« Josh Blackman: Presidential Subpoenas during the Burr Trials
Michael Ramsey
| Main | Josh Blackman & Seth Barrett Tillman on Impeaching Territorial Officers
Michael Ramsey »


In the McGirt Case the Courts Should Have Held the Major Crimes Act Unconstitutional as Applied
Andrew Hyman

Earlier this month, the U.S. Supreme Court decided the case of McGirt v. Oklahoma.  SCOTUSBlog has background materials here.

By a 5-4 vote, the Court decided that almost half of Oklahoma, including much of the city of Tulsa, is still a "reservation" of the Creek Tribe, even though everyone agrees that the state and federal governments have not treated it as such for over a hundred years.  Several more tribes may now get similar rulings, covering even more land in Oklahoma.  The main impact may well not be as huge as some media outlets suggest; prosecution and trial of major crimes involving Native Americans may shift from the State government to the Federal government, plus a few other changes.  However, it seems inevitable that Congress will have to act in some way, because the Court’s opinion by Justice Gorsuch suggests that no government at all has legitimate authority to prosecute various minor crimes involving Native Americans, but it is unknown whether Congress will be inclined to shift jurisdiction over major crimes back to the State of Oklahoma.   

I think McGirt was probably wrongly decided, although it’s not as clear a legal mistake as the recent Bostock decision (about which I briefly commented here).  Whether it was decided rightly or wrongly, McGirt  has much interesting information about how the majority and the dissent regard (or disregard) the original meaning of laws.

In McGirt, Justice Gorsuch spoke for himself, Breyer, Kagan, Sotomayor, and Ginsburg.  Chief Justice Roberts wrote the main dissent.  The case was about Jimcy McGirt, an enrolled member of the Seminole Nation who was convicted in Oklahoma state court of raping his wife’s four-year-old granddaughter.  Everyone agrees that the crime happened on land that (at one time at least) has been part of a Creek Reservation.  And everyone agrees that Congress has exercised its power to reduce or diminish that Creek Reservation from what it once was.  Moreover, everyone agrees that a pertinent federal statute is the Major Crimes Act (MCA).  That statute, which has been amended since it was first written in 1885, can be found at 18 USC 1153.  The statute uses the term "Indian Country" which includes various categories described at 18 USC 1151, including Native American reservations.  As far as I can tell, the word “reservation” maintains the same meaning now as it had in the original text of the MCA (p. 385) (emphasis added):

Indians committing [certain major crimes] against the person or property of another Indian or other person within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.

The constitutionality of the MCA was upheld in U.S. v. Kagama, 118 U.S. 375 (1886).  Justice Samuel Miller wrote the unanimous opinion in that 1886 case, and he said that the MCA was valid assuming the reservation had certain characteristics.  Regardless of whether the area at issue in McGirt is a “reservation” within the original meaning of the MCA, the MCA is inapplicable to that area if it is not enough of a reservation to meet the criteria set forth in Kagama.  Here’s what Miller wrote:

It seems to us that this is within the competency of Congress. These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.

It seems to me that the MCA is unconstitutional as applied, if a reservation does not meet these conditions described in 1886 by a unanimous U.S. Supreme Court.  It’s true that the Kagama opinion is dated a year after the MCA, and therefore could not have influenced the Congress and the public who allowed the MCA to become law.  But I think the Kagama Court was correct to impose certain conditions upon the reservations to which the MCA can apply within the boundaries of a state, the older sources cited by Justice Miller are compelling, and I don’t think those conditions are satisfied by the Creek Reservation, whether it still exists as a "reservation" or not.  So, it was disappointing that the Court did not mention Kagama in McGirt, nor whether the MCA might be unconstitutional as applied, but perhaps those issues were not properly raised by counsel.

MICHAEL RAMSEY ADDS:  I'm not sure what I think of McGirt or the Major Crimes Act, but to be fully originalist about the matter I think one would have to say that U.S. v. Kagama is wrong (at least on its reasoning).  As described above, the question in Kagama was whether Congress had constitutional power to criminalize wrongs between members of tribes.  In addition to the paragraph quoted above, the core of the Court's analysis in finding the power was this:

The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.

Wrong, wrong wrong.  Power does not exist in the "General Government" (i.e., Congress) because it is "necessary" or it "must" exist.  By the Tenth Amendment, a power exists in the General Government if it is delegated to the General Government by the Constitution; otherwise is it reserved to the states or the people.  Kagama is one of a series of cases in the late nineteenth century in which the Court disregarded the Tenth Amendment and found congressional power over various matters simply because those powers were properly exercised by sovereign nations and the national government was (it said) the logical place for them.  And most of these cases, like Kagama, asserted without foundation that the states could not exercise the powers in question.  But typically states could exercise the powers -- for example, in Kagama, there wasn't any practical reason states couldn't regulate crimes among tribal members within state boundaries, although there may have been reasons this would have been a bad idea.

That doesn't mean the Major Crimes Act is unconstitutional as a general matter.  Congress has power to implement treaties (including treaties with the tribes) and to make rules respecting the territory and property of the United States (art. IV).  But as an original matter an application of the Major Crimes Act or other aspects of federal law respecting the tribes needs to be linked to these constitutional powers, not merely to the Court's supposed concern over the plight of the tribes and the needs of sovereignty.

ANDREW HYMAN REPLIES:  The quote I provided above from Kagama does reference the treaty power, saying that from “treaties in which [protection] has been promised, there arises the duty of protection, and with it the power.”  Thus, the Court in Kagama analyzed whether the Native Americans in question really needed the protection of the Major Crimes Act, and Justice Miller explained why they did in that particular case.  If one accepts that the Treaty Clause allows incursions into power otherwise reserved to the states (perhaps based upon a legitimate international concern), then Kagama seems like a valid implementation of that view.   Either way, the result in McGirt was likely wrong, because it’s inconsistent with the rule in Kagama, or because the Treaty Clause does not allow incursions into Tenth Amendment power.  My understanding is that everyone agrees the land at issue in McGirt is not the territory or property of the United States (the MCA says it’s not “within the exclusive jurisdiction of the United States”).