In McGirt v. Oklahoma, the Supreme Court held the reservation promised to the Muscogee Nation remains intact. The opinion noted that “On the far end of the Trail of Tears was a promise.” Oklahoma courts have since recognized that, based on McGirt, other similar promises remain intact to include those made to the other Five Tribes. Yet other reservations, including the Osage Reservation, remain to be analyzed and decided. Consequently, crimes committed on reservations involving tribal citizens have been handled by federal or tribal courts.
The State of Oklahoma has resisted McGirt and sought to simply renege on the promise at the end of the trail. The State filed many petitions with the United States Supreme Court seeking to overturn the McGirt decision. These petitions, as well as the time and money spent on them, were all lost. McGirt stands.
However, the U.S. Supreme Court did take up one limited question relating to McGirt. In Oklahoma v. Castro-Huerta, Oklahoma sought concurrent jurisdiction over crimes committed by non-natives against natives on reservations. The U.S. Supreme Court just held that the State has concurrent criminal jurisdiction over these non-natives even though the victims were native. As you can see, this is a limited class of cases and a decision of limited effect. Under McGirt and Castro-Huerta, both the State and either the federal or tribal government have jurisdiction.
Castro-Huerta was decided by some of the conservative justices. Justice Gorsuch, who surely is conservative, sharply disagreed. Justice Gorsuch filed a dissent citing the history of Indian law and explaining at length why the majority was wrong. Indeed, Justice Gorsuch’s dissent was considerably longer than the opinion at 42 pages. Justice Gorsuch is an Indian Law expert. He wrote the opinion in McGirt and shared quite cogently the flaws in the Court’s limited excursion therefrom. As you might imagine from the length, there were several flaws to point out, and he was rather complete in noting them all.
Justice Gorsuch also provided the insight that this finite part of the story need not end with the Court’s recent mistake. Rather, he invited Congress to correct the Court’s mistake, noting it could easily do so.
Congress has been known to take up such invitations and indeed did so with one made by former Justice Ruth Bader Ginsburg in a dissent.
It thus remains to be seen how this part of the story ends, but McGirt remains intact. So do many Oklahoma Reservations. And thus, so do those promises made at the end of the Trail of Tears.