Why McGirt Does Not Affect Land Ownership

Today, the reservation lands guaranteed to the five tribes in the 1866 treaty area are almost entirely owned by non-tribal members as private property. This is the legacy of the Oklahoma Enabling Act of 1906 as well as various Congressional allotment acts – or so-called “Indian homesteading” laws – in which treaty lands held by tribes were parceled out to individual tribal members, with the bulk of the remaining lands declared surplus and sold to non-Indians. McGirt , No. 18-9526, 591 U.S. ___ (decided July 9, 2020), does not alter land ownership, but it does uphold the 1866 treaty in another way. In a 5-4 decision, the Court held that the Creek Nation’s 1866 treaty area, which includes the City of Tulsa and about one-third of the state, was never eliminated (the legal term in the Court’s precedent is “disestablished”) for purposes of the Creek Nation’s exercise of its inherent sovereign power to prosecute crimes involving Indians. More specifically, an 1885 statute, the Major Crimes Act (MCA) permits the federal government to exercise criminal jurisdiction over certain felonies arising on Indian reservations.

Under the MCA, federal officials – including the Federal Bureau of Investigation’s Indian Country Crimes Unit; the United States Attorney’s Offices; and U.S. Magistrate Judges and U.S. District Court Judges – may exercise criminal jurisdiction concurrently with tribal governments within the exterior boundaries of about half of the Indian reservations in the United States. The MCA only comes into play when members of federally recognized Indian tribes are either the alleged perpetrators or victims of the specific offenses listed in the MCA. The Supreme Court has long held that there is no double jeopardy when such concurrent jurisdiction is exercised by tribes and the federal government over the same or similar criminal offenses. Just as it is with federal and state prosecutions, the separate sovereigns each have the right to enforce their own criminal laws.

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