Case BriefsForeign Courts

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]

Case BriefsHigh Courts

Kerala High Court: The Bench of N. Nagaresh, J. allowed a civil writ petition for renewal of gun licence on the ground that the applicant of licence had been exonerated in criminal cases pending against him.

The instant petition was filed challenging Additional District Magistrate’s (ADM) order of refusal to renew pistol and gun licences possessed by him. The grounds for such refusal, as stated in the impugned order, were that there were criminal cases pending against the petitioner, and that District Police Chief had submitted a report adverse to him. Moreover, the petitioner had filed another writ petition seeking removal of his name from the rowdy list maintained in the Vaikom Police Station as cases against him had ended in acquittal. The said petition was allowed and Superintendent of Police was directed to close ‘rowdy history sheet’ in respect of the petitioner.

Respondents herein enumerated the criminal cases pending against the petitioner and objected to his prayer stating that he was not facing any threat from any quarter, and thus gun/pistol licence was not necessary for him.

The Court held that since the petitioner had been exonerated/ acquitted from criminal cases pending against him, therefore it was only just and proper that his application for renewal of gun/pistol licence be reconsidered afresh. Accordingly, the impugned order was set aside and ADM was directed to reconsider petitioner’s application for renewal of pistol and gun licence within a period of two months.[V.K. Rajeev v. State of Kerala, 2019 SCC OnLine Ker 919, decided on 15-03-2019]

Case BriefsHigh Courts

Karnataka High Court: A Single judge bench comprising of K.S. Mudagal, J. dismissed a criminal petition rejecting grant of bail to the accused petitioner who was a habitual offender and involved in around twenty other criminal cases.

The instant petition was preferred seeking an enlargement of petitioner on bail. The petitioner was caught by a few people while trying to steal a car; he was beaten by the public, admitted in hospital and arrested a few days later. The primary contention advanced on behalf of the petitioner was that arrest after three days of the incident and after his admission into the hospital raised doubts about his involvement in the theft. The respondent objected to the same contending that petitioner was caught by the public while committing the offence of theft and the report of investigating officer showed that he was involved in twenty-one other such criminal cases and was a habitual offender.

The Court observed that one of the factors to be considered in granting of bail is the antecedents of the accused. If the accused is found to be a habitual offender, then his bail application can be rejected. Since the materials on record prima facie showed the petitioner’s involvement in crime and the fact that he was a habitual offender, therefore the present case was held to be fit for refusal of bail.[Manikantan v. State of Karnataka,2018 SCC OnLine Kar 1822, decided on 02-11-2018]

Case BriefsHigh Courts

Karnataka High Court: While deciding a criminal petition filed under Section 482 of CrPC, a Single Judge Bench comprising of K.N. Phannendra, J. quashed a criminal case registered against the petitioner-accused, based on the compromise entered into between the parties.

The petitioner was accused in a criminal case registered under Sections 366A, 376, and 120B of IPC along with Section 4 of POCSO Act. The petitioner submitted that he has entered into a compromise with the prosecutrix-wife of the petitioner. He contended that based on the said compromise, the case registered against the petitioner should be quashed.

The High Court referred to a few Supreme Court decisions to understand as to under what circumstances the Court can record a compromise between the parties, even in the cases where offences alleged are serious in nature. The High Court, after perusal of such decisions, was of the opinion that cases involving heinous or serious offences of mental depravity and the like can not be quashed by the Court even if the victim and the offender have settled the dispute because such offences are not private in nature and have serious impact on the society at large. However, cases having overwhelmingly and predominantly civil flavor stand on a different footing; offences that are basically private in nature can be quashed by the Courts on the basis of settlement between the parties. In such circumstances, the Court should see whether the continuation of criminal proceedings would tantamount to abuse of process of law, and whether it is appropriate to end the proceedings to secure ends of justice.

In the instant case, the Court found that the prosecutrix was the wife of the petitioner. The alleged forceful sexual intercourse was committed after the marriage. The prosecutrix was almost seventeen years of age at the time of commission of alleged offence. Exception to Section 375 IPC, at the relevant time said that sexual intercourse with the wife if she is not less than 15 years of age, does not amount to rape. Also, at the relevant time, the provisions concerned of the POCSO Act were not in force. Further, a compromise was already entered into between the parties concerned.

On basis of the facts and circumstances of instant case, the Court thought it to be a fit case to exercise its discretion in favour of the petitioner. Accordingly, proceedings against him in the said criminal case were quashed. [Jameel Jabbar alias Mirza v. State of Karnatka, Crl. Petition No. 3269 of 2017, order dated 12.12.2017]

Hot Off The PressNews

Supreme Court: The bench of Ranjan Gogoi and Navin Sinha, JJ asked the Central Government to constitute Special Courts to deal with cases involving MPs and MLAs and speedy disposal of these matters after the Election Commission of India recommended life ban on politicians convicted in criminal cases. The bench asked Centre to apprise it with the details of the criminal cases lodges against politicians from 2014 till date.

The Court asked Centre to place before it details regarding 1,581 cases involving MPs and MLAs, as declared by politicians at the time of filing their nominations during the 2014 general elections and that how many of these 1,581 cases have been disposed of within one year and how many have ended either in conviction or acquittal of the accused.

Centre told the bench that decriminalisation of politics has to be done and it was not averse to the setting up of special courts to deal with cases involving politicians and that the recommendations of the Election Commission of India and the Law Commission favouring life-time disqualification of politicians convicted in criminal cases was under the active consideration of the government.
The Court, hence, asked Centre to place before it the scheme for setting up of such special courts and also indicate the amount of funds that could be earmarked for the purpose. The matter has been listed on December 13, 2017 and Centre has to do the needful within 6 weeks.
Source: ET