Muscogee (Creek) Nation Principal Chief David W. Hill delivers the State of the Nation address in Okmulgee, Oklahoma, on January 25, 2020. Photo: Muscogee (Creek) Nation Public Relations

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Supreme Court set to resolve Indian Country case on second try

Tuesday, January 28, 2020

By Acee Agoyo

WASHINGTON, D.C. -- Get ready for round two. The nation's highest court continues to prepare for another reservation boundary case after failing to reach a decision in the last one.

In an order on Monday, the U.S. Supreme Court appointed an attorney to represent an Indian inmate whose case should finally answer the questions the justices couldn't last year. Does the reservation of the Muscogee (Creek) Nation still exist and is it still Indian Country?

If the high court sides with Jimcy McGirt, a 71-year-old inmate who hails from the Seminole Nation, he will have succeeded where many others tried before him. With a petition written by hand and sent from the James Crabtree Correctional Center in Helen, Oklahoma, he managed to present his imprisonment as one that will resolve the Indian Country status of millions of acres in the eastern part of his home state.

But McGirt won't be arguing for his freedom from state jurisdiction himself. Instead, the court will let a familiar figure -- Ian Gershengorn, the same attorney who represented a different Indian inmate in last year's dramatic case -- do the talking at the forthcoming hearing, which has yet to be scheduled.

And just like the prior dispute, McGirt's case is being drawn along the same battle lines. While the Muscogee (Creek) Nation is not taking a position on the defendant's guilt -- he was convicted of heinous crimes involving the sexual assault of a child -- the tribe will be supporting his overall cause, according to a document filed on Monday.

The Trump administration is also back in the fold, even though the federal government is not a party in McGirt v. Oklahoma. In an application jointly submitted with the Muscogee (Creek) Nation, the U.S. Department of Justice said it will support the state's position -- that the tribe's reservation no longer exists, but even if it does, that the state can exercise jurisdiction over those lands.

"The United States and the Creek Nation have distinct and substantial interests in the resolution of this case," U.S. Solicitor General Noel Francisco wrote in seeking the Supreme Court's permission for both the federal government and the tribe to submit longer-than-usual briefs in McGirt.

According to Francisco, the official who oversees Supreme Court litigation on behalf of the U.S., it's just too much for the federal government to prosecute tribal citizens who live on Indian lands in eastern Oklahoma even though these types of cases are common elsewhere in many other states.

"For the United States, the expansion of criminal jurisdiction would result in a great increase in the federal government’s Indian-related law-enforcement responsibilities and the necessary expenditure of resources, and the reasoning underlying petitioner’s position could well extend to all of the Five Tribes in eastern Oklahoma," Francisco said in reference to the Muscogee (Creek) Nation, the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation, who are collectively known as the Five Civilized Tribes and whose leaders are once again closely watching the happenings at the Supreme Court.

Though an official from the Muscogee (Creek) Nation did not sign the application, the tribe agreed to the filing and Francisco did his best to represent the tribe's position despite the government disclaiming a trust and treaty responsibility on Creek lands.

"For its part, the Creek Nation is a sovereign tribe whose historic territory is the focus of this case," the filing stated. "The Creek Nation is uniquely situated to present its own informed understanding of the Creek Nation’s history and of the treaties and statutes governing its relationship with the United States."

Jimcy McGirt is currently serving time in the Oklahoma correctional system for crimes committed in 1997. Source: Source: OK Offender / OK Department of Corrections

The Muscogee (Creek) Nation and the United States aren't the only ones interested in the outcome either. In the last case, known as Sharp v. Murphy, supportive briefs were filed on behalf of hundreds of tribes, key members of Congress, former federal prosecutors, advocates for Native women and Indian law and policy scholars. Opposing briefs came from law enforcement, the oil and gas industry and other business groups in Oklahoma.

McGirt is likely to draw similar submissions. Last week, both McGirt and the state of Oklahoma -- the defendant in the case -- filed blanket consents, opening the doors for interested parties to present their views of the controversy.

Whoever shows up with briefs will probably see a shortened time-frame for resolution of McGirt. Though oral argument hasn't been set, the earliest it could occur is early March, as the Supreme Court currently has hearings scheduled through March 4.

The Supreme Court's current term, which began in October, is expected to conclude by the end of June, giving the justices only a couple of months to hear arguments and come up with a decision, assuming they stick to their usual schedule.

But unlike Murphy, all nine members of the court -- including Neil Gorsuch, whose knowledge of Indian law and policy is unprecedented -- are on board with McGirt. Speculation was that the eight justices who heard the earlier case were deadlocked and that's why they never came up with a decision at the end of their prior term.

"It seems like a no-brainer," Bryce In the Woods, a council member from the Cheyenne River Sioux Tribe, said when the issue came up during the National Congress of American Indians 76th annual convention last October.

Collectively, the Muscogee (Creek) Nation, the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation signed treaties with the United States in the late 1800s which promised them millions of acres for their people and their future. Altogether, the government-to-government agreements covered an estimated 19 million acres in the eastern part of present-day Oklahoma.

Changes in federal policy led to the allotment of the five tribes' lands, a shift that began in the late 1800s and one that saw the loss of 90 million acres of tribal property between 1887 and 1934, when the Indian Reorganization Act put an end to it. The Five Civilized Tribes were also subjected to another federal law that saw the U.S. essentially refuse to acknowledge their leadership for several decades.

The negative history has contributed to the stand-off at the Supreme Court. The state of Oklahoma and the Trump administration, during Murphy, argued that the reservations of the five tribes were diminished to the point that the state exercises jurisdiction over their lands.

Murphy was supposed to have resolved the issue on behalf of Patrick Dwayne Murphy, a citizen of the Muscogee (Creek) Nation who is on death row in Oklahoma. He was convicted in state court of murdering a fellow Creek citizen in 1999.

Two years earlier, McGirt was convicted in state court of crimes involving a four-year-old Indian girl. But since the incident occurred within the boundaries of the reservation that was promised to the Muscogee (Creek) Nation by treaty, and since the reservation has never been disestablished or diminished by Congress, he argues that the federal government -- not Oklahoma -- has jurisdiction over the matter.

"Oklahoma courts have a long history of ignoring federal statutes," McGirt asserted in the petition he wrote to the Supreme Court.

"States have no authority over Indians in Indian country, unless it is expressly conferred by Congress," he added.

Should the Supreme Court agree with McGirt, he could be prosecuted by the federal government for his crimes. In Oklahoma, he was sentenced to 500 years in prison and life in prison without parole, so a change in venue would have a significant impact on him.

Murphy would also see some significant changes in the federal system. If he is prosecuted by the U.S., he might not face the death penalty.