Oklahoma ruling changes law enforcement of crimes involving Native Americans

Error message
In order to filter by the "in queue" property, you need to add the Entityqueue: Queue relationship.-
County NewsThe Supreme Court held that for purposes of the Major Crimes Act. 3 million acres of Oklahoma is a Creek reservation.Oklahoma ruling changes law enforcement of crimes involving Native Americans
-
County News Article
Oklahoma ruling changes law enforcement of crimes involving Native Americans
In a 5-4 decision, the Supreme Court held in McGirt v. Oklahoma that for purposes of the Major Crimes Act (MCA) 3 million acres, including most of the City of Tulsa, is a Creek reservation.
Per the federal MCA, only the federal government may prosecute Native Americans who commit specific crimes within “Indian country.” Oklahoma state court convicted Jimcy McGirt, a member of the Seminole Nation of Oklahoma, for three serious sexual offenses.
McGirt claimed his crimes took place on a Creek reservation and therefore that the state of Oklahoma had no jurisdiction to try him.
According to Justice Gorsuch, writing for the majority, because “Congress has not said otherwise,” the treaty between the Creeks and the federal government creating a reservation in 1932 remains a reservation.
“[O]nly Congress can divest a reservation of its land and diminish its boundaries. So, it’s no matter how many other promises to a tribe the federal government has already broken. If Congress wishes to break the promise of a reservation, it must say so.” But Congress didn’t in this case, the Court opined.
Justice Gorsuch recounted the history of the treaty in which the Creeks agreed to relocate to what is now Oklahoma from Alabama and Georgia.
Even though the treaty didn’t refer to the Creek land as a “reservation” — “perhaps because that word had not yet acquired such distinctive significance in federal Indian law,” it was a reservation, according to the majority.
Justice Gorsuch acknowledged that over time the federal government “broke more than a few of its promises to the Tribe.”
Most relevant to this case, in 1901, the Creeks agreed to allot 160-acre parcels to individual tribe members who could sell them to anyone they liked. But what Congress never did, according to the Court, was pass a “statute evincing anything like the ‘present and total surrender of all tribal interests’ in the affected lands.”
Justice Gorsuch states that the ruling in this case only applies to the Creeks because “[e]ach tribe’s treaties must be considered on their own terms, and the only question before us concerns the Creek.”
But Chief Justice Roberts notes in his dissent that “the Court’s reasoning portends that there are four more such reservations in Oklahoma” because four other tribes also agreed in treaties to move to what is now Oklahoma. Justices Thomas, Alito, and Kavanaugh joined the Chief Justice’s dissent.
According to Justice Gorsuch the impact of this decision on criminal prosecutions in Oklahoma won’t be significant because “only between 10 percent and 15 percent of its citizens identify as Native American.”
But Chief Justice Roberts’ dissent warns of the big impact of this case beyond the MCA. Specifically, tribes may regulate non-Indian conduct on reservation land in some instances and “impose certain taxes on non-Indians on reservation land.”
Justice Gorsuch acknowledges that “recognizing the existence of the Creek Reservation for purposes of the MCA might potentially trigger a variety of federal civil statutes and rules.” He asks, “What are we to make of this? Some may find developments like these unwelcome, but from what we are told others may celebrate them.”
The Supreme Court held that for purposes of the Major Crimes Act. 3 million acres of Oklahoma is a Creek reservation.2020-07-19County News Article2023-04-11
In a 5-4 decision, the Supreme Court held in McGirt v. Oklahoma that for purposes of the Major Crimes Act (MCA) 3 million acres, including most of the City of Tulsa, is a Creek reservation.
Per the federal MCA, only the federal government may prosecute Native Americans who commit specific crimes within “Indian country.” Oklahoma state court convicted Jimcy McGirt, a member of the Seminole Nation of Oklahoma, for three serious sexual offenses.
McGirt claimed his crimes took place on a Creek reservation and therefore that the state of Oklahoma had no jurisdiction to try him.
According to Justice Gorsuch, writing for the majority, because “Congress has not said otherwise,” the treaty between the Creeks and the federal government creating a reservation in 1932 remains a reservation.
“[O]nly Congress can divest a reservation of its land and diminish its boundaries. So, it’s no matter how many other promises to a tribe the federal government has already broken. If Congress wishes to break the promise of a reservation, it must say so.” But Congress didn’t in this case, the Court opined.
Justice Gorsuch recounted the history of the treaty in which the Creeks agreed to relocate to what is now Oklahoma from Alabama and Georgia.
Even though the treaty didn’t refer to the Creek land as a “reservation” — “perhaps because that word had not yet acquired such distinctive significance in federal Indian law,” it was a reservation, according to the majority.
Justice Gorsuch acknowledged that over time the federal government “broke more than a few of its promises to the Tribe.”
Most relevant to this case, in 1901, the Creeks agreed to allot 160-acre parcels to individual tribe members who could sell them to anyone they liked. But what Congress never did, according to the Court, was pass a “statute evincing anything like the ‘present and total surrender of all tribal interests’ in the affected lands.”
Justice Gorsuch states that the ruling in this case only applies to the Creeks because “[e]ach tribe’s treaties must be considered on their own terms, and the only question before us concerns the Creek.”
But Chief Justice Roberts notes in his dissent that “the Court’s reasoning portends that there are four more such reservations in Oklahoma” because four other tribes also agreed in treaties to move to what is now Oklahoma. Justices Thomas, Alito, and Kavanaugh joined the Chief Justice’s dissent.
According to Justice Gorsuch the impact of this decision on criminal prosecutions in Oklahoma won’t be significant because “only between 10 percent and 15 percent of its citizens identify as Native American.”
But Chief Justice Roberts’ dissent warns of the big impact of this case beyond the MCA. Specifically, tribes may regulate non-Indian conduct on reservation land in some instances and “impose certain taxes on non-Indians on reservation land.”
Justice Gorsuch acknowledges that “recognizing the existence of the Creek Reservation for purposes of the MCA might potentially trigger a variety of federal civil statutes and rules.” He asks, “What are we to make of this? Some may find developments like these unwelcome, but from what we are told others may celebrate them.”

About Lisa Soronen (Full Bio)
Executive Director, State and Local Legal Center
Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC). Prior to joining the SLLC, Ms. Soronen worked for the National School Boards Association, the Wisconsin Association of School Boards, and clerked for the Wisconsin Court of Appeals.More from Lisa Soronen
-
Webinar
Familiar Faces Initiative: Model Jurisdictions for Improving Outcomes through Coordinated Health and Justice Systems
May. 11, 2023 , 2:00 pm – 3:30 pmIn 2022, NACo relaunched the Familiar Faces Initiative during Mental Health Awareness Month to support counties and cities in better meeting the needs of their familiar faces—individuals with complex health and behavioral health conditions who frequently cycle through jails, homeless shelters, emergency departments and other crisis service -
County News
Dane County creates more inclusive justice system with help from the community
Dane County involved the local community to help re-envision the justice system through a more diverse and inclusive lens. -
Blog
Familiar Faces Initiative Case Study: Orange County, Calif.
Improving Outcomes through Coordinated Health and Justice Systems BACKGROUND -
County News
NACo supports counties through the Reaching Rural Initiative
The Reaching Rural Initiative focuses on helping rural counties leverage assets they may already have and forming bolder regional opportunities for collaboration to meet these challenges. -
Press Release
Counties Applaud New Opportunity for Pre-Release Medicaid Coverage for Incarcerated Individuals
New guidance will improve health, reduce recidivism and costs -
Webinar
Reducing Jail Populations: Lowering Recidivism through Jail- and Community-Based Treatment and Services
Apr. 6, 2023 , 2:00 pm – 3:00 pmUnable to attend? Watch the recording here. Reducing recidivism through effective jail- and community-based services can decrease jail admissions and populations and improve outcomes for people with criminal histories.
-
Basic page
Justice & Public Safety Steering Committee
All matters pertaining to criminal justice and public safety systems, including criminal justice planning, law enforcement, courts, corrections, homeland security, community crime prevention, juvenile justice and delinquency prevention, emergency management, fire prevention and control, and civil disturbances.pagepagepage<p>All matters pertaining to criminal justice and public safety systems, including criminal justice planning, law enforcement, courts, corrections, homeland security, community crime prevention, juvenile justice and delinquency preven
-
Reports & Toolkits
Opioid Solutions Center
NACo’s Opioid Solutions Center empowers local leaders to invest resources in effective treatment, recovery, prevention and harm reduction practices that save lives and address the underlying causes of substance use disorder.Reports & Toolkitsdocument10123:30 pmReports & Toolkits<p>NACo's Opioid Solutions Center empowers local leaders to invest resources in effective treatment, recovery, prevention and harm reduction practices that save lives and address the underlying causes of substance use disorder.
Contact
-
Executive Director, State and Local Legal Center
Related Resources
-
County News
Dane County creates more inclusive justice system with help from the community
Dane County involved the local community to help re-envision the justice system through a more diverse and inclusive lens. -
Blog
Familiar Faces Initiative Case Study: Orange County, Calif.
Improving Outcomes through Coordinated Health and Justice Systems BACKGROUND -
County News
NACo supports counties through the Reaching Rural Initiative
The Reaching Rural Initiative focuses on helping rural counties leverage assets they may already have and forming bolder regional opportunities for collaboration to meet these challenges.
-
Press Release
Counties Applaud New Opportunity for Pre-Release Medicaid Coverage for Incarcerated Individuals
New guidance will improve health, reduce recidivism and costs -
Reports & Toolkits
Planning Principles Toolkit
Tools, templates and strategic guidance for maximizing the impact of opioid settlement funds on your community’s opioid abatement priorities. -
Reports & Toolkits
Behavioral Health Matters to Counties
Through 750 behavioral health authorities and community providers, county governments plan and operate community-based services for persons with mental illnesses and substance use conditions.
More From
-
Opioid Solutions Center
NACo’s Opioid Solutions Center empowers local leaders to invest resources in effective treatment, recovery, prevention and harm reduction practices that save lives and address the underlying causes of substance use disorder.
Learn More