Supreme Court assesses whether much of Oklahoma is an Indian reservation

WASHINGTON — The Supreme Court on Monday heard arguments over whether much of eastern Oklahoma is an Indian reservation, an issue that could have huge ramifications for the 1.8 million residents. region in criminal justice and trade.

The argument focused on the dark history of the nation’s treatment of Native Americans and the practical implications of a ruling that Congress had never clearly destroyed the sovereignty of the Muscogee (Creek) Nation over the region, covering approximately the half of the state.

“Congress never terminated the Creek reservation or transferred federal jurisdiction to Oklahoma,” said Ian H. Gershengorn, attorney for Jimcy McGirt, a member of the Creek Nation who was recognized guilty of sexual crimes against a child by state authorities in the historical history of the Nation. borders. Mr. Gershengorn argued that only federal authorities had the authority to prosecute his client.

Mithun Mansinghani, Oklahoma’s solicitor general, took the opposite view. “Oklahoma has jurisdiction over the eastern half of the state because it was never reservation land,” he said, “and it certainly isn’t reservation land today. “

Several judges have expressed concern over a ruling that would require federal authorities to investigate and prosecute crimes in eastern Oklahoma. Judge Ruth Bader Ginsburg, for example, said she fears hundreds of state convictions, many for heinous crimes, will be overturned and require new trials in federal court.

Mr. Mansinghani said a move by Mr. McGirt could result in the release of more than 3,000 state prisoners and force federal authorities to prosecute about 8,000 crimes a year that would otherwise have been handled by the state.

Judge Samuel A. Alito Jr., noting that 90% of the area’s residents are nontribal, questioned whether business disputes should be taken to tribal courts. Judge Elena Kagan asked about adoptions and foster families.

This was the court’s second attempt to resolve the status of eastern Oklahoma. In November 2018, judges heard arguments in Sharp v. Murphy, No. 17-1107, which presented the same issue in an appeal from a decision of the United States Court of Appeals for the 10th Circuit, to Denver. This case arose out of the prosecution in state court of Patrick Murphy, a Creek Indian, for the murder of George Jacobs in rural McIntosh County in east-central Oklahoma.

After his death sentence, it emerged that the murder took place on what had, at least at one time, been Indian land. Mr. Murphy argued that only the federal government could prosecute him and that federal law prohibited the imposition of the death penalty because he was an Indian. The 10th Circuit agreed.

When Murphy’s case was argued before an eight-member court, the judges appeared divided and confused. (Judge Neil M. Gorsuch, who had served in the 10th Circuit, recused himself.)

Instead of issuing a decision before the end of the term in June 2019, the court announced that it would hear another round of arguments during its current term, which began in October. It was a sign that the court was deadlocked, 4 to 4.

But there was no new argument in the Murphy case, likely because it was unclear another hearing would break the deadlock as long as the court remained shorthanded.

Instead, the court agreed to hear the case argued Monday, McGirt v. Oklahoma, No. 18-9526, appealed a state court’s decision, ostensibly to ensure the matter could be resolved by a nine-member court. A decision is expected by July.

Justice Gorsuch, whose vote could prove decisive, has taken a broad view of Native American rights in other cases. Overall, his questions suggested he was skeptical of the positions taken by Oklahoma in the case.

Nohemi M. Moore