The latest Supreme Court opinion on Indian law could have implications for jurisdiction over water rights administration and other natural resources in the West.  In the 5-4 decision McGirt v. Oklahoma, No. 18-9526, issued on July 9, 2020, the U.S. Supreme Court ruled that a significant portion of Eastern Oklahoma resides within “Indian country” because Congress had not acted to withdraw or disestablish the reservation that it created with its treaties with the Creek Nation.  The decision soundly affirms that Congress must act to change Native American treaty rights and reservation status, not states, and that no matter how inconvenient the outcome, Congress must be held to its “promises.”  Justice Gorsuch concluded the opinion by writing:  “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.”

The case concerns a criminal defendant, Jimmy McGirt, who was convicted of three serious sexual offenses in Oklahoma state court.  Mr. McGirt 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.  Mr. McGirt contended that a new trial for his conduct must take place in federal court.

Mr. McGirt’s argument involves the federal Major Crimes Act (MCA).  The MCA provides that, within “Indian country,” “[a]ny Indian who commits” certain enumerated offenses “against the person or property of another Indian or any other person” “shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.”  Thus, the MCA allows only the federal government to try Indians that commit the listed crimes in “Indian country.”  In turn, “Indian country” is defined, in part, as “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation.”

To maintain its claim that it had jurisdiction to prosecute Mr. McGirt in state court, the State of Oklahoma asserted several arguments that the crimes were not committed in “Indian country” because the Creek Reservation had been disestablished.  The Court rejected all of the State’s (and the dissent’s) arguments in its opinion.

Fundamentally, the majority opinion, written by Justice Gorsuch, emphasized that Congress’s multiple treaties with the Creek Nation controlled the question whether the federal reservation still existed.  Relying on precedent from Solem v. Bartlett, a 1984 decision, the Court then explained that only Congress can divest a reservation of its land or diminish its boundaries, and there was no such indication that Congress did so with respect to the Creek Reservation.

The Court rejected the argument that different allotment acts resulted in disestablishment of the Creek Reservation.  Starting in the 1880s, Congress allotted specific acreage to individual tribal members.  Often tribal members transferred ownership of allotted lands to non-Indians, resulting in checkerboard land ownership on many Indian reservations and within Indian country.  Here, the Court reiterated that allotments do not automatically end reservations and found that the relevant allotment agreements with the Creek Nation did not terminate the Creek Reservation.

The Court then worked through the multiple lines of evidence offered by the State and the dissent, demonstrating different ways Congress and the State have encroached on the sovereignty of the Creek Reservation.  This included the events during the allotment era, other acts of Congress affecting the Creek Nation’s sovereign government but not its reserved lands, congressional legislative history, judicial decisions, and historical and recent practices by the State of Oklahoma.  The Court rejected all these “extratextual” arguments, finding that the treaty language was clear.  Justice Gorsuch described this “hodge-podge” as “thin gruel to set against treaty promises enshrined in statutes.”

The Court also explained that the effects of the decision could not be clearly predicted and “for every jurisdictional reaction there seems to be an opposite reaction.”  That is, for every predicted consequence of the majority’s decision identified by the State or the dissent, there appear to be other predicted consequences in other areas of the law:  “Some may find developments like these unwelcome, but from what we are told others may celebrate them.”

Ultimately, the McGirt decision is an emphatic message from the Court that its responsibility is to apply the law as written.  Justice Gorsuch’s opinion includes multiple statements explaining that the Court will not rescue Congress from an “inconvenient” outcome.  The Creek Reservation covers approximately half of Eastern Oklahoma, roughly 1.8 million of its residents, and includes most of Tulsa and neighboring communities in Northeastern Oklahoma.  Still, in many different ways, including the following, the Court stated that it was not its role to adjust or eliminate reservations:

• “Mustering the broad social consensus required to pass new legislation is a deliberately hard business under our Constitution. Faced with this daunting task, Congress sometimes might wish an inconvenient reservation would simply disappear. . . .  But wishes don’t make for laws, and saving the political branches the embarrassment of disestablishing a reservation is not one of our constitutionally assigned prerogatives.”
• “If Congress wishes to break the promise of a reservation, it must say so.”
• “How much easier it would be, after all, to let the State proceed as it has always assumed it might. But just imagine what it would mean to indulge that path.  A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal.  Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was.  All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched.  Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished.  None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here.  That would be the rule of the strong, not the rule of law.”

Though it is a criminal jurisdiction case, the Court’s decision carries implications for reservations in Oklahoma and other western states.  Where there are disputes over whether an Indian tribe or a state has jurisdiction over natural resources administration, this opinion will likely favor tribal arguments that tribal or federal jurisdiction control over state jurisdiction.  And based on the strong message from the Court, these jurisdictional questions will turn on the treaty language “enshrined” in statute rather than historical events and practices.

For more information on the case, please contact Ramsey L. Kropf at rkropf@somachlaw.com.

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