The U.S. Supreme Court ruled Thursday in a narrow 5-4 decision that the State of Oklahoma cannot prosecute crimes by Native Americans on Creek lands, holding that they remain a “reservation” and that federal courts therefore have criminal jurisdiction.
Justice Neil Gorsuch, who joined the Court’s liberal justices in the decision, wrote the opinion for the majority. The case was brought by Jimcy McGirt, who had been convicted of sexual crimes (“molesting, raping, and forcibly sodomizing a four-year-old girl, his wife’s granddaughter,” as Chief Justice John Roberts wrote in his dissent) in an Oklahoma state court. McGirt said that he deserved a new trial in federal court.
Mr. McGirt’s appeal rests on the federal Major Crimes Act (MCA). The statute provides that, within “the Indian country,” “[a]ny Indian who commits” certain enumerated offenses “against the person or property of another Indian or any other person” “shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.”
He added that the U.S. government had likely broken its promises to the Creek Indians when they marched from the southeast to Oklahoma on the Trail of Tears. Instead of being self-governing, the Creeks were subject to federal law enforcement on their lands. Nevertheless, Gorsuch said, law prevented the state government from pursuing prosecutions on Creek lands.
The question before the Court was whether the specific geographic place where McGirt, a member of the Seminole Nation, was alleged to have committed his crimes was still a “reservation.” The state argued that it no longer was, and that intervening policies — such as the “allotment” policy encouraging individual land ownership — had intervened.
The Court disagreed. And, recognizing that its decision could create a gap in law enforcement, Gorsuch wrote: “One way Congress has done so is by reauthorizing tribal courts to hear minor crimes in Indian country.”
In his dissent, Roberts focused on the practical consequences of the Court’s decision — not just for past convictions and ongoing prosecutions, but also for the state itself:
Not only does the Court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma. The rediscovered reservations encompass the entire eastern half of the State—19 million acres that are home to 1.8 million people, only 10%–15% of whom are Indians.
Across this vast area, the State’s ability to prosecute se- rious 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.
Roberts used various acts of Congress to argue that a Creek “reservation” was in fact withdrawn by Congress.
Justice Clarence Thomas wrote a separate dissent in which he said the Court lacked jurisdiction to hear the case.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.