Supreme Court Again Considers Tribal And State Jurisdictions For Eastern Oklahoma

May 11, 2020

The United States Supreme Court on Monday heard oral arguments via phone in the matter of McGirt v. Oklahoma, a case with major ramifications for eastern Oklahoma.

Jimcy McGirt, a member of the Seminole Nation, was convicted of rape and other crimes in an Oklahoma court in 1997. In 2018, McGirt filed a motion arguing that state court was the wrong venue for his trial, as the crime was committed within the boundaries of Muscogee (Creek) Nation, which he claims is still a federally designated reservation and has never been ceded to the state of Oklahoma.

The court heard a similar case, Sharp v. Murphy, in 2019, but it never moved forward after Associate Justice Neil Gorsuch recused himself due to his prior involvement in the matter as a member of the Tenth Circuit Court of Appeals and the remaining eight justices are presumed to have deadlocked. 

The likely deciding vote, Gorsuch on Monday asked whether practical concerns arising from the recognition of Muscogee (Creek) Nation jurisdiction in much of eastern Oklahoma, including Tulsa.

"I'd like to give you a chance to discuss it further, the argument that there are going to be terrible practical consequences that would follow from a ruling for your clients," Gorsuch asked Ian Gershengorn, counsel for the petitioners. "Just the on-the-ground difficulties we've heard about in administering Tulsa."

"How should that inform our analysis of an interpretation of a statute and a treaty?" Gorsuch asked.

"There will, of course, be consequences from the court's ruling, as there are from any of the court's rulings," Gershengorn said. "Those consequences are not trivial, but nor are they existential nor, indeed, overly serious."

"With respect to how [consequences] should influence the text, it should not affect the reading of the text," Gershengorn said. "The text is what the text is, and this court's job is to interpret it."

Riyaz Kanji, representing Muscogee (Creek) Nation, argued that the state of Oklahoma and the city of Tulsa are wrong to act as though losing this ruling would be apocalyptic.

"This is critical: if we prevail, state law does not evaporate in the reservation," Kanji said.

Associate Justice Samuel Alito asked Kanji about what would change for the roughly 90% of the population in the disputed area who are not Muscogee (Creek) Nation members.

"What would you say to those people if we decide this case in your favor? Won't they be surprised to learn that they are living on a reservation, and that they are now subject to laws imposed by a body that is not accountable to them in any way?" Alito asked.

"Very little will change for them, certainly very little to the bad will change for them," Kanji answered. "They will largely remain subject to state law."

"They will benefit in significant ways from reservation status," Kanji said. "Justice [Stephen] Breyer asked a question at the last argument about the Tulsa businessman. Well, that businessman could wake up the day after the argument and qualify for enterprise grants attached to reservation status."

The state of Oklahoma, represented by Solicitor General Mithun Mansinghani, was joined by the federal government, represented by Deputy U.S. Solicitor General Edwin Kneedler, in arguing against the government's case.

"Oklahoma has jurisdiction over the eastern half of the state because it never was reservation land, and it's certainly not reservation land today," Mansinghani said. 

One of Oklahoma's arguments was that the criminal justice system would be put in turmoil with a change in how jurisdictions are determined.

"We have currently over 1,700 inmates whose crimes were committed in the former Indian territory who identify as Native American," Mansinghani said. "So the state, presumptively, would not have jurisdiction over those people and have to release them."

"And that is probably half the actual number, because it doesn't include crimes committed against Indians, which the state would not have jurisdiction over," Mansinghani said. "So we're talking here about, potentially, over 3,000 inmates we may have to turn over."

"As far as practical things, yes, we're going to try to work with the tribes as much as we can, regardless of how this decision comes out," Mansinghani said. "We work with the tribes on a day-to-day basis in doing a lot of great things in the state of Oklahoma."

It remains unclear when the court will issue a ruling in the case. The case is one of the first the court has heard so far via teleconference and broadcast live, a measure implemented due to the coronavirus pandemic.