ANALYSIS IN BRIEF: The most important decision in Oklahoma history, ‘McGirt v. Oklahoma’
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Published: 28-Aug-2020

NOTE: This is adapted from a longer essay which appeared in The August print edition of The City Sentinel newspaper, and last month at City-Sentinel.com, and CapitolBeatOK.com. 

In July, the U.S. Supreme Court issued the most significant legal decision in Oklahoma’s history. Here is a distilled analysis of this 

Justice Neil Gorsuch wrote for the majority: “On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.” 

He cited the 1832 treaty between the U.S. and the Creek Nation, which guaranteed lands west of the Mississippi to the tribe, and that no “State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.”

Outlining the bare essentials of sex crimes committed by a Seminole Indian, Gorsuch noted that Jimcy McGirt, “has argued in postconviction proceedings that the State lacked jurisdiction to prosecute him because he is an enrolled member of the Seminole Nation of Oklahoma and his crimes took place on the Creek Reservation.” Gorsuch posed the question, “Did he commit his crimes in Indian country?” 

Notes about “Indian Country” and Reservations

Using the term “Indian Country” and putting it in quotation marks is not a sneer. 
Indian Country is not a fiction, it is a fact. Reading the majority and dissenting opinions, a reader can learn at least quite a bit (but not everything) about the confusing shades of gray that cloud understanding of “Indian County.” 
In many places deemed Indian Country, tribes exercise a lot of jurisdiction and day-to-day governance over major aspects of daily life. These parts of America are called reservations, in a time-honored sense of the word. 
There are other places deemed “Indian Country” which are not, however, reservations – but land held in trust by the ultimate sovereign, the U.S. government. On these lands, a tribal nation or nations can exercise meaningful but not ultimate control.  

States are allowed considerable power in non-reservation “Indian Country.” 
The history of Oklahoma has been governed by an understanding (or belief or customary practice) that the state had no reservations (except perhaps – another challenging matter – Osage County). 
Before ‘McGirt,’ the state of Oklahoma’s laws and policies generally had prevailed in non-reservation Indian Country, subject, however, to evolving compacts between tribes and the state.

After ‘McGirt’, Nixon’s slow transformation becomes seismic  

President Richard Nixon triggered a new sensitivity to tribal powers, something many do not note when considering his presidency. He signed more new laws and funding mechanisms benefiting tribes than any predecessor. In the post-Nixon modern era, renewed sensitivity to tribal sovereignty has resulted in a methodical slow motion transformation. ‘McGirt’, however, yields seismic transformation. 

Gorsuch gives his view on the last two centuries of history touching tribal lands in eastern Oklahoma. He puts the burden on Congress to address the practical consequences of innumerable changes in daily life for tribal members and their non-Indian neighbors from 1907 to today. 
In a way, that seems fair, but in another way it is folly. 
Aside from the criminal cases, after nearly two centuries, many pre-statehood tribal lands developed into privately held property. 

Justice Gorsuch’s view is the new interpretation of law. The majority opinion became must-reading at the moment of its issuance. He concluded his opinion thus:

The federal government promised the Creek a reservation in perpetuity. 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. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

The 5-4 majority reversed an Oklahoma Court of Criminal Appeals ruling. Oklahomans will learn over time how “wrong” gets defined in Congress, this state and again in the courts. 
Difficult and contentious matters, involving both criminal law property rights, are emerging since early July.   

Attorney General Mike Hunter’s office has literally argued both sides of important aspects of the issues raised in the ‘McGirt’ case (and the separate but intertwined ‘Murphy’ case). 
With Hunter leading the first wave, it took only a few days for any pretense of ‘United for Oklahoma’ rhetoric to collapse into confusing division. That remains the case almost two months after the High Court’s edict, despite emerging cooperation between tribes and local law enforcement agencies in eastern Oklahoma. 

Four justices agree ‘Congress disestablished any Creek reservation more than 100 years ago’ 

Chief Justice John Roberts’ lengthy dissenting opinion was joined by Justices Samuel Alito, Brett Kavanagh and (except for one reference) Clarence Thomas.  The dissent should be studied carefully. 

Roberts distilled his reasoning with these final words: “As the Creek, the State of Oklahoma, the United States, and our judicial predecessors have long agreed, Congress disestablished any Creek reservation more than 100 years ago.” 

The chief justice began the dissent with this summation of the majority’s impact: 

“In 1997, the State of Oklahoma convicted petitioner Jimcy McGirt of molesting, raping, and forcibly sodomizing a four-year-old girl, his wife’s granddaughter. McGirt was sentenced to 1,000 years plus life in prison. Today, the Court holds that Oklahoma lacked jurisdiction to prosecute McGirt — on the improbable ground that, unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians like McGirt. 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.” 

Gorsuch and Roberts are both intelligent, as is each and every justice. To understand the anxiety many intelligent people of good will now feel read the above paragraph at least third times.  The Roberts dissent is more attentive to text and legal history than his pronouncements in other cases. 
  
The U.S. Supreme Court decision in ‘McGirt v. Oklahoma’ is, for the state of Oklahoma, existential. The majority opinion throws the legal jurisdiction of much of the state into question. It may take decades to resolve the confusion. 

Clarence Thomas got it right 
 
In his dissent, Justice Thomas captures the jurisprudence I honor – the tradition of the late Judge Robert Bork, Supreme Court Justice Antonin Scalia, and Thomas himself. There are shades of difference among the trio, but most of time, I agree with their reasoning about important matters of law. 

Thomas said the majority “reverses a state court judgment that it has no jurisdiction to review.” Reviewing precedent, Thomas reasoned that “Under this well-settled rule, we lack jurisdiction to review the Oklahoma Court of Criminal Appeals’ decision, because it rests on an adequate and independent state ground.”  He agreed that the High Court “misapplies our precedents,” but asserted “the Court also overrides Oklahoma’s statutory procedural bar, upsetting a violent sex offender’s conviction without the power to do so. The State of Oklahoma deserves more respect under our Constitution’s federal system. Therefore, I respectfully dissent.” 

Wrapping up: The Lay of the Land (Fix) 

U.S. Rep. Tom Cole, R-Oklahoma, has long sought to lock in place certain advantages that have, over time, flowed through case law and administrative fiat to the major tribes, most important to the Chickasaw Nation, the most powerful tribal entity in Oklahoma. 
These advantages have over many years locked in unfair advantages for the Big Tribes over the smaller nations. A clash between the Chickasaw and Comanche is still active in the federal judiciary, while a new version of what analysts call the “land fix” (favorable to the Chickasaw) is pending in Congress. 

I have outlined the McGirt case, not hiding my convictions. 
The best way for any reader to decide how she or he really feels is not to linger in anger or joy, but to study this historic ruling. Remember, it was 5-4. And there have been times that passionate dissents become the basis for new majorities that shift slightly or significantly old precedents. 

The majority and dissenting opinions for ‘McGirt v. Oklahoma’ can be viewed here: https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf 

Disclosure: Publisher of The City Sentinel newspaper, Pat McGuigan is the author of three books and editor of seven, including ‘Crime and Punishment in Modern America (1985). McGuigan won first place in Diversity news for his 2012 report on the late Archie Hoffman’s effort to restore the land around Fort Reno, in western Oklahoma, to the Cheyenne & Arapaho Tribes.  

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