McGirt v. Oklahoma, one of the highest profile Indian cases
in the last 50 years in the United States,
has to do with criminal jurisdiction.
Under federal law, tribes have concurrent jurisdiction
in their reservation territories
for criminal justice purposes when Indians
are involved in an offense,
either as victims or perpetrators.
The question in McGirt was, was the reservation
that the Creek Nation or Muscogee Nation
of Oklahoma disestablished in 1907,
when Oklahoma became a state.
So McGirt challenged his conviction by the state
of Oklahoma for a violent crime he committed.
And he claimed that the crime was committed
on what was still and is still an Indian reservation
in eastern Oklahoma.
He made arguments about the Treaty of 1866,
by which the Muscogee or Creek Nation obtained a reservation
in that part of Oklahoma, and claimed that the state lacked
any jurisdiction over him.
Congress could have done what's called disestablishment.
They could have said you no longer have this reservation
and we don't recognize the reservation anymore,
as happened literally to hundreds of other tribes
throughout the United States.
But no one could ever find a document that said
that that's what they did.
Oklahoma and the United States government took the position
that there were a number of statutes
and the only common sense way they can be read is that
this reservation had been disestablished.
In support of their position, they looked at what happened
to the tribes in question.
Since statehood, roughly,
there was no attempt by the federal government
to fulfill these obligations the Creek Nation says
now they should be fulfilling.
And this was a very powerful part of the case was
that for a hundred years,
this is the way things of Oklahoma had been.
The Supreme Court held by 5-4 that, yes,
this is still a reservation.
But to Justice Gorsuch and the majority,
it was a clear case to them of textualism,
and that's how they couched it.
They said for purposes of this specific issue,
whether McGirt could be prosecuted under a federal statute
called the Major Crimes Act, that the land was still
reservation land for jurisdictional purposes,
so the federal government could prosecute McGirt
and that was the proper sovereign to hold him accountable
for his violent crime, not the state of Oklahoma.
There's no change in anything having to do
with land status here.
Everybody who had private property in Oklahoma
still has their same property right.
Nothing's affected in terms of property rights.
The state's property in those areas is unaffected.
The federal government's property,
of course, unaffected.
The tribes didn't get any land out of this
and neither did any individual Native American person
or tribal member.
Ultimately this is an issue, the majority says, for Congress.
If there is an issue here about the proper scope
of criminal jurisdiction,
it is possible to address that through legislation.
The dissents takes a totally different view and says, look,
there are all sorts of reasons why,
if we say this for the Major Crimes Act,
it will apply to the other tribes,
it will apply in other parts of Indian country,
it will apply not just to criminal jurisdiction,
but potentially to civil jurisdiction as well.
And with Chief Justice John Roberts writing the dissent,
their concern as stated in the dissent is we just have
to be mindful that we've opened a Pandora's box
of potential difficulties.
And now we'll see how it plays out in terms
of what the Creek Nation and other tribes potentially
within that larger treaty area,
which includes four others, work out with the state
of Oklahoma and perhaps the federal government
for the proper, in their view, distribution of jurisdiction
among them.