In a win for tribal rights, the Supreme Court ruled in a 5-4 decision Thursday that a large part of Eastern Oklahoma is considered tribal land, meaning crimes committed by Native Americans can only be prosecuted by federal authorities.
The court’s decision returned 19 million acres of tribal land, including much of Tulsa, the state’s second largest city. Justice Neil Gorsuch joined the liberal wing and wrote for the court, ruling that state authorities did not have jurisdiction to prosecute Jimcy McGirt, a member of the Muscogee (Creek) Nation committed of a sex crime.
The state of Oklahoma could not undermine treaties signed by the government with Native tribes, Gorsuch wrote.
“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Justice Gorsuch wrote. “Because Congress has not said otherwise, we hold the government to its word.”
The jurisdiction in question was established as Native American land by the U.S. Congress in 1866. Under the Major Crimes Act, only the federal government and tribal authorities can prosecute crimes involving Native Americans on Native land.
McGirt, the plaintiff in this case, was convicted of sex crimes against a minor in 1996 by the state of Oklahoma. However, he later challenged the conviction under the Major Crimes Act and the case was heard by the Supreme Court in May via telephone conference because of the pandemic.
The current case is the second time the high court has heard a case on disputes about tribal land. In 2018, the court heard a similar case from Oklahoma but Gorsuch recused himself because he served on the Court of Appeals for the 10th Circuit when the case was previously decided there. The justices were deadlocked 4-4 and decided to hear the McGirt case this year with all nine justices voting.
Attorneys for the state of Oklahoma had argued that ruling for McGirt would open up the opportunity for many Native people convicted under state jurisdiction to appeal their conviction. There is no data, however, to support this claim and any convictions that can be appealed come from the state’s encroachment of Native sovereignty.
“To the extent they hold any water, the State’s posited consequences stem from the fact that both executive branch and state officials actively sought to undermine Congress’s determination that the Nation’s government and territory would endure,” Riyaz Kanji, a lawyer for the tribe, wrote.
Gorsuch supported this argument in his decision.
“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,” he wrote.
Sources: The New York Times 07/09/20; Business Insider 07/09/20; CNBC 07/09/20; Supreme Court 07/09/20; The Atlantic 05/08/20.