WP/RMLUI Legal Corner: McGirt v. Oklahoma—When Promises Have Consequences

By Elizabeth Garvin, Esq., AICP

Did you hear about the United States Supreme Court’s decision McGirt v. Oklahoma (140 S.Ct. 2452 (2020)) earlier this year? Google Maps caught it and promptly revised their map of eastern Oklahoma to reflect the borders of the Muscogee (Creek) Nation, Cherokee, Chickasaw, Choctaw, and Seminole reservations. All of these reservations are also now searchable. Why this information was not previously searchable is an important question for the ethical mapping crowd; we are going to stick with the legal crowd and take a look at the case that seems to have put reservations on the electronic map.

In the way of so many things legal, McGirt is not really a case about reservation boundaries. It is a case about the proper application of the Major Crimes Act (18 U.S.C. §1153(a)) within reservation boundaries. But to answer that question, the Court first had to determine whether the purported crimes took place on a reservation.

The majority opinion was authored by Justice Gorsuch. Justice Gorsuch served on the United States Court of Appeals for the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming) from 2006 to 2017, just prior to being appointed to the Supreme Court. He was joined in the opinion by Justices Ginsburg, Breyer, Sotomayor, and Kagan. A dissenting opinion was filed by Chief Justice Roberts, joined by Justices Alito, Kavanaugh, and Thomas, with Thomas also dissenting to a specific footnote. 

The facts are seemingly straightforward. Jimcy McGirt, an enrolled member of the Seminole Nation of Oklahoma, was accused of three serious sexual offenses that took place on the Creek Reservation. He was tried and convicted in Oklahoma state court. He appealed his convictions, arguing that the State of Oklahoma could not prosecute his crimes because he is a member of the Seminole Nation and the location of the crimes, on the Muscogee (Creek) Reservation, triggered the Major Crimes Act which requires federal prosecution, not state. The Major Crimes Act, passed in 1885, requires that: “all Indians committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny, within any territory of the United States, and either within or without the Indian reservation, shall be subject therefore to the laws of the said territory.” Comments made when the US Supreme Court decision was released indicate that the Tribes, State of Oklahoma, and U.S. Department of Justice agreed that McGirt should be subject to prosecution, the open question was only where that authority should be placed.

The State of Oklahoma believed, for a list of reasons, that it should be able to prosecute crimes in the state, including those committed on the Creek reservation. The State’s arguments about why the Court should have decided in its favor are grouped here by general approach.  A note to readers, this column is intentionally short and only provides an overview of the decision.  A great deal of historic detail is included in the decision and the supporting briefs should you want to read further.  McGirt v. Oklahoma, ___ U.S. ___, 140 S.Ct. 2452 (2020), is available for free download on the Supreme Court’s website: www.supremecourt.gov.

Argument 1: There Was a Creek Reservation, but it was Disestablished

Oklahoma first asserted that the Creek reservation no longer existed and the state, therefore, had authority to prosecute McGirt. They provided three reasons in support of this position: 1) Congress had abolished the reservation during the “Allotment Era” from the 1880s through the early 1900s; 2) Congress had “intruded on the Creek’s promised right to self-governance” (McGirt at 2465.) to such an extent that, combined with the Allotment Era, the reservation was abolished; and 3) historical practices and demographics have combined to disestablish the reservation. 

The Supreme Court entertained and then dismissed each of these assertions in order.  The factual timeline, according to the Court, was that Congress entered into a treaty with the Creek Nation in 1833 to establish the borders for a “permanent home” to continue “so long as they shall exist as a nation, and continue to occupy the country hereby assigned to them.” (McGirt at 2461.) Since then, Congress has threatened to disestablish the reservation, meddled and intruded in the Creek’s self-governance and family life, employed some very suspect means to take oil-rich lands for corporate profit, and encouraged White settlement on the Creek lands, but has never actually disestablished the reservation. According to the Court, Congress needed to pass legislation that specifically disestablished the reservation.  While they did not need to use any specific language, they did need to pass “an equivalent law terminating what remained [following allotment]” and they did not, so the initial treaty is still in effect. (McGirt at 2464.) The Court observed further that Congress has actually abolished the reservations of other tribes (Ponca and Otoe) from modern-day Oklahoma, leading all of us to understand that Congress knows how to accomplish this outcome if that is what they want to achieve.

Argument 2: Congress Never Established the Creek Reservation in the First Place

Oklahoma next claimed that the Creek land was not a reservation, but a “dependent Indian community.” This argument was based on the Creek request for, and the federal government’s eventual provision of, fee title to the land. According to Oklahoma, if the Creek own and can sell their land, it is not held in trust for the benefit of the Tribe as a reservation should be.  Following a short summary of this argument, the Court started its reply with: “Even if we were to adopt Oklahoma’s bold feat of reclassification….” This bold feat was not rewarded by the Court, holding that there is not one specific way to create a reservation and the ownership of the land is not a deciding factor.

Argument 3: There is No Need to Change Current Practice

Oklahoma’s final two arguments both promoted versions of “changing things now will cause a lot of confusion.” And, while giving each the attention due, the Court telegraphed the outcome from the start, commenting that “here again, however, arguments along these and similar lines have been ‘frequently raised’ but rarely ‘accepted.’” (McGirt at 2476.)

Justice Gorsuch saved Oklahoma’s final argument about the potential big picture repercussions of recognizing the Creek reservation as an opportunity to disagree with the dissent’s similar arguments. “If we dared to recognize that the Creek Reservation was never disestablished, Oklahoma and the dissent warn, our holding might be used by other tribes to vindicate similar treaty promises.” (McGirt at 2478-79.)  Unforeseen criminal law consequences might include unsettled convictions and shifting burdens on state and federal courts, along with a list of federal civil statutes that might be triggered, including: assistance with homeland security, historic preservation, schools, highways, housing assistance, nutritional programs, and disability programs.  (McGirt at 2480.)  While recognizing these possible outcomes, and the associated costs, the Court notes that similar dire predictions have been presented in similar cases over the years but have not proven true.  “[M]any of the arguments before us today follow a sadly familiar pattern.  Yes, promises were made, but the price of keeping them has become just too great, so now we should just cast a blind eye.  We reject that thinking.” (McGirt at 2482.) And with that, the Court confirmed that either Congress must withdraw the reservation or Oklahoma and the federal government need to figure out a path forward.

Next Steps

The McGirt opinion was issued on July 9, 2020. Recent Oklahoma news stories detail how federal and tribal attorneys are dealing with the increased case load, including taking Mr. McGirt’s case to a federal grand jury, where he was indicted and will stand trial.  Somewhat closer to the Planning World, the Seventh Circuit (Illinois, Indiana, Wisconsin) found that the Oneida Nation of Wisconsin still had an intact reservation and did not owe the Village of Hobart, established entirely within the Oneida reservation, a fine for failure to obtain a special event permit to hold an event that took place on tribal property partially located within the Village. Oneida Nation v. Village of Hobart, 968 F.3d 664 (2020).

On the Horizon

The Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District case is making its way through the Ninth Circuit (Arizona, California, Nevada, Oregon, Washington, Idaho, Montana) (Agua Caliente, 849 F3d 1262 (2017)).  The primary issue in the Agua Caliente litigation is water, specifically whether the establishment of a reservation also reserves water use, and if so, how much.  Finding that the primary purpose of a reservation was to create a home for the tribe, the court held that “water was necessarily implicated that purpose.” (Agua Caliente at 1270.)  The Tribe’s water can be sourced from either surface water or groundwater.  Earlier legal decisions place the date of the water right at the date of the establishment of the reservation, typically giving reservations very high priority water rights in the West. The ongoing litigation is focused on quantifying the Tribe’s water rights.