Ruling: Nearly half of Okla. under tribal control

By Niina H. Farah | 07/09/2020 01:25 PM EDT

Millions of acres in the eastern half of Oklahoma remain part of a Native American reservation for criminal law purposes, the Supreme Court said today in a sharply divided ruling that could have implications for oil and gas development in the state.

The Supreme Court.

The Supreme Court. Francis Chung/E&E News

Millions of acres in the eastern half of Oklahoma remain part of a Native American reservation for criminal law purposes, the Supreme Court said today in a sharply divided ruling that could have implications for oil and gas development in the state.

This morning’s 5-4 decision put an end to a stalemate over whether 3 million acres of land, including part of the city of Tulsa, remained within the boundaries of Indian Country under an 1832 treaty struck with the Creek Nation after the U.S. government forced members of the tribe from their lands in Georgia and Alabama. The decision also recognized four other reservations in the state, bringing the total reservation land to 19 million acres.

"Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law," Justice Neil Gorsuch, joined by the court’s four liberal justices, wrote for the majority. "Because Congress has not said otherwise, we hold the government to its word."


The case, McGirt v. Oklahoma, had drawn the attention of at least one oil and gas association, which warned of the potential consequences to energy development if the high court found that the lands were still under tribal control.

Gorsuch today acknowledged the "potential for cost and conflict" as a result of the ruling but said the state and tribe are capable of reaching intergovernmental agreements.

Chief Justice John Roberts, who penned the court’s dissenting opinion, also warned of the broad potential consequences of the ruling. He was joined by Justices Samuel Alito, Brett Kavanaugh and Clarence Thomas, except in one footnote of the opinion.

Roberts argued that today’s decision would hobble the state’s ability to prosecute serious crimes and could lead to decades of convictions being thrown out.

"On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma," the chief justice wrote. "The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law."

Jimcy McGirt, a member of the Seminole/Muscogee (Creek) nations, argued in McGirt v. Oklahoma that a state court improperly convicted him of sex crimes against a 4-year-old child because the events took place on land that still remained part of the Creek reservation.

Attorneys for McGirt argued to the Supreme Court that his case should instead be reheard by a federal court (Energywire, May 12).

McGirt’s position closely mirrored an argument brought in the case Sharp v. Murphy that the justices last year punted to this term.

The court’s ruling today also resolves the key question in Sharp.

Oklahoma has maintained that the Creek Nation does not currently hold a claim to the land, alternately arguing that the claims to the land had either been invalidated or that Congress had instead established a separate entity — a "dependent Indian community" for the Creek Nation.

The court called the argument that the Creek Nation never had a reservation "willful blindness to the statutory language." The justices also rejected claims that subsequent division and sale of the land had dissolved the reservation.

"If Congress wishes to withdraw its promises, it must say so," Gorsuch wrote.

"Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law," he continued. "To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right."

Gorsuch said that both Oklahoma and its tribes had "proven time and again" their ability to work as partners.

"Congress remains free to supplement its statutory directions about the lands in question at any time," he added.

‘Historic step’

Shortly after the ruling, Oklahoma Attorney General Mike Hunter (R) released a joint statement with the Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole nations that they had made "substantial progress" on an agreement to send to Congress and the Department of Justice to resolve any jurisdictional issues produced by the high court decision.

"The Nations and the State are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused," they said. "We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma."

The court’s ruling drew praise from other Native American tribes and lawmakers.

The National Congress of American Indians noted that the issue decided by the court had "loomed over federal Indian law" for two Supreme Court terms.

"This morning, NCAI joined the rest of Indian Country in congratulating the Muscogee (Creek) Nation and proudly asserting that its lands remain, and will forever be considered, Indian country as guaranteed in their treaty relationship with the United States," said NCAI President Fawn Sharp.

Members of Congress also applauded the ruling.

"While no court decision can correct centuries of injustice committed against Indigenous people, today’s ruling is a historic step forward to safeguard Tribal sovereignty for decades to come," said New Mexico Sen. Tom Udall (D).