Supreme Court Rules in Favor of Tribal Sovereignty

On Thursday, July 9, 2020 the Supreme Court of the United States handed down its opinion in the case McGirt v. Oklahoma.  In a clear win for tribal sovereignty, the Court held that the boundaries of the Muscogee (Creek) Nation’s reservation were never disestablished and the nation’s treaty rights must be upheld. For the purposes of Federal criminal law, this portion of eastern Oklahoma is a reservation and crimes taking place within this jurisdiction must be tried in federal, not state, court.

Speaking for the Court in the 5-4 opinion Justice Neil Gorsuch writes,

“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.” 

Later Justice Gorsuch affirms that promises made my the federal government to tribes should not be broken simply because they historically have been.

“The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right. The judgment of the Court of Criminal Appeals of Oklahoma is Reversed.”

Justices Gorsuch, Ginsberg, Breyer, Sotomayor, and Kagan joined the majority opinion. Chief Justice John Roberts filed a dissenting opinion joined by Justices Alito and Kavanaugh. Justice Thomas filed his own dissenting opinion.

Congratulations to the Muscogee (Creek) Nation and all those who worked tirelessly to protect these long-established treaty rights. Indian Country jurisdiction, treaty rights, and caselaw will forever be stronger thanks to your efforts.

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