Supreme Court docket says jap half of Oklahoma is Native American land

Crowds line up outside the Supreme Court as it resumes oral arguments at the start of its new term in Washington, U.S., October 7, 2019.

Mary F. Calvert | Reuters

The Supreme Court on Thursday ruled that a huge swath of the state of Oklahoma is Native American land for certain purposes, siding with a Native American man who challenged his rape conviction by state authorities in the territory. 

The 5-4 decision was authored by Justice Neil Gorsuch. 

“Today we are asked whether the land these treatiespromised remains an Indian reservation for purposes of federal criminal law,” Gorsuch wrote.

“Because Congress has not said other-wise, we hold the government to its word,” he wrote.

The case was brought by Jimmy McGirt, who was convicted by an Oklahoma court of raping a four-year-old child in 1997. 

McGirt, a member of the Muscogee (Creek) Nation, argued that Oklahoma lacked the jurisdiction to review his case because the crime took place within the boundaries of the Creek Nation’s historic territory. 

Generally speaking, federal authorities, rather than states, have jurisdiction over crimes committed by or against Native Americans in Native American territory. 

Oklahoma argued that the Creek Nation’s former territory was not a reservation at all. The state said that if the Supreme Court accepted McGirt’s reasoning it would “cause the largest judicial abrogation of state sovereignty in American history, cleaving Oklahoma in half.”

The Muscogee (Creek) Nation filed court papers siding with McGirt, noting that while the tribe had “no role in the genesis of this litigation” it “now finds its Reservation under direct attack.”

Riyaz Kanji, an attorney for the tribe, wrote that Oklahoma was “exaggerating” the jurisdictional problems that would ensure if the state lost its case.

“To the extent they hold any water, the State’s posited consequences stem from the fact that both executive branch and state officials actively sought to undermine Congress’s determination that the Nation’s government and territory would endure,” Kanji wrote. 

Gorsuch endorsed that argument in Thursday’s decision.

Writing for the majority, Gorsuch said, “Under our Constitution, States have no authority to reduce federal reservations lying within their borders. Just imagine if they did.”

“A State could encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States. That would be at odds with the Constitution, which entrusts Congress with the authority to regulate commerce with Native Americans, and directs that federal treaties and statutes are the “supreme Law of the Land,” he wrote.

Gorsuch added that if that happened, “It would also leave tribal rights in the hands of the very neighbors who might be least inclined to respect them.”

The case decided Thursday is formally known as McGirt v. Oklahoma, No. 18-9526.

This is breaking news. Check back for updates. 

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