Case Notes

The Implications of a Supreme Court Decision in McGirt v. Oklahoma for the Integrity of Indian Reservations

As a result of Justice Neil Gorsuch’s recusal, the U.S. Supreme Court has reached a deadlock in Sharp v. Murphy.[1]  Possibly to sidestep Gorsuch’s conflict of interest arising from the case’s procedural history in the Tenth Circuit, the Court granted certiorari at the end of last year in McGirt v. Oklahoma,[2] which raises similar questions about the jurisdictional status of territory historically claimed by the Muscogee (Creek) Nation. Oral argument in McGirt has been rescheduled for May 11, 2020, when the nine justices of the Supreme Court will have to reckon with the historical and doctrinal issues underlying both cases. 

According to the petitioner, the question presented is “whether Oklahoma courts can continue to unlawfully exercise, under state law, criminal jurisdiction in Indian Country over Indians accused of major crimes enumerated under the Indian Major Crimes Act — which are under Federal criminal jurisdiction.”[3] The respondent, the State of Oklahoma, puts it another way: “Whether the State of Oklahoma has jurisdiction to prosecute crimes committed by a tribal member on land within the 1866 territorial boundaries of the Creek Nation in the former Indian Territory of eastern Oklahoma.”[4]

As the discrepancy between the two questions demonstrates, the underlying issue is whether the place of the petitioner’s crime is currently Indian country or not. At stake is jurisdiction over roughly half of Oklahoma (including Tulsa), and more importantly, the potential for the Supreme Court to decide whether an Indian reservation has been disestablished (or diminished) solely on the basis of demographic change.  Historically, even if the demographic make-up of Indian country has changed (due to the influx of white settlers following allotment, for example), that factor alone has not been sufficient for the court to find disestablishment.[5]

Supreme Court precedents such as Solem v. Bartlett[6] and Nebraska v. Parker[7] have held that Indian reservations can only be diminished by explicit terms in statutes or treaties, or by a clear showing of congressional intent and supportive legislative history. While 1984’s Solem still held open the possibility of de facto diminishment (in which the territory’s loss of “Indian character” could influence a finding[8]), the much more recent ruling in Parkerattempted to put that possibility to rest: “[S]ubsequent demographic history cannot overcome our conclusion that Congress did not intend to diminish the reservation.”[9] Quoting South Dakota v. Yankton Sioux Tribe, the Court stated that “evidence of the changing demographics of disputed land is ‘the least compelling’ evidence in our diminishment analysis.”[10]

Despite clear precedents in the petitioner’s favor, the justices may be reluctant to side with the petitioner because of the practical consequences of doing so.  The State of Oklahoma warned in its brief against the “staggering ramifications” of a change of jurisdiction over the population of 1.8 million in that area.[11] The United States argued as amicus in support of Oklahoma that such a decision “would have great adverse consequences” and would result in “a massive increase in federal law-enforcement presence and responsibilities.[12] The petitioner countered such fears by pointing out that, “[o]n fee land—the only land affected by reservation status—tribal civil jurisdiction over non-Indians is ‘presumptively invalid.’”[13] Furthermore, he argued, “States retain jurisdiction over non-Indians absent specific preemption.”[14]

Traditionally, federal Indian policy has prompted the United States to brief on the side of tribes in cases where tribal self-government and tribal sovereignty are at stake.[15] Under the current administration, however, that traditional role may have changed: in this case and in Sharp v. Murphy, the United States filed amicus briefs in support of the State of Oklahoma and against the interests of the Muscogee (Creek) Nation.[16]  In its amicus brief, the United States posits an argument (shared by Oklahoma) that is hard to reconcile with historical fact: it contends that the Creek reservation was never established to begin with, and therefore, Parker’s test for disestablishment need not be applied.[17]  Not only would the Supreme Court have to overlook the plain language of a series of treaties and statutes[18] to agree with this position, it would also have to reverse the Tenth Circuit’s decision in Murphy v. Royal which held that “Congress has not disestablished the Creek Reservation.”[19]

Considering the apparent difficulties presented on both sides, will the justices try to find a way to distinguish this case from territory at issue Parker and Solem? The United States’ amicus brief asserts that the Muscogee (Creek) Nation as one of the Five Tribes is “not on the ordinary Indian reservation.”[20] According to the United States, Indian territory belonging to the Five Tribes was distinguishable from other Indian reservations because it was “patented . . . in communal fee simple” and was almost “considered an independent country.”[21]  It argued that Congress did not disestablish a Creek reservation because one was never created in the first place; rather, Congress “eliminated” the tribes’ “status” through the “wholly different process of transforming a U.S. territory into a State.”[22] Such euphemistic and antiseptic language not only conceals the historic injustices perpetrated by both state and national governments against the Creek, but also distracts from the real doctrinal issues by ignoring historical evidence of the reservation’s existence.  

The petitioner’s reply[23] and the amicus brief for the Muscogee (Creek) Nation roundly refute the notion that there was no reservation: 

Oklahoma’s claim that a Reservation was never established for the Nation in the Indian Territory is divorced from both text and history. The Treaty of 1866 expressly refers to the Nation’s Territory as a “Reservation.” Art. IX, 14 Stat. 785, 788 (1866). That was no slip of the pen, but rather reflected the defining characteristics of the Creek territory.[24]

Further refuting Oklahoma’s contention that “issuance of a fee patent in 1852 divested the Creek territory of reservation status,” the Muscogee (Creek) Nation responded that “the rule nowhere exists that a tribe cannot possess fee title to a reservation. As the National Congress of American Indians well explains, nineteenth-century reservations rested on various forms of land tenure, with many substantial reservations held by tribes in fee simple.”[25] In addition, neither has “this Court nor Congress . . . deemed title determinative of reservation status.”[26]

If the Court were to find for the State of Oklahoma and hold that a reservation can be diminished or disestablished in the absence of any congressional action or intent, it would create a dangerous precedent that would leave the sovereignty of tribes at the mercy of federal courts.  Justice Thomas, who authored Nebraska v. Parker, may feel some hesitancy in swallowing his own words that “this Court has never relied solely on this third consideration [of demographic change] to find diminishment.”[27] Justice Gorsuch might also balk at overruling Parker, along with the other liberal justices[28] (with the possible exception of Justice Ginsburg[29]).  

After oral argument this May, the justices will be addressing all of these issues and their long-term implications when they decide whether to uphold Parker, overrule it, or find a way to distinguish the case at bar from the Court’s own precedents.

            Esther Jamison is a second-year student at the University of New Mexico School of Law.

[1] Sharp v. Murphy, No. 17-1107 (argued Nov. 27, 2018); Adam Liptak, Supreme Court to Rule on Whether Much of Oklahoma is an Indian Reservation, N. Y. Times, Dec. 13, 2019, v. Murphy was previously known as Carpenter v. Murphy, inter alia, and the case was appealed before the Tenth Circuit as Murphy v. Royal, 866 F.3d 1164 (10th Cir. 2017). 

[2] McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020).

[3] Brief for Petitioner at i, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020) (italics added).

[4] Brief for Respondent at I, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020) (italics added). Although McGirt has Creek heritage, he is an enrolled member of the Seminole Tribe, and is not a tribal member of the Muscogee (Creek) Nation. 

[5] See, e.g., Nebraska v. Parker, 136 S. Ct. 1072 (2016); Solem v. Bartlett, 465 U.S. 463 (1984).

[6] Solem v. Bartlett, 465 U.S. 463 (1984).

[7] Nebraska v. Parker, 136 S. Ct. 1072 (2016). 

[8] Bartlett, supra note 6, at 471 (stating that “Where non-Indian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character, we have acknowledged that de facto, if not de jure, diminishment may have occurred.”).

[9] Parker, supra note 7, at 1081-1082.

[10] Id. at 1082 (quoting 522 U.S. 329, 356 (1998)). 

[11] Brief for Respondent, supra note 4, at 43. 

[12] Brief for United States as Amicus Curiae Supporting Respondent at 4, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4 2020). 

[13] Brief for Petitioner, supra note 3, at 40 (citing Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 330, 341 (2008); Montana v. United States, 450 U.S. 544, 565 (1981) (identifying narrow circumstances in which Tribes have jurisdiction over nonmembers on fee land)). 

[14] Id. (citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-43 (1980)).

[15] See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987) (“We have repeatedly recognized the Federal Government’s longstanding policy of encouraging tribal self-government . . . This policy reflects the fact that Indian tribes retain attributes of sovereignty over both their members and their territory, to the extent that sovereignty has not been withdrawn by federal statute or treaty. The federal policy favoring tribal self-government operates even in areas where state control has not been affirmatively pre-empted by federal statute.”) (Internal quotations and citations omitted); See, e.g., Brief for United States as Amicus Curiae Supporting Respondent, Dollar General Corporation v. Mississippi Band of Choctaw Indians, 136 S. Ct. 2159 (2016); Brief for United States as Amicus Curiae Supporting Respondent, Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 134 S. Ct. 2024 (2014); Brief for the United States as Amicus Curiae in Support of Affirmance, Adoptive Couple v. Baby Girl, 568 U.S. 1224 (2013); Brief for the United States as Amicus Curiae in Support of Petitioner, Herrera v. Wyoming, 139 S. Ct. 1686 (2019); Brief of respondent United States, Nebraska v. Parker, 136 S. Ct. 1072 (2016); Brief for the United States as Amicus Curiae in Support of Respondents, South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998).

[16] See Brief for United States as Amicus Curiae Supporting Respondent, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4 2020); Brief for United States as Amicus Curiae, Sharp v. Murphy, No. 17-1107 (argued Nov. 27, 2018).

[17] Brief for Respondent, supra note 4, at 5. 

[18] Seee.g., Treaty with the Creek Indians, 14 Stat. 785 (1866); The Creek Allotment Act of 1901, 31 Stat. 861. 

[19] Murphy v. Royal, 866 F.3d 1164, 1233 (10th Cir. 2017) (“Applying Solem, we conclude Congress has not disestablished the Creek Reservation. Consequently, the crime in this case occurred in Indian country as defined in 18 U.S.C. § 1151(a)”). 

[20] Brief for United States, supra note 12, at 8 (quoting Census Office, U.S. Dep’t of the Interior, Report on Indians Taxed and Indians Not Taxed 284 (1894)).

[21] Id. at 5.

[22] Id.

[23] Reply Brief for Petitioner at 1, 3-5, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020). 

[24] Brief for the Muscogee Creek Nation as Amicus Curiae at 5, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020). 

[25] Id. at 7 (quoting Brief for National Congress of American Indians in Support of Petitioner at 10-13.)

[26] Id. (citing In re New York Indians, 72 U.S. 761, 766-68 (1866))

[27] Nebraska v. Parker, 136 S. Ct. at 1081.

[28] Mark Joseph Stern, Why Gorsuch Keeps Joining the Liberals to Affirm Tribal Rights, Slate Mag. (May 20, 2019),

[29] See Carol Goldberg, Finding the Way to Indian Country: Justice Ruth Bader Ginsburg’s Decisions in Indian Law Cases at 1014, 70 Ohio State L. J. 4 (2010), (“From a tribal perspective, a crude win/loss analysis indicates that in the nine cases where she wrote the opinion for the Court, the tribes prevailed in only one and partly prevailed in another.”)

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