On July 9, 2020, the United States Supreme Court decided the case of McGirt v. Oklahoma. The principal issue was whether land historically reserved for the Creek Nation is considered “Indian Country” for purposes of application of the Major Crimes Act.
Justice Gorsuch wrote for the majority of the Court in relevant part: The Major Crimes Act (MCA) provides that, within “the Indian country,” “any Indian who commits” certain enumerated offenses “shall be subject to the same law and penalties as all other persons committing any of those offenses, within the exclusive jurisdiction of the United States.” 18 U. S. C. §1153(a). “Indian country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” §1151. Petitioner Jimcy McGirt was convicted by an Oklahoma state court of three serious sexual offenses. He unsuccessfully argued in state postconviction proceedings that the State lacked jurisdiction to prosecute him because he is an enrolled member of the Seminole Nation and his crimes took place on the Creek Reservation. He seeks a new trial, which, he contends, must take place in federal court.
For MCA purposes, land reserved for the Creek Nation since the 19th century remains “Indian country.” Congress established a reservation for the Creek Nation. An 1833 Treaty fixed borders for a “permanent home to the whole Creek Nation of Indians,” 7 Stat. 418, and promised that the United States would “grant a patent, in fee simple, to the Creek nation of Indians for the assigned land” to continue “so long as they shall exist as a nation, and continue to occupy the country hereby assigned to them,” id., at 419. The patent formally issued in 1852. Though the early treaties did not refer to the Creek lands as a “reservation,” similar language in treaties from the same era has been held sufficient to create a reservation, see, e.g., Menominee Tribe v. United States, 391 U. S. 404, 405, and later Acts of Congress—referring to the “Creek reservation”—leave no room for doubt, see, e.g., 17 Stat. 626. In addition, an 1856 Treaty promised that “no portion” of Creek lands “would ever be embraced or included within, or annexed to, any Territory or State,” 11 Stat. 700, and that the Creeks would have the “unrestricted right of self-government,” with “full jurisdiction” over enrolled Tribe members and their property, id., at 704.
This is a case wherein the lower courts were likely doing the defendant a favor by not granting his post-conviction relief petition. Had he been prosecuted in federal court as opposed to state court, he would likely be facing harsher penalties as federal courts typically hand down more sever sentences in criminal cases.