U.S. Supreme Court weighs ‘transfers of sovereign right’
The U.S. Supreme Court heard arguments Monday on whether tribes have jurisdiction over a large swath of eastern Oklahoma in a case that could have implications on everything from tax authority to decades of criminal cases.
The crux of McGirt v. Oklahoma is whether a crime committed by an enrolled Seminole Nation of Oklahoma member occurred on tribal lands. Jimcy McGirt, who was convicted in state court of molesting a child, argues the alleged crime occurred within the 1866 boundaries of the Creek reservation, so the case falls under federal jurisdiction, not state.
Mithun Mansinghani, Oklahoma solicitor general, presented a new argument right out of the gate. In a shift from an earlier hearing on a similar case, Sharp v. Murphy, the state contended the Creek Nation never had a reservation, even before Oklahoma became a state, and said the tribe was instead a “dependent Indian community.”
“Oklahoma has jurisdiction over the eastern half of the state because it never was reservation land, and is certainly not reservation land today,” Mansinghani said.
Justice Clarence Thomas noted he was “very interested” in the new argument.
“I'd like you first to say … why you think that and why it matters, and opposing counsel seems to think that it's irrelevant and as he said, as I recall, that is also wrong, your assessment of that,” Thomas said.
Mansinghani said the land doesn’t meet the definition of a reservation and cited a previous case, Hagen v. Utah, saying restoring land to the public domain ends a reservation.
“If what created the land was the fee patent, the opposite of that, the conveyance of the fee patented, disestablishes that thing in accordance with this Court's decision in Hagen v. Utah, where it says reservation is reserving land from the public domain. So restoring land to the public domain ends a reservation,” Mansinghani said.
Ian Gershengorn, attorney for McGirt, made several points in his opening statement: The Creek Nation had a reservation, Congress did not disestablish the reservation, Congress didn’t turn over criminal jurisdiction to Oklahoma, and “Oklahoma’s rhetoric about disruption does not change the result.”
Gershengorn argued Congress established the historical boundaries of the Creek Nation, and only Congress can undo them.
“The reason we have a plain text requirement has less to do with whether you call it a reservation or a dependent Indian community and everything to do with the fact that these boundaries were set up by Congress," he said. "And so if you are going to undo that, Congress needs to speak, and Congress needs to speak clearly. We're talking about transfers of sovereign rights. And that has to be done clearly in the text, and you can call it a reservation or dependent Indian community. The test would be the same."
There were also a number of questions that focused on the practical outcomes should the court decide in favor of the tribe.
One of the outcomes the justices questioned was the impact on cases that may have to be retried in federal court.
“What makes this case hard — there have been hundreds and hundreds of prosecutions of very heinous offenses,” Justice Ruth Bader Ginsburg said. “On this state law, on your view, it will all become undone."
Gershengorn said an increase of cases hasn’t materialized for a couple of reasons, one being that federal court has higher penalties for certain crimes, and many of those convicted have already served a large portion of their sentence.
“While we've been hearing ... both in the Murphy argument and here about, you know, murderers and rapists getting through, in fact, there is no evidence that the state has put forward that there will be ... the kinds of habeas petitions that one would expect to see. The kind of tsunami that has been predicted just hasn't materialized,’ Gershengorn said.
Mansinghani later said 178 people are seeking to be retried under Murphy, "even though the Murphy mandate has been stayed and the Oklahoma Court of Criminal Appeals decision is still binding on state courts.
"So that 178 cases are just the initial cracks in the dam,” he said.
Yet Justice Neil Gorsuch suggested those consequences might be overstated.
“I would have thought that ... we might have seen a tsunami of cases, if there were a real problem here, that we haven’t seen,” Gorsuch said.
Forrest Tahdooahnippah, Comanche, is a partner at the law firm Dorsey & Whitney who specializes in tribal and non-tribal businesses in Indian Country. He listened to the entirety of the morning’s arguments and said it was well argued on both sides but it’s difficult to tell which way the court will decide.
Based on the justices’ questions, Tahdooahnippah thinks Justices John Roberts, Samuel Alito, Brett Kavanaugh and Thomas are leaning toward ruling in favor of the state, while Justices Sonia Sotomayor, Elena Kagan and Gorsuch are leaning in favor of McGirt.
“Justices Ginsburg and (Stephen) Breyer’s asked pointed questions of both sides, and appear to be the ‘swing voters’ in this case,” he said.
In his closing rebuttal, Gershengorn said when it comes to arguments of the case that are based on interpreting law and statutes, it should be open and shut for McGirt.
“This court may not be able to determine which party has the better reading of events on the ground 120 years ago but it is surely well-positioned to determine which party has a better reading of the text, and on that score I submit this case is not close,” he said.
In an email to Indian Country Today, the Muscogee (Creek) Nation said its attorneys made their case, and it has confidence in the Supreme Court process.
“We feel tribal representation made our argument today with brevity and clarity,” said the tribe through its press secretary. “The decision is now in the hands of the court, and we will wait for that decision."
Normally, the court issues decisions throughout May and June. With COVID-19 pushing cases back and arguments heard via teleconference, it is unknown how long it will take for decisions to be handed out this term.
Monday’s arguments can be played back on C-SPAN’s website.
The Associated Press contributed to this report
Kolby KickingWoman, Blackfeet/A'aniih is a reporter/producer for Indian Country Today. He is from the great state of Montana and currently reports and lives in Washington, D.C. Follow him on Twitter - @KDKW_406. Email - firstname.lastname@example.org