Case No. 18-9526 | Okla. Crim. App.
May 11, 2020
Preview by Emma Liggett, Online Editor
The Major Crimes Act (MCA) gives the federal government exclusive jurisdiction over the prosecution of Indians for major crimes, such as murder or rape, committed on Indian reservations. 18 U.S.C. § 1153 (2018). In McGirt, the Court will resolve whether the State of Oklahoma had jurisdiction to prosecute Petitioner Jimmy McGirt, a member of the Seminole Nation of Oklahoma, for an alleged sexual assault committed in a suburb of Tulsa, land within the historical boundaries of the Creek Nation territory of eastern Oklahoma. Because this land has not been treated as a reservation since 1907, an answer in the negative would have significant implications, including the potential reversal of thousands of state convictions, the transfer of taxation and regulatory authority to the federal government, and the creation of the most populated Indian reservation in America.
In determining whether land is a reservation, the Court typically asks (1) whether the land used to be a reservation and (2) whether a federal statute explicitly terminates the land’s reservation status. See Nebraska v. Parker, 136 S. Ct. 1072, 1078–79 (2016). McGirt argues that the Creek land was a reservation at some point because Congress referenced such lands as “reservation” in relevant treaties and statutes. Reply Brief for Petitioner at 3–4, McGirt v. Oklahoma, No. 18-9526 (U.S. filed Apr. 10, 2020). He further argues that a federal statute must textually indicate Congressional “intent to diminish reservation boundaries,” just as Parker recently reaffirmed. Id. at 12 (quoting Parker, 136 S. Ct. at 1079). Because Oklahoma is unable to point to any statute containing clear language terminating the Creek’s reservation status, Congress did not disestablish the Creek reservation. See id.
Oklahoma argues that the Creek’s former territory was never a reservation to begin with, but rather a “dependent Indian communit[y]” subject to Indian control only if they held it communally or “individually . . . as restricted allotments.” Brief for Respondent at 8, McGirt v. Oklahoma, No. 18-9526 (U.S. filed Mar. 13, 2020) (quoting 18 U.S.C. § 1151(b) (2018)). When Oklahoma passed into statehood and Congress ended the allotment restrictions, the dependent Indian community ended as well. See id. Oklahoma continues that it had jurisdiction to prosecute McGirt regardless of the land’s status, however, because Congress transferred race-neutral jurisdiction over all Oklahoma residents to state courts at statehood. See id. at 21.
This is the second time in two years the Court faces this issue. In Sharp v. Murphy, the Court heard argument on whether Oklahoma could prosecute a Creek Nation member for murder committed in eastern Oklahoma. No. 17-1107 (U.S. argued Nov. 27, 2018). The Justices requested more briefing on whether Oklahoma retained prosecutorial criminal jurisdiction even if the land is a reservation, but never rescheduled the argument, likely because Justice Gorsuch was recused from Murphy, and McGirt raises a similar question. Notably, Oklahoma has changed its original argument. In Murphy, it argued that the land was a reservation at one point, but Congress disestablished it when it granted Oklahoma statehood and broke up the Creek land patents. See Brief for Petitioner at 26–28, Carpenter v. Murphy, No. 17-1107 (U.S. filed Jul. 23, 2018). While the Justices may look unfavorably upon a last-minute change of argument, the ramifications of calling the entire eastern half of Oklahoma a reservation for MCA purposes may persuade them to agree with Oklahoma’s newfound reasoning.