• Kyle Persaud

McGirt v. Oklahoma and What It Means for Bartlesville

Updated: 2 days ago

Today’s Supreme Court decision in McGirt v. Oklahoma, holds:


  • Much of eastern Oklahoma (likely including Bartlesville) is within an Indian reservation.

  • Only federal courts, and not state courts, may prosecute an Indian who commits a “major crime” on an Indian reservation.


Jimmy McGirt was convicted of “serious sexual offenses” in Wagoner County, Oklahoma. Mr. McGirt challenged his conviction in the U.S. Supreme Court. The undisputed points of the case were:


1. Mr. McGirt was an enrolled member of the Seminole Tribe at the time of the offenses.


2. The offenses were committed in Wagoner County.


3. Wagoner County is within the boundaries of an area that an 1866 federal treaty and statute defined as the “Creek Reservation.”


4. The Major Crimes Act holds that only federal courts, and not state courts, may prosecute an Indian “who commits … any of the following offenses” within “Indian Country”: “murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, a felony assault under section 113, an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661


5. Mr. McGirt was convicted in an Oklahoma state court, not a federal court.


Mr. McGirt raised the following propositions, which the State of Oklahoma disputed:


1. Only Congress can disestablish an Indian reservation.


2. Congress has never disestablished the Creek Reservation after the 1866 treaty.


3. All land within an Indian reservation is within Indian Country.


4. Therefore, the Creek Reservation was still within “Indian Country,” and only a federal

court, not an Oklahoma state court, could convict Mr. McGirt of his crimes.


5. Therefore, Mr. McGirt’s conviction was unlawful.


The Supreme Court ruled:


1. Only Congress can disestablish an Indian reservation.


2. In order for Congress to disestablish an Indian reservation, Congress must pass a statute explicitly disestablishing the reservation.


3. Congress had never passed a statute disestablishing the Creek Reservation.


4. Therefore, the Creek Reservation has the same boundaries as it did under the 1866 treaty.


5. Under 18 U.S.C. § 1151, "Indian Country", includes "all land within the limits of any Indian reservation under the jurisdiction of the United States Government." Therefore, the Creek Reservation was within Indian Country.


6. Under the Major Crimes Act, only a federal court, and not an Oklahoma state court, has the authority to prosecute an Indian who commits a major crime within Indian Country.


7. Therefore, Mr. McGirt’s conviction was illegal.


Read the Supreme Court’s opinion (authored by Justice Gorsuch), here.


What does this mean for Bartlesville?


The Supreme Court limited its ruling in two ways:


1. The Court’s ruling only applies to land within the Creek Reservation.


2. The Court’s ruling only applies to the Major Crimes Act. The Court did not address the many other federal laws that relate to Indian Country.


No part of Bartlesville is within the Creek Reservation, so the Court’s ruling does not directly affect Bartlesville. However, all of Washington County, is within the area that a federal treaty with the Cherokee Nation has defined as the Cherokee Reservation. This treaty with the Cherokee Nation, was ratified at approximately the same time, and under similar circumstances, as the treaty that the Court examined in McGirt. The Court held that the treaty at issue in McGirt still defines the boundaries of the Creek Reservation. Because the history of U.S. policy toward all of the Five Civilized Tribes (Cherokee, Chickasaw, Choctaw, Creek, and Seminole) is similar, it is very likely that, per the reasoning in McGirt, a court would find that Bartlesville is still within Indian Country.


To see a map of tribal jurisdictions in Oklahoma, click here. Note especially that, much of the city of Tulsa is within the Creek Reservation, so McGirt directly affects Tulsa. Also, most of the eastern portion of Oklahoma is within the reservations of the Five Civilized Tribes. So the court’s ruling likely applies to most of eastern Oklahoma.


Thus, under today’s ruling in McGirt: If an Indian, commits a “major crime” in Washington County, or anywhere in eastern Oklahoma, only a federal court, and not an Oklahoma state court, may prosecute the Indian.


On page 40 of the Court’s ruling, the Court acknowledged that is holding “might potentially trigger a variety of federal civil statutes and rules, including ones making the region eligible for assistance with homeland security, historical preservation, schools, highways, roads, primary care clinics, housing assistance, nutritional programs, disability programs, and more.” However, the Court didn’t specify how, if at all, its ruling would affect these laws; the Court only ruled as to the Major Crimes Act. In the coming months, tribes, and state and federal agencies, will likely enter into discussion as to how these other laws will apply in eastern Oklahoma.


So, if you live in Bartlesville, you live on an Indian reservation.


Are you surprised to learn that you live on an Indian reservation?


The lawyers who represented the State of Oklahoma before the Supreme Court, argued that eastern Oklahoma was not still an Indian reservation. These lawyers wrote, in their brief, that if the Court found that much of eastern Oklahoma was still an Indian reservation,


“That revolutionary result would shock the 1.8 million residents of eastern Oklahoma who have universally understood that they reside on land regulated by state government, not by tribes.”


“Universally understood”?


When I studied at the Native American Law Center at TU law school in 2007, the professors taught that all of eastern Oklahoma was within Indian Country. I had never heard this before, and I was initially surprised. I asked one of the professors, “I live in Washington County; do I live in Indian Country?” The professor told me that I lived in Indian Country, and gave me a map similar to this one. I replied, “I’ve lived in Indian Country all my life, and I never knew it.” The professor told me that many people who lived in the area, were unaware that they lived in Indian Country.


Nevertheless, the beliefs of the TU law professors demonstrate that, prior to today’s ruling, it was not “universally understood” that eastern Oklahoma was not an Indian reservation. The Supreme Court’s holding is precisely in line with what was taught at TU. While the Court’s ruling may “shock” some, the ruling would not shock the TU Indian law professors. Also, lawyers throughout the country, and especially in this region of Oklahoma, studied at TU’s Native American Law Center, and were greatly influenced by the professors there, as I was. Today’s ruling wouldn’t shock them either. A year and a half ago, on this website, I wrote that all of Washington County was within Cherokee Country. McGirt is not as “revolutionary” as the state’s attorneys suggest. It’s in line with what many, who are highly proficient in Indian law, have long believed.

NOTE: The information provided on this website is not intended to be, and does not constitute, the giving of legal advice. The information provided here is not intended to be, and should not be used as, a substitute for individual reliance on privately retained legal counsel. Information provided on this site may not constitute the most current or complete information with respect to legal topics or developments. Mr. Persaud expressly disclaims all liability based on any information contained on this site.”

© 2020, by Kyle Persaud.