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

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Supreme Court schedules hearing in lone Indian Country case

Tuesday, February 25, 2020

By Acee Agoyo

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": Big day for Muscogee (Creek) Nation as tribe takes stand in reservation boundary case at Supreme Court. Photo courtesy Jason Salsman/MCN #ThisLand https://t.co/DWaN4PXITy pic.twitter.com/44ikB9OyBA
— indianz.com (@indianz) February 11, 2020

"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.

Derrick Beetso (Navajo) of the National Congress of American Indians and Joel Williams (Cherokee) of the Native American Rights Fund are providing an update on US Supreme Court litigation. #ECWS2020 @NCAI1944 @NDNrights pic.twitter.com/wSM4fsvLYP
— indianz.com (@indianz) February 12, 2020

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.

“The current term has been a little bit slower,” Joel Williams (Cherokee) of Native American Rights Fund says of US Supreme Court. Only 2 cases — both about reservation promised to Muscogee (Creek) Nation by treaty — are on docket. #ECWS2020 @NDNrights @NCAI1944 #HonorTheTreaties pic.twitter.com/VOX8iHt8PU
— indianz.com (@indianz) February 12, 2020

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.