In series of Treaties with the Creek Nation in the 1830s, the United States established a Reservation for the Creeks, covering millions of acres in northeastern Oklahoma, including land on which the City of Tulsa is located. In the succeeding years, the United States chipped away at the Creeks’ governmental authority and landholdings, and the Nation’s continued existence was in peril on more than one occasion. The State of Oklahoma never acknowledged the Reservation, or the Creek Nation’s criminal and regulatory jurisdiction in the area. That all changed on July 9, 2020, as the United States Supreme Court held that the Reservation established for the Creek Nation was never disestablished, and thus much of Northeastern Oklahoma is the Creek Nation Indian Reservation.
The dispute regarding the status of the Creek Reservation arose in post-conviction proceedings in the case of Jimcy McGirt, an enrolled member of the Seminole Nation of Oklahoma, who was convicted in Oklahoma state court of serious sexual offenses against a minor. McGirt argued that the state court did not have jurisdiction to convict him of those crimes because the alleged offense occurred within the boundaries of the Creek Reservation. The Major Crimes Act requires that any major crime committed by an Indian in Indian country is “within the exclusive jurisdiction of the United States,”1, and as a result, McGirt argued, federal law required that his case be tried in federal court, not state court.
The Court of Criminal Appeals of Oklahoma rejected McGirt’s argument and concluded that there was no Creek Reservation in Oklahoma. The United States Supreme Court granted McGirt’s petition for certiorari to answer two questions: did Congress establish a Creek Reservation in Oklahoma, and if so, does that reservation remain in place today?
Writing for the majority, Justice Gorsuch began the Court’s analysis by answering the first question. Congress clearly established a reservation for the Creek Nation in the 1832 and 1833 “Treaty with the Creeks” in which the United States “solemnly guarantied” to the Creek Nation a “permanent home” in Oklahoma.
To answer the second question and determine whether Congress subsequently disestablished the Creek Reservation, the Court considered its analysis in a prior reservation disestablishment case, Solem v. Bartlett.2 According to Solem, only Congress, armed with plenary power, can disestablish a reservation. Most often, Congress demonstrates its intent to...
