McGirt v. Oklahoma (18-9526)

argument 18-9526

McGirt v. Oklahoma

Supreme Court of the United States 1h 31m 8 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central legal question about tribal reservation status in McGirt v. Oklahoma?

John G. Roberts 0:00

We'll hear argument first this morning, case eighteen ninety five, twenty six, McGert versus Oklahoma. Mr. Gershengorn?

Neil M. Gorsuch 0:09

Mr Chief Justice, it may it please the court. This case is resolved by the fundamental propositions that decisions about sovereign rights are for Congress to make, and Congress makes those decisions by speaking clearly in the text. The decision below must be reversed because the text makes clear that Congress never terminated the Creek Reservation and never transferred federal criminal jurisdiction to Oklahoma. I have four basic points to make this morning. First, the Creek nation had a reservation. The relevant treaties reserved the lands from sale and solemnly guaranteed the lands for the Creek to govern. The text of both treaties and statutes expressly identified the creek land as a reservation.

Neil M. Gorsuch 0:49

Nothing more was needed. Second, Congress did not establish disestablish that reservation. Indeed, Congress considered Hallmark language of disestablishment and rejected it. Congress initially sought session, yet instead provided only for allotments. Then when congressional inaction would have dissolved the tribe, Congress instead preserved the tribe and its government for all purposes authorized by law, and it did so against the backdrop of existing tribal authority to legislate over reservation land. Those congressional judgments should be respected. Third, Congress did not transfer criminal jurisdiction to Oklahoma. At statehood, the Major Crimes Act established exclusive federal jurisdiction over enumerated crimes in quote any state of the United States.

Neil M. Gorsuch 1:37

When Congress overrides the major crimes act and transfers jurisdiction to a state, it does so expressly and it did not do so here. Finally, Oklahoma's rhetoric about disruption does not change the result. On the criminal side, this court's decision in Ramos is a complete answer, and on the civil side, the main issues are tax and other regulatory issues that are routinely resolved by tribal state agreements. In any event, Parker makes clear that questions of sovereignty are distinct from claims of reservation status. This court should resolve the reservation question, leaving jurisdictional disputes to Congress, the relevant sovereigns, and then for this court to resolve if and when they arise.

John G. Roberts 2:15

Council the state argues that the territory should be analyzed as a dependent Indian community under eleven fifty one and not as a reservation. They base this argument on our decisions in Sandoval and Creek Nation and eleven fifty one itself, and the fact that the Creeks have always maintained, they've been adamant about the fact that they are not reservation Indians. Now you refer of course to the many times in which the treaty is referred to as a reservation, but what is your answer to the state's analysis of our precedent?

Neil M. Gorsuch 2:50

So Your Honor, I think both the precedent and the language support the idea that this is not a dependent Indian community. What this court said in Venatai and what Judge then Judge Gorsuch said in Hydro Resources is that the dependent Indus commun Indian community um label is a catch all for tribes that did not have a reservation and are not on restricted land. The best evidence of what Congress thought about whether Creek lands were a reservation under the statute is that Congress referred to those lands as a reservation under the statute. With respect to Sandoval and the other cases, it is crystal clear that when Sandoval and those cases are using the term dependent Indian community and that they are describing tribes and other groups that are within Congress's broad power to legislate for for tribes broadly.

Neil M. Gorsuch 3:42

They are not excluding the um the creek. Indeed, and thank you, Council Justice Thomas.

Clarence Thomas 3:51

Ah, yes, council. Um In uh Solemn and in uh Parker. Uh those cases only involved uh The um disposition of surplus land. And here, of course, there's much, much more being done in an uh a whole series of statutes uh involving both sovereignty and the allotment of land. Can you appoint to any case in which we've applied the solemn fact framework to a case that does as uh much as this as being as is being done in this case?