McGirt v. Oklahoma

The Court began with the treaties that followed the Creek Nation’s forced removal from its ancestral homelands. The United States promised the Nation a defined and permanent home in present-day Oklahoma, guaranteed the land to the Creek, and promised that the Nation could govern itself there. The 1833 treaty also provided for a fee-simple patent to the Nation, which formally issued in 1852.

Although the early treaties did not consistently use the word “reservation,” the Court held that their substance created one. Later federal enactments removed any doubt by expressly referring to the Creek lands as the “Creek reservation” and the “reduced Creek reservation.” The treaties’ promises of a permanent homeland, defined boundaries, and self-government described a reservation under federal Indian law.

The Creek Nation’s receipt of fee title did not negate reservation status. A reservation need not rest on federal trust title; the relevant question is whether Congress set aside a defined tract for tribal purposes. Treating the Creek’s additional protection of fee title as a reason to make its sovereignty easier to eliminate would, the Court said, invert the meaning of the federal promises.

Once Congress creates a reservation, only Congress may diminish or disestablish it, and it must clearly indicate that intent. States and courts cannot alter reservation boundaries through practice, acquiescence, or judicial inference. Congress has used unmistakable language when it has chosen to terminate reservations, including express cessions, restoration to the public domain, or declarations that reservation lines were abolished.

The Creek allotment agreement divided much of the Nation’s communal land into individual parcels and eventually allowed many parcels to pass to non-Indians. But allotment is not disestablishment. Section 1151 expressly includes all land within reservation boundaries as Indian country “notwithstanding the issuance of any patent,” and precedent establishes that private ownership within a reservation does not itself terminate the reservation.

Congress also imposed substantial restrictions on Creek self-government, including abolishing tribal courts, requiring federal approval of certain tribal ordinances, limiting tribal officials’ authority, and directing the handling of tribal assets. These measures were serious incursions on sovereignty, but none clearly surrendered all tribal interests in the land or dissolved the reservation. Indeed, the 1906 Five Civilized Tribes Act expressly continued the Creek Nation’s tribal existence and government for purposes authorized by law.

Later congressional actions reinforced that conclusion. In 1936, Congress authorized the Creek to adopt a constitution and bylaws, and the Nation reestablished governmental institutions, including courts. The Court found no point in this legislative history at which Congress enacted a law actually terminating either the Nation or its reservation.

The Court rejected Oklahoma’s proposed three-step approach that would give decisive weight to historical practice and later demographics. The ordinary judicial task is to determine the original meaning of Congress’s enactments. Extratextual evidence may help resolve genuine ambiguity about statutory language, but it cannot create ambiguity or substitute for the clear congressional action required to terminate a reservation.

Oklahoma’s history of prosecuting Indians in state court was not reliable evidence that Congress had disestablished the reservation. Oklahoma courts had also exercised criminal jurisdiction for decades over Indians on restricted allotments, even though those prosecutions conflicted with the Major Crimes Act. The State’s historical practices therefore could reflect legal error rather than a correct understanding of federal jurisdiction.

The Court also refused to allow non-Indian settlement and changed demographics to do the legal work Congress had not done. Allowing a reservation to disappear because a State long asserted authority, tribal land was alienated, or the area lost its Indian character would reward unlawful conduct and permit States and courts to erode federal treaty and statutory commitments without congressional authorization.

Oklahoma advanced this alternative classification largely to avoid the rule that a reservation remains in existence until Congress clearly disestablishes it. The Court held that the treaties, land patent, statutory references to the Creek Reservation, and promises of a permanent homeland and self-government made the reservation status of the land unmistakable.

The Court added that reclassifying the land would not clearly aid Oklahoma in any event. Both reservations and dependent Indian communities are forms of “Indian country” under 18 U.S.C. §1151. More fundamentally, the Court saw no basis for concluding that the Creek Nation’s choice to obtain fee title meant that Congress had supplied less protection for its land and sovereignty.

Oklahoma argued that federal territorial courts in Indian Territory had broad criminal jurisdiction over all persons and that the Oklahoma Enabling Act transferred that authority to the new state courts. The Court held that the cited territorial statutes governed the allocation of authority among courts before statehood, not the division of federal and state criminal jurisdiction after Oklahoma entered the Union.

At statehood, the Major Crimes Act gave federal courts exclusive jurisdiction over its enumerated crimes when committed by Indians in Indian country. The Enabling Act transferred cases arising under federal law to federal courts and nonfederal cases to state courts. It did not create a special exemption from the Major Crimes Act for eastern Oklahoma.

The possible jurisdictional gap for minor Indian-on-Indian crimes did not change the result. Similar gaps have existed in federal Indian law, and Congress has several ways to address them, including restoring tribal-court authority, authorizing tribal consent to state jurisdiction, or expressly granting a State jurisdiction. Congress had not taken any of those steps for the Creek Reservation.

The Court acknowledged that Oklahoma ordinarily treats claims omitted on direct appeal as waived in postconviction proceedings. But the state appellate court proceeded to address the merits of McGirt’s Major Crimes Act argument after noting the possible procedural issue.

Under Michigan v. Long, when a state-court decision appears to rest primarily on federal law or is interwoven with federal law, the Supreme Court may review the federal issue unless the state court clearly states that its decision rests on an independent state ground. The Oklahoma court gave no such plain statement, so the Court concluded that federal jurisdiction was proper.