Supreme Court of The United States

Supreme Court of the United States of America (SCOTUS): The Supreme Court of the United States, in what is being touted as a landmark judgment in favour of Native Americans’ rights, held with a 5-4 majority that a major part of the state of Oklahoma is reserved land falling under Native American territory (referred to as “Indian territory” in the judgment) and debars state and local courts from trying criminal cases involving members of the Muscogee (Creek) Nation. It reaffirmed the reservation enjoyed by the Creek, granted to the Indians in a treaty dating back almost two centuries. The Court held that since the reservation had been promised in perpetuity, and although breached several times, it has never been extinguished or revoked by the Congress, and should, therefore, still be in place.


The appellant, Jimcy McGirt, is a convicted sexual offender convicted by the Oklahoma state court. However, he argued in post conviction proceedings that the state court worked beyond its jurisdiction in prosecuting him since “he is an enrolled member of the Seminole nation of Oklahoma and his crimes took place on the Creek Reservation.” He contends that he should be re-tried, only this time in a federal court, as per the Major Crimes Act (MCA) which states that Indians committing crimes on tribal lands should only be subjected to federal trials.

The Creek refers to the five present-day Native American tribes (the Muscogee, Cherokees, Chickasaws, Choctaws, and Seminoles)- that were displaced from what is now Georgia and Alabama on the promise that, in exchange, they will get to keep forever the lands which now encompasses the entire eastern half of the state of Oklahoma, referred to in the judgement as “Indian territory.” The Creek nation was allowed to govern themselves, free from interference by any state or territory enjoyed self-government. The issue at hand is whether the Indian reservation is still in place today, which shall determine whether tribals fall under the purview of federal criminal law exclusively.

Majority Opinion:

Gorsuch, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined.

  • The Congress established the reservation in a series of treaties with the tribals which guaranteed the territory as “a permanent home to the whole Creek Nation of Indians.”
  • The court accepts that “Only the Congress can divest a reservation of its land and diminish its boundaries.” However, an intention to dissolve a reservation must be clearly expressed, for instance, through explicit references to cession or similar language, and compensation to tribals. Even though steps such as the Creek Allotment Agreement, which reduced the area under Creek reservation, and abolishment of the Creeks’ tribal court were undoubtedly major intrusions into Creek sovereignty, such acts cannot be interpreted to mean an elimination of all tribal interests in the land in the absence of even a single Congress legislation indicating such an intention.
  • The majority dismissed contemporary events in considering the question of disestablishment citing a lack of ambiguity in the original meaning of the law. Similarly, the Court rejected demographics as a ground for disestablishing or diminishing reservations, regardless of the fact that only 10-15% of the inhabitants of the concerned territories are Indian. The Court renounces the use of extra textual sources such as these, when the meaning of the statute is already clear.
  • The Court reaffirms the creation of tribal reservations in Oklahoma, which the state was trying to reclassify as “dependent Indian communities.” The court rejects Oklahoma’s argument by mentioning the numerous treaties signed by the federal government and statutes passed by the Congress, the repeated mentions of “Creek reservation” by the Congress in its statutes,
  • The Court holds that Oklahoma’s Enabling Act transferred all non-federal, state-law cases to state court and all federal-law cases to federal district courts, and Oklahoma doesn’t have the jurisdiction to try tribals for major cases in its own courts.

Roberts, CJ,  with whom Alito, J. and Kavanaugh, J., join, and with whom Thomas, J. substantially joined.

  • Roberts, C.J., said that the “touchstone” for determining the validity of tribal reservation is congressional “purpose” or “intent.” South Dakota v. Yankton Sioux Tribe, 522 U. S. 329, 343 (1998), which can be gauged through three kinds of evidence:
    A. the relevant Acts passed by Congress;
    B. the contemporaneous understanding of those Acts and the historical context surrounding their passage; and
    C. the subsequent understanding of the status of the reservation and the pat- tern of settlement there. As the Tribes, the State, and Congress have recognized from the outset, those “reservations were destroyed” when “Oklahoma entered the Union.” S. Rep. No. 101–216, pt. 2, p. 47 (1989). 
  • The “reservations were destroyed” when “Oklahoma entered the Union,” and has been recognized by the State, the Tribe and the Congress, proven through multiple examples in the judgement.
  • Criticised the majority for looking at the acts in isolation and through a restricted lens of contemporary evidence, instead of looking at them as a whole to determine legislative intent.
  • The three conditions of the Solem test are satisfied, signifying that the Congress did intend to disestablish the reservation.
  • “Applied properly, our precedents demonstrate that Congress disestablished any reservation possessed by the Creek Nation through a relentless series of statutes leading up to Oklahoma statehood. “
  • By looking at the subsequent treatment of the area by the Congress, Oklahoma, tribals and non-tribals and its demographic composition,  disestablishment can be proved. “Congress enacted several statutes progressively eliminating restrictions on the alienation and taxation of Creek allotments, and Congress subjected even restricted lands to state jurisdiction.” Even the Creek itself has conceded that no reservation exists. Oklahoma’s unquestioned, century-long exercise of jurisdiction, especially since the passing of the Enabling Act, supports the conclusion that no reservation persisted after it was granted statehood.
  • Demographically,  the population of the lands is approximately 85%–90% non-Indian.
  • “Beyond the criminal law, the decision may destabilize the governance of vast swathes of Oklahoma,” since the repercussions of the decision will not be limited to criminal law, resulting in several federal laws that can lead to complications.

  [McGirt v. Oklahoma, 591 U. S. ____ (2020), No. 18–9526, decided on 09-07-2020]

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