Last week’s Supreme Court decision in McGirt v. Oklahoma was a striking victory for Oklahoma’s Indigenous communities and may have a profound impact on the criminal justice/courts systems in almost half of the state. The ruling stated that three million acres of Oklahoma land are Native American territory, finally answering a longstanding question of whether the land that constituted the Creek reservation following the Trail of Tears has continued to be Indian territory after the establishment of the state of Oklahoma.
Under the ruling, certain major crimes/felonies in which the defendant is Native American must be prosecuted in federal court as opposed to state court. Lower level offenses will be handled by one of the 22 tribal courts in Oklahoma. The inner workings of tribal courts vary across the country. Some employ more traditionally Indigenous laws and customs, settling conflicts via the governor or tribal leaders, while others operate as more contemporary courts, using judges to enforce tribal codes, treaties, and constitutions. Diversity also abounds within their sentencing authority, with some courts using restorative justice models and centering the healing of the victim and survivors, while others sentence defendants to incarceration or monetary fines. In addition to autonomous court systems, tribes operate police departments and jails. A BJS report from 2016 identified 80 jails operating on tribal lands holding 2,540 people and admitting 9,640 people in June of that year.
In addition to granting tribal courts jurisdiction over cases in the newly identified tribal regions, this SCOTUS decision also means that a slew of past convictions involving Indigenous people can be challenged under the argument that the state of Oklahoma did not have the authority to try their cases.
The SCOTUS decision received a majority vote from Justices Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer, and conservative Neil Gorsuch. Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, and John Roberts offered dissenting opinions.
In his dissent, Roberts warned of the adverse impact the ruling would have, particularly its impact on past convictions. “The court has profoundly destabilized the governance of eastern Oklahoma,” Roberts wrote. Roberts’ concerns were echoed by news reports and some politicians immediately following the decision, including Texas Sen. Ted Cruz, who tweeted that the Supreme Court just “gave away half of Oklahoma, literally.”
That hyperbole, however, doesn’t quite capture the ruling’s impact and what it means moving forward. In a piece for Slate, Stacey Leeds, a former special district court judge for Muscogee (Creek) Nation and a former supreme court justice for the Cherokee Nation, wrote that in the wake of the ruling, “Oklahoma state court judges will do their jobs and exercise jurisdiction over most crimes that take place in Oklahoma for the rest of their careers. Thirty-six miles to the south, Muscogee (Creek) Nation judges will do their jobs today, but for the first time in over a century, they will exercise jurisdiction over all of their citizens who commit crimes within their nation. It’s not a radical notion. It’s a basic right of governance exercised all over the globe.”
In an official statement released on the day of the ruling, the Muscogee (Creek) Nation recognized the decision as an acknowledgment of “the United States’ sacred promise to the Muscogee (Creek) Nation of a protected reservation.” The statement went on to say that “today’s decision will allow the Nation to honor our ancestors by maintaining our established sovereignty and territorial boundaries. We will continue to work with federal and state law enforcement agencies to ensure that public safety will be maintained throughout the territorial boundaries of the Muscogee (Creek) Nation.”
While not a radical notion as Leeds described, the ruling is deeply meaningful in it recognizes tribal sovereignty against a historical backdrop where the United States has broken agreements made with Indigenous communities time and time again. Additionally, the ruling and the discussion it has generated sheds light on the relationship between Native communities and the criminal legal system at a time when the national discourse is already focused on racism and police violence and yet rarely includes Indigneous experiences.
As outlined by the Prison Policy Initiative, information on Native Americans and criminal justice can be particularly hard to find due to multiple levels of poor data collection. However, data that does exist illustrates how disproportionately impacted Native communities are. A 2016 report from the BJS found that about 9,700 American Indian/Alaska Native people were held in local jails across the country, making their jail incarceration rate almost double that of white and Latinx people. In state prisons, Oklahoma tops the list of states with the highest number of American Indian/Alaska Natives incarcerated. When it comes to police violence, Native Americans fare similarly worse, while the actual number of Native American deaths at the hands of police is relatively small, the rate at which Native Americans are killed by law enforcement is the highest of all racial/ethnic groups in the country.