SUPREME COURT OF THE UNITED STATES
JIMCY McGIRT, PETITIONER v.
on writ of certiorari to the court of criminal appeals of oklahoma
[July 9, 2020]
Chief Justice Roberts, with whom Justice Alito and Justice Kavanaugh join, and with whom Justice Thomas joins except as to footnote 9, dissenting.
In 1997, the State of Oklahoma convicted petitioner Jimcy McGirt of molesting, raping, and forcibly sodomizing a four-year-old girl, his wife’s granddaughter. McGirt was sentenced to 1,000 years plus life in prison. Today, the Court holds that Oklahoma lacked jurisdiction to prosecute McGirt—on the improbable ground that, unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians like McGirt. Not only does the Court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma. The rediscovered reservations encompass the entire eastern half of the State—19 million acres that are home to 1.8 million people, only 10%–15% of whom are Indians.
Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma. The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.
None of this is warranted. What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation. Congress disestablished any reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century. The Court reaches the opposite conclusion only by disregarding the “well settled” approach required by our precedents. Nebraska
577 U.S. 481, ___ (2016) (slip op., at 5).
Under those precedents, we determine whether Congress intended to disestablish a reservation by examining the relevant Acts of Congress and “all the [surrounding] circumstances,” including the “contemporaneous and subsequent understanding of the status of the reservation.” Id.
, at ___ (slip op., at 6) (internal quotation marks omitted). Yet the Court declines to consider such understandings here, preferring to examine only individual statutes in isolation.
Applying the broader inquiry our precedents require, a reservation did not exist when McGirt committed his crimes, so Oklahoma had jurisdiction to prosecute him. I respectfully dissent.
The Creek Nation once occupied what is now Alabama and Georgia. In 1832, the Creek were compelled to cede these lands to the United States in exchange for land in present day Oklahoma. The expanse set aside for the Creek and the other Indian nations that composed the “Five Civilized Tribes”—the Cherokees, Chickasaws, Choctaws, and Seminoles—became known as Indian Territory. See F. Cohen, Handbook of Federal Indian Law §4.07(1)(a), pp. 289–290 (N. Newton ed. 2012) (Cohen). Each of the Five Tribes formed a tripartite system of government. See Marlin
276 U.S. 58
, 60 (1928). They “enact[ed] and execut[ed] their own laws,” “punish[ed] their own criminals,” and “rais[ed] and expend[ed] their own revenues.” Atlantic & Pacific R. Co.
165 U.S. 413
, 436 (1897). The Five Tribes also enjoyed unique property rights. While many tribes held only a “right of occupancy” on lands owned by the United States, United States
v. Creek Nation
295 U.S. 103
, 109 (1935), each of the Five Tribes possessed title to its lands in communal fee simple, meaning the lands were “considered the property of the whole.” E.g.
Treaty with the Creeks, Arts. III and IV, Feb. 14, 1833,
419; see Marlin
, 276 U. S., at 60. Congress promised the Tribes that their lands would never be “included within, or annexed to, any Territory or State,” see, e.g.
Treaty with Creeks and Seminoles, Art. IV, Aug. 7, 1856,
700 (1856 Treaty), and that their new homes would be “forever secure,” Indian Removal Act, §3,
412; see also Treaty with the Creeks, Arts. I and XIV, Mar. 24, 1832,
Forever, it turns out, did not last very long, because the Civil War disrupted both relationships and borders. The Five Tribes, whose members collectively held at least 8,000 slaves, signed treaties of alliance with the Confederacy and contributed forces to fight alongside Rebel troops. See Gibson, Native Americans and the Civil War, 9 Am. Indian Q. 4, 385, 388–389, 393 (1985); Doran, Negro Slaves of the Five Civilized Tribes, 68 Annals Assn. Am. Geographers 335, 346–347, and Table 3 (1978); Cohen §4.07(1)(a), at 289. After the war, the United States and the Tribes formed new treaties, which required each Tribe to free its slaves and allow them to become tribal citizens. E.g.
, Treaty with the Creek Indians, Art. II, June 14, 1866,
786 (1866 Treaty); see Cohen §4.07(1)(a), at 289, and n. 9. The treaties also stated that the Tribes had “ignored their allegiance to the United States” and “unsettled the [existing] treaty relations,” thereby rendering themselves “liable to forfeit” all “benefits and advantages enjoyed by them”—including their lands. E.g.
, 1866 Treaty, Preamble,
785. Due to “said liabilities,” the treaties departed from prior promises and required each Tribe to give up the “west half ” of its “entire domain.” E.g.
, Preamble and Art. III, id.
, at 785–786.
These western lands became the Oklahoma Territory. As before, the new treaties promised that the reduced Indian Territory would be “forever set apart as a home” for the Tribes. E.g.
, Art. III, id.,
Again, however, it was not to last. In the wake of the war, a renewed “determination to thrust the nation westward” gripped the country. Cohen
§1.04, at 71. Spurred by new railroads and protected by the repurposed Union Army, settlers rapidly transformed vast stretches of territorial wilderness into farmland and ranches. See id.
, at 71–74. The Indian Territory was no exception. By 1900, over 300,000 settlers had poured in, outnumbering members of the Five Tribes by over 3 to 1. See H. R. Rep. No. 1762, 56th Cong., 1st Sess., 1 (1900). There to stay, the settlers founded “[f]lourishing towns” along the railway lines that crossed the territory. S. Rep. No. 377, 53d Cong., 2d Sess., 6 (1894).
Coexistence proved complicated. The new towns had no municipal governments or the things that come with them—laws, taxes, police, and the like. See H. R. Doc. No. 5, 54th Cong., 1st Sess., 89 (1895). No one had meaningful access to private property ownership, as the unique communal titles of the Five Tribes precluded ownership by Indians and non-Indians alike. Despite the millions of dollars that had been invested in the towns and farmlands, residents had no durable claims to their improvements. Ibid.
Members of the Tribes were little better off, as the Tribes failed to hold the communal lands for the “equal benefit” of all members. Woodward
v. De Graffenried
238 U.S. 284
, 297 (1915). Instead, a few “enterprising citizens” of the Tribes “appropriate[d] to their exclusive use almost the entire property of the Territory that could be rendered profitable.” Id.
, at 297, 299, n. 1 (internal quotation marks omitted). As a result, “the poorer class of Indians [were] unable to secure enough lands for houses and farms,” and “the great body of the tribe derive[d] no more benefit from their title than the neighbors in Kansas, Arkansas, or Missouri.” Id.
, at 299–301, n. 1 (emphasis deleted; internal quotation marks omitted).
Attuned to these new realities, Congress decided that it could not maintain an Indian Territory predicated on “exclusion of the Indians from the whites.” S. Rep. No. 377, at 6. Congress therefore set about transforming the Indian Territory into a State.
Congress began by establishing a uniform body of law applicable to all occupants of the territory, regardless of race. To apply these laws, Congress established the U. S. Courts for the Indian Territory. Next Congress systematically dismantled the tribal governments. It abolished tribal courts, hollowed out tribal lawmaking power, and stripped tribal taxing authority. Congress also eliminated the foundation of tribal sovereignty, extinguishing the Creek Nation’s title to the lands. Finally, Congress made the tribe members citizens of the United States and incorporated them in the drafting and ratification of the constitution for their new State, Oklahoma.
In taking these transformative steps, Congress made no secret of its intentions. It created a commission tasked with extinguishing the Five Tribes’ territory and, in one report after another, explained that it was creating a homogenous population led by a common government. That contemporaneous understanding was shared by the tribal leadership and the State of Oklahoma. The tribal leadership acknowledged that its only remaining power was to parcel out the last of its land, and the State assumed jurisdiction over criminal cases that, if a reservation had continued to exist, would have belonged in federal court.
A century of practice confirms that the Five Tribes’ prior domains were extinguished. The State has maintained unquestioned jurisdiction for more than 100 years. Tribe members make up less than 10%–15% of the population of their former domain, and until a few years ago the Creek Nation itself acknowledged that it no longer possessed the reservation the Court discovers today. This on-the-ground reality is enshrined throughout the U. S. Code, which repeatedly terms the Five Tribes’ prior holdings the “former” Indian reservations in Oklahoma. As the Tribes, the State, and Congress have recognized from the outset, those “reservations were destroyed” when “Oklahoma entered the Union.” S. Rep. No. 101–216, pt. 2, p. 47 (1989).
Much of this important context is missing from the Court’s opinion, for the Court restricts itself to viewing each of the statutes enacted by Congress in a vacuum. That approach is wholly inconsistent with our precedents on reservation disestablishment, which require a highly contextual inquiry. Our “touchstone” is congressional “purpose” or “intent.” South Dakota
v. Yankton Sioux Tribe
522 U.S. 329
, 343 (1998). To “decipher Congress’ intention” in this specialized area, we are instructed to consider three categories of evidence: the relevant Acts passed by Congress; the contemporaneous understanding of those Acts and the historical context surrounding their passage; and the subsequent understanding of the status of the reservation and the pattern of settlement there. Solem
465 U.S. 463
, 470–472 (1984). The Court resists calling these “steps,” because “the only ‘step’ proper for a court of law” is interpreting the laws enacted by Congress. Ante
, at 17–18. Any label is fine with us. What matters is that these are categories of evidence that our precedents “direct[ ] us” to examine in determining
whether the laws enacted by Congress disestablished a reservation. Hagen
510 U.S. 399
, 410–411 (1994). Because those precedents are not followed by the Court today, it is necessary to describe several at length.[2
465 U.S. 463
(1984), a unanimous Court summarized the appropriate methodology. “Congress [must] clearly evince an intent to change boundaries before diminishment will be found.” Id.
, at 470 (internal quotation marks and alterations omitted). This inquiry first considers the “statutory language used to open the Indian lands,” which is the “most probative evidence of congressional intent.” Ibid.
“Explicit reference to cession or other language evidencing the present and total surrender of all tribal interests strongly suggests that Congress meant to divest from the reservation all unallotted opened lands.” Ibid.
But “explicit language of cession and unconditional compensation are not prerequisites” for a finding of disestablishment. Id.
, at 471.
Second, we consider “events surrounding the passage of
[an] Act—particularly the manner in which the transaction was negotiated with the tribes involved and the tenor of legislative Reports presented to Congress.” Ibid.
When such materials “unequivocally reveal a widely held, contemporaneous understanding that the affected reservation would shrink as a result of the proposed legislation,” we will “infer that Congress shared the understanding that its action would diminish the reservation,” even in the face of “statutory language that would otherwise suggest reservation boundaries remained unchanged.” Ibid.
Third, to a “lesser extent,” we examine “events that occurred after the passage of [an] Act to decipher Congress’ intentions.” Ibid.
“Congress’ own treatment of the affected areas, particularly in the years immediately following the opening, has some evidentiary value, as does the manner in which the Bureau of Indian Affairs and local judicial authorities dealt with [the areas].” Ibid.
In addition, “we have recognized that who actually moved onto opened reservation lands is also relevant.” Ibid.
“Where non-Indian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character, we have acknowledged that de facto
, if not de jure
, diminishment may have occurred.” Ibid.
This “subsequent demographic history” provides an “additional clue as to what Congress expected would happen.” Id.
, at 471–472.
Fifteen years later, another unanimous Court described the same methodology more pithily in South Dakota
v. Yankton Sioux Tribe
522 U.S. 329
(1998). First, the Court reiterated that the “most probative evidence of diminishment is, of course, the statutory language.” Id.
, at 344 (internal quotation marks omitted). The Court continued that it would also consider, second, “the historical context surrounding the passage of the . . . Acts,” and third, “the subsequent treatment of the area in question and the pattern of settlement there.” Ibid.
, 510 U. S., at 411).
The Court today treats these precedents as aging relics in need of “clarif[ication].” Ante
, at 19. But these precedents have been clear enough for some time. Just a few Terms ago, the same inquiry was described as “well settled” by the unanimous Court in Nebraska
577 U.S. 481, ___ (2016) (slip op., at 5). First, the Court explained, “we start with the statutory text.” Ibid.
“Under our precedents,” the Court continued, “we also ‘examine all the circumstances surrounding the opening of a reservation.’ ” Id.,
at ___ (slip op., at 6) (quoting Hagen
, 510 U. S., at 412). Thus, second and third, we “look to any unequivocal evidence of the contemporaneous and subsequent understanding of the status of the reservation by members and nonmembers, as well as the United States and the State.” 577 U. S., at ___
(slip op., at 6) (internal quotation marks omitted). These inquiries include, respectively, the “history surrounding the passage of the [relevant] Act” as well as the subsequent “demographic history” and “treatment” of the lands at issue. Id.
, at ___, ___ (slip op., at 8, 10).
Today the Court does not even discuss the governing approach reiterated throughout these precedents. The Court briefly recites the general rule that disestablishment requires clear congressional “intent,” ante
, at 8, but the Court then declines to examine the categories of evidence that our precedents demand we consider. Instead, the Court argues at length that allotment alone is not enough to disestablish a reservation. Ante
, at 8–12. Then the Court argues that the “many” “serious blows” dealt by Congress to tribal governance, and the creation of the new State of Oklahoma, are each insufficient for disestablishment. Ante
, at 13–16. Then the Court emphasizes that “historical practices or current demographics” do not “by themselves” “suffice” to disestablish a reservation. Ante
, at 17–18.
This is a school of red herrings. No one here contends that any individual congressional action or piece of evidence, standing alone, disestablished the Creek reservation. Rather, Oklahoma contends that all of the relevant Acts of Congress together, viewed in light of contemporaneous and subsequent contextual evidence, demonstrate Congress’s intent to disestablish the reservation. “[O]ur traditional approach . . . requires
us” to determine Congress’s intent by “examin[ing] all
the circumstances surrounding the opening of a reservation.” Hagen
, 510 U. S., at 412 (emphasis added). Yet the Court refuses to confront the cumulative import of all of Congress’s actions here.
The Court instead announces a new approach sharply restricting consideration of contemporaneous and subsequent evidence of congressional intent. The Court states that such “extratextual sources” may be considered in “only” one narrow circumstance: to help “ ‘clear up’ ” ambiguity in a particular “statutory term or phrase.” Ante
, at 17–18, 20 (quoting Milner
v. Department of Navy
562 U.S. 562
, 574 (2011), and citing New Prime Inc.
, 586 U. S. ___, ___ (2019) (slip op., at 6)).
But, if that is the right approach, what have we been doing all these years? Every single one of our disestablishment cases has considered extratextual sources, and in doing so, none has required the identification of ambiguity in a particular term. That is because, while it is well established that Congress’s “intent” must be “clear,” ante,
at 20 (quoting Yankton Sioux Tribe
, 522 U. S., at 343), in this area we have expressly held that the appropriate inquiry does not focus on the statutory text alone.
Today the Court suggests that only the text can satisfy the longstanding requirement that Congress “explicitly indicate[ ]” its intent. Ante,
at 20 (quoting Solem
, 465 U. S., at 470). The Court reiterates that a reservation persists unless Congress “said otherwise,” ante
, at 1; if Congress wishes to disestablish a reservation, “it must say so,” with the right “language.” Ante
, at 8, 18; see ante
, at 42 (same). Our precedents disagree. They explain that disestablishment can occur “[e]ven in the absence of a clear expression of congressional purpose in the text of [the] Act.” Yankton Sioux Tribe
, 522 U. S., at 351. The “notion” that “express language in an Act is the only
method by which congressional action may result in disestablishment” is “quite inconsistent” with our precedents. Rosebud Sioux Tribe
430 U.S. 584
, 586, 588, n. 4 (1977); see Solem
, 465 U. S., at 471 (intent may be discerned from a “widely held, contemporaneous understanding,” “notwithstanding the presence of statutory language that would otherwise suggest reservation boundaries remained unchanged”); see also DeCoteau
v. District County Court for Tenth Judicial Dist.
420 U.S. 425
, 444 (1975); Mattz
412 U.S. 481
, 505 (1973).
These are not “stiche[d] together quotes” but rather plain language reflecting a consistent theme running through our precedents. Ante
, at 20, n. 9. They make clear that the Court errs in focusing on whether “a statute” alone “required” disestablishment, ante,
at 20; under these precedents, we cannot determine what Congress “required” without first considering evidence in addition to the relevant statutes. Oddly, the Court claims these precedents actually support its new approach because they “emphasize that ‘[t]he focus of our inquiry is congressional intent.’ ” Ante,
at 20–21, n. 9 (quoting Rosebud Sioux Tribe
, 430 U. S., at 588, n. 4, and citing Yankton Sioux Tribe
, 522 U. S., at 343). But in this context that intent is determined by examining a broad array of evidence—“all the circumstances.” Parker
, 577 U. S., at ___ (slip op., at 6) (quoting Hagen
, 510 U. S., at 412). Unless the Court is prepared to overrule these precedents, it should follow them.
The Court appears skeptical of these precedents, but does not address the compelling reasons they give for considering extratextual evidence. At the turn of the century, the possibility that a reservation might persist in the absence of “tribal ownership” of the underlying lands was “unfamiliar,” and the prevailing “assumption” was that “Indian reservations were a thing of the past.” Solem
465 U. S., at 468. Congress believed “to a man” that “within a short time” the “Indian tribes would enter traditional American society and the reservation system would cease to exist.” Ibid.
As a result, Congress—while intending disestablishment—did not always “detail” precise changes to reservation boundaries. Ibid.
Recognizing this distinctive backdrop, our precedents determine Congress’s intent by considering a broader variety of evidence than we might for more run-of-the-mill questions of statutory interpretation. See id.
, at 468–469; Parker
577 U. S., at ___ (slip op., at 6); Yankton Sioux Tribe
, 522 U. S., at 343. See also Cohen §2.02(1), at 113 (“The theory and practice of interpretation in federal Indian law differs from that of other fields of law.”).
The Court next claims that Parker
“clarif[ied]” that evidence of the subsequent treatment of the disputed land by government officials “ ‘has limited interpretive value.’ ” Ante
, at 19 (quoting Parker
, 577 U. S., at ___ (slip op., at 11)). But Parker
held that the subsequent evidence in that case
“ha[d] ‘limited interpretive value,’ ” as in the case that Parker
relied on. 577 U. S., at ___–___ (slip op., at 11–12) (quoting Yankton Sioux Tribe
, 522 U. S., at 355). The adequacy of evidence in a particular case says nothing about whether our precedents require us to consider such evidence in others.[3
The Court finally resorts to torching strawmen. No one relying on our precedents contends that “practical advantages” require “ignoring the written law.” Ante
, at 27. No one claims a State has “authority to reduce federal reservations.” Ante
, at 7. No one says the role of courts is to “sav[e] the political branches” from “embarrassment.” Ibid.
No one argues that courts can “adjust[ ]” reservation borders. Ibid.
Such notions have nothing to do with our precedents. What our precedents do provide is the settled approach for determining whether Congress disestablished a reservation, and the Court starkly departs from that approach here.
Applied properly, our precedents demonstrate that Congress disestablished any reservation possessed by the Creek Nation through a relentless series of statutes leading up to Oklahoma statehood.
The statutory texts are the “most probative evidence” of congressional intent. Parker
, 577 U. S., at ___ (slip op., at 5) (quoting Hagen
, 510 U. S., at 411). The Court appropriately examines the Original Creek Agreement of 1901 and a subsequent statute for language of disestablishment, such as “cession,” “abolish[ing]” the reservation, “restor[ing]” land to the “public domain,” or an “unconditional commitment” to “compensate” the Tribe. Ante
at 8–12 (internal quotation marks omitted). But that is only the beginning
of the analysis; there is no “magic words” requirement for disestablishment, and each individual statute may not be considered in isolation. See supra,
at 10–11; Hagen
, 510 U. S., at 411, 415–416 (when two statutes “buil[d]” on one another in this area, “[both] statutes—as well as those that came in between—must therefore be read together”); see also Rosebud Sioux Tribe
, 430 U. S., at 592 (recognizing that a statute “cannot, and should not, be read as if it were the first time Congress had addressed itself to” disestablishment when prior statutes also indicate congressional intent). In this area, “we are not free to say to Congress: ‘We see what you are driving at, but you have not said it, and therefore we shall go on as before.’ ” Id.
at 597 (quoting Johnson
v. United States
, 163 F. 30, 32 (CA1 1908) (Holmes, J.)). Rather, we recognize that the language Congress uses to accomplish its objective is adapted to the circumstances it confronts.
For example, “cession” is generally what a tribe does when it conveys land to a fellow sovereign, such as the United States or another tribe. See Mitchel
v. United States
, 9 Pet. 711, 734 (1835); e.g.
, 1856 Treaty, Art. I,
699. But here, given that Congress sought direct allotment to tribe members in order to enable private ownership by both Indians and the 300,000 settlers in the territory, it would have made little sense to “cede” the lands to the United States or “restore” the lands to the “public domain,” as Congress did on other occasions. So too with a “commitment” to “compensate” the Tribe. Rather than buying land from the Creek, Congress provided for allotment to tribe members who could then “sell their land to Indians and non-Indians alike.” Ante
at 10; see Hagen
, 510 U. S., at 412 (a “definite payment” is not required for disestablishment). That other allotment statutes have contained various “hallmarks” of disestablishment tells us little about Congress’s intent here. Contra, ante,
at 12–13, and n. 5. “[W]e have never required any particular form of words” to disestablish a reservation. Hagen
, 510 U. S., at 411. There are good reasons the statutes here do not include the language the Court looks for, and those reasons have nothing to do with a failure to disestablish the reservation. Respect for Congress’s work requires us to look at what it actually did, not search in vain for what it might have done or did on other occasions.
What Congress actually did here was enact a series of statutes beginning in 1890 and culminating with Oklahoma statehood that (1) established a uniform legal system for Indians and non-Indians alike; (2) dismantled the Creek government; (3) extinguished the Creek Nation’s title to the lands at issue; and (4) incorporated the Creek members into a new political community—the State of Oklahoma. These statutes evince Congress’s intent to terminate the reservation and create a new State in its place.
First, Congress supplanted the Creek legal system with a legal code and court system that applied equally to Indians and non-Indians. In 1890, Congress subjected the Indian Territory to specified federal criminal laws. Act of May 2, 1890, §31,
96. For offenses not covered by federal law, Congress did what it often did when establishing a new territorial government. It provided that the criminal laws from a neighboring State, here Arkansas, would apply. §33, id.
96–97. Seven years later, Congress provided that the laws of the United States and Arkansas “shall apply to all
persons” in Indian Territory, “irrespective of race
.” Act of June 7, 1897 (1897 Act),
83 (emphasis added). In the same Act, Congress conferred on the U. S. Courts for the Indian Territory “exclusive jurisdiction” over “all civil causes in law and equity” and “all criminal causes” for the punishment of offenses committed by “any person” in the Indian Territory. Ibid.
The following year, the 1898 Curtis Act “abolished” all tribal courts, prohibited all officers of such courts from exercising “any authority” to perform “any act” previously authorized by “any law,” and transferred “all civil and criminal causes then pending” to the U. S. Courts for the Indian Territory. Act of June 27, 1898 (Curtis Act), §28, id.,
at 504–505. In the same Act, Congress completed the shift to a uniform legal order by banning the enforcement of tribal law in the newly exclusive jurisdiction of the U. S. Courts. See §26, id.
, at 504 (“[T]he laws of the various tribes or nations of Indians shall not be enforced at law or in equity by the courts of the United States in the Indian Territory.”). Congress reiterated yet again in 1904 that Arkansas law “continued” to “embrace all
persons and estates” in the territory—“whether Indian, freedmen, or otherwise.” Act of Apr. 28, 1904, ch. 1824, §2,
573 (emphasis added). In this way, Congress replaced tribal law with local law in matters at the core of tribal governance, such as inheritance and marital disputes. See, e.g.
, 4 Ind. T. 61, 64 S.W. 615, 615–616 (1901); Colbert
, 74 Okla. 293
, 157 P. 1151, 1152 (1916).
In addition, the Curtis Act established municipalities to govern both Indians and non-Indians. It authorized “any city or town” with at least 200 residents to incorporate. §14,
499. The Act gave incorporated towns “all the powers” and “all the rights” of municipalities under Arkansas law. Ibid.
“All male inhabitants,” including Indians, were deemed qualified to vote in town elections. Ibid.
And “all inhabitants”—“without regard to race
”—were made subject to “all” town laws and were declared to possess “equal
rights, privileges, and protection.” Id.
, at 499–500
(emphasis added). These changes reorganized the approximately 150 towns in the territory—including Tulsa, Muskogee, and 23 others within the Creek Nation’s former territory—that were home to tens of thousands of people and nearly one third of the territory’s population at the time, laying the foundation for the state governance that was to come. See H. R. Doc. No. 5, 57th Cong., 2d Sess., pt. 2, pp. 299–300, Table 1 (1903); Depts. of Commerce and Labor, Bureau of Census, Population of Oklahoma and Indian Territory 1907, pp. 8, 30–33.
Second, Congress systematically dismantled the governmental authority of the Creek Nation, targeting all three branches. As noted, Congress dissolved the Tribe’s judicial system. Congress also specified in the Original Creek Agreement that the Creek government would “not continue” past March 1906, essentially preserving it only as long as Congress thought necessary for the Tribe to wind up its affairs. §46,
872. In the meantime, Congress radically curtailed tribal legislative authority, providing that no statute passed by the council of the Creek Nation affecting the Nation’s lands, money, or property would be valid unless approved by the President of the United States. §42, id.
, at 872. When 1906 came around, the Five Tribes Act provided for the “final disposition of the affairs of the Five Civilized Tribes.” Act of Apr. 26, 1906, ch. 1876,
137. Along with “abolish[ing]” all tribal taxes, the Act directed the Secretary of the Interior to assume control over the collection
of the Nation’s remaining revenues and to distribute them among tribe members on a per capita basis. §§11, 17, id.
, at 141, 143–144. Thus, by the time Oklahoma became the 46th State in 1907, there was little left of the Creek Nation’s authority: No tribal courts. No tribal law. No tribal fisc. And any lingering authority was further reduced in 1908, when Congress amended the Five Tribes Act to require tribal officers and members to surrender all remaining tribal property, money, and records. Act of May 27, 1908, §13,
The Court stresses that the Five Tribes Act separately stated that the Creek government was “continued” in “full force and effect for all purposes authorized by law.” Ante
, at 15 (quoting §28,
148). By that point, however, such “authorized” purposes were nearly nonexistent, and the Act’s statement is readily explained by the need to maintain a tribal body to wrap up the distribution of Creek lands. Indeed, the Court does not cite any examples of the Creek Nation exercising significant government authority in the wake of the statutes discussed above. Instead, the Court alludes to subsequent changes in the 1920s to the general “federal outlook towards Native Americans,” and it observes that in the 1930s Congress authorized the Creek Nation to reconstitute its tribal courts and adopt a constitution and bylaws. Ante
, at 15. That, however, simply highlights the drastic extent to which Congress erased the Nation’s authority at the turn of the century.
Third, Congress destroyed the foundation of sovereignty by stripping the Creek Nation of its territory. The communal title held by the Creek Nation, which “did not recognize private property in land,” “presented a serious obstacle to the creation of [a] State.” Choate
224 U.S. 665
, 667 (1912). Well aware of this impediment, Congress established the Dawes Commission and directed it to negotiate with the Five Tribes for “the extinguishment of the national or tribal title to any lands” within the Indian Territory. Act of Mar. 3, 1893, §16,
645. That extinguishment could be accomplished through “cession” of the tribal lands to the United States, “allotment” of the lands among the Indians, or any other agreed upon method. Ibid.
The Commission initially sought cession, but ultimately sought to extinguish the title through allotment. See ante
In the Original Creek Agreement of 1901, Congress did just that. The agreement provided that “[a]ll lands
belonging to the Creek tribe,” except town sites and lands reserved for schools and public buildings, “shall be allotted among the citizens of the tribe.” §§2, 3,
862 (emphasis added). Town sites, rather than being allotted, were made available for purchase by the non-Indians residing there. §§11–16, id.
, at 866–867. Unclaimed lots were to be sold at public auction, with the proceeds divvied up among the Creeks. §§11, 14, id.
, at 866. The agreement required that the deeds for the allotments and town site purchases convey “all right, title, and interest of the Creek Nation and of all other [Creek] citizens,” and that the deeds be executed by the leader of the Creek Nation (the “principal chief ”). §23, id.
, at 867–868. The conveyances were then approved by the Secretary of the Interior, who in turn “relinquish[ed] to the grantee . . . all the right, title, and interest of the United States” in the land. Id.
, at 868.
In this way, Congress provided for the complete termination of the Creek Nation’s interest in the lands, as well as the interests of individual Creek members apart from their personal allotments. Indeed, the language Congress used in the Original Creek Agreement resembles what the Court regards as model disestablishment language. See ante
, at 8, 10 (looking for language evincing “the present and total surrender of all tribal interests in the affected lands” (internal quotation marks omitted)). And, making even more clear its intent to place Indian-held land under the same laws as all other property, Congress subsequently eliminated restrictions on the alienation of allotments, freeing tribe members “to sell their land to Indians and non-Indians alike.” Ante
, at 10.
In addition, while the Original Creek Agreement did not allot lands reserved for schools and tribal buildings, the Creek Nation’s interest in those lands was subsequently terminated by the Five Tribes Act. That Act directed the Secretary of the Interior to take possession of—and sell off—“all” tribal buildings and underlying lands, whether used for “governmental” or “other tribal purposes.” §15,
143. The Secretary was also ordered to assume control of all tribal schools and the underlying property until the federal or state governments established a public school system. See §10, id.
, at 140–141.
These statutes evince a clear intent to leave the Creek Nation with no communally held land and no meaningful governing authority to exercise over the newly distributed parcels. Contrary to the Court’s portrayal, this is not a scenario in which Congress allowed a tribe to “continue to exercise governmental functions over land” that it “no longer own[ed] communally.” Ante
From top to bottom, these statutes, which divested the Tribes and the United States of their interests while displacing tribal governance, “strongly suggest[ ] that Congress meant to divest” the lands of reservation status. Solem
, 465 U. S., at 470.
Finally, having stripped the Creek Nation of its laws, its powers of self-governance, and its land, Congress incorporated the Nation’s members into a new political community. Congress made “every Indian” in the Oklahoma territory a citizen of the United States in 1901—decades before conferring citizenship on all native born Indians elsewhere in the country. Act of Mar. 3, 1901, ch. 868,
1447. In the Oklahoma Enabling Act of 1906—the gateway to statehood—Congress confirmed that members of the Five Tribes would participate in equal measure alongside non-Indians in the choice regarding statehood. The Act gave Indians the right to vote on delegates to a constitutional convention and ultimately on the state constitution that the delegates proposed. §§2, 4,
271. Fifteen members of the Five Tribes were elected as convention delegates, many of them served on significant committees, and a member of the Chickasaw Nation even served as president of the convention. See Brief for Seventeen Oklahoma District Attorneys et al. as Amici Curiae
The Enabling Act also ensured that Indians and non-Indians would be subject to uniform laws and courts. It replaced Arkansas law, which had applied to all persons “irrespective of race,” 1897 Act,
83, with the laws of the adjacent Oklahoma Territory until the new state legislature provided otherwise. Enabling Act §§2, 13, 21,
268–269, 275, 277–278; see Jefferson
247 U.S. 288
, 294 (1918). All of the pending cases in the territorial courts arising under federal law were transferred to the newly created U. S. District Courts of Oklahoma. See §16,
276. Pending cases not involving federal law, including those that involved Indians on Indian land and had arisen under Arkansas law, were transferred to the new Oklahoma state courts. §§16, 17, 20, id.
, at 276–277. To dispel any potential confusion about the distribution of criminal cases, Congress amended the Enabling Act the following year, clarifying that all cases for crimes that would have fallen under federal jurisdiction had they been committed in a State would be transferred to the U. S. District Courts. Act of Mar. 4, 1907, §1, id.
, at 1286–1287. All other pending criminal cases would be “prosecuted to a final determination in the State courts of Oklahoma.” §3, id.
, at 1287. As for civil cases, the new state courts were immediately empowered to resolve even disputes that previously lay at the core of tribal self-governance. E.g.
, 52 Okla. 454
, 463–469, 153 P. 154, 157–158 (1915) (per curiam
) (marital dispute).[4
In sum, in statute after statute, Congress made abundantly clear its intent to disestablish the Creek territory. The Court, for purposes of the disestablishment question before us, defines the Creek territory as “lands that would lie outside both the legal jurisdiction and geographic boundaries of any State” and on which a tribe was “assured a right to self-government.” Ante
, at 6. That territory was eliminated. By establishing uniform laws for Indians and non-
Indians alike in the new State of Oklahoma, Congress brought Creek members and the land on which they resided under state jurisdiction. By stripping the Creek Nation of its courts, lawmaking authority, and taxing power, Congress dismantled the tribal government. By extinguishing the Nation’s title, Congress erased the geographic boundaries that once defined Creek territory. And, by conferring citizenship on tribe members and giving them a vote in the formation of the State, Congress incorporated them into a new political community. “Under any definition,” that was disestablishment. Ibid.
In the face of all this, the Court claims that recognizing Congress’s intent would permit disestablishment in the absence of “a statute requir[ing] that result.” Ante
, at 20. Hardly. The numerous statutes discussed above demonstrate Congress’s plain intent to terminate the reservation. The Court resists the cumulative force of these statutes by attacking each in isolation, first asking whether allotment alone disestablished the reservation, then whether restricting tribal governance was sufficient, and so on. But the Court does not consider the full picture of what Congress accomplished. Far from justifying its blinkered approach, the Court repeatedly tells the reader to wait until the “next
section” of the opinion—where the Court will again nitpick discrete aspects of Congress’s disestablishment effort while ignoring the full picture our precedents require us to honor. Ante
, at 12–13, n. 5, 17, n. 7; see supra,
at 11, 14.
The Court also hypothesizes that Congress may have taken significant steps toward disestablishment but ultimately could not “complete[ ]” it; perhaps Congress just couldn’t “muster the will” to finish the job. Ante
, at 8, 15. The Court suggests that Congress sought to “tiptoe to the edge of disestablishment,” fearing the “embarrassment of disestablishing a reservation” but hoping that judges would “deliver the final push.” Ante
, at 7. This is fantasy. The congressional Acts detailed above do not evince any unease about extinguishing the Creek domain, or any shortage of “will.” Quite the opposite. Through an open and concerted effort, Congress did what it set out to do: transform a reservation into a State. “Mustering the broad social consensus required to pass new legislation is a deliberately hard business,” as the Court reminds us. Ibid.
Congress did that hard work here, enacting not one but a steady progression of major statutes. The Court today does not give effect to the cumulative significance of Congress’s actions, because Congress did not use explicit words of the sort the Court insists upon. But Congress had no reason to suppose that such words would be required of it, and this Court has held that they were not. See Hagen
, 510 U. S., at 411–412; Yankton Sioux Tribe
, 522 U. S., at 351; Solem
465 U. S., at 471.
Under our precedents, we next consider the contemporaneous understanding of the statutes enacted by Congress and the subsequent treatment of the lands at issue. The Court, however, declines to consider such evidence because, in the Court’s view, the statutes clearly do not disestablish any reservation, and there is no “ambiguity” to “clear up.” Ante
, at 20
(internal quotation marks omitted). That is not the approach demanded by our precedent, supra
, at 10–13, and, in any event, the Court’s argument fails on its own terms here. I find it hard to see how anyone can come away from the statutory texts detailed above with certainty
that Congress had no intent to disestablish the territorial reservation. At the very least, the statutes leave some ambiguity, and thus “extratextual sources” ought to be consulted. Ante
, at 20.
Turning to such sources, our precedents direct us to “examine all the circumstances” surrounding Congress’s actions. Parker
, 577 U. S., at ___ (slip op., at 6) (quoting Hagen
, 510 U. S., at 412). This includes evidence of the “contemporaneous understanding” of the status of the reservation and the “history surrounding the passage” of the relevant Acts. Parker
, 577 U. S., at ___ (slip op., at 8) (internal quotation marks omitted); see Yankton Sioux Tribe
, 522 U. S., at 351–354; Solem
, 465 U. S., at 471. The available evidence overwhelmingly confirms that Congress eliminated any Creek reservation. That was the purpose identified by Congress, the Dawes Commission, and the Creek Nation itself. And that was the understanding demonstrated by the actions of Oklahoma, the United States, and the Creek.
According to reports published by Congress leading up to Oklahoma statehood, the Five Tribes had failed to hold the lands for the equal benefit of all Indians, and the tribal governments were ill equipped to handle the largescale settlement of non-Indians in the territories. See supra
at 4–5; Woodward
, 238 U. S., at 296–297. The Senate Select Committee on the Five Tribes explained that it was “imperative[ ]” to “establish[ ] a government over [non-Indians] and Indians” in the territory “in accordance with the principles of our constitution and laws.” S. Rep. No. 377, at 12–13. On the eve of the Original Creek Agreement, the House Committee on Indian Affairs emphasized that “[t]he independent self-government of the Five Tribes ha[d] practically ceased,” “[t]he policy of the Government to abolish classes in Indian Territory and make a homogeneous population [wa]s being rapidly carried out,” and all Indians “should at once be put upon a level and equal footing with the great population with whom they [were] intermingled.” H. R. Rep. No. 1188, 56th Cong., 1st Sess., 1 (1900).
The Dawes Commission understood Congress’s intent in the same way. The Commission explained that the “object of Congress from the beginning has been the dissolution of the tribal governments, the extinguishment of the communal or tribal title to the land, the vesting of possession and title in severalty among the citizens of the Tribes, and the assimilation of the peoples and institutions of this Territory to our prevailing American standard.” H. R. Doc. No. 5, 58th Cong., 2d Sess., pt. 2, p. 5 (1903). Accordingly, the Commission’s aim—“in all [its] endeavors”—was a “uniformity of political institutions to lay the foundation for an ultimate common government.” H. R. Doc. No. 5, 56th Cong., 2d Sess., 163 (1900).
The Creek shared the same understanding. In 1893, the year Congress formed the Dawes Commission, the Creek delegation to Washington recognized that Congress’s “unwavering aim” was to “ ‘wipe out the line of political distinction between an Indian citizen and other citizens of the Republic’ ” so that the Tribe could be “ ‘absorbed and become a part of the United States.’ ” P. Porter & A. McKellop, Printed Statement of Creek Delegates, reprinted in Creek Delegation Documents 8–9 (Feb. 9, 1893) (quoting Senate Committee Report); see also S. Doc. No. 111, 54th Cong., 2d Sess., 5, 8 (1897) (resolution of the Creek Nation “recogniz[ing]” that Congress proposed to “disintegrat[e] the land of our people” and “transform[ ]” “our domestic dependent states” “into a State of the Union”).
Particularly probative is the understanding of Pleasant Porter, the principal Chief of the Creek Nation. He described Congress’s decisions to the Creek people and legislature in messages published in territorial newspapers during the run-up to statehood. Following the extinguishment of the Nation’s title, dissolution of tribal courts, and curtailment of lawmaking authority, he told his people that “[i]t would be difficult, if not impossible to successfully operate the Creek government now.” App. to Brief for Respondent 8a (Message to Creek National Council (May 7, 1901), reprinted in The Indian Journal (May 10, 1901)). The “remnant of a government” had been reduced to a land office for finalizing the distribution of allotments and would be “maintained only until” the Tribe’s “landed and other interests . . . have been settled.” App. to Brief for Respondent 8a. He reiterated this understanding following the Five Tribes Act of 1906, which stated that the tribal government would “continue[ ] in full force and effect for all purposes authorized by law.” §28,
148. While the Court believes that meant Congress decided against disestablishing the reservation, see ante
, at 14–15, Chief Porter saw things differently. From his vantage point as the contemporaneous leader of the government at issue, Congress had temporarily continued the tribal government but left it with only “limited and circumscribed” authority: The council could “pass[ ] resolutions respecting our wishes” regarding the property “now in the process of distribution,” but the council no longer had any authority to “mak[e] laws for our government.” App. to Brief for Respondent 14a (Message to Creek National Council (Oct. 18, 1906), reprinted in The New State Tribune (Oct. 18, 1906)). Apart from distributing the Nation’s property, Chief Porter maintained that “all powers over the governing even of our landed property will cease” once the new state government was established. App. to Brief for Respondent 15a; see also S. Rep. No. 5013, 59th Cong., 2d Sess., pt. 1, p. 885 (1907) (Choctaw governor mourning that his “only” remaining authority was “to sign deeds”).
The Creek remained of that view after Oklahoma was officially made a State through the Enabling Act. At that point, the new principal Chief confirmed that it was “utterly impossible” to resume “our old tribal government.” App. to Brief for Respondent 16a–17a (Address by Moty Tiger to Creek National Council (Oct. 8, 1908), reprinted in The Indian Journal (Oct. 9, 1908)). And any “appeal to the government at Washington to alter its purpose to wipe out all tribal government among the five civilized tribes” would “be to no purpose.” App. to Brief for Respondent 16a. “[C]ontributions” for such efforts would be “just that much money thrown away,” and “all attorneys at Washington or elsewhere who encourage and receive any part of such contributions do it knowing that they can give no return or service for same and that they take such money fraudulently and dishonestly.” Id.
, at 17a.[5
In addition to their words, the contemporaneous actions of Oklahoma, the Creek, and the United States in criminal matters confirm their shared understanding that Congress did not intend a reservation to persist. Had the land been a reservation, the federal government—not the new State—would have had jurisdiction over serious crimes committed by Indians under the Major Crimes Act of 1885. See §9,
385. Yet, at statehood, Oklahoma immediately began prosecuting serious crimes committed by Indians in the new state courts, and the federal government immediately ceased prosecuting such crimes in federal court. At argument, McGirt’s counsel acknowledged that he could not cite a single example of federal prosecutions for such crimes. Tr. of Oral Arg. 17–18. Rather, the record demonstrates that case after case was transferred to state court or filed there outright by Oklahoma after 1907—without objection by anyone. See, e.g.
, 7 Okla. Crim. 364,
123 P. 1026 (1912) (manslaughter); Rollen
, 7 Okla. Crim. 673, 125 P. 1087 (1912) (assault with intent to kill); Jones
, 3 Okla. Crim. 593, 107 P. 738 (1910) (murder); see also Brief for Petitioner in Carpenter
, O. T. 2018, No. 17–1107, pp. 40–41 (collecting more cases).
These prosecutions were lawful, the Oklahoma Supreme Court recognized at the time, because Congress had not intended to “except out of [Oklahoma] an Indian reservation” upon its admission as a State. Higgins
, 20 Okla. 355
, 419, 94 P. 703, 730 (1908).
Instead of explaining how everyone at the time somehow missed that a reservation still existed, the Court resorts to misdirection. It observes that Oklahoma state courts have held that they erroneously entertained prosecutions for crimes committed by Indians on the small number of remaining restricted allotments and tribal trust lands from the 1930s until 1989. But this Court has not addressed that issue, and regardless, it would not tell us whether the State properly prosecuted major crimes committed by Indians on the lands at issue here—the unrestricted fee lands that make up more than 95% of the Creek Nation’s former territory. Perhaps most telling is that the State’s jurisdiction over crimes on Indian allotments was hotly contested from an early date, whereas nobody raised objections based on a surviving reservation. See, e.g.
, Ex parte Nowabbi
, 60 Okla. Crim. 111, 61 P.2d 1139
(1936), overruled by State
, 782 P.2d 401
, 404 (Okla. Crim. App. 1989); see also ante
, at 21 (“no court” suggested the “possibility” that “the Creek lands really were part of a reservation” until 2017).[6
Lacking any other arguments, the Court suspects uniform lawlessness: The State must have “overstepped its authority” in prosecuting thousands of cases for over a century. Ante
, at 23. Perhaps, the Court suggests, the State lacked “good faith.” Ibid.
In the Court’s telling, the federal government acquiesced in this extraordinary alleged power grab, abdicating its responsibilities over the purported reservation. And, all the while, the state and federal courts turned a blind eye.
But we normally presume that government officials exercise their duties in accordance with the law. Certainly the presumption may be strained from time to time in this area, but not so much as to justify the Court’s speculations, which posit that government officials at every level either conspired to violate the law or uniformly misunderstood the fundamental structure of their society and government. Whatever the imperfections of our forebears, neither option seems tenable. And it is downright inconceivable that this could occur without prompting objections—from anyone, including from the Five Tribes themselves. Indians frequently asserted their rights during this period. The cases above, for example, involve criminal appeals brought by Indians, and Indians raised numerous objections to land graft in the former Territory. See Brief for Historians et al. as Amici Curiae
28–31. Yet, according to the extensive record compiled over several years for this case and a similar case, Sharp
, p. ___ (per curiam
), Indians and their counsel did not raise a single objection to state prosecutions on the theory that the lands at issue were still a reservation. It stretches the imagination to suggest they just missed it.
Finally, consider “the subsequent treatment of the area in question and the pattern of settlement there.” Yankton Sioux Tribe
, 522 U. S., at 344. This evidence includes the “subsequent understanding of the status of the reservation by members and nonmembers as well as the United States and the [relevant] State,” and the “subsequent demographic history” of the area. Parker
, 577 U. S., at ___, ___ (slip op., at 6, 10); see Solem
, 465 U. S., at 471. Each of the indicia from our precedents—subsequent treatment by Congress, the State’s unquestioned exercise of jurisdiction, and demographic evidence—confirms that the Creek reservation did not survive statehood.
First, “Congress’ own treatment of the affected areas” strongly supports disestablishment. Id.
, at 471. After statehood, Congress enacted several statutes progressively eliminating restrictions on the alienation and taxation of Creek allotments, and Congress subjected even restricted lands to state jurisdiction. Since Congress had already destroyed nearly all tribal authority, these statutes rendered Creek parcels little different from other plots of land in the State. See Act of May 27, 1908,
312; Act of June 14, 1918,
606; Act of Apr. 10, 1926,
239. This is not a scenario where Congress merely opened land for “purchase . . . by non-Indians” while allowing the Tribe to “continue to exercise governmental functions over [the] land,” ante
at 11, and n. 3; rather, Congress eliminated both restrictions on the lands here and the Creek Nation’s authority over them. Such developments would be surprising if Congress intended for all of the former Indian Territory to be reservation land insulated from state jurisdiction in significant ways. The simpler and more likely explanation is that they reflect Congress’s understanding through the years that “all Indian reservations as such have ceased to exist” in Oklahoma, S. Rep. No. 1232, 74th Cong., 1st Sess., 6 (1935), and that “Indian reservations [in the Indian Territory] were destroyed” when “Oklahoma entered the union,” S. Rep. No. 101–216, p. 47 (1989).
That understanding is now woven throughout the U. S. Code, which applies numerous statutes to the land here by extending them to the “former
reservation[s]” “in Oklahoma”—underscoring that no reservation exists today.
25 U. S. C. §2719(a)(2)(A)(i) (emphasis added) (Indian Gaming Regulatory Act); see Brief for United States as Amicus Curiae
23 U. S. C. §202(b)(1)(B)(v) (road grants; “former Indian reservations in the State of Oklahoma”); 25 U. S. C.
§1452(d) (Indian Financing Act; “former Indian reservations in Oklahoma”); §2020(d) (education grants; “former Indian reservations in Oklahoma”); §3103(12) (National Indian Forest Resources Management Act; “former Indian reservations in Oklahoma”);
29 U. S. C. §741(d) (American Indian Vocational Rehabilitation Services Act; “former Indian reservations in Oklahoma”);
33 U. S. C. §1377(c)(3)(B) (waste treatment grants; “former Indian reservations in Oklahoma”);
42 U. S. C. §5318(n)(2) (urban development grants; “former Indian reservations in Oklahoma”).[7
Second, consider the State’s “exercis[e] [of] unquestioned jurisdiction over the disputed area since the passage of ” the Enabling Act, which deserves “weight” as “an indication of the intended purpose of the Act.” Rosebud Sioux Tribe
, 430 U. S., at 599, n. 20, 604. As discussed above, for 113 years, Oklahoma has asserted jurisdiction over the former Indian Territory on the understanding that it is not a reservation, without any objection by the Five Tribes until recently (or by McGirt for the first 20 years after his convictions). See Brief for Respondent 4, 40. The same goes for major cities in Oklahoma. Tulsa, for example, has exercised jurisdiction over both Indians and non-Indians for more than a century on the understanding that it is not a reservation. See Brief for City of Tulsa as Amicus Curiae
All the while, the federal government has operated on the same understanding. Brief for United States as Amicus Curiae
24. No less than Felix Cohen, whose authoritative treatise the Court repeatedly cites, agreed while serving as Acting Solicitor of the Interior in 1941 that “all offenses by or against Indians” in the former Indian Territory “are subject to State laws.” App. to Supp. Reply Brief for Petitioner in Carpenter
, O. T. 2018, No. 17–1107, p. 1a (Memorandum for Commissioner of Indian Affairs (July 11, 1941)). In the view of the Department of the Interior, such state jurisdiction was appropriate because the reservations in the Territory “lost their character as Indian country” by the time Oklahoma became a State. App. to Brief for United States as Amicus Curiae
4a (Letter from O. Chapman, Assistant Secretary of the Interior, to the Attorney General (Aug. 17, 1942)); see also supra,
at 28, n. 6.
Indeed, far from disputing Oklahoma’s jurisdiction, the Five Tribes themselves have repeatedly and emphatically agreed that no reservation exists. After statehood, tribal leaders and members frequently informed Congress that “there are no reservations in Oklahoma.” App. to Brief for Respondent 19a (Testimony of Hon. Bill Anoatubby, Governor, Chickasaw Nation, Hearings before the Subcommittee on Indian, Insular and Alaska Native Affairs of the House Committee on Natural Resources (Feb. 24, 2016)).[8
] They took the same position before federal courts. Before this litigation started, the Creek Nation represented to the Tenth Circuit that there is only “ ‘checkerboard’ Indian country within its former
reservation boundaries.” Reply Brief in No. 09–5123, p. 5 (emphasis added). And the Nation never once contended in this Court that a sprawling reservation still existed in the more than a century that preceded the present disputes.
Like the Creek, this Court has repeatedly described the area in question as the “former” lands of the Creek Nation. See Grayson
267 U.S. 352
, 353 (1925) (lands “lying within the former Creek Nation”); Woodward
, 238 U. S., at 285 (lands “formerly part of the domain of the Creek Nation”); Washington
235 U.S. 422
, 423 (1914) (lands “within what until recently was the Creek Nation”). Yet today the Court concludes that the lands have been a Creek reservation all along—contrary to the position shared for the past century by this Court, the United States, Oklahoma, and the Creek Nation itself.
Under our precedent, Oklahoma’s unquestioned, century-long exercise of jurisdiction supports the conclusion that no reservation persisted past statehood. See Yankton Sioux Tribe
, 522 U. S., at 357; Hagen
, 510 U. S., at 421; Rosebud Sioux Tribe
, 430 U. S., at 604–605. “Since state jurisdiction over the area within a reservation’s boundaries is quite limited, the fact that neither Congress nor the Department of Indian Affairs has sought to exercise its authority over this area, or to challenge the State’s exercise of authority is a factor entitled to weight as part of the ‘jurisdictional history.’ ” Id.
, at 603–604 (citations omitted).
Third, consider the “subsequent demographic history” of the lands at issue, which provides an “ ‘additional clue’ ” as to the meaning of Congress’s actions. Parker
, 577 U. S., at ___ (slip op., at 10) (quoting Solem
, 465 U. S., at 472). Continuing from statehood to the present, the population of the lands has remained approximately 85%–90% non-Indian. See Brief for Respondent 43; Murphy
, 875 F.3d 896, 965 (CA10 2017). “[T]hose demographics signify a diminished reservation.” Yankton Sioux Tribe
, 522 U. S., at 357. The Court questions whether the consideration of demographic history is appropriate, ante
18–19, 27, but we have determined that it is a “necessary
, 465 U. S., at 472, and n. 13 (emphasis added); see Parker
, 577 U. S., at ___ (slip op., at 10).
And for good reason. Our precedents recognize that disestablishment cases call for a wider variety of tools than more workaday questions of statutory interpretation. Supra
, at 12. In addition, the use of demographic data addresses the practical concern that “[w]hen an area is predominately populated by non-Indians with only a few surviving pockets of Indian allotments, finding that the land remains Indian country seriously burdens the administration of state and local governments.” Solem
, 465 U. S., at 471–472, n. 12.
Here those burdens—the product of a century of settled understanding—are extraordinary. Most immediately, the Court’s decision draws into question thousands of convictions obtained by the State for crimes involving Indian defendants or Indian victims across several decades. This includes convictions for serious crimes such as murder, rape, kidnapping, and maiming. Such convictions are now subject to jurisdictional challenges, leading to the potential release of numerous individuals found guilty under state law of the most grievous offenses.[9
] Although the federal government may be able to reprosecute some of these crimes, it may lack the resources to reprosecute all of them, and the odds of convicting again are hampered by the passage of time, stale evidence, fading memories, and dead witnesses. See Brief for United States as Amicus Curiae
37–39. No matter, the court says, these concerns are speculative because “many defendants may choose to finish their state sentences rather than risk reprosecution in federal court.” Ante
, at 38. Certainly defendants like McGirt—convicted of serious crimes and sentenced to 1,000 years plus life in prison—will not adopt a strategy of running out the clock on their state sentences. At the end of the day, there is no escaping that today’s decision will undermine numerous convictions obtained by the State, as well as the State’s ability to prosecute serious crimes committed in the future.
Not to worry, the Court says, only about 10%–15% of Oklahoma citizens are Indian, so the “majority” of prosecutions will be unaffected. Ibid.
But the share of serious crimes committed by 10%–15% of the 1.8 million people in eastern Oklahoma, or of the 400,000 people in Tulsa, is no small number.
Beyond the criminal law, the decision may destabilize the governance of vast swathes of Oklahoma. The Court, despite briefly suggesting that its decision concerns only a narrow question of criminal law, ultimately acknowledges that “many” federal laws, triggering a variety of rules, spring into effect when land is declared a reservation. Ante
, at 39–40.
State and tribal authority are also transformed. As to the State, its authority is clouded in significant respects when land is designated a reservation. Under our precedents, for example, state regulation of even non-Indians is preempted if it runs afoul of federal Indian policy and tribal sovereignty based on a nebulous balancing test. This test lacks any “rigid rule”; it instead calls for a “particularized inquiry into the nature of the state, federal, and tribal interests at stake,” contemplated in light of the “broad policies that underlie” relevant treaties and statutes and “notions of sovereignty that have developed from historical traditions of tribal independence.” White Mountain Apache Tribe
448 U.S. 136
, 142, 144–145 (1980). This test mires state efforts to regulate on reservation lands in significant uncertainty, guaranteeing that many efforts will be deemed permissible only after extensive litigation, if at all.[10
In addition to undermining state authority, reservation status adds an additional, complicated layer of governance over the massive territory here, conferring on tribal government power over numerous areas of life—including powers over non-Indian citizens and businesses. Under our precedents, tribes may regulate non-Indian conduct on reservation land, so long as the conduct stems from a “consensual relationship[ ] with the tribe or its members” or directly affects “the political integrity, the economic security, or the health or welfare of the tribe.” Montana
v. United States
450 U.S. 544
, 565–566 (1981); see Cohen §6.02(2)(a), at 506–507. Tribes may also impose certain taxes on non-Indians on reservation land, s
ee Kerr-McGee Corp.
v. Navajo Tribe
471 U.S. 195
, 198 (1985), and in this litigation, the Creek Nation contends that it retains the power to tax nonmembers doing business within its borders. Brief for Muscogee (Creek) Nation as Amicus Curiae
18, n. 6. No small power, given that those borders now embrace three million acres, the city of Tulsa, and hundreds of thousands of Oklahoma citizens. Recognizing the significant “potential for cost and conflict” caused by its decision, the Court insists any problems can be ameliorated if the citizens of Oklahoma just keep up the “spirit” of cooperation behind existing intergovernmental agreements between Oklahoma and the Five Tribes. Ante
, at 41. But those agreements are small potatoes compared to what will be necessary to address the disruption inflicted by today’s decision.
The Court responds to these and other concerns with the truism that significant consequences are no “license for us to disregard the law.” Ibid.
Of course not. But when those consequences are drastic precisely because they depart from how the law has been applied for more than a century—a settled understanding that our precedents demand we consider—they are reason to think the Court may have taken a wrong turn in its analysis.
* * *
As the Creek, the State of Oklahoma, the United States, and our judicial predecessors have long agreed, Congress disestablished any Creek reservation more than 100 years ago. Oklahoma therefore had jurisdiction to prosecute McGirt. I respectfully dissent.