McGirt v. Oklahoma

“On the far end of the Trail of Tears was a promise.” Justice Gorsuch writes for the majority, and takes a strong stance in favor of the tribes who were promised land in Oklahoma in the 1830s: land which the Supreme Court deemed to be Creek reservation land early this month, July 2020.

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The recent Supreme Court decision declares that most of eastern Oklahoma, including most of
Tulsa, is Native American Country with respect to the Major Crimes Act. The case came up to
the Supreme Court on an appeal by Oklahoma. The original case concerned Jimcy McGirt, a
member of the Seminole Nation. He was convicted of three sexual offenses in state court, but
appealed, arguing that the Oklahoma state court did not have jurisdiction because he is an Native American and the crimes took place on the Creek Reservation.

To be clear: the question before the court is not whether McGirt was innocent.

The question was one of state jurisdiction, and whether the court would recognize the treaty that created the Native American country in question, or whether that territory had been disestablished.

Is Half of Oklahoma Tribal Land?

The Supreme Court held in McGirt v. Oklahoma, yes. Millions of square acres of Oklahoma, including Tulsa (the state’s second largest city) is tribal land, which was never officially dissolved at the time of Oklahoma’s statehood.

As it relates to Mr. McGirt, he now stands wrongfully convicted of a 500-year prison sentence and must be re-tried in federal court, as Oklahoma state court lacks jurisdiction to try his case, as Oklahoma lacks personal jurisdiction over Native Americans that allegedly committed crimes on reservations.

On a larger scale, this decision will impact potentially thousands of state court criminal convictions, innumerable future criminal cases, tax implications, regulatory laws, and agreements between tribes and states across the country.

Major Crimes Act

McGirt v. Oklahoma involves the Major Crimes Act (“MCA”), which subjects Native Americans who commit certain enumerated offenses to the “the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States.” 18
U.S.C. § 1153(a).

The Court clarifies that even though the language in the treaty never refers to the land explicitly as a “reservation” that does not exclude it from that classification. The Court relies on other congressional acts which “left no room for doubt” that Congress intended to create the reservation, and therefore the Court treats it as such.

The crimes that are included in the MCA regarding a Native American who commits said crime
in Native American land are specific and include:

  • Murder
  • Manslaughter
  • Kidnapping
  • Maiming
  • Incest
  • Felony Assault
  • Assault against an individual under 16 years of age
  • Felony child abuse

Tribal Sovereignty

Native American country is land that was reserved for Native Americans under United States
jurisdiction. Sovereignty refers to the right of these Native Americans to govern themselves and
form their own distinct identity. The federal government has sovereignty as the overseeing and
superior authority on certain issues. The federal government reserves its authority to govern
certain issues and grants other rights and authority to states. This is why states are allowed to make certain decisions for themselves and why sometimes states are required to follow
regulations that the federal government puts in place. Another layer of sovereignty includes tribal sovereignty, which has gone through numerous changes in the 1800s. (For a more in-depth
analysis of sovereignty and developments in this area, please see my Tribal Jurisdiction)

Sovereignty means that an entity, such as a Tribe, has the ability to govern their own: they have the ability to form a government, a court system, the authority to tax their people and have a police force. Essentially, a sovereignty can rule itself. Sovereign Tribes, rule themselves; however, they exist within the boundaries of states and are subject to regulation by the federal government.

From 1823 – 1823, the supreme court came out with three significant cases that became defining
for tribal sovereignty. The first, Johnson v. McIntosh, addressed whether Congress could grant
land to tribes and decided that tribes had the right to sovereignty, and only the federal
government could negotiate for Native American land. Cherokee Nation v. Georgia is famous
for its description of Native American tribes as “domestic dependent nations” which maintained
a relationship with the federal government that “resembles a ward to his guardian.” The third
case, Worcester v. Georgia, involved the application of Georgia state law in the Cherokee
Nation. This case held tribes maintained their sovereign powers and only Congress had power
over tribal affairs, and, importantly, state laws do not apply in Native American country.


The Supreme Court ultimately held in a 5-4 decision that Oklahoma did not have jurisdiction
over the petitioners because the crimes took place on the Creek Reservation, which was
established in the 19 th century and was never dissolved. In 1833, Congress signed a treaty which established the Creek Reservation, calling it a “permanent home” which will exist “so long as they shall exist as a nation, and continue to occupy the country hereby assigned to them.”

The treaty also stated that the Creek Nation would have an “unrestricted right of self-
government” that included jurisdiction over recognized tribal members and their property.

1. The Reservation Was Not Disestablished

The Court dismisses Oklahoma’s four arguments that the reservation was disestablished. First,
Congress has the exclusive power to disestablish a reservation with a clear expression of
congressional intent. Since establishing the Creek Reservation, Congress has never expressly
done so. Even though Congress has a history of repeatedly breaking promises to the tribes, that
in itself is not enough to disestablish a reservation.

Second, Congress pressured tribes to divide and sell their lands during the Allotment Era in the
1880s but never required that the Tribe surrender their interests in that land. Even when the land was sold and the Creeks’ tribal courts were abolished, the reservation itself and tribal interest in the land did not end. The Court concludes that it is possible that Congress did not realize that at the time it could have unilaterally removed the reservation; regardless, in the 1880s Congress did not look to abolishing the reservation, but to allot it. By this allotment, there was no language that evinced a transfer of interest in the title. A non-Native American could buy land on the Creek reservation from a Native American, but the tribe retains an interest in the title of the land. Courts have consistently rejected the argument that allotment disestablishes reservations, even if that was the ultimate goal of allotting the land, and this is no exception.

Third, there has been no ambiguity in any Oklahoma legislation that may be taken as a
disestablishment of the reservations. In the late 1800s and early 1900s, Congress regularly
intruded on the rights of Native Americans such as abolishing the tribal courts and transferring
the pending civil and criminal cases to the US courts in 1898. While these laws stripped power
from the Native Americans, it did not completely erase their sovereign authority. The Creek
Nation could still collect taxes, operate schools, and oversee the allotment practice.
Congressional actions to limit a tribe’s power cannot be mistaken for the termination of that
tribe’s power.

In more recent history, the legislature had an almost complete reversal in attitude towards Native American tribes. Congress authorized tribes such as the Creek Nation to expand their power and recognize their sovereignty authority. The Court notes the sophisticated and developed structure of the Creek government, which consists of its own police department, elected council, hospitals, schools, and a budget of $350 million. In 1982 the tribe even reestablished the criminal and civil jurisdiction of its courts within the boundaries of Native American land, to which Oklahoma afforded full faith and credit to its judgments for at least the last 20 years.

The Court concludes: “maybe some of these changes happened for altruistic reasons, maybe
for some other reasons . . . but whatever the confluence of reasons, in all this history there
simply arrived no moment when any Act of Congress dissolved the Creek Tribe or
disestablished its reservation.”

Fourth, “the only ‘step’ proper for a court of law” is to “ascertain and follow the original
meaning of the law before [the Court].” Oklahoma failed to point to any ambiguity in the
language of any statute which could be interpreted as disestablishment of the tribe, and the Court rejects the notion that it needs to consult extratextual sources when the meaning of the statute is clear. Undeniably, to find that there has been disestablishment of a reservation, there must first be a clear statute by Congress which disestablishes it.

2. The MCA Applies in Eastern Oklahoma

The Court notes that the fact the State has historically prosecuted crimes committed by
Native Americans on the reservation is not enough to serve as a platform for
The problem with Oklahoma’s arguments to the contrary are that not only
does the MCA sends certain major federal crimes committed by Native Americans to federal
court, as well as crimes committed by Native Americans on Native American allotments. State
courts prosecuted these crimes for decades until 1989. Since Oklahoma disregarded this latter
provision for so long, the Court elects to disregard those same practices as guidance to the
former provision.

The Oklahoma Solicitor General attempted to explain this by stating that the it didn’t matter
where the crime happened, but the Court rejected this argument.

The Court ultimately ruled that the MCA applied in eastern Oklahoma as per the law’s terms,
even if state practices were contrary to how the Act is supposed to function. Oklahoma was
formed by the Oklahoma Territory in the West and the Native American Territory in the East.
When the MCA was passed, Oklahoma claims that this eastern Native American Territory was
exempt. The Court once again disagrees: the standard for a state or federal court to try Native
Americans for conduct on their lands requires clear congressional intent to do so, and the
Supreme Court held there is no way Oklahoma can satisfy that standard. The MCA applied to
Oklahoma immediately upon its statehood in 1907, and the MCA states that it has exclusive
jurisdiction over qualifying crimes committed by Native Americans in any Native American
reservation located within the borders of any state.

Oklahoma relies on the Oklahoma Enabling Act to hold up the MCA exemption. However, although the Act transferred all nonfederal cases that were pending to Oklahoma state courts in 1906, it also transferred pending criminal cases that would have belonged in federal court if the prosecution would have belonged there had the Territory been a state at the time of the crime to federal courts. Essentially, “the Enabling Act sent state-law cases to state court and federal-law cases to federal court.” Crimes committed by Native Americans in Native American country, therefore, belong in federal court, and even though that is not what has happened in Oklahoma, the Court refuses to defer to what has been historically done over what should be done.

3. Consequences in State Court

In reaching our conclusion about what the law demands of us today, we do not pretend to foretell the future and we proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long. But it is
unclear why pessimism should rule the day.

–Justice Gorsuch, for the majority.

In a last-ditch effort to save its case, Oklahoma warns this may start a trend of tribes “vindicating similar treaty promises” and as much as half of its land and almost 2 million residents could be in Native American country. While the area in question includes most of Tulsa and many people, there is no evidence that they can continue to live successfully in or near reservations today. The Court notes that while “many of its residents will be surprised to find out they have been living in Native American country this whole time[,] . . .some members of the 1832 Creek Tribe would be just as surprised to find them there.”

Finally, the court held the consequences arising from this issue can be resolved between the state and the tribes. Concerns regarding the how this could upset numerous convictions and impede on the State’s ability to prosecute certain crimes will likely be overestimated. The MCA only applies to certain crimes, and most prosecutions will be unaffected by this decision. Additionally, although some defendants may choose to challenge the jurisdiction in their crimes, many will choose not to appeal and finish out their state sentences, instead of risking losing again in federal court.

Importantly, the Court elects to discontinue the legal wrongdoing and put its faith in the state and tribe to ensure offenders face justice for the crimes they committed. Will there be an increase in caseloads for federal and tribal courts as a result of the broadened jurisdiction? Likely, but that is not a problem that the Court does not recognize an easy answer to: after all, this country doesn’t have a shortage of lawyers.

The only civil question that the Court considers is whether the statutory definition of “Native
American country” as it applies to the MCA in criminal law will affect other statutes. It will not matter so much, however, because other civil statutes and regulations rarely rely on criminal statutory definitions. Regardless, the Court does not consider this to “collateral drafting choice” to be a reason to skew their interpretation of the MCA.

Future Implications of McGirt

The United States Supreme Court decision in McGirt v. Oklahoma is a big change, but maybe not as impactful as some people anticipate. The Court recognized the state lacks jurisdiction with respect to the MCA according to the treaty which founded the Creek reservation. While to the
surprise of many residents of the area, much of Tulsa and Eastern Oklahoma may now be considered Native American country, but the effects of this decision will be limited.

Nevertheless, for Native Americans who committed those enumerated crimes in Native American country and were prosecuted under the wrong courts, this decision affords them a second trial in federal court. Regardless, the Court was confident those who are guilty of the crimes they committed will still answer to the people and justice will be served—but it will be served in the proper court.

Contact – Cannon & Associates: Oklahoma Criminal Defense Advocates

Experience matters when you or a loved one are facing criminal prosecution. The impact of the McGirt decision affords hundreds of Native American criminal defendants the opportunity for a new trial in federal court. It is important to know the Oklahoma criminal defense lawyer you hire is dedicated to your cause and versed in all aspects of federal criminal law and federal jurisdiction in Oklahoma. Cannon & Associates is dedicated to Fierce Advocacy and will fight for you throughout your case.

Free Resources from OKC Federal Criminal Lawyers

Our team of Your Fierce Advocates® at Cannon & Associates is led by Army Veteran founder, John Cannon. We are privileged to be Oklahoma federal criminal defense attorneys for clients facing federal criminal charges across Oklahoma in the Western District, Northern District, and Eastern District. Our Oklahoma federal defense lawyers fight for client’s pretrial release and freedom following indictment in Oklahoma federal criminal cases. Find FREE RESOURCES on our YouTube page and our website, until we meet to answer your specific questions. You may also CALL NOW at (405) 972-8604, 24 hours a day, and 7 days a week for a free case planning session!

Cannon & Associates is here to support and guide you through all of your options so you can obtain the best results possible. We are dedicated to helping you resolve your dispute in the most advantageous way and support you during this difficult time. Founder John Cannon has been recognized as a Super Lawyer and our entire team is ready to be your Fierce Advocate. Contact Cannon & Associates to protect your rights and fight for your federal criminal case in Oklahoma. Complete the CONTACT FORM ON THIS PAGE NOW or CALL at 405-657-2323 for a free confidential case evaluation.