Supreme Court Rules Against Oklahoma In Creek Nation Case

| Create!

Above photo: BB/PA Images.

The U.S. Supreme Court ruled Thursday that the Muscogee (Creek) Nation’s reservation was not officially terminated at Oklahoma statehood, as justices issued a decision that may upend state jurisdiction in much of eastern Oklahoma.

“The federal government promised the Creek a reservation in perpetuity,” the 5-4 decision states.

“Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation.”

The decision is expected to have huge implications for criminal, and possibly civil, matters across much of the land that was once Indian Territory. The state attorney general’s office has warned of hundreds of criminal convictions being overturned.

Chief Justice John Roberts, in a dissenting opinion, wrote Thursday, “Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma.

“The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”

The long-awaited decision overturned the conviction of a child rapist who was tried in an Oklahoma state court.

The case focused on whether Jimcy McGirt should have been tried in a federal court because he is Native American and the crime was committed on land that was part of the historical Creek reservation.

The issue raised by the case was whether the Creek reservation, which includes eight counties and most of Tulsa, was ever officially terminated or whether the tribe and the federal government still exercise authority over some matters.

Congress never explicitly terminated the Creek reservation. But the state argued that Congress took steps, including allotting the land to tribal members, that had the effect of terminating the reservation.

But the majority opinion, written by Justice Neil Gorsuch, says the high court “has explained repeatedly that Congress does not disestablish a reservation simply by allowing the transfer of individual plots, whether to Native Americans or others.”

Though the case concerns the Muscogee (Creek) Nation, the decision is expected to apply to the other members of the Five Tribes — the Cherokee, Chickasaw, Choctaw and Seminole Nations. They were the tribes forcibly relocated from southern states in the 1830s to what became Indian Territory. Oklahoma became a state in 1907 and included that land, which covers most of eastern Oklahoma.

Five tribes and the state

The Five Tribes and Oklahoma Attorney General Mike Hunter, apparently anticipating the high court might declare the Creek reservation still exists, issued a joint statement on Thursday saying they had made “substantial progress” toward an agreement resolving jurisdictional issues raised by the decision.

The agreement will be presented to Congress and the U.S. Justice Department, according to the statement.

“The Nations and the State are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused. We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma,” the tribes and Hunter said.

“The Nations and the State 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. We will continue our work, confident that we can accomplish more together than any of us could alone.”

However, whatever agreement is reached would not apply to past cases of Indians being tried in state courts, and hundreds of new appeals may now be filed.

The court was taking its second crack at the topic after apparently deadlocking last year in a case involving Oklahoma death row inmate Patrick Murphy, whose crime was committed within the historical Creek boundaries and argued that he shouldn’t have been tried in state court.

Murphy’s conviction was also overturned on Thursday, as the court resolved his case with the McGirt decision.

“This Court is aware of the potential for cost and conflict around jurisdictional boundaries,” the decision states.

“But Oklahoma and its tribes have proven time and again that they can work successfully together as partners,and Congress remains free to supplement its statutory directions about the lands in question at any time.”

The U.S. attorneys for Oklahoma’s three judicial districts issued a statement on Thursday, saying “As Oklahoma’s United States Attorneys, we are confident tribal, state, local, and federal law enforcement will work together to continue providing exceptional public safety under this new ruling by the United States Supreme Court.”

Gorsuch role

Gorsuch, a 2017 appointee of President Donald Trump, was expected to be the key justice in the case decided on Thursday.

Before joining the Supreme Court, Gorsuch had served on the 10th U.S. Circuit Court of Appeals, the circuit that includes Oklahoma. He recused himself from the Murphy case because he had been on the circuit court when one of Murphy’s previous appeals was considered. That left the court with only eight justices and — it had to be presumed since the court doesn’t comment on such matters — a deadlock.

The court had scheduled the Murphy case to be re-argued in the term that began in October but then decided to hear the nearly identical McGirt case, which had been appealed from an Oklahoma appeals court rather than the 10th Circuit court.

That gave Gorsuch a way to participate in the broader argument of whether the Creek reservation had ever been terminated. Based on prior decisions in Indian cases, he was considered likely to be sympathetic to the argument that the reservation still existed.

Those predictions were borne out in oral arguments in May, when he was skeptical of the state’s arguments, and in the majority decision, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The decision flatly rejects almost every assertion made by the state — and the Trump administration, which sided with Oklahoma — about the Creek reservation being terminated.

“Under our Constitution, States have no authority to reduce federal reservations lying within their borders,” Gorsuch wrote in the majority decision.

“Just imagine if they did. A State could encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States. 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.’

“It would also leave tribal rights in the hands of the very neighbors who might be least inclined to respect them.”

Trials of Native Americans for serious crimes should have been conducted in federal courts “from day one” of statehood, the majority opinion states.

“Instead, for many years the State continued to try Indians for crimes committed anywhere within its borders.”

The state’s claim that thousands of state inmates will now seek new trials is “admittedly speculative, because many defendants may choose to finish their state sentences rather than risk reprosecution in federal court where sentences can be graver,” the decision says.

“Other defendants who do try to challenge their state convictions may face significant procedural obstacles, thanks to well-known state and federal limitations on post-conviction review in criminal proceedings.

“In any event, the magnitude of a legal wrong is no reason to perpetuate it.”

Gorsuch noted that Oklahoma and tribes had negotiated hundreds of intergovernmental agreements and could turn to Congress if there were problems resulting from Thursday’s decision.

All five U.S. House members from Oklahoma issued a joint statement saying they “stand ready to work with both tribal and state officials to ensure stability and consistency in applying law that brings all criminals to justice. Indeed, no criminal is ever exempt or immune from facing justice, and we remain committed to working together to both affirm tribal sovereignty and ensure safety and justice for all Oklahomans.”

Reps. Tom Cole, R-Moore, and Markwayne Mullin, R-Westville, are members of Five Tribes nations; Cole is a Chickasaw and Mullin is a Cherokee.

“Grievous offenses”

In his dissent, Roberts accused the majority of ignoring Supreme Court precedents that don’t require explicit language from Congress for a reservation to be terminated.

Congress “made abundantly clear its intent to disestablish the Creek territory,” stripping the tribe of its land, its courts, its taxing power and even its government, the dissent states.

“And, by conferring citizenship on tribe members and giving them a vote in the formation of the State, Congress incorporated them into a new political community,” Roberts’ dissent states.

Justices Samuel Alito and Brett Kavanaugh joined Roberts, and Justice Clarence Thomas joined most of the chief justice’s dissent but also wrote a separate one.

Roberts’ dissent says the majority opinion downplays the impact the ruling will have on Oklahoma.

“Most immediately, the Court’s decision draws into question thousands of convictions obtained by the State for crimes involving Indian defendants or Indian victims across several decades,” it states. “This includes convictions for serious crimes such as murder, rape, kidnapping, and maiming.

“Such convictions are now subject to jurisdictional challenges, leading to the potential release of numerous individuals found guilty under state law of the most grievous offenses.

“Although the federal government may be able to reprosecute some of these crimes, it may lack the resources to reprosecute all of them, and the odds of convicting again are hampered by the passage of time, stale evidence, fading memories, and dead witnesses.”

  • Alice X


  • rgaura

    I´m sure the indigenous nations can deal with crime and consequences better than the feds have done.

  • Edward Winslow

    The dominant class has conniption fits when on the rare occasion that it must abide by the rule of law.

  • Jeff

    But Congress has never withdrawn the promised reservation …The issue raised by the case was whether the Creek reservation, which includes eight counties and most of Tulsa, was ever officially terminated … Congress never explicitly terminated the Creek reservation … But the majority opinion, written by Justice Neil Gorsuch, says the high court “has explained repeatedly that Congress does not disestablish a reservation simply by … Congress remains free to supplement its statutory directions about the lands in question at any time …

    The unsaid but strongly implied if not explicit idea here is that it’s just fine for the colonizers to break their agreements and steal land that they agreed would belong to the Natives (it all belongs to the Natives as far as I’m concerned, but that’s another issue). There is a Native saying that sheds light on this problem: White people have to have their agreements in writing, because they can’t be trusted. That says it all about this issue.

    It’s too bad that this decision, as good as it is, is a minor detail regarding the theft of land from the Natives of Turtle Island. I’d have loved to see a Supreme Court decision ordering Oklahoma to give the land back to the Natives, who would be free to do whatever they want (allow the colonizers to stay, kick them off the land, whatever). Instead, we have a decades old Supreme Court decision that holds that while the U.S. violated a treaty by stealing the Black Hills from the Lakota from whom they agreed would keep it, the U.S. can’t be forced to give the land back, only to pay the Lakota money for stealing it. So good decision as far as it goes, but it doesn’t go anywhere near far enough.

  • Jeff

    Not really. The ultimate crime here was genocide of the Natives, followed by theft and destruction of their lands. Too bad they didn’t have a Trump wall 500 years ago to keep white people out!

  • Alice X

    I understand your position. String theory physicists and others posit various alternative universes, but we are not in it.

    The Supreme Court in Andrew Jackson’s time ruled that he did not have the right to impose the Indian Removal Act. Jackson defied them.

    Gorsuch wrote that ‘at the end of the Trail of Tears, there was a promise…’ and that led to this ruling.

    Nothing will turn back the historical crimes of the ‘Trail of Tears’.

    Nothing will turn back the historical crimes of colonialism.

    No ruling changes history, Thucidedyes, the first historian, made a most important observation.

    But this ruling, at least, says that the treaties were law, and that is correct.

  • Jeff

    No one can undo the past, but that doesn’t mean that things can’t be done to right wrongs as much as possible. Land could be given back to the remaining Natives, for example. Major financial reparations could be given to Black people whose ancestors suffered slavery and who are still suffering the lingering effects of it. Etc. You can make excuses, or you can support doing the right thing. The Supreme Court ruling that held that the Black Hills was illegally taken from the Lakota but the only thing the court could do was to order the government to pay the Lakota money was only half right: the court could and should have ordered the land returned to the Lakota.

    The fact that the damn colonizers don’t want to return land to the Natives doesn’t at all mean that it can’t be. That’s like all the idiots who say that even though humans have gone down the path of environmental and ecological destruction by choosing to live unnaturally, we can’t turn around and move back to living a lot more simply and naturally. Of course we can!

  • Alice X

    No ruling changes history, Thucidedyes, the first historian, made a most important observation.

    You missed this; Thucydides

    The strong do as they will, the weak suffer as they must

    I adhere to Adolph Reed’s take on afro reparations and by extension his view on a similar view of indigenous redress.

    You must achieve what you can.

    The country is not going to turn back the land. This ruling re-establishes significant indigenous rights. That is something.

    DemocracyNow just held an interview with a Creek citizen and lawyer and she observed important aspects.

    What we must work for is equal rights for all.

  • Jeff

    Oh please, those are nothing but colonizer excuses. And I’m supposed to care about some a-hole from Europe thousands of years ago? Why didn’t you quote some traditional Native? The problem is, you’re a colonizer with colonizer mentality. I saw that interview on Democracy Now!, and the main thrust of it was that the ruling didn’t do that much. But I suppose from a colonizer’s point of view it’s a really big deal.

  • Alice X

    The problem is, you’re a colonizer with colonizer mentality.

    What do you propose is to be done?

    Offer proposals rather than insults.

  • Bill Rood

    To be fair, Jeff did propose we give all reservation land back to the Native Americans from whom it was weaseled. That’s not going to happen because there’s no political will. However, we can do better than

    Rather than reparations I support federally funded and universally equal education, not from property taxes. That would address inequality more than anything.

    The knock-on, long term affects of slavery and genocide are far greater than differential educational levels and can not be solved simply through equal funding of schools. Minority and other poor communities suffer disproportionately from pollution, food deserts and many other problems that result in poor social outcomes.

    The water in Flint has still not been fixed, and Flint is not alone. In the case of Flint, its water system was negligently if not deliberately destroyed in order to benefit the private competitors of the Detroit Water and Sewerage Department (DWSD), but the perpetrators have not faced adequate consequences for destroying the mental abilities of thousands of children with neurotoxins like lead.

    A federal funding formula for schools that would provide extra, no fault funding for schools with below average outcomes (ie, no penalties, sanctions or demands of the current schools, which it should be assumed are not at fault for the poor outcomes) is something that could be done quickly. Other discriminatory behaviors like industrial pollution, redlining, targeting of minorities and the poorly educated for fraudulent loans and providing aid to big business under the guise of aiding small business must be addressed, but that will take time.

    You have a good idea, but it must be beefed up. Simply calling you a “colonizer” is not helpful.

  • Jeff

    I did propose what needs to be done, you just don’t want to hear it. As I used it, “colonizer” is a description. As to it being an insult, if the shoe fits …

    Your “solution” is BS, and I can tell that you have no experience with traditional Natives, nor do you have any idea what they want and don’t want. The traditionals are not interested in living like the colonizers and don’t want the brainwashing that you call “education,” they want their land back so they can live properly on it. That’s why the Lakota have refused for decades to accept large sums of money for the Paha Sapa (“Black Hills” in colonizer language). Sure, giving them some benefits like those you proposed would make their lives a little less miserable, but that’s about it.

    I understand that modern humans are totally disconnected from the natural environment and have no relationship with the land, but that’s not the case with traditional Natives. Instead of playing the arrogant colonizer and telling Natives what they should accept like the a-hole Supreme Court, why don’t you find some traditionals and talk to them?

  • Jeff

    “That’s not going to happen because there’s no political will.”

    That means either that you don’t want it to happen or that you are defeatist. Either way, I totally reject that statement. You decide what you want first, then you decide how to get it. If you start by saying that you can’t get what you want, you might as well give up and forget politics. Sure, the odds are greatly stacked against the Natives here as they are everywhere, but if you keep trying you never know what might happen.