High Court Backs Oklahoma Tribe’s Reservation Status, With Potential School Implications

By Mark Walsh — July 09, 2020 5 min read
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In an unexpected decision with potential implications for education in Oklahoma, the U.S. Supreme Court on Thursday ruled that a large swath of land in the state is still an American Indian reservation.

The land at issue involves the Muscogee (Creek) Nation, and the immediate outcome of the case will limit state prosecutions of native Americans within the tribe’s territory. But the court’s reasoning may apply to four other Oklahoma tribes—the Cherokee, Chickasaw, Choctaw, and Seminole Nations—which would make roughly half of the state Indian country for various purposes under federal law.

“Today we are asked whether the land [various] 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,” Justice Neil M. Gorsuch wrote for a 5-4 majority in McGirt v. Oklahoma (Case No. 18-9526).

The decision threw out the state criminal conviction of Jimcy McGirt, an enrolled member of the Seminole tribe convicted of three serious sex offenses. He argued that because his crimes occurred on Creek tribal lands, a federal law known as the Major Crimes Act required that he be prosecuted by the federal government, not the state.

The key issue in the case was whether some 3 million acres in eastern Oklahoma—including much of the city of Tulsa—remain a Creek reservation based on an 1866 treaty and federal law.

The state, joined by President Donald Trump’s administration, argued that the federal government “disestablished” the Creek Nation’s territory in the leadup to Oklahoma statehood in 1907. Federal statutes broke up the tribe’s lands, abolished its courts, circumscribed its governmental authority, applied federal and state law to Indians and non-Indians alike in its territory, and gave the U.S. Interior secretary authority over tribal schools until a state school system could be established.

Gorsuch, in an opinion joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, concluded that the territory remained a reservation.

“The federal government promised the Creek a reservation in perpetuity,” Gorsuch said, and “Congress has never withdrawn the promised reservation.”

“As a result, many of the arguments before us today follow a sadly familiar pattern,” he said. “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.”

Chief Justice John G. Roberts Jr., in a dissent joined by Justices Clarence Thomas, Samuel A. Alito Jr., and Brett M. Kavanaugh, said the court’s reasoning would apply to “rediscovered reservations [that] encompass the entire eastern half of the State—19 million acres that are home to 1.8 million people, only 10 percent-15 percent of whom are Indians.”

“Across this vast area, the state’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out,” Roberts said. “On top of that, the court has profoundly destabilized the governance of eastern Oklahoma.”

“The decision today creates significant uncertainty for the state’s continuing authority over any area that touches Indian affairs,” including taxation and family law, Roberts said.

Although the chief justice did not mention education, there is at least one brief filed in the case that argued that a decision recognizing the continued existence of such a large reservation could have implications for education in the region.

Such a decision “could have a detrimental impact on the Oklahoma public education system,” says a friend-of-the-court brief filed by the International Municipal Lawyers Association. “The two largest providers of K-12 educational funding, county and state governments, could suddenly be without a significant portion of their previous revenue.”

“The approximately 310,000 public school children currently attending schools in this region could face [harmful] circumstances if their school districts’ funding were to be cut even modestly,” the brief said. “If this territory were found to be a part of ‘Indian country,’ these communities would lose the ability to collect the same level of revenue they do now and their children may suffer as a consequence.”

The Creek Nation supported the finding of a continued reservation, arguing in a brief to the court that its tribal government makes numerous contributions to improving the reservation for Indians and non-Indians alike.

“The Nation ... makes vital contributions to education on the reservation, ... partnering through its Department of Education with local school districts and the Oklahoma Department of Education to improve educational outcomes for all students,” the Creek brief said.

Gorsuch, in the majority opinion, dismissed concerns by the state and the dissent that the decision will have broad or negative consequences outside of criminal law.

“Oklahoma reports that recognizing the existence of the Creek Reservation for purposes of the [Major Crimes Act] might potentially trigger a variety of federal civil statutes and rules, including ones making the region eligible” for federal aid in such areas as homeland security, education, and nutrition, Gorsuch said.

“But what are we to make of this?” he added. “Some may find developments like these unwelcome, but from what we are told others may celebrate them.”

Gorsuch said that “in reaching our conclusion about what the law demands of us today, we do not pretend to foretell the future and we proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long. But it is unclear why pessimism should rule the day.”

Shawn Hime, the executive director of the Oklahoma State School Boards Association, said in an interview that the decision was the talk of his state on Thursday. But he expressed doubt that the ruling would disrupt education in the state.

“In Oklahoma, our tribes have a great relationships with our local school districts,” Hime said. “I don’t anticipate anything changing with the relationships.”

Meanwhile, Oklahoma Attorney General Mike Hunter released a joint statement from the state and the five tribes that said they have “made substantial progress toward an agreement to present to Congress and the U.S. Department of Justice addressing and resolving any significant jurisdictional issues raised by” the McGirt decision. They committed to seeking justice for the criminal offenders whose state cases were upset by the decision.

“The Nations and the state are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights,” the statement said.

A version of this news article first appeared in The School Law Blog.