The United States government has a history of brutalizing Native Americans and breaking treaties with Indigenous tribes. In 2018, the Supreme Court heard arguments in Sharp v. Murphy. Patrick Murphy was sentenced to death for murdering a man in McIntosh County, Oklahoma. Murphy, a Creek Indian, claimed that only the federal government could prosecute him under the Indian Major Crimes Act, which stated that any crime with a Native American victim or perpetrator, or happening within Native American borders is subject to federal, not state, jurisdiction. A treaty in 1856 established that the Creek Islands would not be included in “any Territory of State,” and the Creek Nation would be able to exercise “self-government” of their lands. After Justice Neil Gorsuch recused himself from the decision, since he had previously served on the case, the Court was deadlocked on a decision. The Court took a new, similar case which was decided in July of 2020.
Jimcy McGirt, a Seminole man, was charged with and found guilty of child sex crimes within the Creek Nation’s original boundaries. While Oklahoma became a state after the treaty with the Creek Indians was signed, McGirt and his lawyers believed the land still belonged to the Creek Indians. The land in question includes Tulsa, a large city in Oklahoma. The attorneys also noted the nation’s fraught history with Native Americans, and the Creek Nation specifically. In the 1830s, the Creek Indians, amongst other native groups, were violently forced from Alabama and Georgia to eastern Oklahoma where they were promised land.
The Solicitor General of Oklahoma claimed that “it was never reservation land, and it’s certainly not reservation land today.” The government also claimed that the laws passed between 1890 to 1907, which established Oklahoma’s statehood, were meant to give Oklahoma authority over the land. The government’s attorneys also argued that a dangerous precedent could be set by this case, leading to upheaval in the justice system, as well as harming the state’s taxing powers. The Court had to determine if the Creek Nation’s lands were still theirs after Oklahoma’s statehood was established. Also, could Oklahoma prosecute a Native American for a crime within Creek boundaries?
In a 5-4 decision, the Supreme Court determined that most of eastern Oklahoma remains an Indian reservation. The majority opinion was written by Justice Gorsuch, who was joined by the four liberal justices on the Court. Justice Gorsuch had previously sided with Native tribes. Gorsuch wrote that since the Creeks were given a reservation, the United States must keep its word “because Congress has not said otherwise.” He continued, writing that “unlawful acts are never enough to amend the law.” Gorsuch noted that “Oklahoma and its Tribes have proven they can work successfully together as partners.”
Gorsuch also mentioned the Trail of Tears, which violently displaced one hundred thousand Native Americans, noting that the government has continually broken promises to Native Americans. The Court called Oklahoma’s claims that the Creek Nation never had a reservation “willful blindness.” While Oklahoma has been claiming jurisdiction over cases involving Native Americans, the Court said that did not make it right. The ruling gives federal authorities the power to prosecute crimes in Native lands, rather than state authorities. Gorsuch argued that the decision is narrow and applies solely to the Creek Nation. He also noted that some Native Americans convicted by the state courts may want to just serve the rest of their sentence instead of requesting a retrial by the federal government.
Chief Justice John Roberts wrote a dissenting opinion, warning that the decision could lead to trouble for Oklahoma’s justice system, as well as their taxing and zoning systems. Roberts said that the majority was looking at the decision in isolation, and Oklahoma was right that the reservation did not exist. Roberts worried that “decades of past convictions could well be thrown out.” Roberts concluded that the decision could lead to “uncertainty for the State’s continuing authority over any area that touches Indian affairs.”
Justice Clarence Thomas wrote another dissent. In it, he argued that the Court should not even be able to look at the judgment of the Oklahoma courts because he regarded the Oklahoma Court of Criminal Appeals as “independent.”
Mr. Murphy and Mr. McGirt were sent to federal court for retrial. Mr. McGirt’s attorney said that the decision shows that “when the United States makes promises, the courts will keep those promises.” The McGirt decision helped shape the justice system’s relationship with Native Americans and could lead to different prosecutorial practices going forward. The majority decision was a victory to native peoples in Oklahoma, with Creek Nation leaders applauding the decision of the Court.
The ruling came at an interesting time for Natives, as the coronavirus ravaged the health and the economy of Native peoples, whose wealth is often held in casinos, which were closed due to the pandemic. At the same time, the country was experiencing a racial reckoning which gave new momentum to the Natives’ rights movement.
Native American law experts think that the decision will have little impact on non-Natives. Negotiations between states, the federal government, and the tribes will have the largest impact on the Creek Nation and others like it. After the Court’s decision, the Creek Nation announced it has agreed to coordinate public safety with federal authorities. Oklahoma’s Attorney General released a joint statement with the leaders of various tribes on how they will work together to address the continued questions facing the Native Americans in Oklahoma. The statement noted “substantial progress toward an agreement,” and reminded the public that everyone involved has “public safety” and “economic prosperity” in mind.