In a major decision on July 9, 2020, the U.S. Supreme Court rules that an 1833 treaty still applies to the Muscogee Nation, formerly known as the Creek. In McGirt v. Oklahoma, the court holds 5-4 that, while still falling under federal jurisdiction, nearly half of Oklahoma remains Indian land and is not subject to state jurisdiction in cases involving major crimes.
The land in question had been designated “a permanent home to the whole Creek Nation of Indians” under an 1833 treaty. This was not an act of generosity or tolerance on behalf of the United States, but rather a facet of the forced removal known as the Trail of Tears, which the Muscogee called the "Road of Suffering." Driven from their ancestral homelands in the Southeast, the Muscogee and other tribes were forcibly relocated to what became designated as Indian Territory. The Muscogee Treaty of 1866 established the boundaries of the Muscogee reservation that remain in place today. After Indian Territory became the state of Oklahoma in 1907, the state assumed jurisdiction over major crimes committed on lands occupied by the tribes.
In 1997, a Seminole man named Jimcy McGirt was convicted of sexually abusing a child. After his conviction, McGirt’s attorneys argued that, since his crimes had been committed on tribal lands, Oklahoma did not have jurisdiction over them. In 2020, after hearing oral arguments remotely due to the COVID-19 pandemic, the Supreme Court sided with McGirt, as Justice Neil Gorsuch joined Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer. Rejecting the state’s argument that the 1833 treaty was no longer valid due to having been ignored for over a century, the majority found that the State of Oklahoma did not have jurisdiction over major crimes committed on tribal lands.
McGirt was retried, convicted and sentenced to three consecutive life terms in prison. Though Chief Justice John Roberts warned that “the court has profoundly destabilized the governance of eastern Oklahoma,” the decision affected fewer than 200 cases, which became eligible for retrial in federal court. Since McGirt, Native people accused of major crimes in much of Oklahoma, including a large portion of Tulsa, have been dealt with by federal authorities, not the state. Oklahoma has since acknowledged that the reservations established in 1833 continue to exist within the state’s borders, and pledged to work with tribal governments on issues of jurisdiction.
