Ep 268 — Book Club: Unpacking McGirt v. Oklahoma

Liz Dye (0:00)

The Treaty of 1856 said that no portion of the Creek country shall ever be embraced or included within or annexed to any territory or state, and that the Creek shall be secured in the unrestricted right of self-government with full jurisdiction over their own citizens and their property. That's not ambiguous. That is the United States saying in writing, this land will never be part of a state.

Andrew Torrez (0:22)

Spoiler, today, Oklahoma is in fact a state.

Liz Dye (0:39)

Welcome to Law and Chaos. We're doing something a little different this episode. Andrew, you and I both read By the Fire We Carry, a book by Rebecca Nagle. She's a journalist, a citizen of the Cherokee Nation, and host of the podcast This Land. Her show followed the litigation that became the Supreme Court's 2020 decision in McGirt v. Oklahoma. And the book is a long-form version of that story. And it's a terrific book.

It follows one criminal case and the Muskogee Nation's much longer fight. And it manages to be about procedure and history and jurisprudence and most of all, real people. We've got a lot to cover, so let's get after it.

Andrew Torrez (1:18)

Most people know McGirt as the 5-4 decision in which Justice Neil Gorsuch joined the then 4 liberals on the Supreme Court, Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice Roberts wrote the dissent, joined by the court's remaining conservatives. McGirt ruled that a huge swath of eastern Oklahoma, including most of the city of Tulsa, is still the reservation of the Muskogee Creek Nation. A lot of headlines at the time said things like, Supreme Court gives half of Oklahoma back to the Indians, which is not at all what happened. Nobody lost their house. Nobody in Tulsa woke up and had to go to a new DMV. And no, a whole bunch of criminals did not get set free. So actually, Liz, let's start with the criminal law part.

Liz Dye (2:04)

Okay, so that part of the story begins with a 19th century murder. A Lakota man named Crow Dog killed another Lakota man named Spotted Tail on the Lakota reservation. And the tribe dealt with the crime through its own legal system, which principally involved restitution to the victim's family, rather than retribution. So in other words, there was no hanging, which provoked widespread public outrage. So federal prosecutors indicted and tried Crow Dog in a federal territorial court and sentenced him to death. Crow Dog appealed, and the Supreme Court said, No, you can't do that. The US does not have jurisdiction over crimes committed by Indians on reservations. The treaties leave that to the tribal government. And we're going to use the word Indian here sometimes. We know that that's a fraught thing.

In our personal lives, we don't use the word Indian. We use, we say Native American, or actually, I really like the Canadians use First Nation. That appeals to me.

Andrew Torrez (2:59)

Yeah. And I would just add that the subdomain of Indian law, right, every professor that I have ever had, every professor that I've talked to that works, that is a scholar in that area, that's what that sub branch of law is called. So if you are an indigenous person, if you have thoughts, please let us know.

Liz Dye (3:17)

Okay. So Congress's response to the Crow Dog case was to pass the Major Crimes Act and take jurisdiction over serious crimes away from the tribes and give it to the federal government.

Andrew Torrez (3:27)

Yeah. So the Major Crimes Act, that's 18 USC, Section 1153, says that any Indian, that's the language of the statute, who commits one of a list of about a dozen specifically enumerated crimes, like murder, kidnapping, sexual assault, arson and so on, within the Indian country, that's another defined term, shall be subject to the same law and penalties as everyone else, quote, within the exclusive jurisdiction of the United States.

Liz Dye (3:53)

And the key word there is exclusive. Those crimes are typically state law crimes. And what the Major Crimes Act means is, if you are a native and you commit one of these major crimes in Indian country, then you can't be prosecuted by the state and you can't be prosecuted by the tribal government either. You can only be prosecuted by the US federal government. And Indian country is defined as all land within the limits of any Indian reservation under the jurisdiction of the United States government. So that's a bright line. If land is inside the boundaries of a reservation, it's Indian country for the purposes of the Major Crimes Act, even if a non-native person owns title to that particular parcel. So your neighbor's backyard can be Indian country. A Walmart parking lot can be Indian country. It is not about who is living there, it's about the jurisdictional boundary.