Major Crimes and Indian Country (Part 3)

Justice Gorsuch concluded with the following in relevant part: In the alternative, Oklahoma contends that Congress never established a reservation but instead created a “dependent Indian community.” To hold that the Creek never had a reservation would require willful blindness to the statutory language and a belief that the land patent the Creek received somehow made their tribal sovereignty easier to divest. Congress established a reservation, not a dependent Indian community, for the Creek Nation.

Even assuming that the Creek land is a reservation, Oklahoma argues that the MCA has never applied in eastern Oklahoma. It claims that the Oklahoma Enabling Act, which transferred all nonfederal cases pending in the territorial courts to Oklahoma’s state courts, made the State’s courts the successors to the federal territorial courts’ sweeping authority to try Indians for crimes committed on reservations. That argument, however, rests on state prosecutorial practices that defy the MCA, rather than on the law’s plain terms.

Finally, Oklahoma warns of the potential consequences that will follow a ruling against it, such as unsettling an untold number of convictions and frustrating the State’s ability to prosecute crimes in the future. This Court is aware of the potential for cost and conflict around jurisdictional boundaries. But Oklahoma and its tribes have proven time and again that they can work successfully together as partners, and Congress remains free to supplement its statutory directions about the lands in question at any time. Reversed.

Justices Ginsburg, Breyer, Sotomayor and Kagan joined in Justice Gorsuch’s opinion. Chief Justice Roberts filed a dissenting opinion, joined by Justices Alito, Kavanaugh, and Thomas. Justice Thomas took exception with footnote 9 and also filed his own dissenting opinion.

There will likely be a flood of petitions for post-conviction relief as a result of this opinion. Anyone convicted in state court of a “major crime” committed on a Native American reservation could benefit from this case.