of Justice generally has a poor track record of prosecuting violent crimes against Native Americans. at 28. The state of Oklahoma prosecuted and convicted McGirt for several sex offenses. Consequently, the NIWRC warns that disestablishing the Muscogee (Creek) Reservation would remove these protections and place vulnerable populations at risk. at 28–29. Id.
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. McGirt also contends that the historical context surrounding congressional action supports the assertion that the Muscogee (Creek) Nation reservation was never disestablished. at 43. Roberts had cautioned in his dissent that this could stretch to include taxation, adoption, and environment regulation rights. The high numbers of violence against Native Americans by non-Native Americans is striking, considering tribes have no authority to punish such crime. Id. Both McGirt and the girl are enrolled members of the Seminole Nation. But … it’s going to be made up of Indians, right? at 3. See December 13, 2019 Order, McGirt v. Oklahoma, No. Because Congress has not said otherwise, we hold the government to its word. Id. 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. 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. 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. McGirt refutes the United States’ argument from Murphy that Congress ever gave Oklahoma criminal jurisdiction over Muscogee (Creek) Nation land. Id.
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.
Brief for Petitioner, Jimcy McGirt at 19.  There had been several decades of warfare and conflict during the 19th century over these lands between the Native Americans and the United States, including the Trail of Tears.  The former reservation lands, those of the Five Civilized Tribes as well as the other tribes in the state, were allocated into areas by tribe that were given suzerainty governing rights to the tribe to handle internal matters for Native Americans within the boundaries, but otherwise the state retained jurisdiction for non-Native Americans and for all other purposes such as law enforcement and prosecution.
Brief of Amicus Curiae Muscogee (Creek) Nation, in Support of Petitioner at 41.
at 7. 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. at 32.
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. That would be at odds with the Constitution, which entrusts Congress with the authority to regulate commerce with Native Americans, and directs that federal treaties and statutes are the 'supreme Law of the Land'. 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.
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. ", The Court's judgment reversed McGirt's denial for relief by the Oklahoma criminal court, which potentially would withdraw the state convictions and prosecute him anew in federal courts.
Oklahoma continues that even if “Creek country” were to have been considered a reservation at one point, Congress acted to disestablish it as such. Here’s why. at 22. Brief of Amici Curiae Seventeen Oklahoma District Attorneys and the Oklahoma District Attorneys Association, in Support of Respondent at 34. 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. Feb. 25) (2019); Gorsuch, joined by Ginsburg, Breyer, Sotomayor, Kagan, Roberts, joined by Alito, Kavanaugh; Thomas (except footnote 9), This page was last edited on 7 November 2020, at 13:58. at 46. Id. Id. Congress responded by passing the Major Crimes Act in 1885 — still in force today — which gives the federal government shared jurisdiction over a set of “major crimes” such as murder on tribal land. Sarah Deer (@sarahdeer) is a professor at the University of Kansas, citizen of the Muscogee (Creek) Nation of Oklahoma, and recipient of a 2014 MacArthur Fellowship and 2020 Carnegie Fellowship. The state of Oklahoma prosecuted and convicted McGirt for several sex offenses. 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. 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. at 38–39. McGirt… 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. Kevin Stitt (R), claim McGirt will disrupt Oklahoma’s criminal justice system and free dangerous criminals. At the time, about 1,900 of the prisoners in the Oklahoma system met these conditions, but only around 10% qualified for rehearings to transfer to the federal system as they were still within the statute of limitations. at 20. McGirt v. Oklahoma at 3. 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. He was transferred to a Muskogee County jail on Wednesday from the James Crabtree … Here's what you need to know about this new identity. ", Gorsuch siding with the four more liberal Justices in McGirt was seen to be a continuation of his textualist interpretation of the law, first presented in his majority decision related to LGBTQ and employment discrimination in Bostock v. Clayton County. Id. Id. See Brief of Amici Curiae States of Kansas et al., in Support of Respondent at 15. Kathleen Tipler (@ktipler47) is an assistant professor in political science at the University of Oklahoma. Id.  By 1906, the United States Congress passed the Oklahoma Enabling Act, which had been taken to disestablish the reservations, and enabling Oklahoma's statehood.
Brief of Amici Curiae Oklahoma Politicians, the Chickasaw Nation, and the Choctaw Nation, in Support of Petitioner at 5. Brief of Amicus Curiae City of Tulsa, in Support of Respondent at 29–31.
Brief for Respondent, State of Oklahoma at 8. Native American women are twice as likely to be raped or sexually assaulted than women from other demographic groups. From this point, argues Oklahoma, “Creek country” no longer qualified as a dependent Indian community, let alone a reservation. The Supreme Court subsequently granted certiorari to review the Tenth Circuit’s decision in Murphy.
With the passage of time, Oklahoma and its Tribes have proven they can work successfully together as partners. When the Tenth Circuit delivered its verdict on Murphy's case in 2017, McGirt was one of several convicts who had similar cases to Murphy's, Native American descendants that had been tried and convicted in state courts for crimes committed on lands that were part of the former reservations, who sought appeals based on the new ruling from the Tenth Circuit after the state denied him relief. at 49. Id.
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