April 2021 Māori Law Review
Ngā ture o ngā iwi taketake – wishes are not laws – McGirt v Oklahoma – one of the most important US Supreme Court cases of all time?
McGirt v Oklahoma
Supreme Court of the United States 140 S.Ct 2452 (2020)
9 July 2020
Stephen Young discusses the United States Supreme Court case of McGirt v Oklahoma, where the State of Oklahoma was found not to have jurisdiction to convict Jimcy McGirt for crimes committed on a Creek Reservation.
Timatanga kōrero - Introduction
In July 2020, the United States Supreme Court held that a significant portion of eastern Oklahoma, a state in the United States of America, remains Indian Country. By a 5-4 decision, it held that Congress never disestablished the Muscogee Creek Reservation, which, along with other reservations, covers approximately 19 million acres, or for context, an area equivalent to one-fifth of the landmass of Aotearoa New Zealand. This case attracted significant attention. TulsaWorld, a newspaper from Tulsa, Oklahoma, reported that it “is the most important decision in Oklahoma history in terms of sovereignty for the state of Oklahoma and sovereignty for the five tribes”.[1] For The Atlantic, Julian Brave NoiseCat wrote that McGirt v Oklahoma “might be one of the most important Supreme Court cases of all time”.[2]
This case note describes why McGirt is significant, but also why it might not be “one of the most important Supreme Court cases of all time”. Justice Gorsuch, a Trump appointee, authored the majority decision, which Justices Ginsburg, Beyer, Sotomayor and Kagan joined. Chief Justice Roberts authored the dissent, which Justices Alito and Kavanaugh joined. Justice Thomas agreed with the dissent but authored a separate opinion. Although the result of McGirt is beneficial for the tribes and there is an abundance of modish rhetoric, the method of arriving at that decision has raised eyebrows. As NoiseCat notes, “what is most intriguing is the way the Court arrived at this decision. Gorsuch, a westerner with experience in Indian law, who is no liberal, applied a conservative textualist approach to the reading of treaty law and statutes.”[3]
At issue in McGirt is the State of Oklahoma’s jurisdiction to convict Jimcy McGirt. To understand the claim, why it is so significant, and why the legal method of the majority might be problematic requires some familiarity with the background of the case as well as United States Federal Indian Law.
Kōrero whānui - Background
In 1997, the State of Oklahoma convicted and sentenced Mr McGirt to 1,000 years plus life in prison for, what the Court calls, “serious sexual offenses.”[4] Following a 10th Circuit decision, Murphy v Royal,[5] McGirt raised a pro se appeal of his conviction. On appeal to the United States Supreme Court, Murphy was left undecided, and it is presumed that the Justices came to a 4-4 conclusion after Justice Gorsuch recused himself.[6] Mirroring the Murphy litigation, McGirt argued that the State of Oklahoma did not have jurisdiction to try or convict him, because the federal Major Crimes Act 18 USC § 1153 (‘MCA’) provides the Federal Government with the exclusive jurisdiction for all major crimes on Indian Country. Hence, when appealed through Oklahoma’s court system to the Supreme Court, the McGirt decision also resolved Murphy.
In some sense, McGirt’s argument is somewhat like the defendant’s argument in Berkett v Tauranga District Court.[7] In both, a criminal defendant argued that a state lacks jurisdiction to prosecute them. The main difference between these cases is the existence of a federal structure. Based on the 10th Circuit’s holdings in Murphy, McGirt argued that the State of Oklahoma did not have jurisdiction because the Federal government did, as codified in the MCA. The overarching question was not, like Berkett, whether the courts have jurisdiction over an Indigenous person, but whether McGirt’s criminal actions were on a reservation and, therefore, under exclusive federal jurisdiction. Whether McGirt’s acts occurred on a reservation and would therefore fall under federal jurisdiction involves a complex and fraught history.
In 1832, the Creek Nation entered into a Treaty with the United States. Essentially, the Creek and several other tribes were forced to exchange their ancestral lands in current day Georgia and Alabama with lands “west of the Mississippi”.[8] The United States’ forced removal of the Muscogee Creek, along with the Cherokee, Seminole, Chickasaw, Choctaw and Ponca peoples to (contemporary) northeastern Oklahoma is infamously known as the Trail of Tears. In 1856 and 1866, the United States entered into treaties with the Creek Nation, which promised them a “permanent home” and a right of self-government, but reduced the size of land set aside for the Creek.[9] The jurisdictional issues in McGirt revolve around the consequences of those treaties, as well as some late 19th Century legislation that subsumed tribes to Congressional Plenary powers (United States terminology that is akin to ‘parliamentary sovereignty’). It developed through a series of Acts and cases that are directly relevant to McGirt.
In 1883, the Supreme Court ruled that the federal government did not have jurisdiction to try a Native American man accused of murdering another on a reservation.[10] In response, Congress passed the MCA in 1885 to give the federal courts jurisdiction over ‘major crimes’, including Indian-on-Indian crimes on Indian Country, which includes on reservations. In US v Kagama, the Supreme Court affirmed Congress’ plenary authority to pass that legislation.[11] The decision created Congressional Plenary power over Indian tribes on the basis that tribes are domestic dependent nations, as Cherokee Nation established.[12] That enabled Congress to pass the General Allotment Act or “Dawes Act” in 1887. The ‘plenary power’ of Congress was upheld in Lone Wolf v Hitchcock, finding that Congress has the unilateral authority to abrogate treaty obligations with tribes.[13] It held that the “authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the juridical department of the government”.[14]
McGirt argued that his criminal action occurred on a reservation and was, therefore, subject to the Federal jurisdiction. That argument is consistent with the legal history of the United States’ subsuming of tribes to Congress’s plenary authority. The main question was whether Mr McGirt’s actions occurred on a reservation or the Reservation was somehow disestablished so that the MCA would not apply in Oklahoma.[15]
The parties did not dispute that McGirt’s crimes were committed on lands described as the Creek Reservation in treaties and statute,[16] or that “Indian Country” includes “all land within the limits of any Indian reservation”.[17] However, if a reservation has been diminished, then land owned by non-members within the historic boundaries of a reservation is no longer Indian Country. Similarly, land is no longer considered Indian Country where a reservation has been entirely disestablished. The dispute in McGirt is whether the lands described as the Creek Reservation under the treaties and federal statute are reservation lands today and, hence, considered Indian Country for purposes of the MCA. If those lands remain Creek Reservation, then the MCA applies and the State of Oklahoma did not have jurisdiction to prosecute Mr McGirt for his crimes.
The McGirt Case
Writing on behalf of the Court, Justice Gorsuch notes that multiple treaties established the Creek Reservation and, in an analysis that is consistent with Kagama and Lone Wolf, states that only Congress has the power to abrogate treaties or break promises enacted in legislation.[18] The Court also noted precedent that Congress must legislatively express its intention to disestablish a reservation.[19] This indicates that without legislation expressing Congress’s intention to disestablish the Reservation, the Creek Reservation exists, and the State of Oklahoma did not have jurisdiction to prosecute Mr McGirt.
After holding that the relevant legislation had not explicitly disestablished the Creek Reservation the Court considered Oklahoma’s six counter-arguments. The first four revolved around the establishment or disestablishment of the Creek Reservation, while the final two focused on the MCA. The Court did not accept any of them.
Oklahoma’s first argument was that when Congress passed the Allotment Acts, including the Dawes Act, it forced the tribes to abandon their communal lifestyles and parceled lands into smaller lots. Allotment occurred in the 1890s and early 1900s, which is after the relevant treaties. But the Court held that passing laws for allotment failed to disestablish the Creek Reservation.[20] For Justice Gorsuch, allotment laws provided tribal members with the ability to sell lands and opened reservations to settlement. Importantly, the statutes at issue do not state that the reservation is disestablished. Even if allotment was the first step in a plan that “ultimately aimed at disestablishment”, Gorsuch writes “wishes are not laws, future plans aren’t either. Congress may have passed allotment laws to create the conditions for disestablishment. But to equate allotment with disestablishment would confuse the first step of a march with arrival at its destination.”[21]
Oklahoma’s second argument was that Congress intruded on Indian rights when it abolished tribal courts and cut away their autonomy, which was claimed as proof of disestablishment.[22] The Court agreed that Congress had intruded on those rights, but those intrusions do not necessarily or fully eliminate tribal interests in land or disestablish a reservation.[23] Throughout the early 1900s, the United States cut away at the Tribe’s authority, but by the 1930s Congress authorised the Creek to adopt a constitution and bylaws, which the Creek did.[24] That matters as it shows how the history of Tribal and United States relations is more complicated than Oklahoma or the dissent maintain. At one time, Congress explicitly pursued tribal termination, but the Federal government later embraced Tribal self-determination without termination. Since then, the Creek Nation has ratified a new constitution and established a self-governing democracy within the United States.[25] Congress did not dissolve the Tribe or disestablish the Reservation even if, at times, the United States took steps towards disestablishment of the Reservation and termination of the Tribe.
Oklahoma’s third argument was that historical and demographic practices prove disestablishment of the Reservation.[26] Essentially, Oklahoma argued that after the formation of the State of Oklahoma, people did not act or believe that the Reservation existed. The problem for the Court, as Justice Gorsuch articulated, is that those extratextual considerations are irrelevant since they should only be considered when statutes are ambiguous. Here, the terms of the statutes are clear.[27] So even if some people or a majority of the population believed that the Creek Reservation was disestablished and that Oklahoma has always disregarded the authority of the MCA, or that now there is a “vibrant city with expanding aerospace, healthcare, technology, manufacturing and transportation sectors”, that does not mean the Reservation is gone.[28] Oklahoma overstepped its authority in not applying the MCA, white people moved onto the Reservation, and Creek believed the United States threatened their Reservation. These events, however, never disestablished the Reservation.[29]
Oklahoma’s fourth argument was that Congress never established a reservation. Instead, Congress created a “dependent Indian community” when it granted the tribe fee simple rather than inalienable land.[30] Even if Congress granted the tribe fee simple rather than inalienable land, the Court maintained that granting fee simple in lands would still be Indian Country and that there are no required words to establish a reservation.[31] Furthermore, to believe otherwise would “require us to stand willfully blind before a host of federal statutes” recognising the status of the Reservation.[32]
The fifth and sixth arguments were not about the status of the Reservation but focused on whether the MCA applied in Oklahoma. The fifth argument is that the MCA, as a practical matter, never applied in Oklahoma due to the language of the Oklahoma Enabling Act of 1906 (the Act that formed the State).[33] Oklahoma argued that enforcing it now would create a gap in jurisdictional powers between federal/state/tribal jurisdictions. On the contrary, the Court held that the MCA applied when Oklahoma achieved statehood, even if Oklahoma never complied with it.[34]
Oklahoma’s sixth and final argument was a policy argument.[35] It argued that enforcing the MCA now would unsettle an untold number of convictions and it would frustrate the State’s ability to prosecute crimes. It also argued that if the Court found that Congress had not disestablished the Reservations, other tribes might seek to enforce treaty promises and that almost half of Oklahoma’s non-Indian residents might, without their knowledge, be living on an Indian Reservation. The Court did not find these arguments persuasive. Regarding the majority of convictions, Justice Gorsuch wrote that the vast majority of convictions will not be affected, and the “thousands” of convictions the State is concerned about is speculative. The State did not produce information on how many convictions were at stake, and “many defendants may choose to finish their state sentences rather than risk reprosecution in federal court where sentences can be graver”.[36] Additionally, the State’s “dire warning” does not provide a “license for us to disregard the law”.[37] Instead, “the magnitude of a legal wrong is no reason to perpetuate it”.[38] If problems arise from this decision, then tribes can work with states and enter into agreements with them to overcome them, and “should agreement prove elusive, Congress remains free to supplement its statutory directions about the lands in question at any time”.[39]
Essentially, the Court held that the State of Oklahoma (as well as the dissenters) did not point to any Congressional language disestablishing the Reservation. Therefore, the Creek Reservation still exists. Justice Gorsuch wrote:[40]
To determine whether a tribe continues to hold a reservation, there is only one place we may look: the Acts of Congress … [T]he Legislature wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties … But that power, this Court has cautioned, belongs to Congress alone.
States cannot reduce federal reservations, as that would be unconstitutional, and neither can courts.[41] As such, because the Creek Reservation has not been disestablished, only the Federal government has jurisdiction to prosecute Mr McGirt under the MCA.
Justice Gorsuch ends the Court’s decision with a compelling final paragraph:[42]
The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation … But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.
Chief Justice Roberts’ dissent (Justices Alito, Kavanaugh and Thomas joining) seeks to convince readers that the Court’s decision employs questionable legal interpretive methodologies. The dissent believes the Court has hobbled the prosecution of serious crimes, will require convictions to be thrown out, and “unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation”.[43] For Roberts, the truth is simple: “What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation.”[44] For the dissent, wars fought between tribes and the United States were followed by settlement and the establishment of the State of Oklahoma, which dismantled tribal governments and extinguished the Creek Nation’s title to the lands.[45] The dissenters declare:[46]
… Congress made no secret of its intentions. It created a commission tasked with extinguishing the Five Tribes’ territory and, in one report after another, explained that it was creating a homogenous population led by a common government.
Under this view, allotment and the processes of state-formation disestablished the Reservation. In adopting this purposive approach, the dissent accuses the Court of “viewing each of the statutes enacted by Congress in a vacuum”.[47] No sole act disestablished the Creek Reservation, but “all of the relevant Acts of Congress together, viewed in light of contemporaneous and subsequent contextual evidence, demonstrate Congress’ intent to disestablish the reservation”.[48] Roberts continues, “there is no ‘magic words’ requirement for disestablishment”, and “we recognize that the language Congress uses to accomplish its objective is adapted to the circumstances it confronts”.[49] Allotment sought to integrate the Creek Nation within a new political community, the state of Oklahoma, which terminated the Reservation.[50] With this integration, Oklahoma had grounds for prosecuting McGirt.
The dissent believes there are several reasons why it is a “fantasy” that Congress did not “complete” disestablishment.[51] It considered Congressional intention and Tribal understandings of Congress’s intent by pointing to evidence produced by the Dawes Commission. There, some tribal representatives believed that allotment sought to “wipe out the line of political distinction between an Indian citizen and others”.[52] Additionally, for the dissent, the Court assumes that the State “overstepped its authority” in prosecuting cases that should have been under federal jurisdiction.[53] However, the dissent views that stance as problematically undermining the presumption that government officials comply with the law, and the dissent found it difficult to believe that the Tribes never raised this issue.[54] Lastly, considering the subsequent treatment of the area in question, the State’s unquestioned exercise of jurisdiction “confirms that the Creek reservation did not survive statehood”.[55] To support this view, the dissent cites Felix Cohen (original author of the Handbook of Federal Indian Law),[56] tribal leaders, as well as precedent saying that the Creek Reservation no longer exists or there are “‘former’ lands of the Creek Nation”.[57] Lastly, the dissent is concerned with the “thousands” of State prosecutions for major crimes that the Court downplays.[58]
Justice Thomas joined the dissent but authored a sole opinion to point out that the federal court does not have jurisdiction to review adequate and independent state criminal matters when the matters were not raised at trial.[59]
Kōrerorero - Discussion
There are many interesting aspects of this very complex case. McGirt is remarkable, in part, because it occurred within a United States context that is mired in racial injustices stemming from overt as well as structural racism and policing. That context, however, is not addressed in McGirt. Justice Gorsuch’s decision for the Court does not address any context. The decision is pure textualism. “Extratextual” evidence about the context of those acts, the purposes they seek to effect, Congress’s intention, or how Tribes understand them is, simply, irrelevant. If Gorsuch’s textualist approach is followed in subsequent cases, it will be a departure from the approach established in previous reservation boundary cases.[60]
Unquestionably, texts are centrally important for contemporary legal practice. An ongoing debate that extends far beyond Federal Indian Law or United States borders is the ‘proper’ approach or method of legal interpretation. Should we only examine the text, and upon discovering an ambiguity then consider context, purpose, or use? Instead of canvassing the multiple views, I merely consider Matthew Fletcher’s theorisation of Indian law textualism.[61]
McGirt demonstrates that textualism has the potential to benefit Mr McGirt (assuming that the outcome of the Federal prosecution is favourable to him), the Creek Nation (assuming that United States recognition of the Reservation has positive changes or effects), and, as the State of Oklahoma worries, other tribes that seek to enforce treaty promises. Despite those potential benefits, there is a problem with textualism. Fletcher argues that a textualist interpretation “will see judges prioritize the public understanding of the privileged white men in power at the time of the framing of the … text”.[62] The real problem here is that textualism is paired in opposition to purposivism, which fails to provide a meaningful alternative. Under a purposive approach, one will see “judges engage with the legislative history of the statute, [and] they will engage with the public understanding of the legislations who enacted the law, again, largely privileged white men”.[63] The dissent demonstrates how a purposive approach would operate to the detriment of Mr McGirt, the Creek Nation and potential other tribes. It centralises the views of the “largely privileged white men” (and Roberts demonstrates how to centralise those views and use citations from tribal representatives’ fears about United States intentions to do so) and, in effect, it would undermine Mr McGirt’s claims. In short, whether textualism or purposivism, the interpretive method will reflect the “public understanding” of “privileged white men”.[64]
However, Fletcher argues that textualism and purposivism do not fill the field of potential interpretive methods. For Fletcher, McGirt misses a crucial interpretation. That is, it does not consider:[65]
… how the Muscogee (Creek) Nation, its citizens, and perhaps most importantly, its local governments (known as tribal towns) understood the relevant texts … [I]t seems relevant, even potentially dispositive, that the tribal towns continued governing as if nothing had changed during the entire history of the federal government’s termination of the tribe’s national government.
To be clear, McGirt re-asserts the Kagama/Lone Wolf approach that Congress has plenary authority over Tribes (so it can unilaterally alter or abrogate Treaties). Despite the finding that the Creek Reservation still exists, it confirms that Tribes are subjects of Congress’s Plenary power, rather than sovereign equals or partners. But within this system, Fletcher’s method may provide a potential corrective:[66]
One important first step, and perhaps the biggest step, is to acknowledge as a matter of law that Indian tribes are domestic sovereigns that participate in federal legislative processes, usually initiating and later guiding Congress’s Indian affairs enactments.
Regarding statutory interpretation, Fletcher would “require the judiciary in every case in which an Indian affairs text is being interpreted to consider how affected Indians and tribes understand the meaning of that text”.[67]
While Justice Gorsuch has previously “relied exclusively on evidence of the understanding of that treaty by the Indians who negotiated that treaty, and representations made by those on the American side consistent with the Indian understanding”,[68] he did not in McGirt. This indicates several things. Even if McGirt is a positive outcome and is a slight departure from the approach established in previous cases, the Court has not embraced a consistent method. Crucially, it does not consistently consider how affected tribes view and interpret statutes (not just treaties). McGirt is a significant case for establishing that the Muscogee Creek Reservation was not disestablished. Therefore, the Federal government has jurisdiction for major crimes that occur on Muscogee Creek Reservation under the MCA, and the State of Oklahoma does not. Without a consistent method that considers the views of affected tribes that is entirely consonant with Kagama/Lone Wolf, it is unclear how other tribes can use this reasoning to their benefit. McGirt may represent a new direction for the Court. Time will tell whether it is, in fact, “one of the most important Supreme Court cases of all time”.
Ngā kupu āpiti - Notes
[1] Curtis Killman “Tribal law expert calls Supreme Court’s McGirt ruling ‘most important’ in state history” TulsaWorld (online ed, Tulsa, Oklahoma, United States, 10 July 2020).
[2] Julian Brave NoiseCat “The McGirt Case is a Historic Win for Tribes” (July 12 2020) The Atlantic <www.theatlantic.com/ideas/archive/2020/07/mcgirt-case-historic-win-tribes/614071/>.
[3] NoiseCat, above n 2.
[4] McGirt v Oklahoma 140 S.Ct 2452 (2020) at 2459.
[5] Murphy v Royal 876 F 3d 896 (10th Cir 2017).
[6] Sharp v Murphy 598 US __ (2019). Gorsuch recused himself because Sharp v Murphy was a 10th Circuit case (which includes Oklahoma) when Gorsuch was on the US Circuit Court of Appeals.
[7] Berkett v Tauranga District Court [1992] 3 NZLR 206 (HC).
[8] Treaty with the Creeks, arts 1 and 14, 7 Stat 366 at 368 (1832).
[9] McGirt v Oklahoma, above n 4, at 2461.
[10] Ex Parte Kan-gi-shun-ca (Crow Dog) 109 US 556 (1883).
[11] US v Kagama 118 US 375 (1886).
[12] Cherokee Nation v Georgia 30 US 1 (1831).
[13] Lone Wolf v Hitchcock 187 US 553 (1903).
[14] At 565.
[15] McGirt v Oklahoma, above n 4, at 2459–2460.
[16] At 2460.
[17] At 2459, citing Major Crimes Act § 1151(a).
[18] At 2460–2462.
[19] At 2462, citing Solem v Bartlett 465 US 463 (1984) at 470 (“only congress can divest a reservation of its land and diminish its boundaries”). Solem creates a multi-stage test to determine whether a reservation remains Indian Country.
[20] At 2464.
[21] At 2465.
[22] At 2465, citing Curtis Act of 1898 § 28, 30 Stat 495 at 504–505.
[23] At 2465.
[24] At 2466–2467.
[25] At 2466–2468.
[26] At 2468–2469.
[27] At 2469.
[28] At 2470.
[29] At 2473–2474.
[30] At 2474.
[31] At 2475, citing Minnesota v Hitchcock 185 US 373 (1902) at 390.
[32] At 2474.
[33] At 2476.
[34] At 2477–2478.
[35] At 2478–2479.
[36] At 2479.
[37] At 2481.
[38] At 2480.
[39] At 2480–2481.
[40] At 2462, citing Lone Wolf v Hitchcock, above n 13, at 556–568.
[41] At 2462, citing Solem v Barlett, above n 19, at 470 (“only congress can divest a reservation of its land and diminish its boundaries”).
[42] At 2482.
[43] At 2482.
[44] At 2482.
[45] At 2483–2485.
[46] At 2484.
[47] At 2485.
[48] At 2487.
[49] At 2489.
[50] At 2490–2493.
[51] At 2494.
[52] At 2495, citing P Porter and A McKellop Printed Statement of Creek Delegates, reprinted in Creek Delegation Documents 8–9 (9 February 1893).
[53] At 2497.
[54] At 2497.
[55] At 2498.
[56] Nell Jessup Newton (ed) Cohen’s Handbook of Federal Indian Law (LexisNexis, New Providence, 2012).
[57] At 2500.
[58] At 2500.
[59] At 2502–2504.
[60] Solem v Bartlett, above n 19; Hagen v Utah 510 US 399 (1994); Nebraska v Parker 577 US 481 (2016).
[61] Matthew LM Fletcher “Textualism’s Gaze” (2020) 25 MJR&L 111 at 135–43.
[62] At 112.
[63] At 112.
[64] Fletcher also criticizes the structural issues. That is, parties in Indian Law cases all too often ask the Court to decide cases on institutionally weak grounds that are better addressed through legislation, like public policy, and the difficult and cumbersome legislation processes often reinforce the Court’s behavior as a “common law court”: at 115, 130.
[65] At 114 (emphasis in original). “Indian affairs enactments” means all Federal statutes pertaining to or affecting Indian affairs, which, in many cases, are negotiated agreements: at 116.
[66] At 138.
[67] At 139 (emphasis in original).
[68] At 136 (emphasis in original), citing Washington State Department of Licensing v Cougar Den 139 S.Ct 1000 (2019) at 1016 (Gorsuch J concurring).
