Justices Consider Whether Large Swath of Oklahoma Is Still An Indian Reservation

May 11, 2020 by Dan McCue
Justices Consider Whether Large Swath of Oklahoma Is Still An Indian Reservation
U.S. Supreme Court Justice Neil Gorsuch at the National Archive. (Screen grab by Dan McCue)

WASHINGTON – In recent years most arguments before the U.S. Supreme Court regarding political divisions have involved racial and partisan gerrymandering. On Monday, the justices considered a case that asks, at its heart, whether a large swath of eastern Oklahoma remains an American Indian reservation.

In the underlying lawsuit, septuagenarian Jimcy McGirt, who is serving a 500-year prison sentence for molesting a child, claims he was wrongly convicted in state court because it had no authority to try him for a crime committed on reservation land.

“Congress never terminated the Creek reservation and never transferred federal jurisdiction to Oklahoma,” said Ian Gershengorn, who argued the case on McGirt’s behalf before the court.

Gershengorn maintained that as a result, only federal authorities were entitled to prosecute his client.

But Mithun Mansinghani, Oklahoma’s solicitor general, said Gershengorn was mistaken.

“Oklahoma has jurisdiction over the eastern half of the state because it was never reservation land, and it’s certainly not reservation land today,” he said.

This was the court’s second attempt to resolve the status of eastern Oklahoma.

In November 2018, the justices heard arguments in Sharp v. Murphy, which presented the same issue in an appeal from a ruling of the 10th U.S. Circuit Court of Appeals.

That case stemmed from the prosecution in state court of Patrick Murphy, a Creek Indian, for murdering another man in rural McIntosh County, in east-central Oklahoma.

After he was sentenced to death, it emerged that the murder had taken place on what had, at least at one time, been Indian land.

Murphy argued that only the federal government could prosecute him and that a federal law barred the imposition of the death penalty because he was an Indian. The 10th Circuit, on which Circuit Court Judge Neil Gorsuch then sat, agreed.

According to the Circuit Court, Congress never clearly eliminated the Creek Nation reservation it created in 1866.

In 2018, Justice Gorsuch had to recuse himself from the case when it made its way to the high court, and the remaining justices deadlocked 4-4.

As they listened to arguments in the McGirt case, a number of the justices expressed concern that ruling for the tribe could have enormous consequences not only for criminal cases, but for everything from business disputes to foster care.

Justice Ruth Bader Ginsburg said the issues before the court were complex, and she was worried that hundreds of state convictions, many for heinous crimes, would be undone and could require retrials in federal court.

Mansinghani stoked these concerns further by telling the justices that since McGirt’s appeal, 178 inmates have sought to reopen their cases, calling those “just the initial cracks in the dam.”

He said ruling for McGirt could result in the release of more than 3,000 state prisoners and require federal authorities to prosecute about 8,000 felonies annually that would otherwise have been handled by the state.

But Gorsuch, who could participate in Monday’s case, suggested that assertion was overstated, based on what has occurred since the appeals court ruling in the murder case.

“I would have thought that … we might have seen a tsunami of cases, if there were a real problem here, that we haven’t seen,” the justice said.

Gorsuch, whose vote may turn out to be the decisive one, has taken a broad view of the rights of Native Americans in other cases.

A+
a-
  • criminal justice
  • Neil Gorsuch
  • Oklahoma
  • reservation
  • Supreme Court
  • In The News

    Health

    Voting

    Supreme Court

    Five Takeaways From the Abortion Pill Case Before US Supreme Court

    WASHINGTON (AP) — U.S. Supreme Court justices on Tuesday did not appear ready to limit access to the abortion pill mifepristone,... Read More

    WASHINGTON (AP) — U.S. Supreme Court justices on Tuesday did not appear ready to limit access to the abortion pill mifepristone, in a case that could have far-reaching implications for millions of American women and for scores of drugs regulated by the Food and Drug Administration. It's... Read More

    March 26, 2024
    by Tom Ramstack
    Supreme Court Skeptical of Ban on Abortion Pill Mifepristone

    WASHINGTON — A hearing Tuesday before the Supreme Court indicated a majority of the justices want to maintain women’s access... Read More

    WASHINGTON — A hearing Tuesday before the Supreme Court indicated a majority of the justices want to maintain women’s access to the abortion pill mifepristone despite objections from anti-abortion activists. The doctors and organizations who sued argued the Food and Drug Administration was wrong in granting... Read More

    March 19, 2024
    by Dan McCue
    Supreme Court Gives Texas Green Light to Deport Illegal Immigrants

    WASHINGTON — A divided Supreme Court on Tuesday allowed Texas to begin enforcing a state law that effectively allows officials... Read More

    WASHINGTON — A divided Supreme Court on Tuesday allowed Texas to begin enforcing a state law that effectively allows officials to deport undocumented immigrants, despite objections from the Biden administration, which argued only the federal government has authority over immigration issues. In an unsigned order, the... Read More

    A Supreme Court Ruling in a Social Media Case Could Set Standards for Free Speech in the Digital Age

    WASHINGTON (AP) — In a busy term that could set standards for free speech in the digital age, the Supreme... Read More

    WASHINGTON (AP) — In a busy term that could set standards for free speech in the digital age, the Supreme Court on Monday is taking up a dispute between Republican-led states and the Biden administration over how far the federal government can go to combat controversial social... Read More

    March 4, 2024
    by Dan McCue
    Justices Rule Trump Can Stay on Colorado Ballot

    WASHINGTON — In a unanimous decision, the Supreme Court ruled Monday that former President Donald Trump may remain on Colorado’s... Read More

    WASHINGTON — In a unanimous decision, the Supreme Court ruled Monday that former President Donald Trump may remain on Colorado’s primary ballot, rejecting a challenge to his eligibility based on a section of the 14th Amendment that bars those who have “engaged in insurrection” from holding... Read More

    About as Many Abortions Happening in US Monthly as Before Roe Was Overturned, Report Finds

    The number of abortions performed each month is about the same as before the U.S. Supreme Court overturned Roe v. Wade and... Read More

    The number of abortions performed each month is about the same as before the U.S. Supreme Court overturned Roe v. Wade and the nationwide right to abortion more than a year and a half ago, a new report finds. The latest edition of the #WeCount report conducted for... Read More

    News From The Well
    scroll top