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

May 11, 2020 by Dan McCue
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.

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