On Thursday, July 9, 2020 the Supreme Court, in a 5-4 decision, held that a large swath of northeastern Oklahoma, including most of the city of Tulsa, remains part of the Muscogee (Creek) Reservation and, as a result, that the state lacks jurisdiction to prosecute a major crime involving a tribal member within the reservation. Justice Gorsuch delivered the opinion for the Majority, confirming the durable principle of tribal sovereignty, despite significant efforts throughout history to dismantle tribal reservations and governments.  Chief Justice Roberts filed a dissenting opinion, in which Justices Alito and Kavanaugh joined, and in which Justice Thomas joined, except as to one footnote.  Some analyses have raised the possibility that this decision could have a significant impact on taxation and natural resources management in Indian Country throughout the United States, as discussed more fully below.  However, because the direct holding of the Court is quite narrow, the full impact of this decision remains to be seen. 


The case originated with an Oklahoma state court’s conviction of Petitioner Jimcy McGirt, a member of the Seminole Nation, of crimes that took place on the Creek Reservation.  McGirt sought a new trial in federal court, relying on the Major Crimes Act (MCA), which provides that within “the Indian country…[a]ny Indian who commits” certain offenses “shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States.”  The MCA defines “Indian country” as “all land within the limits of any Indian reservation under the jurisdiction of the United States government.”  In determining the proper jurisdiction for McGirt’s conviction, the Court was tasked with determining whether land originally reserved for the Creek Nation in eastern Oklahoma remains “Indian country” today.  Justice Neil Gorsuch, joined by Justices Breyer, Ginsburg, Sotomayor, and Kagan, determined that it does.  In making this determination, the Majority’s opinion looked to the treaty between the U.S. government and the Creek Nation, which provided that in exchange for the Nation ceding “all their land, East of the Mississippi river,” the United States agreed that “[t]he Creek country west of the Mississippi shall be solemnly guaranteed to the Creek Indians.”

The Majority then looked to subsequent Acts of Congress to determine whether the Creek Reservation persists today, finding that it does because only Congress can diminish or disestablish a federal reservation.  It rejected arguments by Oklahoma that the Reservation was disestablished during the “allotment era” of the late 19th century, during which Congress pressured many Native American tribes to divide their reservations into smaller parcels owned by individual tribe members.  Rather, the Majority found that the 1901 Creek Allotment Agreement between the Congressionally established Dawes Commission and the Creek Nation failed to include the “present and total surrender of all tribal interests” in the Reservation.  The Majority also found that other methods, including the abolishment of the Creek Nation’s tribal courts, did not diminish the Reservation, and that, absent an act of Congress, historical practice is insufficient to prove disestablishment.

In the alternative, Oklahoma argued that Congress never established a reservation for the Creek Nation but instead created a “dependent Indian community” because a “reservation” must be land “reserved from sale.”  The Majority rejected this, determining that “the land was reserved from sale in the very real sense that the government could not ‘give the tribal lands to others, or to appropriate them to its own purposes,’ without engaging in an ‘act of confiscation.’”  It also found that the distinction was unimportant, because “dependent Indian communities” also constitute “Indian country” under the MCA.

Next, the state contended that the Oklahoma Enabling Act, which, at the time of Oklahoma’s statehood, transferred all nonfederal cases pending in territorial courts to Oklahoma’s new state courts, rendered the MCA inapplicable in Oklahoma.  On this point, the Majority determined that “serious crimes by Indians in Indian country were matters that arose under the federal MCA and thus properly belonged in federal court from day one, wherever they arose within the new State.”

Finally, the state argued that a determination that the MCA continues to apply to the Creek Reservation today would call into question the status of state-court convictions and frustrate Oklahoma’s ability to prosecute crimes in the future.  The Majority acknowledged this point, but stated that “the magnitude of a legal wrong is no reason to perpetuate it,” finding that whatever way the Court ruled, some convictions would be upset.  The Majority also dismissed arguments that the decision would have significant impacts on civil and regulatory law more broadly, including taxation, natural resources, and highways, stating that “[t]he only question before us…concerns the statutory definition of ‘Indian country’ as it applies in federal criminal law under the MCA, and often nothing requires other civil statutes or regulations to rely on definitions found in the criminal law.”  The Majority recognized, however, that many federal civil laws and regulations do use the definition of “Indian country” as it’s defined in the MCA, but stated that “it is far from obvious why this collateral drafting choice should be allowed to skew our interpretation of the MCA, or deny its promised benefits of a federal criminal forum to tribal members.”

While the Majority acknowledged that the decision may have broad implications concerning jurisdictional boundaries, it downplayed these concerns, noting that Congress, states, and Tribes are free to enter agreements to help navigate these issues.  In a joint statement issued in response to the Court’s opinion, the Oklahoma Attorney General and the Oklahoma Tribes—including the Creek, Cherokee, Chickasaw, Choctaw and Seminoles—are working to develop a framework of shared jurisdiction to balance the Tribes’ sovereign interests and the state’s interest in self-government.  As a result, the broader implications of this case remain to be seen at this time.

The Court’s Opinion is available here.