Supreme Court questions whether much of Oklahoma is an Indian reservation

WASHINGTON – The Supreme Court heard arguments on Monday over whether much of eastern Oklahoma is an Indian reservation, a question that could have huge consequences for the 1.8 million residents of the region in criminal justice and trade matters.

The argument revolved around the grim history of the nation’s treatment of Native Americans and the practical implications of a ruling that Congress never clearly destroyed the Muscogee (Creek) Nation sovereignty over the region, covering approximately half of the state.

“Congress never ended the Creek Reservation and never transferred federal jurisdiction to Oklahoma,” said Ian H. Gershengorn, lawyer for Jimcy McGirt, a member of the Creek Nation who was convicted of sex crimes against a child by state authorities in the borders. Mr. Gershengorn argued that only the federal authorities were empowered to prosecute his client.

Mithun Mansinghani, the solicitor general for Oklahoma, took a different view. “Oklahoma has jurisdiction over the eastern half of the state because it was never reserve land,” he said, “and it is certainly not reserve land today. “

Several judges said they were concerned about a ruling that would force federal authorities to investigate and prosecute crimes in eastern Oklahoma. Judge Ruth Bader Ginsburg, for example, said she feared hundreds of state convictions, many for heinous crimes, would be overturned and may require a new trial in federal court.

Mr Mansinghani said a ruling in Mr McGirt’s favor could result in the release of more than 3,000 state prisoners and force federal authorities to prosecute around 8,000 crimes a year that would otherwise have been dealt with by the state .

Judge Samuel A. Alito Jr., noting that 90 percent of the area’s residents are not tribal members, asked whether trade disputes should go to tribal courts. Judge Elena Kagan asked about adoptions and foster families.

This was the court’s second attempt to settle the status of eastern Oklahoma. In November 2018, judges heard arguments in Sharp v. Murphy, No. 17-1107, who presented the same problem in an appeal of a decision of the United States Court of Appeals for the 10th Circuit, in Denver. The case stems from the state court prosecution of Patrick Murphy, a Creek Indian, for the murder of George Jacobs in rural McIntosh County, east central Oklahoma.

After his death sentence, it emerged that the murder had taken place on what had, at least at one time, been Indian land. Mr. Murphy argued that only the federal government could prosecute him and that a federal law prohibited the imposition of the death penalty because he was an Indian. The 10th Circuit accepted.

When the Murphy case was argued before an eight-member tribunal, the judges appeared divided and confused. (Judge Neil M. Gorsuch, who had served on the 10th Circuit, recused himself.)

Instead of rendering a decision before the term expires in June 2019, the court has announced it will hear another round of arguments during his current term, which began in October. It was a sign that the tribunal was deadlocked, 4 to 4.

But there was no new argument in the Murphy case, likely because it wasn’t clear that another hearing would break the deadlock as long as the tribunal was short-staffed.

Instead, the court agreed to hear the case on Monday, McGirt v. Oklahoma, No. 18-9526, an appeal of a state court decision, apparently to ensure the matter can be resolved by a nine-member tribunal. A decision is expected by July.

Justice Gorsuch, whose vote could prove to be decisive, has taken a broad view of Native American rights in other cases. Overall, his questions suggested he was skeptical of the positions Oklahoma is taking in this matter.