By Lawrence Hurley
WASHINGTON (Reuters) – U.S. Supreme Court justices on Monday wrestled with the potentially broad consequences of a rape case that could lead to huge swathes of Oklahoma being deemed tribal territory, with Justice Neil Gorsuch emerging as a potential decisive vote.
The nine justices heard about 90 minutes of arguments by teleconference in a member of a Native American tribe’s challenge to his conviction of raping, molesting and sodomizing a 4-year-old girl in 1996. The man, Jimcy McGirt, argues that state prosecutors in Oklahoma lacked jurisdiction because the crime occurred on what historically should be considered tribal land.
At issue is whether the Muscogee (Creek) Nation territory where the crime was committed should be considered a Native American reservation or whether Congress eliminated that status around the time when Oklahoma became a state in 1907.
If the justices side with McGirt, that effectively would recognize for the first time much of eastern Oklahoma, including the entire city of Tulsa, as reservation land.
Under U.S. law, members of tribes who commit crimes on tribal land cannot be prosecuted in state courts, but are instead subject to federal prosecution, which sometimes can be beneficial to defendants. McGirt, 71, has served almost 23 years in prison. Oklahoma is appealing a 2019 ruling by a state appeals court in favor of McGirt, who is not contesting his guilt in the case before the justices.
Gorsuch, a conservative justice with a history of siding with Native Americans in legal cases, asked a series of questions that suggested he was leaning against Oklahoma. His questions signaled sympathy toward the conclusion that the land still should be recognized as a reservation and that Congress considered eliminating such status but never actually did so.
Gorsuch questioned the state’s reliance on later historical evidence, including that the tribe had previously appeared to accept that its land was not a reservation.
“I guess I’m struggling to think why that should be relevant in an interpretation of statutes from the last century,” Gorsuch said.
The history of this issue also shows that sometimes “states have violated Native American rights,” Gorsuch added.
McGirt is a member of the Seminole Nation but the crime took place on land historically claimed by the Creek Nation.
Oklahoma argued that the Creek Nation never had a reservation. But even if there was a reservation, the state and President Donald Trump’s administration argued it long ago was eliminated by Congress.
‘TRAIL OF TEARS’
The justices are considering a complex historical record that started with the forced relocation by the U.S. government of Native Americans, including the Creek Nation, to Oklahoma in a traumatic 19th century event known as the “trail of tears.”
A reservation is land managed by a Native American tribe under the federal Bureau of Indian Affairs and generally exempt from state jurisdiction including taxation. More than 1.8 million people live in the land at issue in the case, including roughly 400,000 in Tulsa, the state’s second-largest city.
If the land is found to be a reservation, tribe members living there would become exempt from state taxes, while certain Native Americans found guilty in state courts may be able to challenge their convictions on jurisdictional grounds. The tribe also may obtain more power to regulate alcohol sales and expand casino gambling.
The court last year failed to resolve another case covering the same legal issue. That one involved a Creek Nation member named Patrick Murphy who was convicted of murder. Gorsuch did not participate in that case and the high court’s failure to issue a ruling suggested the remaining justices were split 4-4.
The ruling could affect the other four of what is known as the “Five Tribes” in Oklahoma: the Cherokee, the Chickasaw, the Choctaw and the Seminole.
McGirt received a sentence of 1,000 years in prison. His sentence could be tossed out and he could get a new trial in federal court if the Supreme Court sides with him.
(Reporting by Lawrence Hurley; Editing by Will Dunham)
