Supreme Court grapples with tribal sovereignty questions

The Supreme Court on Monday grappled with thorny questions over tribal sovereignty in a case that could decide whether states have criminal jurisdiction over Indian reservations.

The high court heard oral arguments over whether the state of Oklahoma had the authority to prosecute a crime that was committed in an area in disputed territory between the state and the Muscogee (Creek) Nation.

The court is being asked to decide whether the area outside Tulsa belongs to the Nation’s reservation, and if it does, whether the federal government has the sole authority to try crimes committed there.

At stake is who controls the eastern portion of the state. Oklahoma contends that if the court sides with the Nation, it will upend the state’s authority, and some of the justices appeared to be uncomfortable with the consequences of such a decision.

“Am I correct that more than 90 percent of the people who live in the area directly affected by this case are not members of the Creek tribe?” Justice Samuel Alito asked.

“That is correct, your honor,” the tribe’s lawyer, Riyaz Kanji, responded.

“Well, what would you say to those people if we decide this case in your favor, that they’d be surprised to learn that they are living on the reservation and that they are now subject to laws imposed by a body that is not accountable to them in any way,” Alito said.

Justice Sonia Sotomayor, on the other hand, raised questions about the consequences for the tribe if they were to lose.

“Congress can give the state jurisdiction over anything it might be missing if we were to hold this is a reservation,” she said in response to Oklahoma’s concerns about criminal prosecutions in an area controlled by a reservation. “They have done so with many respect to many other reservations across the country. So this is easily fixable by Congress.”

“What do we do with the treaty language here that resulted after the Trail of Tears with the Creek Nation?” Sotomayor continued. “That nation was wrenched from its homeland, marched to Oklahoma, and then given a treaty as recompense which guaranteed its sovereignty.”

The case centers on a state convict named Jimcy McGirt, who is serving a life sentence and two 500-year sentences for raping a four-year-old girl in 1996.

His lawyers contend that the state court that convicted him has no jurisdiction because he is a member of a Native American tribe and the crime was committed in territory claimed by the Nation in Broken Arrow, Okla.

The court heard a similar case during its 2018 term but couldn’t reach a decision, presumably because Justice Neil Gorsuch had recused himself and thus couldn’t break a 4-4 tie.

The Trump administration is siding with Oklahoma in the case, arguing that Congress dissolved the reservations in question in the early 20th century.

A decision in the case is expected by the end of June.