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 churns along with Indian Country case amid coronavirus crisis

With the nation hobbled by the coronavirus crisis, the U.S. Supreme Court continues work on McGirt v. Oklahoma, the only Indian law case set for argument during the current term.

In an order issued on Monday morning, the justices granted time for both the Muscogee (Creek) Nation and the U.S. Department of Justice to argue at the upcoming hearing, alongside counsel for Jimcy McGirt, the Indian inmate whose rights are at issue in the closely-watched case. The argument is still scheduled to take place on April 21, amid coronavirus social distancing guidelines, travel advisories and other restrictions in place at least through the end of that month.

The members of the highest court in the land already took the historic step of postponing cases that were to be argued in March. Rescheduled dates have not been announced as the building itself in Washington, D.C., remains closed to the public "until further notice."

The justices have not said anything yet about their workload for the last two weeks in April, during which McGirt is to be heard. A request for comment has been placed with the court's public information office.

At issue is whether McGirt can be prosecuted by the state of Oklahoma for a crime that occurred within the boundaries of the reservation promised to the Muscogee (Creek) Nation by treaty. He argues that reservation continues to exist as Indian Country, meaning the state lacks jurisdiction over him as an Indian.

"Here," McGirt's attorney wrote in the February 4 opening brief, "the simple, dispositive, and undisputed fact is that none of the relevant statutes, from 1890 through statehood, contain clear language of disestablishment."

The Muscogee (Creek) Nation is also defending its homelands from disestablishment. An amicus brief filed last month says Congress has never taken clear steps to diminish the reservation, which consists of an estimated 3 million acres in eastern Oklahoma.

"Only two identified junctures exist at which disestablishment might have taken place: 1901 and 1906," the February 11 brief reads. "At both junctures Congress enacted provisions that, far from abolishing the reservation, evidenced Congress’s intent to preserve it, and at both junctures the surrounding history provides ample confirmation."

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

On the opposite side of the argument is Oklahoma. The state prosecuted McGirt for heinous crimes -- the sexual assault of a child -- and intends to keep him in prison for several hundred years.

"In a series of statutes leading up to statehood, Congress systematically removed legal distinctions that separated tribal members from non-members in the Indian Territory—subjecting all to the same laws in the same courts," the March 13 brief argues. "Congress then transferred that race-blind territorial jurisdiction to the new courts upon statehood."

As with the last case in which the status of the reservation was at issue, Indian Country is standing with the Muscogee (Creek) Nation. Advocating for the interests of hundreds of tribes, the National Indigenous Women's Resource Center, the Native American Rights Fund, the National Congress of American Indians, along with prominent politicians from Oklahoma, former U.S. Attorneys from Democratic and Republican administrators, the National Association of Criminal Defense Lawyers and other allies, have submitted briefs.

"The only criminal jurisdiction affected by the outcome in this case is the jurisdiction over crimes committed by by or against tribal citizens," the brief submitted by the National Indigenous Women's Resource Center states. "And no sovereign has a greater interest in prosecuting these violent crimes than Tribal Nations, particularly where the crime is committed against a Native child."

Were the Supreme Court to reaffirm the status of the Creek Reservation, crimes committed by Indians can be prosecuted by the federal government, as all well as by tribal government. With the McGirt pending, the U.S Attorney for the Northern District of Oklahoma did just that, successfully securing a
guilty plea in another case in which the state had tried to assert jurisdiction over an Indian.

"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.

Despite such assertions, the Trump administration is not siding with Indian Country in McGirt. The Department of Justice argues that subjecting millions of acres in eastern Oklahoma to federal jurisdiction is just too much for federal prosecutors in the Northern District, as well as the Eastern District, to handle. A brief also claims the federal district courts in those regions would be overwhelmed.

"If the court’s decision were applied to all five tribes, the district courts and U.S. Attorneys’ Offices for the Northern and Eastern Districts of Oklahoma could expect approximately 13 times as many felony cases annually," the March 20 filing reads. "A decision in petitioner’s favor thus would require a great increase in the dockets of federal district courts and federal law-enforcement presence and resources."

The U.S. Supreme Court has been closed to the public due to the coronavirus pandemic. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Several industry groups in Oklahoma, along with the city of Tulsa -- located in Creek homelands -- plus several states and the International Municipal Lawyers Association, are also aligned against Indian Country's interests in McGirt.

As highlighted in the Trump administration's brief, the fear the opposing parties present is that the outcome won't just impact but the Muscogee (Creek) Nation, but also the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation, who are collectively known as the Five Civilized Tribes. Altogether, the lands the five tribes were promised by treaty come to about 19 million acres -- or about 40 percent of Oklahoma's land base.

"The decision threatens to authorize tribal taxation or overturn state, county, and municipal taxation of activities and properties; to invest tribal courts with broader jurisdiction or divest state courts of long-accepted authority; and to authorize greater, and potentially exclusive, tribal and federal regulation over lands, businesses, and energy resource development," industry interests in Oklahoma wrote in their March 20 filing. "Because the histories of the Cherokee, Chickasaw, Choctaw, and Seminole Tribes or Nations, the other four of the five tribes, are similar in essential respects to that of the Nation, Murphy may cause redrawing of jurisdictional boundaries across the Eastern half of Oklahoma."

Murphy was a case that was heard by the Supreme Court during its prior term. It also involved an Indian inmate -- Patrick Dwayne Murphy, a Creek citizen -- who has been prosecuted by the state of Oklahoma for a crime that took place within reservation boundaries. He is on death row as a result of the state's assertion of power in the homicide of another Creek citizen.

The justices, however, were unable to reach a decision at the conclusion of the session and set it for re-argument. Their reasoning for doing so remains unexplained to this day, although speculation boils down to the fact that it was only heard by eight of the nine members of the court. Justice Neil Gorsuch, despite his vast experience in Indian law, including reservation status cases, did not participate.

A map created by the U.S. Department of the Interior shows the boundaries of the Creek Reservation intact in 1914. Additional maps, dating from 1900 through 1917, submitted to the U.S. Supreme Court as part of McGirt v. Oklahoma, show the existence of similar boundaries.

But before Murphy was rescheduled, the court agree to hear McGirt. The outcome in the latter case is expected to resolve the former.

McGirt is due to be heard by all nine members of the court, including Gorsuch, who recused himself from Murphy because of his connection to the federal appeals court where it was heard. No such link exists with the new case, which is based on litigation in Oklahoma's judicial system. The state courts imposed an unusually lengthy sentence on McGirt -- one of his terms runs for 500 years.

In the past, health crises have forced the Supreme Court to adjust. In 1918, the Spanish flu epidemic led to the postponement of arguments, and similar steps were taken during yellow fever outbreaks in 1793 and 1798, the court's public information office pointed out.

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