July 09, 2020

On July 9, the US Supreme Court ruled in favor of firm client Jimcy McGirt, an enrolled member of the Seminole Nation of Oklahoma accused of committing a crime within the historic boundaries of the Muscogee (Creek) Nation’s reservation.  By a 5-4 vote, the Court held that the Muscogee (Creek) Nation’s federal reservation endures—which meant that the state lacked jurisdiction to prosecute Mr. McGirt.  The Court therefore reversed the decision of the Oklahoma Court of Criminal Appeals denying Mr. McGirt’s application for post-conviction relief.

In an opinion by Justice Neil Gorsuch, the Supreme Court powerfully reaffirmed that courts must respect the United States’ commitments to Indian nations.  “On the far end of the Trail of Tears,” Justice Gorsuch wrote, “was a promise.”  That promise was “a reservation in perpetuity.”  And while Congress had “[o]ver time … diminished that reservation,” and had “sometimes restricted and other times expanded the Tribe’s authority,” Congress has “never withdrawn the promised reservation.”  And that, Justice Gorsuch explained, was all that mattered.  Justice Gorsuch lamented that, “[a]s a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye.”  Justice Gorsuch emphatically “reject[ed] that thinking.”  Rather, “[i]f Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

Simultaneously, the Supreme Court issued an opinion ruling in favor of client Patrick Murphy, a member of the Creek Nation whose case presented the same issue.  Sharp v. Murphy was argued before the Court last Term—but Justice Gorsuch was recused from that case, and the Court did not resolve the case last term.  In the wake of McGirt, however, the Court issued a one-sentence opinion invalidating Mr. Murphy’s capital murder conviction.  As a result, Mr. Murphy’s death sentence has been vacated.

Partner Ian Heath Gershengorn argued the case in May, as well as Murphy last Term. In a statement, he said, "The Supreme Court reaffirmed today that when the United States makes promises, the courts will keep those promises.  Congress persuaded the Creek Nation to walk the Trail of Tears with promises of a reservation—and the Court today correctly recognized that that this reservation endures.  We—along with our co-counsel Patti Palmer Ghezzi and the Federal Public Defender of the Western District of Oklahoma—are immensely pleased for Jimcy McGirt and Patrick Murphy, whom Oklahoma unlawfully prosecuted for alleged crimes within the Creek reservation.”

The team included Partner Zachary C. Schauf, Associates Leonard R. PowellAllison M. Tjemsland, and Kathryn L. Wynbrandt.  Senior Paralegal Cheryl Olson provided critical support.

News about the outcome in McGirt v. Oklahoma was reported by multiple outlets, including Courthouse News Service, Law360, and The New York Times.