McGirt Enters the Maze and Offers Hope
By: Mackenzie Selleg[*]
Published: January 30, 2021
Since the ratification of the Constitution in 1788,[1] the United States government has viewed Native American tribes[2] as separate sovereign nations.[3] As sovereign nations, they possessed all powers of an independent nation except those ceded by treaty, withdrawn by Congress, or that are incompatible with their domestic-independent status.[4] Unfortunately for Indian nations, their lands and their independent powers have been stripped away over time by the federal government through statutory[5] and judicial action.[6]
In Indian Country,[7] a complex web of jurisdictional mazes surrounding the prosecution and enforcement of law creates abundant opportunities for crime to flourish.[8] Indian nations have the authority to punish offenders if they belong to any of the 574 federally recognized tribes;[9] but they do not have jurisdiction to try non-tribal members, even if the non-Indian[10] offender lives on reservation land.[11] The Major Crimes Act and the General Crimes Act grant the federal government jurisdiction over crimes committed in Indian country when either the perpetrator or the victim is Indian.[12] Therefore, for crimes committed in Indian country where either the perpetrator or the victim is Indian, the federal government maintains jurisdiction and the State only holds jurisdiction over crimes committed in Indian country when both the perpetrator and the victim are non-Indian.[13] Once a crime has been committed in Indian country, the process of finding out if either a victim or a perpetrator might be Indian, and then wading through the complex laws surrounding tribal jurisdiction to determine who has jurisdiction, frequently leads to poor investigations, insufficient evidence collection, and a high number of cases occurring in Indian country being declined prosecution.[14] Amnesty International, a non-governmental human rights organization, has described this process as a “maze of injustice.”[15]
Crime, violence, and the theft of land are not new phenomena in Indian Country. The victimization of Indian communities dates back to the colonization of the United States.[16] Still today, “the death rate of Native women on some reservations is ten times the national average,” and studies show that thirty-nine percent of Indian “women will be subjected to violence by an intimate partner in their lifetimes.”[17] Despite the elevated rates of violent crime in Indian Country, crimes that occur on Indian land are prosecuted at lower rates than anywhere else in the United States.[18] Much of this can be attributed to the complex jurisdictional maze surrounding crime in Indian Country, created by a Congress whose focus was not on protecting Indians from harm, but on taking Indian land and assimilating Indians into western ideologies.[19]
Prior to passing the Major Crimes Act and the General Crimes Act, Congress passed the Indian Removal Act.[20] The Indian Removal Act took tribal lands east of the Mississippi River in exchange for new reservation lands to the west.[21] When members of the Cherokee Nation resisted the government’s mandate to abdicate their land, they were forcibly removed by the military.[22] The forced removal of the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations from their lands is known as the Trail of Tears, and thousands perished during the brutal relocation to new land in Oklahoma.[23] The federal government promised these Nations that the new reservation lands would forever remain Indian Country, untouched by white settlers.[24] But this was a lie.[25] White settlers continued to colonize on reservation land, and Indian Country continued to shrink.[26] In 1907, Oklahoma became the forty-sixth state to enter the union, diminishing sovereignty for the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations. After many years of state control over the lands promised to them in the Indian Removal Act, the Supreme Court restored some of what was stolen in McGirt v. Oklahoma.[27]
Jimcy McGirt, a citizen of the Seminole Nation, was convicted in state court of Oklahoma for sex crimes against a child and sentenced to life in prison.[28] McGirt petitioned the Supreme Court, alleging that the land on which he committed the crime was Indian land because it was part of the former reservation; and under the Major Crimes Act, the state had no jurisdiction to prosecute him for crimes committed on Indian land.[29] But the land Jimcy McGirt claimed was reservation is land the state of Oklahoma had successfully been asserting jurisdiction over and prosecuting for decades.[30] It encompasses more than 19 million acres, most of the city of Tulsa, and is home to approximately 1.8 million non-Indian residents.[31] Importantly, claiming the land as Indian country would not only undo McGirt’s conviction, but also could undo the convictions of any other tribal member the state had previously convicted of a crime on this land.[32] Yet this is exactly what the Supreme Court did in McGirt v. Oklahoma when it finally held the government to its promise.[33]
“On the far end of the Trail of Tears was a promise. . . . 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.”[34] McGirt held that only Congress has the power to nullify a treaty and disassemble a reservation.[35] Even the persistent, long term, systematic colonization of Indian land by the state cannot disestablish a reservation.[36] Because Congress never formally disestablished the reservations of the Muscogee (Creek), Cherokee, Chickawa, Choctaw, and the Seminole Nations in Oklahoma, the land remains under the criminal jurisdiction of the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations.[37]
Although McGirt upheld the land as Indian country with regard to criminal jurisdiction, it did not change the ownership of the land.[38] So for the 1.8 million non-Indians that now live in Indian country because of this ruling, not much will change.[39] Federal prosecutors will now find themselves with a larger caseload of crimes committed by non-Indians with Indian victims in this expanded territory.[40] Outside this, McGirt only highlights how complex the jurisdictional maze surrounding crime in Indian country is, and always has been.[41] With such a massive expanse of land and substantial non-Indian population returned to Indian country, the federal government will hopefully be forced to re-evaluate the confusing array of laws dictating jurisdiction over crimes.[42] Until then, creating partnerships between state, federal, and tribal prosecutors to create a framework for a more adequate justice system will help to alleviate some of the jurisdictional issues and can benefit both Indians and non-Indians who live within these boundaries.[43]
It is still unclear how McGirt’s impact on civil law will develop over time. In dicta, Justice Gorsuch listed a variety of civil areas of the law where McGirt’s holding could allow the Tribe to assert regulatory roles in the oil and gas industry, taxation, land use, school funding, and road maintenance.[44] It would benefit its citizens, both Indian and non-Indian, for the Oklahoma state government to work with the Muscogee (Creek), Cherokee, Chickawa, Choctaw, and the Seminole Nations in resolving these questions instead of wasting millions of dollars fighting and litigating each issue.
For the Muscogee (Creek), Cherokee, Chickawa, Choctaw, and the Seminole Nations in Oklahoma, McGirt represents a strong legal victory. But what about other Indian nations? Outside of land-boundary cases, the extent of McGirt’s reach in criminal and civil law will largely depend on the facts of the case and the creativity of the arguments brought by those seeking to reinforce tribal treaty rights.[45] The textualist framework[46] Gorsuch used to formulate the McGirt opinion provides strong case precedent, especially for Indian nations contesting reservation boundaries in similar situations. Lawsuits have already been filed in other states using McGirt as precedent.[47] But for Indian nations not directly impacted by McGirt because their reservations have already been forcibly shrunken or dismantled by an act of Congress, McGirt can still offer hope.[48] Hope that the government will take steps to address the ongoing theft of Indian land. Hope that the government will be forced to reexamine the jurisdictional maze surrounding Indian law which prevents victims from attaining justice. Hope that the victimization of Indian women will diminish. Hope that the government will be held to its word. And hope that Indian nations will continue to see justice from the Supreme Court.
Footnotes
[1] See U.S. Const. art. VII. (providing the ratification necessary in order for the Constitution to take effect).
[2] The terms “tribe,” “Indian,” “native,” “nation,” “Indian nation,” “tribal communities,” and “Indian country” are utilized throughout this Article and a variety of utilized sources. While much of the terminology may be outdated, it is the language used in all federal case law, statutes, and legal journals on the subject and is therefore included here. For the purposes of this Article, “tribes” and “nations” refers to any tribes, nations, bands, pueblos, communities, and native villages that would be considered an “Indian tribe” under 25 U.S.C. § 1603(14) (2018).
[3] See U.S. Const. art. I, § 8, cl. 3. (giving Congress sole authority to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes”).
[4] See United States v. Wheeler, 435 U.S. 313, 323 (1978) (“Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.” (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 191 (1978))).
[5] See 25 U.S.C. §§ 1301–1304 (2018) (enacted as part of the Civil Rights Act of 1968 and colloquially known as the Indian Civil Rights Act of 1968, as amended); 18 U.S.C. § 1153 (2018).
[6] See Oliphant, 435 U.S. at 211–12 (holding that Indian tribal courts have no criminal jurisdiction over non-Indians, even if the crime occurred on Indian land).
[7] This Article uses both the defined term “Indian country” to refer to the strict legal definition of an area over which the federal government and Indian nations exercise primary jurisdiction, and the broader term “Indian Country” which refers broadly to the peoples, lands, and cultures of Native peoples in the United States. See Nat’l Congress Am. Indians, Tribal Nations & the United States: An Introduction 26 (2020), https://bit.ly/39llQci [hereinafter Tribal Nations & the U.S.].
[8] See Angela R. Riley, Crime and Governance in Indian Country, 63 UCLA L. Rev. 1564, 1574–76 (2016).
[9] See id.; see also Tribal Nations & the United States: An Introduction, Nat’l Congress Am. Indians, https://bit.ly/3r3aC2d (last visited Jan. 27, 2021).
[10] This Article considers a person to be non-Native or non-Indian if they do not belong to one of the 574 federally recognized tribes in the United States. See Tribal Nations & the United States: An Introduction, supra note 9.
[11] See Oliphant, 435 U.S. at 208.
[12] See id.; see also United States v. Kagma, 118 U.S. 375, 381 (1886) (upholding the constitutionality of the Major Crimes Act of 1885).
[13] See generally United States v. McBratney, 104 U.S. 621 (1881); Draper v. United States, 164 U.S. 240 (1896). This Article barely touches on the complex maze of jurisdictional issues surrounding the difficulty in prosecuting crime in Indian country. It does not address Public Law 280, federal legislation in which states have received a federal mandate to exercise jurisdiction over Indian Country, the Tribal Law and Order Act, or special domestic violence jurisdiction permitted to qualifying tribes under the 2013 reauthorization of the Violence Against Women Act. For a better understanding of jurisdiction in Indian country, see General Guide to Criminal Jurisdiction in Indian Country, Tribal Ct. Clearinghouse, https://bit.ly/3og9cQ8 (last visited Jan. 22, 2021).
[14] See Sierra Crane-Murdoch, On Indian Land, Criminals Can Get Away with Almost Anything, Atlantic (Feb. 22, 2013), https://bit.ly/2OPYSza.
[15] See Amnesty Int’l, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA 4 (2007), https://bit.ly/2Q5dvQP.
[16] See Sarah Deer, Bystander No More? Improving the Federal Response to Sexual Violence in Indian Country, 2017 Utah L. Rev. 771, 773–74 (2017).
[17] NCAI Policy Research Ctr., Policy Insights Brief: Statistics on Violence Against Native Women 1, 3 (2013) (citation omitted), https://bit.ly/367Ay4G; see also Tribal Justice: Prosecuting Non-Natives for Sexual Assault on Reservations, PBS NewsHour (Sept. 5, 2015, 1:08 PM), https://to.pbs.org/36QoJ1t (quoting Theresa Pouley—a tribal court judge—as saying, “[w]hen you have the combination of the silence that comes from victims who live in fear and a lack of accountability by outside jurisdictions to prosecute that crime, you’ve created if you will, the perfect storm for domestic violence and sexual assault, which is exactly what all the statistics would sort of bear out”).
[18] See Steven W. Perry, U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Statistics, American Indians and Crime—A BJS Statistical Profile, 1992–2002, at 4, 20 (2004) (calculating that in fiscal year 2000, of all criminal cases filed throughout the federal district courts, only around one percent involved cases in Indian Country, even though American Indians experienced a per-capita rate of violence twice that of the U.S. resident population); see also U.S. Dep’t of Justice, U.S. Department of Justice Indian Country Investigations and Prosecutions 2011–2012, at 11, 30 (2012), https://bit.ly/36Q5KE1 (asserting that in 2014, the FBI referred 2064 cases for prosecution that had occurred in Indian Country, yet the federal government denied to prosecute 989 (48%) of those cases).
[19] See McGirt v. Oklahoma, 140 S. Ct. 2452, 2463 (2020) (“Congress sought to pressure many tribes to abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribe members. Some allotment advocates hoped that the policy would create a class of assimilated, landowning, agrarian Native Americans.”); see generally Elizabeth A. Reese, Welcome to the Maze: Race, Justice, and Jurisdiction in McGirt v. Oklahoma, U. Chi. L. Rev. Online 1 (2020).
[20] Indian Removal Act, Pub. L. No. 21-148, 4 Stat. 411 (1830).
[21] See Leanora A. Kovacs, United States v. Cherokee Nation—Indian Water Rights: Giving with One Hand and Taking with the Other, 6 Pace Envtl. L. Rev. 255, 256 (1988).
[22] See Trail of Tears, Encyclopædia Britannica, https://bit.ly/3pmQwj3 (last visited Jan. 22, 2021).
[23] See id.
[24] See McGirt, 140 S. Ct. at 2461–62.
[25] See id. at 2462 (“While there can be no question that Congress established a reservation for the Creek Nation, it’s equally clear that Congress has since broken more than a few of its promises to the Tribe. Not least, the land described in the parties’ treaties, once undivided and held by the Tribe, is now fractured into pieces.”).
[26] See Tribal Nations & the U.S, supra note 7, at 24. Nearly two-thirds of reservation lands were taken from tribes and given to settlers as a result of the General Allotment Act of 1887. See id.
[27] See McGirt, 140 S. Ct. at 2459.
[28] See id.
[29] See id.
[30] See id. at 2470.
[31] See id. at 2482 (Roberts, C.J., dissenting).
[32] See id. at 2479.
[33] See id. at 2459.
[34] Id.
[35] See id. at 2474.
[36] See id.
[37] See id. at 2459.
[38] See id.
[39] See generally Brendale v. Confederated Tribes & Bands of Yakima Nation, 492 U.S. 408 (1989) (holding tribes generally have no power to impose their zoning laws on non-Indian owners of land within Indian country, despite the fact that no coherent land use policy or zoning law can exist with checkerboard jurisdiction determined by land ownership); Strate v. A-1 Contractors, 520 U.S. 438 (1997) (holding tribes have no power to apply their tort law to lawsuits between non-Indians for car accidents that take place on state owned roads inside the reservation, even though the tribe has an interest in regulating driving within reservation borders to protect the safety of its own members); Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001) (holding tribes have no authority to impose taxes on non-Indian land owners inside the reservation, even if the tribe provides significant services to the owner); Nevada v. Hicks, 533 U.S. 353 (2001) (holding tribal courts have no jurisdiction over state law enforcement officials who enter tribal land to investigate an off-reservation crime).
[40] See McGirt, 140 S. Ct. at 2480.
[41] See General Guide to Criminal Jurisdiction in Indian Country, supra note 13.
[42] See id. With more than 1.8 million non-Indians being placed in Indian country as a result of McGirt, the federal government is now responsible for investigating, prosecuting, and sentencing a much larger number of crimes. See id. Because the jurisdictional issues surrounding the prosecution of crimes in Indian country are so complex, the increased burden of so having so many new non-Indians living in Indian country will hopefully force the government to re-evaluate this confusing web of jurisdictional laws. See General Guide to Criminal Jurisdiction in Indian Country, supra note 13.
[43] See Indian Law & Order Comm’n, A Roadmap for Making Native America Safer: Report to the President & Congress of the United States 99 (2013) (“Stronger coordination among Federal, State, and Tribal law enforcement can make Native nations safer and close the public safety gap with similarly situated communities.”).
[44] See McGirt, 140 S. Ct. at 2480.
[45] See Troy A. Eid, McGirt v. Oklahoma: Understanding What the Supreme Court’s Native American Treaty Rights Decision Is and Is Not, GreenbergTraurig (Aug. 12, 2020), https://bit.ly/2LVR2G6 (“The potential longer-term implications of McGirt for criminal and civil jurisdiction may well depend on the creativity of advocates seeking to reinvigorate Native American tribal treaty rights. On its face, the Supreme Court’s decision is expressly limited to one tribe and one statute. Yet . . . [McGirt] inevitably invites scrutiny of other treaties between the United States and federally recognized Indian tribes across the country.”).
[46] See Ronald Mann, Opinion Analysis: Justices Toe Hard Line in Affirming Reservation Status for Eastern Oklahoma, SCOTUSblog (July 9, 2020, 7:15 PM), https://bit.ly/3iGkgF0.
[47] See Oneida Nation v. Vill. of Hobart, No. 19-1981 (7th Cir. July 30, 2020); Little Traverse Bay Bands v. Whitmer, No. 19-2070 (6th Cir. Aug. 5, 2020).
[48] McGirt’s ruling only applies to tribes that have not had their reservations disestablished by an act of Congress. See McGirt, 140 S. Ct. at 2463; see also United States-Muscogee (Creek) Nation Treaty—Federal Indian Law—Disestablishment of Indian Reservations—McGirt v. Oklahoma, 134 Harv. L. Rev. 600, 609 (2020).
About the Author
Mackenzie Selleg is a third-year student at Penn State Law. Originally from Shelton, Washington, Mackenzie received her bachelor’s degree from Washington State University where she double majored in Human Development and Criminal Justice. Although her work for the Penn State Law Review has mainly focused in Indian Law, Mackenzie has also spent time working for the Penn State Veterans and Servicemembers Legal Clinic representing veterans and current servicemembers. Additionally, Mackenzie has taken courses studying international law at East China University of Political Science and Law in Shanghai, China, and at the University of Bergen in Bergen, Norway.
Suggested Citation: Mackenzie Selleg, McGirt Enters the Maze and Offers Hope, Penn St. L. Rev.: F. Blog (Jan. 30, 2021), http://www.pennstatelawreview.org/the-forum/mcgirt-enters-the-maze-and-offers-hope/.