Today, the United States Supreme Court decided in McGirt v. Oklahoma, No. 18-9526 (July 9, 2020), that for purposes of the Major Crimes Act, land throughout much of Eastern Oklahoma reserved for the Creek Nation since the 19th Century remains a Native American Territory. The Major Crimes Act allocates responsibility for prosecuting major crimes committed by Native Americans on an Indian reservation to the federal government, not state authorities. Mr. McGirt was convicted by an Oklahoma state court of three sex offenses. He unsuccessfully argued in state post-conviction that the state lacked jurisdiction because he was a member of the Seminole Nation and his crimes took place on the Creek Reservation; thus, he sought a new trial to take place in federal court. In a 5 to 4 decision, delivered by Justice Gorsuch, and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, the Supreme Court agreed with Mr. McGirt and reversed his convictions. Chief Justice Roberts filed a dissenting opinion, joined by Justices Alito and Kavanaugh, and Thomas (except as to fn. 9). Justice Thomas also filed a dissenting opinion.
The Court provides a thorough history of the establishment of the Creek Nation Reservation, Native-American forced migration to that reservation, and explanation of why the government's promises should be enforced. The opinion began:
On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding "all their land, East of the Mississippi river," the U. S. government agreed by treaty that "[t]he Creek country west of the Mississippi shall be solemnly guaranteed to the Creek Indians." Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and "permanent home to the whole Creek nation," located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833 Treaty). The government further promised that "[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves." 1832 Treaty, Art. XIV, 7 Stat. 368.
Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.
Today's opinion will implicate the validity of similar convictions of Native-Americans convicted in Oklahoma state court for offenses committed on the Creek Reservation, including people who were convicted and sentenced to death by Oklahoma.