Supreme Court justices wrestle with Creek reservation case

Chris Casteel The Oklahoman

U.S. Supreme Court justices on Monday looked for clear answers — and maybe even a compromise — on whether Congress officially terminated the Muscogee (Creek) Nation’s reservation at Oklahoma statehood.

During oral arguments conducted by telephone, justices also sought to understand the extent of disruption that might result from a ruling that Oklahoma has been improperly trying criminal defendants within historical Creek boundaries for more than a century.

Justice Neil Gorsuch, whose vote may be critical to the outcome of the case, seemed to align himself with the viewpoint that Congress never disestablished the Creek reservation.

Gorsuch said there was “an awful lot of debate” before Oklahoma statehood in 1907 about the possible means of terminating the Creek reservation but that the commission tasked in the 1890s with stripping the Five Tribes of their land “couldn’t quite get there.”

The arguments on Monday came in a criminal appeal from child rapist Jimcy McGirt who claims he should have been tried in federal, rather than state, court because he is an enrolled tribal member and his crime was committed on the Creek reservation.

The issue raised by the case is whether the Creek reservation, which includes eight counties, and most of Tulsa, was ever officially terminated or whether the tribe and the federal government still exercise authority over some matters.

A decision in the case is expected this summer.

Though the case concerns the Muscogee (Creek) Nation, the decision is expected to apply to the other members of the Five Tribes — the Cherokee, Chickasaw, Choctaw and Seminole Nations.

The court is taking its second crack at the topic after apparently deadlocking last year in a case involving an Oklahoma death row inmate whose crime was committed within the historical Creek boundaries and argued that he shouldn’t have been tried in state court.

Gorsuch recused himself from that inmate’s case because he sat on the lower appeals court that considered it; his participation in the McGirt case gives the court nine justices to make a decision, and his views may decide the matter.

As when they heard the previous case, justices asked about the implications of remaking the legal jurisdictions in eastern Oklahoma.

Justice Ruth Bader Ginsburg said, “What makes this case hard is that there have been hundreds, hundreds of prosecutions of some very heinous offenses of state law.”

Those cases, she said, would all have to be retried “years later when the witnesses may not be there anymore.”

Ian Heath Gershengorn, representing McGirt and arguing that the reservation was never terminated, responded that “there may be hundreds of cases” but that the state of Oklahoma had not documented that high a number of potential retrials.

And, he argued, the actual number doesn’t mean the Supreme Court should allow for people to be tried in the wrong courts.

“I think that harm flows anytime a criminal defendant is tried by a sovereign that lacks jurisdiction,” he told Ginsburg.

Oklahoma Solicitor General Mithun Mansinghani, arguing for the state attorney general’s office on Monday, told Justice Samuel Alito that a ruling that the Creek reservation still exists would mean thousands of previous cases that were resolved in state courts may have to be retried in federal courts.

“We have currently over 1,700 inmates whose crimes were committed in the former Indian territory who identify as Native American,’’ Mansinghani said. “So the state presumptively would not have jurisdiction over those people and would have to release them.

“And that is probably half the actual number because it doesn’t include crimes committed against Indians, which the state would not have jurisdiction over. So we’re talking here about potentially over 3,000 inmates we may have to turn over.”

Some justices inquired about Mansinghani’s assertion that the Creeks never had a reservation before statehood. That argument is a new one forwarded by the Oklahoma attorney general’s office this year that wasn’t made in the previous case.

Questioning Gershengorn, Chief Justice John Roberts noted that, according to the state of Oklahoma’s arguments, the Creeks themselves “had been adamant about the fact that they are not reservation Indians.”

Gershengorn responded, “The best evidence of what Congress thought about whether Creek lands were a reservation under the statute is that Congress referred to those lands as a reservation under the statute.”

Congress never terminated the Creek reservation, Gershengorn said, and never transferred criminal jurisdiction to Oklahoma.

“Indeed Congress considered hallmark language of disestablishment and rejected it,” he said.

Deputy U.S. Solicitor General Edwin Needler, arguing for the Trump administration, told justices that the U.S. government didn’t agree with Oklahoma that the Creeks never had a reservation.

But he said that in preparing Oklahoma for statehood, “Congress eliminated all hallmarks of reservation,” breaking up the tribe’s domain, eliminating its courts and the distinct treatment of Indians under federal law in the territory.

Congress “directed that Oklahoma law would apply throughout the former Indian territory and provided for the transfer of criminal and civil cases involving Indians and non-Indians alike to state court,” Needler said.

Alito asked whether the case could be decided narrowly on the basis of what court should have had jurisdiction over McGirt’s case, averting a ruling on the reservation question.

Needler said that narrowing would be relevant because submitting Indians and non-Indians to the same laws was part of Congress’ intent.

But Gershengorn, representing McGirt, said, “There was a lot of discussion about whether there’s a compromise available on criminal jurisdiction. There is not … The text is very clear.”