Supreme Court to decide Native American land dispute in Oklahoma

Richard Wolf | USA TODAY

WASHINGTON – The Supreme Court agreed for the second time Friday to decide whether much of Oklahoma remains Native American territory, a ruling that could plunge the state into what it has called "civil, criminal and regulatory turmoil."

The justices will hear an appeal from Jimcy McGirt, a member of the Muscogee (Creek) Nation, who claims his state rape conviction from 1997 should be overturned because of the jurisdictional dispute.

His case is similar to one the high court heard last term but failed to decide – presumably because the justices were deadlocked, 4-4, without Associate Justice Neil Gorsuch's participation. Gorsuch came from the U.S. Court of Appeals for the 10th Circuit and likely was involved with the earlier case there.

When the first case was heard, the justices reached back to 1907 to determine whether Congress, using imprecise language, failed to disestablish the 1866 boundaries of the Indian reservation. If so, virtually half of Oklahoma – home to 1.8 million residents and including Tulsa, its second-largest city – would remain Native American territory and subject to federal, not state, laws.

The 10th Circuit had ruled the state lacked jurisdiction to prosecute the gruesome murder because it happened within 3 million acres belonging to the Muscogee (Creek) Nation. In all, that threatened more than 19 million acres in eastern Oklahoma once inhabited by five Indian tribes.

Oklahoma told the court "that cannot be right," since it "would plunge eastern Oklahoma into civil, criminal and regulatory turmoil and overturn 111 years of Oklahoma history."

The Trump administration took the state's side, telling the justices that Congress long ago broke up the Creek Nation's lands, abolished its courts and set a timetable for the tribe's dissolution.

Ten states, from Maine to Texas to Montana, warned that the boundaries of tribal lands have jurisdictional consequences there as well. They said a decision in the tribe's favor "would be confusing and costly at best, and disastrous at worst," affecting health and energy policy, environmental regulation, economic development and taxes.