Supreme Court Issues Sweeping Decision Affirming Tribal Sovereignty, Vacates Oklahoma Conviction and Death Sentence

The United States Supreme Court has vacat­ed the con­vic­tion of a Native American death-row pris­on­er in Oklahoma, giv­ing dra­mat­ic effect to a sweep­ing new deci­sion that affirmed the sov­er­eign­ty of the Muscogee (Creek) Nation over trib­al lands that span the east­ern half of the state.

In an his­toric rul­ing in McGirt v. Oklahoma, the Court declared that Congress had nev­er dis­es­tab­lished the Creek Reservation that was cre­at­ed by a series of treaties between 1832 and 1866 in the after­math of the fed­er­al gov­ern­men­t’s forcible relo­ca­tion of the Creek and four oth­er Indian nations from their homes in Alabama and Georgia. The treaties promised the Creek Nation a ​“for­ev­er home­land” in the Indian Territories that sub­se­quent­ly became part of the state of Oklahoma. The McGirt deci­sion affirmed that these lands were still ​“Indian Country,” as defined by fed­er­al law, with­in which Oklahoma lacked juris­dic­tion to attempt to try trib­al mem­bers for serious offenses.

In a one-sen­tence per curi­am deci­sion that cit­ed McGirt, the Court affirmed a rul­ing by the U.S. Court of Appeals for the Tenth Circuit that had void­ed Patrick Dwayne Murphy​’s mur­der con­vic­tion and death sen­tence imposed in the Oklahoma state courts. On August 8, 2017, the Tenth Circuit grant­ed Murphy habeas cor­pus relief, find­ing that the mur­der, which occurred in Henryetta, Oklahoma, had been com­mit­ted on lands with­in the bor­ders of the Creek Reservation. The Court wrote: ​“Because Mr. Murphy is an Indian and because the crime occurred in Indian coun­try, the fed­er­al court has exclu­sive juris­dic­tion. Oklahoma lacked jurisdiction.”

Murphy (pic­tured below) still faces pros­e­cu­tion for mur­der in the fed­er­al courts, but fed­er­al pros­e­cu­tors will not be able to seek the death penalty.

The Supreme Court’s rul­ing end­ed two years of pro­ce­dur­al machi­na­tions in the case. The Court ini­tial­ly grant­ed cer­tio­rari to review the case on May 21, 2018. However, Justice Neil Gorsuch, an antic­i­pat­ed swing vote on the issue, recused him­self because of pri­or involve­ment in the case as a cir­cuit court judge. After hear­ing argu­ment on the case in its 2018 – 2019 term, the short­hand­ed court could not reach a deci­sion and re-list­ed the case for the cur­rent term. While Murphy’s case was pend­ing, the Court grant­ed review in McGirt v. Oklahoma, a non-cap­i­tal case that raised the same issue.

The McGirt Decision

Like Murphy, Jimcy McGirt is a mem­ber of the Muscogee (Creek) Nation. McGirt was con­vict­ed of rape in the Oklahoma state courts and chal­lenged his con­vic­tion on juris­dic­tion­al grounds, say­ing the offense had occurred on trib­al lands. The State of Oklahoma argued to the Court that it should uphold McGirt’s con­vic­tion because doing oth­er­wise could result in chal­lenges to thou­sands of state convictions.

Writing for a 5 – 4 major­i­ty, Justice Gorsuch con­clud­ed that almost half of Oklahoma, includ­ing much of the city of Tulsa, remains Indian Country. The Court found that the fed­er­al gov­ern­ment had reserved land for the Muscogee (Creek) Nation through a series of treaties signed by the U.S. Government and the Creek Nation that was part of the ​“Trail of Tears,” the forced migra­tion of tens of thou­sands of Native Americans from their ances­tral lands to ter­ri­to­ry west of the Mississippi River.

The Court’s deci­sion rec­og­nized that the United States has repeat­ed­ly vio­lat­ed treaty oblig­a­tions to Native Americans. However, it said, this his­to­ry of faith­less­ness does not mean that the state of Oklahoma can ignore treaties that reserved land for the Creek Nation. The Supreme Court has pre­vi­ous­ly held that the U.S. can break treaties with Indian nations only through the explic­it action of Congress to ​“dis­es­tab­lish” reserved lands. Justice Gorsuch wrote, ​“it’s no mat­ter how many oth­er promis­es to a tribe the fed­er­al gov­ern­ment has already bro­ken. If Congress wish­es to break the promise of a reser­va­tion, it must say so.”

In response to argu­ments that the long-stand­ing prac­tice of pros­e­cut­ing Native Americans in state court was proof that the reserved lands were ​“dis­es­tab­lished,” the Court rec­og­nized that “[u]nlawful acts, per­formed long enough and with suf­fi­cient vig­or, are nev­er enough to amend the law.” Because Congress nev­er dis­es­tab­lished the Creek Nation’s reser­va­tion, much of Oklahoma remains Indian Country. Gorsuch wrote that the fed­er­al Major Crimes Act vests fed­er­al courts with exclu­sive juris­dic­tion over enu­mer­at­ed seri­ous crimes com­mit­ted by Indians in Indian Country, so the Oklahoma state courts had no author­i­ty to con­vict Jimcy McGirt. 

The State of Oklahoma argued that rec­og­niz­ing the con­tin­ued exis­tence of the Creek Nation’s reser­va­tion could lead thou­sands of Native American defen­dants to chal­lenge their state con­vic­tions. It also argued that a rul­ing in favor of trib­al sov­er­eign­ty would lead to chaos in a wide range of non-crim­i­nal mat­ters. The Court reject­ed this argu­ment, find­ing the scope of the poten­tial rem­e­dy irrel­e­vant. Justice Gorsuch not­ed that ​“the mag­ni­tude of a legal wrong is no rea­son to perpetuate it.” 

Justice Gorsuch was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor in the McGirt v. Oklahoma major­i­ty. Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh, and Clarence Thomas dis­sent­ed. The vote in Murphy’s case was 6 – 2, with Justices Thomas and Alito dis­sent­ing. Although he authored the opin­ion that ulti­mate­ly enti­tled Murphy to relief, Justice Gorsuch in did not par­tic­i­pate in decid­ing the case.

The Reaction From Native American Leaders

Jonodev Chaudhuri, Muscogee (Creek) Nation ambas­sador praised the Supreme Court’s deci­sion, say­ing, ​“Many folks are in tears. Despite a his­to­ry of many bro­ken promis­es, as is true with many trib­al nations, the cit­i­zens feel uplift­ed that for once the United States is being held to its promis­es.” Muscogee Principal Chief David Hill said, ​“This is a his­toric day … This is amaz­ing. It’s nev­er too late to make things right.” 

Several Native American lead­ers and civ­il rights orga­ni­za­tions joined in cel­e­brat­ing the deci­sion. John Echohawk, Native American Rights Fund Executive Director stat­ed, ​“In this case, the Muscogee (Creek) Nation had to fight long and hard to pro­tect their home­lands, which were promised in their treaty agree­ments with the United States. In hold­ing the fed­er­al gov­ern­ment to its treaty oblig­a­tions, the U.S. Supreme Court put to rest what nev­er should have been at question.”