• The Law Gazette

McGirt v. Oklahoma: Native Americans strike for their Territorial Victory

The beginning of any trial starts with the court’s jurisdiction- “authority and sovereignty” over the particular subject matter, for fair play and substantial justice. The jurisdiction has to be within a state's territorial ambit otherwise its paucity can result in an annulment. A similar situation was witnessed in the US Supreme Court’s recent decision where a rape convicts appeal turned into the favour of the entire tribe. The majority of 5-4 justices gave this historic judgment in favour of the Indian American tribes. They have fought long and hard for their national rights and settlement commitments over agreements made two centuries ago by the United States.


Jimcy McGirt (a Seminole man) who was convicted in 1997 for raping a four-year-old girl by the state, brought up the case, citing the ancestral assertion of the Muscogee (Creek) Nation to the land where the crime occurred which is the eastern chunk of the Oklahoma state. This region has been recognized as a part of a reservation under the 1866 treaty and the state doesn’t have the authority to prosecute the indigenous people of that particular area.


Now the factor which makes it the most pronounced is that now all the members of the tribe who were found guilty on the state land have the right to question their conviction. This further gave the power to prosecute them for the alleged crimes in the hands of the federal authorities instead of state in the reserved area which is home to 1.8 million people out of which 15% or fewer are Native Americans. After being convicted for rape and other sexual offense, Jimcy was serving life imprisonment but in 2019 the conviction was challenged based on the fact that the commission of crime took place on the land of the Muscogee (Creek) Nation which doesn’t come under the realm of the state.

However, it can be noted that the federal court still has the authority to prosecute and the crime done by him stands undisputed. The statement presented by the tribe was that there was “a sacred promise” by the United States to provide a protected reservation to Creek. The tribal was compelled to move from Georgia and Alabama in exchange for an affirmation to provide undisturbed lands in the West which is known as Trail of Tears. To safeguard their interest, the congress sanctioned 370 treaties with the tribal people which are depicted as the “supreme law of the land” by the constitution of the United States of America.


The 1997 rape case sprang to become a landmark victory for the Native Americans and the Supreme Court again strongly stated that promises made by the USA will be kept and guarded by the judiciary. The promise which is upholding the judgment can be traced back when about 125,000 indigenous Indians lived on millions of acres of land in Georgia, Tennessee, Alabama, and North Carolina. The land was ruled by the ancestors over centuries however, by the 1830s, colonial powers continued to keep swamping the region, desiring this land for cotton growing.

As a result, they violently drove the Native American tribes out of this region, plundered cattle, committed mass killings, and burned homes. Adding to the misery, the state government was also involved to chase away the community. Due to such a drastic relocation and the movement of white territory, the natives in the west shrank with time, and at last the Oklahoma Enabling Act, 1906 merged the native territory along with Oklahoma to attain statehood. All the powers to the tribal regulatory authorities were scrapped and disintegrated the whole treaties which were “the law of the land.”


Congress in 1885 passed the Major Crimes Act (MCA) placing 15 major crimes under the surveillance of the federal government. In response to a case Ex parte Crow Dog (109 U.S. 556(1883)), wherein the supreme court at that time rule that only native nation holds exclusive jurisdiction to try the natives for most crimes on their courts. The congressmen overturned the decision as they believed that the natives are unable to cope with such heinous offenses like murder or manslaughter by themselves and require supervision along with a border perspective to maintain law and order.

Therefore, instead of repudiating they shared the sovereignty of the law with the natives, which gave them a sense of belongingness and later for congress to establish the roots to stand with their political institutions. The act deduced the power of the sovereign by abolishing their accountability to try and punish the heinous offense within the territory. Shifted it into the competent hands of the federal government. Further, the constitutionality of the act was established in ‘United States v. Kagama’ (118 U.S. 375(1886)), and it was believed that there stands a relationship of trust between both the authorities and congress shall regulate and legislate the affairs where the natives cannot deal with.

Later in 1968, another statue was passed reducing the tribal sovereignty named the Indian Civil Rights Act (ICRA) which limits them to grant a maximum of one-year incarceration leading to demoralize their involvement with violent crimes. The cavity increased with time and became ambiguous as in the case of ‘Oliphant v. Suquamish Indian Tribe’, it was ruled that the tribes don’t have the power to prosecute the non- natives for crimes committed within their very own territory or even to obligate the federal government for the same.

The promised treaties were losing its essence with time and instead of striking a balance with new laws and acts, the state started deepening its root on the reserved area. This judgment gave new hope to the native and focused on the facts that the congress never de-establish the reservation expressively in the Enabling act and therefore will be considered as “Native Nation”. It would not be controversial to see the government uphold its promises and abide by it. This decision has delivered the denied dignity to the Indian tribe and is a moment of absolute serendipity. Considering how long the United States has denied tribal dignity to the indigenous peoples, and how elsewhere this administration has tried to turn the clock back.


The counsel representing the state of Oklahoma insisted on the aftermath of the tribe's favoured decision. Their arguments were majorly implied that the tribe would radically change business as usual: rapists, robbers, and other offenders would be set go, as the state which prosecuted them would not have had the power to do so. Taxes would go unpaid. They’d lose their teeth under laws. This will hobble the economic setup throughout the five tribes adding to the misery of the coronavirus pandemic as Oklahoma’s shale fields were the most affected by the high extraction cost leading to the bankruptcy of big players in the market.

However, it depends on the agreements between the Oklahoma state, the Muscogee (Creek) Nation, and the other indigenous Indian tribes, the tribes along with the state has released a joint statement declaring that all the five tribes and the state will work together to maintain security and long-term economic wellbeing for the public at large. In this regard, the five tribes came up with an agreement wherein the congress have to give the right to collect taxes and recognize their authority over the legislations which help to keep intact the welfare of the tribes.

Both the parties value the importance of mutual interest can be served by shared engrossment inconsistency and formulization for sovereign rights. Tribes and state and city governments, among others, must sign formal arrangements to resolve problems such as federal control, gambling, and cigarette consumption. The Muscogee Creek should find it convenient to put land back into the trust.


The historical judgment delivered by a majority of 5:4 has highlighted the ignorant nature of U.S. congress when it comes to honouring the treaties and also reminded them that ‘Treaties are also the law of the land’. In the 19th century, to promote the idea of expansionism the congress has proactively shifted various native tribes, some with force and others with misleading promises in the form of treaties. The plot in this case also begun with such misrepresentation when the congress enacted the Indian Removal Act of 1830 and promised those who were being uprooted from their ancestral homes that their interest and autonomy in the new settlements would forever be protected by the state.

However, the autonomous status and associated rights were withering away gradually with the advent of time at the whims of Congress. In doing so, the congress has not only breached clauses of the treaty but also the values ingrained in the American constitution. For instance, Article 1 section 8 of the U.S. Constitution empowers Congress “to regulate commerce with foreign nations and among several states, and with the Indian tribes.” This shows the idea of tribal self-government and autonomy of the reserved area as enshrined in the U.S. constitution. The text-orientated approach of Justice Neil Gorsuch has countered all the apprehensions of state counsels that it would result in complete disruption of the existing legal system.

The majority extensively examined all the statutes enacted by Congress and concluded that words like disestablishment or cessation which indicate the intention of congress to scrape the reservation were nowhere to be found and thereby the courts cannot take away the rights given by the congress. This approach of Justice Gorsuch is evident from his famous ‘Bostock v. Clayton County’ where he opined that “only the written word is the law, and all persons are entitled to its benefit.” By saying this, the court has reaffirmed its position that it could only enforce those rights given by congress and in no way can scrape them without finding a proper basis in the enacted statute.


In order to read the judgment more comprehensively and effectively, it is imperative to trespass into other domains apart from the law. The cultural rights of native tribes that are peculiar to that region must be governed by the local authorities like tribal courts only, as they are more acquainted with the existing circumstances. This ruling could be used as a strong precedent while arguing for the case of upholding cultural rights. Another area that would likely to be benefitted from this ruling is the ‘environment’.

The Clean Waters Act along with the Clean Air Act cast a duty of implementing the laws on the federal government rather than their state counterparts. This ruling could pave the way for better environment protection by empowering tribal authorities to have more bargaining power in the reserved area. Upcoming infrastructure projects in this reserved area are also subjected to federal approvals in consultation with the aboriginal tribes. At last, it would be appropriate to say that this judgment constitutes one of the few victories that indigenous people have ever seen and probably the biggest of all!


This blog has been authored by Sanskriti Shrimali & Dushyant Sharma, both 3rd Year B.Com., LL.B. (Hons.) students at Institute of Law, Nirma University, Ahmedabad.