From left: Second Chief Del Beaver, Creek National Council Second Speaker Darrell Proctor, Creek National Council Speaker Randall Hicks, Principal Chief David Hill, Secretary of Education Greg Anderson and Creek Nation Ambassador Jonodev Chaudhuri at the U.S. Supreme Court in Washington, D.C., on February 11, 2020. Photo courtesy Jason Salsman / Muscogee (Creek) Nation

Supreme Court schedules hearing in lone Indian Country case

Indian Country remains united as the nation's highest court prepares to hear the only tribal law case on the docket.

Oral arguments in McGirt v. Oklahoma are scheduled for April 21, the U.S. Supreme Court announced on Friday. That's the second to the last possible week for hearings in what has otherwise been an uneventful session for tribes and their advocates.

“The current term has been a little bit slower,” Joel Williams, a citizen of the Cherokee Nation and a staff attorney at the Native American Rights Fund told tribal leaders in Washington, D.C., earlier this month.

Despite the slow-down in activity, the stakes in McGirt are high. So much so that the leadership of the Muscogee (Creek) Nation, including newly-installed Principal Chief David Hill and Second Chief Del Beaver, came all the way from Oklahoma and visited the Supreme Court. as they filed their brief in the case.

"The Nation files this brief to vindicate its core sovereign interests in its treaty-guaranteed reservation," the document filed on February 11 stated.

The outcome in McGirt will determine whether millions of acres promised to the Creek Nation by treaty remain protected under federal law, or free from state jurisdiction in certain situations. Judging by the response -- six briefs were filed on the same day as the tribe's -- Indian Country is paying close attention, and is drawing in some new allies in the process.

"There was one that was a little bit of a surprise to us," Williams said at the National Congress of American Indians winter session in D.C., a day later on February 12.

Besides the tribe's filing and NCAI's, which was coordinated with NARF, a number of Indian nations, the National Indigenous Women's Resource Center, several prominent politicians from Oklahoma, former federal prosecutors from both sides of the aisle, along with historians and legal scholars, all signed onto briefs supporting the continued existence of the Creek Reservation. The National Association of Criminal Defense Lawyers -- whose positions aren't always supportive of sovereignty -- was the surprise addition.

"NACDL has a particular interest in ensuring that Indian defendants are consistently afforded a federal forum when they are tried for crimes that are subject to exclusive federal jurisdiction," the association of criminal defense attorneys told the Supreme Court.

One Indian defendant whose rights are at issue is Jimcy McGirt, a 71-year-old citizen of the Seminole Nation. He's serving an unusually lengthy prison sentence -- one of his terms runs for 500 years -- for a crime that occurred within the Creek Reservation in Oklahoma.

Another Indian defendant impacted is Patrick Dwayne Murphy, a Creek citizen who is on death row for a murder that also occurred within the Creek Reservation. Both he and McGirt were prosecuted by the state, instead of the federal government, as is typical in Indian Country cases.

In fact, just two days after the Trump administration said it was going to oppose tribal interests in McGirt, a prominent federal prosecutor was touting the results of another case in which the state of Oklahoma had tried to assert jurisdiction over an Indian defendant. Only this time, official Washington was singing a different tune.

"This United States Attorney’s Office takes seriously its special trust responsibility to prosecute violent crimes in Indian Country,” said U.S. Attorney Trent Shores, a citizen of the Choctaw Nation who was named to his position by President Donald Trump and serves as chair of the Native American Issues Subcommittee at the Department of Justice, a body that develops and guides policy in Indian Country.

Shores's colleagues have yet to file their brief in McGirt. But they have made it clear where they stand -- crimes committed by Indians within the Creek Nation should be prosecuted by the state of Oklahoma, trust and treaty responsibilities notwithstanding. That view also extends to the lands promised to the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation, who are collectively known as the Five Civilized Tribes.

"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," DOJ told the Supreme Court late last month.

Collectively, the Five Civilized Tribes were promised about 19 million acres in their respective treaties. That amounts to nearly 40 percent of Oklahoma's land base -- such a large chunk of land is apparently too much for the federal government to handle, at least in the eyes of the current administration.

"It is no answer to say, as Oklahoma does, that these crimes will be effectively prosecuted by the state," the National Indigenous Women's Resource Center said in its brief, countering the idea that Indian Country crimes are being properly handled by state authorities. "More often than not, state law enforcement fails even to investigate—let alone arrest—the perpetrators who murder Native women and children."

Similar issues were raised when the Supreme Court, during its last term, considered a case known as Sharp v. Murphy. But the justices were unable to reach a decision -- they waited until the last day of their session to punt -- and Patrick Dwayne Murphy remains on death row in Oklahoma for the murder of a fellow Creek citizen.

Murphy is once again on the high court's docket. But there will be no oral arguments -- the justices are only hearing McGirt on April 21.

There has been no official explanation for the stalemate in Murphy. But tribes and their advocates speculate that the absence of Justice Neil Gorsuch from the case accounted for the inability of his colleagues to come to a consensus on the status of the Creek Reservation.

McGirt is a different story. Gorsuch. whose extensive experience in Indian law is unprecedented on Supreme Court history, is participating in the case. There would appear to be no reason for the justices to punt this time around.

"A little bit of speculation there," Williams of NARF said at NCAI's meeting this month. "But that's what we suspect is going on."

With no other Indian law cases on the docket, April 21 effectively marks the last day of the current session for the Tribal Supreme Court Project, a joint initiative of NARF and NCAI. A decision in McGirt would presumably be issued sometime in May or June. The very last day of the Supreme Court's term falls on the last week of June, according to the calendar.

Join the Conversation

Related Stories
Indian inmate files opening brief in Supreme Court sovereignty case (February 5, 2020)
Supreme Court set to resolve Indian Country case on second try (January 28, 2020)
Supreme Court sneaks in another Indian Country case to the docket (December 17, 2019)
Still no sign of Supreme Court arguments in closely-watched Indian Country case (November 11, 2019)
Tribes see slower season at nation's highest court but big cases remain unresolved (October 29, 2019)
Supreme Court opens new term with little new Indian law activity (October 9, 2019)
Waiting on the Supreme Court to return eastern Oklahoma to Indigenous nations (October 9, 2019)
Supreme Court keeps Indian Country in the dark in sovereignty case (July 10, 2019)
Supreme Court shocks Indian Country by failing to resolve closely-watched case (June 27, 2019)
Indian Country braces for Supreme Court decision in closely-watched case (June 26, 2019)
Supreme Court makes Indian Country wait for decision in closely-watched case (June 24, 2019)
Supreme Court affirms sovereignty doctrine as wait continues in tribal case (June 18, 2019)
Supreme Court passes on more Indian law petitions as decision looms in big case (June 11, 2019)
Indian Country endures another long wait for Supreme Court decision (June 4, 2019)
Kerry Drake: U.S. Supreme Court got it right in Crow Tribe hunting case (May 30, 2019)
Supreme Court enters final stretch with no new Indian law cases on docket (May 28, 2019)
Supreme Court winds down surprising term with two wins for tribal treaties (May 23, 2019)
Harold Frazier: Tribal treaties are still the supreme law of the land (May 22, 2019)
SCOTUSblog: Supreme Court sides with Crow hunter in treaty rights case (May 21, 2019)
Supreme Court backs off-reservation treaty rights of Crow Tribe (May 20, 2019)
Indian Country awaits outcome of final cases on Supreme Court docket (April 15, 2019)
Yakama Nation makes major impact with decision in treaty rights case (March 26, 2019)
Gavin Clarkson: Indian Country should thank Donald Trump for Justice Gorsuch (March 20, 2019)
Supreme Court delivers slim victory in Yakama Nation treaty rights case (March 19, 2019)
Rebecca Nagle: Supreme Court can put a stop to loss of tribal lands (November 28, 2018)
Trump administration argues against tribal sovereignty in Supreme Court case (November 27, 2018)
Supreme Court set for major showdown in tribal sovereignty case (October 11, 2018)
Supreme Court gains new member as Trump's shadow looms large in Indian cases (October 9, 2018)
Supreme Court opens new term with major Indian law cases on docket (October 1, 2018)
'All-out assault': Battle brews in Supreme Court sovereignty case (September 27, 2018)
Supreme Court takes up Indian law petitions amid major controversy (September 24, 2018)
Indian Country awaits busy season at Supreme Court amid big change (August 15, 2018)
'Win-loss is still pretty bad': Tribes falter at Supreme Court (August 9, 2018)
Graham Lee Brewer: Death penalty case poses test for tribal sovereignty (May 30, 2018)
Muscogee Nation clashes with state in reservation boundary dispute (May 21, 2018)
Another Indian law case in limbo as high court turns to Trump again (May 14, 2018)
Trump administration sides with industry in reservation boundary case (April 3, 2018)
Tribes see continued challenges as more cases head to highest court (February 21, 2018)
Appeals court won't revisit historic decision in Muscogee Nation boundary case (November 9, 2017)
Muscogee Nation citizen seeks dismissal of murder charge as boundary case heats up (September 29, 2017)
Oklahoma plans to ask court to reconsider ruling on Muscogee Nation boundaries (August 24, 2017)
Muscogee Nation welcomes decision affirming the boundaries of its reservation (August 9, 2017)
Muscogee Nation citizen wins reversal of death penalty conviction in Oklahoma (August 8, 2017)
Appeals court hears slew of Indian cases amid focus on Supreme Court nominee (March 23, 2017)
Trending in News
More Headlines