A significant portion of the state of Oklahoma was just given away in a major Supreme Court decision that did not get much fanfare in the press.
The deciding vote was made by Justice Neil Gorsuch, a justice who was nominated to the court by President Donald Trump, NPR reported.
In a case involving a convicted child sex offender the court ruled that the state did not have the jurisdiction to prosecute him because the land belonged to Native Americans in a centuries old treaty.
The decision that around half of Oklahoma’s land is a Native American reservation is expected to have far reaching effects on both past and future criminal convictions.
“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word,” Gorsuch said in the majority opinion he penned.
It was 5-4 decision that saw Justices Gorsuch, Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer in the majority.
A dissenting opinion of the decision was joined by Justices John Roberts, Brett Kavanaugh, Samuel Alito and Clarence Thomas.
A significant portion of the state capital of Tulsa is now deemed to be on Muscogee (Creek) land and the Muscogee (Creek) Nation celebrated the decision.
“The Supreme Court today kept the United States’ sacred promise to the Muscogee (Creek) Nation of a protected reservation,” it said. “Today’s decision will allow the Nation to honor our ancestors by maintaining our established sovereignty and territorial boundaries.”
Chief Justice Roberts, who has sided with liberals frequently in recent decisions, said that the decision “will undermine numerous convictions obtained by the State, as well as the State’s ability to prosecute serious crimes committed in the future,” and “may destabilize the governance of vast swathes of Oklahoma.”
But Kevin Washburn, who is the dean of the law school at the University of Iowa, cheered the decision, saying “It’s basically 15 weeks of how the law in the United States has failed my people.”
“For Indian people, their land is really important, and treaties are really important. They’re sacred. And this reaffirms the sacredness of those promises and those treaties,” Washburn, who was an assistant secretary of Indian affairs from 2012 to 2016, said.
“Now and then there’s a great case that helps you keep the faith about the rule of law,” he said, NPR reported. “And this is one of those.”
The ruling has a number of significant consequences for criminal law in the relevant portion of Oklahoma.
The first is that going forward, certain major crimes committed within the boundaries of reservations must be prosecuted in federal court rather than state court, if a Native American is involved. So if a Native American is accused of a major crime in downtown Tulsa, the federal government rather than the state government will prosecute it. Less serious crimes involving Native Americans on American Indian land will be handled in tribal courts. This arrangement is already common in Western states like Arizona, New Mexico and Montana, said Washburn.
Then there’s the issue of past decisions — many of them are now considered wrongful convictions because the state lacked jurisdiction. A number of criminal defendants who have been convicted in the past will now have grounds to challenge their convictions, arguing that the state never had jurisdiction to try them.
The case before the court, McGirt v. Oklahoma, concerned Jimcy McGirt, an enrolled member of the Seminole Nation of Oklahoma who was convicted of sex crimes against a child on Creek land. In post-conviction proceedings, McGirt argued that the state lacked jurisdiction in the case and that he must be retried in federal court. The high court agreed.