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McGirt v. Oklahoma: A Victory for Native Women

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20 Jul 2020
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July 20, 2020

McGirt v. Oklahoma, 590 U.S. ___ (2020) (Gorsuch, J.).
Response by Mary Kathryn Nagle (Cherokee) and Sarah Deer (Mvskoke)
Geo. Wash. L. Rev. On the Docket (Oct. Term 2019)
Slip Opinion | SCOTUSblog

McGirt v. Oklahoma: A Victory for Native Women

Last week’s Supreme Court’s decision in McGirt v. Oklahoma1 is not just a victory for Tribal Nations—it is also a victory for Native women. We filed an amicus brief on behalf of the National Indigenous Women’s Resource Center, the American Civil Liberties Union, and other like-minded organizations to explicate the gendered implications of the decision.2

In McGirt, the State of Oklahoma asked the Supreme Court to judicially disestablish the Muscogee (Creek) Nation’s Reservation (established by treaty in 1866), despite the fact that Congress has never elected to do so. Oklahoma’s arguments—to many Indian law practitioners, including ourselves—seemed ludicrous since, for the last 100 years, the Supreme Court has consistently held that a reservation created by treaty can be disestablished only by Congress, and not by the Court.3

As citizens of the Cherokee Nation and the Muscogee Nation, respectfully, this case immediately caught our attention, not just because Oklahoma’s arguments in favor of dis-establishing the Muscogee Nation’s Reservation reinvigorated colonial arguments most Americans think were put to bed decades ago. But truly, as Native women, we immediately saw its implications not only for the sovereignty of our Nations, but ultimately, the safety of our bodies.

Today, Native women face the highest rates of domestic violence, sexual assault and murder in the United States4—rates that are fueled, in large part, by the fact that in 1978, the Supreme Court eliminated tribal jurisdiction over non-Indian-perpetrated crimes on tribal lands.5 As the Department of Justice has reported, the majority of violent crimes committed against Natives are committed by non-Natives.6 However, because of the Supreme Court’s decision in Oliphant, Tribal Nations are denied the jurisdiction necessary to prosecute the majority of violent crimes committed against their citizens.7

What do these statistics have to do with a Supreme Court decision concerning the continued existence of the Muscogee Nation’s Reservation? Everything.

In 2013, Congress sought to address the incredibly high rates of violence against Native women. In reauthorizing the Violence Against Women Act (VAWA),8 Congress legislatively restored a portion of the tribal jurisdiction the Court had eliminated in Oliphant. VAWA 2013 restored tribal criminal jurisdiction over non-Indian perpetrated crimes of domestic violence, dating violence, and violations of protective orders.9 In doing so, Congress tethered its restoration of tribal criminal jurisdiction to lands that constitute “Indian country” as defined by 18 U.S.C. § 1151.

A “reservation” constitutes “Indian country” under federal law,10 and thus the judicial disestablishment of an entire reservation would render a Tribal Nation unable to fully exercise the criminal jurisdiction that Congress restored. Here, if Oklahoma succeeded in its effort to disestablish the Muscogee Nation’s Reservation, Native-women victims calling the Muscogee Nation’s law enforcement—the Lighthorse Police—would be questioned about the legal status of the individual parcel of land where she is being beaten or abused. Is the land in trust? Is it non-Indian fee land? The woman would have to answer all of these just so the Nation’s law enforcement could determine whether it had jurisdiction to even respond to her call for help. A Native woman’s right to protection by her Nation’s law enforcement is intrinsically tied to the continued existence of her Nation’s Reservation.

The fact that we, as Native women, continue to have to fight for the sovereignty of our Nations—and our bodies—is infuriating. If a non-Native woman in Kansas calls the police and reports that she is being beaten or raped, law enforcement do not have to ask whether the perpetrator is a citizen of Kansas before deciding whether they have the requisite jurisdiction to protect her. When Ted Bundy went on a killing spree and murdered young women in several states, including Colorado, the fact that Bundy was not a citizen of Colorado did not prevent the state of Colorado for prosecuting him for the murders he committed within Colorado’s borders. Why is the analysis different when a white man murders a Native woman on tribal lands?

As Native women, we know the fight for the borders of our Tribal Nations is inextricably linked to the fight to preserve our lives. Violence against Native women has historically been used as a colonial tactic to eliminate Tribal Nations.11 But Tribal nations have historically criminalized rape and domestic violence—long before Europeans arrived on our shores.

Everything of course changed in 1978 when the Supreme Court eliminated tribal criminal jurisdiction over non-Indians—even on our own reservations. The Supreme Court’s decision in Oliphant, however, is not the end of the story. The Oliphant court acknowledged that Congress has the power to address the jurisdictional void it created.12 Since first restoring a sliver of tribal criminal jurisdiction in 2013, Republicans and Democrats have continued to work together, and in April 2019 the House passed H.R. 1585, a VAWA reauthorization bill that—if it can make it through the Senate—would restore further categories of tribal criminal jurisdiction over non-Indian perpetrated crimes committed in “Indian country” (including crimes like rape and child sexual abuse committed by non-Indians).

Of course, all of this bipartisan work to restore safety for Native women could have been undermined had the Supreme Court decided in favor of Oklahoma. And for what? The Supreme Court’s decision in McGirt will have little to no impact on the day-to-day lives of non-Indian citizens of Oklahoma living within the borders of the Muscogee Nation’s Reservation. The fact that the Reservation remains in existence does not change any individual ownership of any land. A great many reservations include large populations of non-Indians; in those locations, Tribal Nations, the federal government, and state governments work together to address public safety issues. And the fact that the entire Reservation remains “Indian country” does not remove the majority of crimes from Oklahoma’s criminal jurisdiction. It does, however, preserve the right of the Muscogee Nation’s Lighthorse Police to protect the lives of Native women living within the Muscogee Nation’s borders.

It may seem ironic that advocates for domestic violence, sexual assault and Missing and Murdered Indigenous Women and Girls (MMIWG) victims came together to support the Muscogee Nation’s fight to protect the status of its Reservation since, in doing so, advocates were siding with two individuals—Murphy and McGirt—who were convicted of a heinous murder (Murphy) and a series of sex offenses against children (McGirt). This irony is not lost on us. The fact these defendants “won” this case, however, does not mean they will not face consequences for their crimes. Although Oklahoma is without jurisdiction to prosecute these two tribal citizens, we anticipate that the United States Attorney’s Office, in collaboration with the Muscogee Nation’s Attorney General, will indict both men for the crimes they have committed, and they will be prosecuted in federal court. That being said, it must be recognized that telling victims they must sit through, and possibly testify at, yet another trial is triggering and traumatizing. We do not doubt that affirming and restoring tribal sovereignty and tribal jurisdiction is inextricably tied to increasing safety for Native women. At the same time, in this particular case, this restoration of sovereignty comes with a personal loss for the victims of Murphy and McGirt’s crimes, as they now have to re-live the trauma they have already survived (unless of course, a plea deal is struck between the United States and Murphy and/or McGirt, thus doing away with the need for a trial). It is imperative for all members of the Muscogee Nation, as well as members of other Tribal Nations in the State of Oklahoma, to center the voices of these victims—should they choose to share their stories—and take care not to silence them. The victims—not Murphy and not McGirt—are the true heroes of this landmark victory. It is unfortunate that these cases will forever be named after these men. This Supreme Court case should be named after their victims.

The disestablishment of a tribal reservation constitutes a goal of colonial conquest that many states have historically pursued. For Native women, however, it is more than a legal question. It is a matter of life and death. As Native women from Tribal Nations in Oklahoma, we are incredibly thankful the Supreme Court did not deviate from its past precedent and instead affirmed the continued existence of the Muscogee Nation Reservation.

Mary Kathryn Nagle is an enrolled citizen of the Cherokee Nation and playwright. Her play Sliver of a Full Moon has been performed at law schools across the United States, and she has received commissions from Arena Stage, the Rose Theater, Portland Center Stage, Denver Center for the Performing Arts, Yale Repertory Theatre, Round House Theatre, and the Oregon Shakespeare Festival. In 2019, her play SOVEREIGNTY was produced at Marin Theatre Company, and the Yale Repertory Theatre will produce MANAHATTA in 2020. She served as the first Executive Director of the Yale Indigenous Performing Arts Program from 2015 to 2019. Nagle is also a partner at Pipestem Law, P.C., where she works to protect tribal sovereignty and the inherent right of Indian Nations to protect their women and children from domestic violence and sexual assault. She has authored numerous briefs in federal appellate courts, including the United States Supreme Court.

Sarah Deer is a citizen of the Muscogee (Creek) Nation of Oklahoma and a professor at the University of Kansas. Ending violence against women is her life’s goal. Her 2015 book, The Beginning and End of Rape: Confronting Sexual Violence in Native America is the culmination of over 25 years of working with survivors and has received several awards, including the Best First Book award from the Native American Indigenous Studies Association. A lawyer by training but an advocate in practice, Deer’s scholarship focuses on the intersection of federal Indian law and victims’ rights, using indigenous feminist principles as a framework. Deer is a co-author of four textbooks on tribal law and has been published in a wide variety of law journals, including the Harvard Journal of Law and Gender, the Yale Journal of Law and Feminism, and the Columbia Journal of Gender and Law. Her work to end violence against Native women has received national awards from the American Bar Association and the Department of Justice.  She has testified before Congress on four occasions regarding violence against Native women and was appointed by Attorney General Eric Holder to chair a federal advisory committee on sexual violence in Indian country. Professor Deer was named a MacArthur Foundation Fellow in 2014.  In 2019, she was inducted into the National Women’s Hall of Fame. She currently teaches at the University of Kansas (her alma mater), where she holds a joint appointment in Women, Gender, and Sexuality Studies and the School of Public Affairs and Administration. Professor Deer is also the Chief Justice for the Prairie Island Indian Community Court of Appeals.

  1. No. 18-9526 (U.S. July 9, 2020).
  2. Brief of Amici Curiae National Indigenous Women’s Resource Center, Tribal Nations, and Additional Advocacy Organizations for Survivors of Domestic Violence and Assault in Support of Petitioner, McGirt v. Oklahoma, No. 18-9526 (U.S. filed Feb. 11, 2020).
  3. See, e.g., Solem v. Bartlett, 465 U.S. 463, 470 (1984) (citing United States v. Celestine, 215 U.S. 278, 285 (1909)); see also Nebraska v. Parker, 136 S. Ct. 1072 (2016).
  4. See United States v. Bryant, 136 S.Ct. 1954, 1959 (2016); see also André B. Rosay, Nat’l Inst. Of Justice, Office of Justice Programs, U.S. Dep’t of Justice, Violence Against American Indian and Alaska Native Women and Men: 2010 Findings from the National Intimate Partner and Sexual Violence Survey 44 (2016), https://www.ncjrs.gov/pdffiles1/nij/249736.pdf.
  5. See Oliphant v. Suquamish, 435 U.S. 191, 210 (1978).
  6. See Rosay, supra note 4, at 46 (concluding that 97% of Native women victims of violence have had a least one non-Native perpetrator).
  7. See Oliphant, 435 U.S. at 210.
  8. Pub. L. No. 103-322, Title IX, 108 Stat. 1796 (Sept. 13, 1994); see Violence Against Women Reauthorization Act, Pub. L. No. 113-4, Title IX, 127 Stat. 121 (Mar. 7, 2013).
  9. See 25 U.S.C. §§ 1304(c), (d)(4).
  10. 18 U.S.C § 1151.
  11. See Estelle B. Freedman, Redefining Rape 18–19 (2013).
  12. See Oliphant, 435 U.S. at 212.

Recommended Citation
Mary Kathryn Nagle & Sarah Deer, Response, McGirt v. Oklahoma: A Victory for Native Women, Geo. Wash. L. Rev. On the Docket (July 20, 2020), https://www.gwlr.org/mcgirt-v-oklahoma-a-victory-for-native-women/.

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