McGirt v. Oklahoma

(Slip Opinion) OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

McGIRT v. OKLAHOMA

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF

OKLAHOMA

No. 18–9526. Argued May 11, 2020—Decided July 9, 2020

The Major Crimes Act (MCA) provides that, within “the Indian country,”

“[a]ny Indian who commits” certain enumerated offenses “shall be sub-

ject to the same law and penalties as all other persons committing any

of [those] offenses, within the exclusive jurisdiction of the United

States.” 18 U. S. C. §1153(a). “Indian country” includes “all land

within the limits of any Indian reservation under the jurisdiction of

the United States Government.” §1151. Petitioner Jimcy McGirt was

convicted by an Oklahoma state court of three serious sexual offenses.

He unsuccessfully argued in state postconviction proceedings that the

State lacked jurisdiction to prosecute him because he is an enrolled

member of the Seminole Nation and his crimes took place on the Creek

Reservation. He seeks a new trial, which, he contends, must take place

in federal court.

Held: For MCA purposes, land reserved for the Creek Nation since the

19th century remains “Indian country.” Pp. 3–42.

(a) Congress established a reservation for the Creek Nation. An

1833 Treaty fixed borders for a “permanent home to the whole Creek

Nation of Indians,” 7 Stat. 418, and promised that the United States

would “grant a patent, in fee simple, to the Creek nation of Indians for

the [assigned] land” to continue “so long as they shall exist as a nation,

and continue to occupy the country hereby assigned to them,” id., at

419. The patent formally issued in 1852.

Though the early treaties did not refer to the Creek lands as a “res-

ervation,” similar language in treaties from the same era has been held

sufficient to create a reservation, see, e.g., Menominee Tribe v. United

States, 391 U. S. 404, 405, and later Acts of Congress—referring to the

“Creek reservation”—leave no room for doubt, see, e.g., 17 Stat. 626.

In addition, an 1856 Treaty promised that “no portion” of Creek lands

2 MCGIRT v. OKLAHOMA

Syllabus

“would ever be embraced or included within, or annexed to, any Terri-

tory or State,” 11 Stat. 700, and that the Creeks would have the “un-

restricted right of self-government,” with “full jurisdiction” over en-

rolled Tribe members and their property, id., at 704. Pp. 3–6.

(b) Congress has since broken more than a few promises to the Tribe.

Nevertheless, the Creek Reservation persists today. Pp. 6–28.

(1) Once a federal reservation is established, only Congress can

diminish or disestablish it. Doing so requires a clear expression of con-

gressional intent. Pp. 6–8.

(2) Oklahoma claims that Congress ended the Creek Reservation

during the so-called “allotment era”—a period when Congress sought

to pressure many tribes to abandon their communal lifestyles and par-

cel their lands into smaller lots owned by individual tribal members.

Missing from the allotment-era agreement with the Creek, see 31 Stat.

862–864, however, is any statute evincing anything like the “present

and total surrender of all tribal interests” in the affected lands. And

this Court has already rejected the argument that allotments automat-

ically ended reservations. Pp. 8–13.

(3) Oklahoma points to other ways Congress intruded on the

Creeks’ promised right to self-governance during the allotment era, in-

cluding abolishing the Creeks’ tribal courts, 30 Stat. 504–505, and re-

quiring Presidential approval for certain tribal ordinances, 31 Stat.

872. But these laws fall short of eliminating all tribal interest in the

contested lands. Pp. 13–17.

(4) Oklahoma ultimately claims that historical practice and de-

mographics are enough by themselves to prove disestablishment. This

Court has consulted contemporaneous usages, customs, and practices

to the extent they shed light on the meaning of ambiguous statutory

terms, but Oklahoma points to no ambiguous language in any of the

relevant statutes that could plausibly be read as an act of cession.

Such extratextual considerations are of “ ‘limited interpretive value,’ ”

Nebraska v. Parker, 577 U. S. 481, ___, and the “least compelling” form

of evidence, South Dakota v. Yankton Sioux Tribe, 522 U. S. 329, 356.

In the end, Oklahoma resorts to the State’s long historical practice of

prosecuting Indians in state court for serious crimes on the contested

lands, various statements made during the allotment era, and the

speedy and persistent movement of white settlers into the area. But

these supply little help with the law’s meaning and much potential for

mischief. Pp. 17–28.

(c) In the alternative, Oklahoma contends that Congress never es-

tablished a reservation but instead created a “dependent Indian com-

munity.” To hold that the Creek never had a reservation would require

willful blindness to the statutory language and a belief that the land

Cite as: 591 U. S. ____ (2020) 3

Syllabus

patent the Creek received somehow made their tribal sovereignty eas-

ier to divest. Congress established a reservation, not a dependent In-

dian community, for the Creek Nation. Pp. 28–31.

(d) Even assuming that the Creek land is a reservation, Oklahoma

argues that the MCA has never applied in eastern Oklahoma. It

claims that the Oklahoma Enabling Act, which transferred all non-

federal cases pending in the territorial courts to Oklahoma’s state

courts, made the State’s courts the successors to the federal territorial

courts’ sweeping authority to try Indians for crimes committed on res-

ervations. That argument, however, rests on state prosecutorial prac-

tices that defy the MCA, rather than on the law’s plain terms. Pp. 32–

36.

(e) Finally, Oklahoma warns of the potential consequences that will

follow a ruling against it, such as unsettling an untold number of con-

victions and frustrating the State’s ability to prosecute crimes in the

future. This Court is aware of the potential for cost and conflict around

jurisdictional boundaries. But Oklahoma and its tribes have proven

time and again that they can work successfully together as partners,

and Congress remains free to supplement its statutory directions

about the lands in question at any time. Pp. 36–42.

Reversed.

GORSUCH, J., delivered the opinion of the Court, in which GINSBURG,

BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dis-

senting opinion, in which ALITO and KAVANAUGH, JJ., joined, and in

which THOMAS, J., joined, except as to footnote 9. THOMAS, J., filed a dis-

senting opinion.

Cite as: 591 U. S. ____ (2020) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–9526

_________________

JIMCY MCGIRT, PETITIONER v. OKLAHOMA

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS OF OKLAHOMA

[July 9, 2020]

JUSTICE GORSUCH delivered the opinion of the Court.

On the far end of the Trail of Tears was a promise. Forced

to leave their ancestral lands in Georgia and Alabama, the

Creek Nation received assurances that their new lands in

the West would be secure forever. In exchange for ceding

“all their land, East of the Mississippi river,” the U. S. gov-

ernment agreed by treaty that “[t]he Creek country west of

the Mississippi shall be solemnly guarantied to the Creek

Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24,

1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled

on boundary lines for a new and “permanent home to the

whole Creek nation,” located in what is now Oklahoma.

Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat.

418 (1833 Treaty). The government further promised that

“[no] State or Territory [shall] ever have a right to pass laws

for the government of such Indians, but they shall be al-

lowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat.

368.

Today we are asked whether the land these treaties

promised remains an Indian reservation for purposes of fed-

eral criminal law. Because Congress has not said other-

wise, we hold the government to its word.

2 MCGIRT v. OKLAHOMA

Opinion of the Court

I

At one level, the question before us concerns Jimcy

McGirt. Years ago, an Oklahoma state court convicted him

of three serious sexual offenses. Since then, he has argued

in postconviction proceedings that the State lacked jurisdic-

tion to prosecute him because he is an enrolled member of

the Seminole Nation of Oklahoma and his crimes took place

on the Creek Reservation. A new trial for his conduct, he

has contended, must take place in federal court. The Okla-

homa state courts hearing Mr. McGirt’s arguments rejected

them, so he now brings them here.

Mr. McGirt’s appeal rests on the federal Major Crimes

Act (MCA). The statute provides that, within “the Indian

country,” “[a]ny Indian who commits” certain enumerated

offenses “against the person or property of another Indian

or any other person” “shall be subject to the same law and

penalties as all other persons committing any of the above

offenses, within the exclusive jurisdiction of the United

States.” 18 U. S. C. §1153(a). By subjecting Indians to fed-

eral trials for crimes committed on tribal lands, Congress

may have breached its promises to tribes like the Creek

that they would be free to govern themselves. But this par-

ticular incursion has its limits—applying only to certain

enumerated crimes and allowing only the federal govern-

ment to try Indians. State courts generally have no juris-

diction to try Indians for conduct committed in “Indian

country.” Negonsott v. Samuels, 507 U. S. 99, 102–103

(1993).

The key question Mr. McGirt faces concerns that last

qualification: Did he commit his crimes in Indian country?

A neighboring provision of the MCA defines the term to in-

clude, among other things, “all land within the limits of any

Indian reservation under the jurisdiction of the United

States Government, notwithstanding the issuance of any

patent, and, including rights-of-way running through the

reservation.” §1151(a). Mr. McGirt submits he can satisfy

Cite as: 591 U. S. ____ (2020) 3

Opinion of the Court

this condition because he committed his crimes on land re-

served for the Creek since the 19th century.

The Creek Nation has joined Mr. McGirt as amicus cu-

riae. Not because the Tribe is interested in shielding Mr.

McGirt from responsibility for his crimes. Instead, the

Creek Nation participates because Mr. McGirt’s personal

interests wind up implicating the Tribe’s. No one disputes

that Mr. McGirt’s crimes were committed on lands de-

scribed as the Creek Reservation in an 1866 treaty and fed-

eral statute. But, in seeking to defend the state-court judg-

ment below, Oklahoma has put aside whatever procedural

defenses it might have and asked us to confirm that the

land once given to the Creeks is no longer a reservation to-

day.

At another level, then, Mr. McGirt’s case winds up as a

contest between State and Tribe. The scope of their dispute

is limited; nothing we might say today could unsettle Okla-

homa’s authority to try non-Indians for crimes against non-

Indians on the lands in question. See United States v.

McBratney, 104 U. S. 621, 624 (1882). Still, the stakes are

not insignificant. If Mr. McGirt and the Tribe are right, the

State has no right to prosecute Indians for crimes commit-

ted in a portion of Northeastern Oklahoma that includes

most of the city of Tulsa. Responsibility to try these matters

would fall instead to the federal government and Tribe. Re-

cently, the question has taken on more salience too. While

Oklahoma state courts have rejected any suggestion that

the lands in question remain a reservation, the Tenth Cir-

cuit has reached the opposite conclusion. Murphy v. Royal,

875 F. 3d 896, 907–909, 966 (2017). We granted certiorari

to settle the question. 589 U. S. ___ (2019).

II

Start with what should be obvious: Congress established

a reservation for the Creeks. In a series of treaties, Con-

4 MCGIRT v. OKLAHOMA

Opinion of the Court

gress not only “solemnly guarantied” the land but also “es-

tablish[ed] boundary lines which will secure a country and

permanent home to the whole Creek Nation of Indians.”

1832 Treaty, Art. XIV, 7 Stat. 368; 1833 Treaty, preamble,

7 Stat. 418. The government’s promises weren’t made gra-

tuitously. Rather, the 1832 Treaty acknowledged that

“[t]he United States are desirous that the Creeks should re-

move to the country west of the Mississippi” and, in service

of that goal, required the Creeks to cede all lands in the

East. Arts. I, XII, 7 Stat. 366, 367. Nor were the govern-

ment’s promises meant to be delusory. Congress twice as-

sured the Creeks that “[the] Treaty shall be obligatory on

the contracting parties, as soon as the same shall be ratified

by the United States.” 1832 Treaty, Art. XV, id., at 368; see

1833 Treaty, Art. IX, 7 Stat. 420 (“agreement shall be bind-

ing and obligatory” upon ratification). Both treaties were

duly ratified and enacted as law.

Because the Tribe’s move west was ostensibly voluntary,

Congress held out another assurance as well. In the statute

that precipitated these negotiations, Congress authorized

the President “to assure the tribe . . . that the United States

will forever secure and guaranty to them . . . the country so

exchanged with them.” Indian Removal Act of 1830, §3, 4

Stat. 412. “[A]nd if they prefer it,” the bill continued, “the

United States will cause a patent or grant to be made and

executed to them for the same; Provided always, that such

lands shall revert to the United States, if the Indians be-

come extinct, or abandon the same.” Ibid. If agreeable to

all sides, a tribe would not only enjoy the government’s sol-

emn treaty promises; it would hold legal title to its lands.

It was an offer the Creek accepted. The 1833 Treaty fixed

borders for what was to be a “permanent home to the whole

Creek nation of Indians.” 1833 Treaty, preamble, 7 Stat.

418. It also established that the “United States will grant

a patent, in fee simple, to the Creek nation of Indians for

the land assigned said nation by this treaty.” Art. III, id.,

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Opinion of the Court

at 419. That grant came with the caveat that “the right

thus guaranteed by the United States shall be continued to

said tribe of Indians, so long as they shall exist as a nation,

and continue to occupy the country hereby assigned to

them.” Ibid. The promised patent formally issued in 1852.

See Woodward v. De Graffenried, 238 U. S. 284, 293–294

(1915).

These early treaties did not refer to the Creek lands as a

“reservation”—perhaps because that word had not yet ac-

quired such distinctive significance in federal Indian law.

But we have found similar language in treaties from the

same era sufficient to create a reservation. See Menominee

Tribe v. United States, 391 U. S. 404, 405 (1968) (grant of

land “ ‘for a home, to be held as Indian lands are held,’ ” es-

tablished a reservation). And later Acts of Congress left no

room for doubt. In 1866, the United States entered yet an-

other treaty with the Creek Nation. This agreement re-

duced the size of the land set aside for the Creek, compen-

sating the Tribe at a price of 30 cents an acre. Treaty

Between the United States and the Creek Nation of Indi-

ans, Art. III, June 14, 1866, 14 Stat. 786. But Congress ex-

plicitly restated its commitment that the remaining land

would “be forever set apart as a home for said Creek Na-

tion,” which it now referred to as “the reduced Creek reser-

vation.” Arts. III, IX, id., at 786, 788.1 Throughout the late

——————

1 The dissent by THE CHIEF JUSTICE (hereinafter the dissent) suggests

that the Creek’s intervening alliance with the Confederacy “ ‘unsettled’ ”

and “ ‘forfeit[ed]’ ” the longstanding promises of the United States. Post,

at 3. But the Treaty of 1866 put an end to any Civil War hostility, prom-

ising mutual amnesty, “perpetual peace and friendship,” and guarantee-

ing the Tribe the “quiet possession of their country.” Art. I, 14 Stat. 786.

Though this treaty expressly reduced the size of the Creek Reservation,

the Creek were compensated for the lost territory, and otherwise “re-

tained” their unceded portion. Art. III, ibid. Contrary to the dissent’s

implication, nothing in the Treaty of 1866 purported to repeal prior

treaty promises. Cf. Art. XII, id., at 790 (the United States expressly “re-

affirms and reassumes all obligations of treaty stipulations with the

6 MCGIRT v. OKLAHOMA

Opinion of the Court

19th century, many other federal laws also expressly re-

ferred to the Creek Reservation. See, e.g., Treaty Between

United States and Cherokee Nation of Indians, Art. IV, July

19, 1866, 14 Stat. 800 (“Creek reservation”); Act of Mar. 3,

1873, ch. 322, 17 Stat. 626; (multiple references to the

“Creek reservation” and “Creek India[n] Reservation”); 11

Cong. Rec. 2351 (1881) (discussing “the dividing line be-

tween the Creek reservation and their ceded lands”); Act of

Feb. 13, 1891, 26 Stat. 750 (describing a cession by refer-

encing the “West boundary line of the Creek Reservation”).

There is a final set of assurances that bear mention, too.

In the Treaty of 1856, Congress promised that “no portion”

of the Creek Reservation “shall ever be embraced or in-

cluded within, or annexed to, any Territory or State.” Art.

IV, 11 Stat. 700. And within their lands, with exceptions,

the Creeks were to be “secured in the unrestricted right of

self-government,” with “full jurisdiction” over enrolled

Tribe members and their property. Art. XV, id., at 704. So

the Creek were promised not only a “permanent home” that

would be “forever set apart”; they were also assured a right

to self-government on lands that would lie outside both the

legal jurisdiction and geographic boundaries of any State.

Under any definition, this was a reservation.

III

A

While there can be no question that Congress established

a reservation for the Creek Nation, it’s equally clear that

Congress has since broken more than a few of its promises

to the Tribe. Not least, the land described in the parties’

treaties, once undivided and held by the Tribe, is now frac-

tured into pieces. While these pieces were initially distrib-

uted to Tribe members, many were sold and now belong to

persons unaffiliated with the Nation. So in what sense, if

——————

Creek nation entered into before” the Civil War).

Cite as: 591 U. S. ____ (2020) 7

Opinion of the Court

any, can we say that the Creek Reservation persists today?

To determine whether a tribe continues to hold a reser-

vation, there is only one place we may look: the Acts of Con-

gress. This Court long ago held that the Legislature wields

significant constitutional authority when it comes to tribal

relations, possessing even the authority to breach its own

promises and treaties. Lone Wolf v. Hitchcock, 187 U. S.

553, 566–568 (1903). But that power, this Court has cau-

tioned, belongs to Congress alone. Nor will this Court

lightly infer such a breach once Congress has established a

reservation. Solem v. Bartlett, 465 U. S. 463, 470 (1984).

Under our Constitution, States have no authority to re-

duce federal reservations lying within their borders. Just

imagine if they did. A State could encroach on the tribal

boundaries or legal rights Congress provided, and, with

enough time and patience, nullify the promises made in the

name of the United States. That would be at odds with the

Constitution, which entrusts Congress with the authority

to regulate commerce with Native Americans, and directs

that federal treaties and statutes are the “supreme Law of

the Land.” Art. I, §8; Art. VI, cl. 2. It would also leave tribal

rights in the hands of the very neighbors who might be least

inclined to respect them.

Likewise, courts have no proper role in the adjustment of

reservation borders. Mustering the broad social consensus

required to pass new legislation is a deliberately hard busi-

ness under our Constitution. Faced with this daunting

task, Congress sometimes might wish an inconvenient res-

ervation would simply disappear. Short of that, legislators

might seek to pass laws that tiptoe to the edge of disestab-

lishment and hope that judges—facing no possibility of elec-

toral consequences themselves—will deliver the final push.

But wishes don’t make for laws, and saving the political

branches the embarrassment of disestablishing a reserva-

tion is not one of our constitutionally assigned prerogatives.

“[O]nly Congress can divest a reservation of its land and

8 MCGIRT v. OKLAHOMA

Opinion of the Court

diminish its boundaries.” Solem, 465 U. S., at 470. So it’s

no matter how many other promises to a tribe the federal

government has already broken. If Congress wishes to

break the promise of a reservation, it must say so.

History shows that Congress knows how to withdraw a

reservation when it can muster the will. Sometimes, legis-

lation has provided an “[e]xplicit reference to cession” or an

“unconditional commitment . . . to compensate the Indian

tribe for its opened land.” Ibid. Other times, Congress has

directed that tribal lands shall be “ ‘restored to the public

domain.’ ” Hagen v. Utah, 510 U. S. 399, 412 (1994) (em-

phasis deleted). Likewise, Congress might speak of a res-

ervation as being “ ‘discontinued,’ ” “ ‘abolished,’ ” or “ ‘va-

cated.’ ” Mattz v. Arnett, 412 U. S. 481, 504, n. 22 (1973).

Disestablishment has “never required any particular form

of words,” Hagen, 510 U. S., at 411. But it does require that

Congress clearly express its intent to do so, “[c]ommon[ly

with an] ‘[e]xplicit reference to cession or other language

evidencing the present and total surrender of all tribal in-

terests.’ ” Nebraska v. Parker, 577 U. S. 481, ___–___ (2016)

(slip op., at 6).

B

In an effort to show Congress has done just that with the

Creek Reservation, Oklahoma points to events during the

so-called “allotment era.” Starting in the 1880s, Congress

sought to pressure many tribes to abandon their communal

lifestyles and parcel their lands into smaller lots owned by

individual tribe members. See 1 F. Cohen, Handbook of

Federal Indian Law §1.04 (2012) (Cohen), discussing Gen-

eral Allotment Act of 1887, ch. 119, 24 Stat. 388. Some al-

lotment advocates hoped that the policy would create a

class of assimilated, landowning, agrarian Native Ameri-

cans. See Cohen §1.04; F. Hoxie, A Final Promise: The

Campaign To Assimilate 18–19 (2001). Others may have

hoped that, with lands in individual hands and (eventually)

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Opinion of the Court

freely alienable, white settlers would have more space of

their own. See id., at 14–15; cf. General Allotment Act of

1887, §5, 24 Stat. 389–390.

The Creek were hardly exempt from the pressures of the

allotment era. In 1893, Congress charged the Dawes Com-

mission with negotiating changes to the Creek Reservation.

Congress identified two goals: Either persuade the Creek

to cede territory to the United States, as it had before, or

agree to allot its lands to Tribe members. Act of Mar. 3,

1893, ch. 209, §16, 27 Stat. 645–646. A year later, the Com-

mission reported back that the Tribe “would not, under any

circumstances, agree to cede any portion of their lands.” S.

Misc. Doc. No. 24, 53d Cong., 3d Sess., 7 (1894). At that

time, before this Court’s decision in Lone Wolf, Congress

may not have been entirely sure of its power to terminate

an established reservation unilaterally. Perhaps for that

reason, perhaps for others, the Commission and Congress

took this report seriously and turned their attention to al-

lotment rather than cession.2

The Commission’s work culminated in an allotment

agreement with the Tribe in 1901. Creek Allotment Agree-

ment, ch. 676, 31 Stat. 861. With exceptions for certain pre-

existing town sites and other special matters, the Agree-

ment established procedures for allotting 160-acre parcels

to individual Tribe members who could not sell, transfer, or

otherwise encumber their allotments for a number of years.

§§3, 7, id., at 862–864 (5 years for any portion, 21 years for

the designated “homestead” portion). Tribe members were

given deeds for their parcels that “convey[ed] to [them] all

right, title, and interest of the Creek Nation.” §23, id., at

——————

2 The dissent stresses, repeatedly, that the Dawes Commission was

charged with seeking to extinguish the reservation. Post, at 18, 24. Yet,

the dissent fails to mention the Commission’s various reports acknowl-

edging that those efforts were unsuccessful precisely because the Creek

refused to cede their lands.

10 MCGIRT v. OKLAHOMA

Opinion of the Court

867–868. In 1908, Congress relaxed these alienation re-

strictions in some ways, and even allowed the Secretary of

the Interior to waive them. Act of May 27, 1908, ch. 199,

§1, 35 Stat. 312. One way or the other, individual Tribe

members were eventually free to sell their land to Indians

and non-Indians alike.

Missing in all this, however, is a statute evincing any-

thing like the “present and total surrender of all tribal in-

terests” in the affected lands. Without doubt, in 1832 the

Creek “cede[d]” their original homelands east of the Missis-

sippi for a reservation promised in what is now Oklahoma.

1832 Treaty, Art. I, 7 Stat. 366. And in 1866, they “cede[d]

and convey[ed]” a portion of that reservation to the United

States. Treaty With the Creek, Art. III, 14 Stat. 786. But

because there exists no equivalent law terminating what

remained, the Creek Reservation survived allotment.

In saying this we say nothing new. For years, States have

sought to suggest that allotments automatically ended res-

ervations, and for years courts have rejected the argument.

Remember, Congress has defined “Indian country” to in-

clude “all land within the limits of any Indian reservation

. . . notwithstanding the issuance of any patent, and, includ-

ing any rights-of-way running through the reservation.” 18

U. S. C. §1151(a). So the relevant statute expressly contem-

plates private land ownership within reservation bounda-

ries. Nor under the statute’s terms does it matter whether

these individual parcels have passed hands to non-Indians.

To the contrary, this Court has explained repeatedly that

Congress does not disestablish a reservation simply by al-

lowing the transfer of individual plots, whether to Native

Americans or others. See Mattz, 412 U. S., at 497 (“[A]llot-

ment under the . . . Act is completely consistent with con-

tinued reservation status”); Seymour v. Superintendent of

Wash. State Penitentiary, 368 U. S. 351, 356–358 (1962)

(holding that allotment act “did no more than open the way

for non-Indian settlers to own land on the reservation”);

Cite as: 591 U. S. ____ (2020) 11

Opinion of the Court

Parker, 577 U. S., at ___ (slip op., at 7) (“[T]he 1882 Act falls

into another category of surplus land Acts: those that

merely opened reservation land to settlement. . . . Such

schemes allow non-Indian settlers to own land on the res-

ervation” (internal quotation marks omitted)).

It isn’t so hard to see why. The federal government issued

its own land patents to many homesteaders throughout the

West. These patents transferred legal title and are the ba-

sis for much of the private land ownership in a number of

States today. But no one thinks any of this diminished the

United States’s claim to sovereignty over any land. To ac-

complish that would require an act of cession, the transfer

of a sovereign claim from one nation to another. 3 E. Wash-

burn, American Law of Real Property *521–*524. And

there is no reason why Congress cannot reserve land for

tribes in much the same way, allowing them to continue to

exercise governmental functions over land even if they no

longer own it communally. Indeed, such an arrangement

seems to be contemplated by §1151(a)’s plain terms. Cf.

Seymour, 368 U. S., at 357–358.3

Oklahoma reminds us that allotment was often the first

step in a plan ultimately aimed at disestablishment. As

this Court explained in Mattz, Congress’s expressed policy

at the time “was to continue the reservation system and the

trust status of Indian lands, but to allot tracts to individual

Indians for agriculture and grazing.” 412 U. S., at 496.

Then, “[w]hen all the lands had been allotted and the trust

expired, the reservation could be abolished.” Ibid. This

plan was set in motion nationally in the General Allotment

——————

3 The dissent not only fails to acknowledge these features of the statute

and our precedents. It proceeds in defiance of them, suggesting that by

moving to eliminate communal title and relaxing restrictions on aliena-

tion, “Congress destroyed the foundation of [the Creek Nation’s] sover-

eignty.” Post, at 18–19. But this Court long ago rejected the notion that

the purchase of lands by non-Indians is inconsistent with reservation

status. See Seymour, 368 U. S., at 357–358.

12 MCGIRT v. OKLAHOMA

Opinion of the Court

Act of 1887, and for the Creek specifically in 1901. No

doubt, this is why Congress at the turn of the 20th century

“believed to a man” that “the reservation system would

cease” “within a generation at most.” Solem, 465 U. S., at

468. Still, just as wishes are not laws, future plans aren’t

either. Congress may have passed allotment laws to create

the conditions for disestablishment. But to equate allot-

ment with disestablishment would confuse the first step of

a march with arrival at its destination.4

Ignoring this distinction would run roughshod over many

other statutes as well. In some cases, Congress chose not

to wait for allotment to run its course before disestablishing

a reservation. When it deemed that approach appropriate,

Congress included additional language expressly ending

reservation status. So, for example, in 1904, Congress al-

lotted reservations belonging to the Ponca and Otoe Tribes,

reservations also lying within modern-day Oklahoma, and

then provided “further, That the reservation lines of the

said . . . reservations . . . are hereby abolished.” Act of Apr.

21, 1904, §8, 33 Stat. 217–218 (emphasis deleted); see also

DeCoteau v. District County Court for Tenth Judicial Dist.,

420 U. S. 425, 439–440, n. 22 (1975) (collecting other exam-

ples). Tellingly, however, nothing like that can be found in

the nearly contemporary 1901 Creek Allotment Agreement

or the 1908 Act. That doesn’t make these laws special. Ra-

ther, in using the language that they did, these allotment

laws tracked others of the period, parceling out individual

——————

4 The dissent seemingly conflates these steps in other ways, too, by im-

plying that the passage of an allotment Act itself extinguished title. Post,

at 18–19. The reality proved more complicated. Allotment of the Creek

lands did not occur overnight, but dragged on for years, well past Okla-

homa’s statehood, until Congress finally prohibited any further allot-

ments more than 15 years later. Act of Mar. 2, 1917, 39 Stat. 986.

Cite as: 591 U. S. ____ (2020) 13

Opinion of the Court

tracts, while saving the ultimate fate of the land’s reserva-

tion status for another day.5

C

If allotment by itself won’t work, Oklahoma seeks to

prove disestablishment by pointing to other ways Congress

intruded on the Creek’s promised right to self-governance

during the allotment era. It turns out there were many.

For example, just a few years before the 1901 Creek Allot-

ment Agreement, and perhaps in an effort to pressure the

Tribe to the negotiating table, Congress abolished the

Creeks’ tribal courts and transferred all pending civil and

criminal cases to the U. S. Courts of the Indian Territory.

Curtis Act of 1898, §28, 30 Stat. 504–505. Separately, the

Creek Allotment Agreement provided that tribal ordi-

nances “affecting the lands of the Tribe, or of individuals

after allotment, or the moneys or other property of the

Tribe, or of the citizens thereof ” would not be valid until

approved by the President of the United States. §42, 31

Stat. 872.

Plainly, these laws represented serious blows to the

——————

5 The dissent doesn’t purport to find any of the hallmarks of diminish-

ment in the Creek Allotment Agreement. Instead, the dissent tries to

excuse their absence by saying that it would have made “little sense” to

find such language in an Act transferring the Tribe’s lands to private

owners. Post, at 14. But the dissent’s account is impossible to reconcile

with history and precedent. As we have noted, plenty of allotment agree-

ments during this era included precisely the language of cession and

compensation that the dissent says it would make “little sense” to find

there. And this Court has confirmed time and again that allotment

agreements without such language do not necessarily disestablish or di-

minish the reservation at issue. See Mattz v. Arnett, 412 U. S. 481, 497

(1973); Seymour v. Superintendent of Wash. State Penitentiary, 368 U. S.

351, 358 (1962). The dissent’s only answer is to suggest that allotment

combined with other statutes limiting the Creek Nation’s governing au-

thority amounted to disestablishment—in other words that it’s the argu-

ments in the next section that really do the work.

14 MCGIRT v. OKLAHOMA

Opinion of the Court

Creek. But, just as plainly, they left the Tribe with signifi-

cant sovereign functions over the lands in question. For ex-

ample, the Creek Nation retained the power to collect taxes,

operate schools, legislate through tribal ordinances, and,

soon, oversee the federally mandated allotment process.

§§39, 40, 42, id., at 871–872; Buster v. Wright, 135 F. 947,

949–950, 953–954 (CA8 1905). And, in its own way, the

congressional incursion on tribal legislative processes only

served to prove the power: Congress would have had no

need to subject tribal legislation to Presidential review if

the Tribe lacked any authority to legislate. Grave though

they were, these congressional intrusions on pre-existing

treaty rights fell short of eliminating all tribal interests in

the land.

Much more ominously, the 1901 allotment agreement

ended by announcing that the Creek tribal government

“shall not continue” past 1906, although the agreement

quickly qualified that statement, adding the proviso “sub-

ject to such further legislation as Congress may deem

proper.” §46, 31 Stat. 872. Thus, while suggesting that the

tribal government might end in 1906, Congress also neces-

sarily understood it had not ended in 1901. All of which

was consistent with the Legislature’s general practice of

taking allotment as a first, not final, step toward disestab-

lishment and dissolution.

When 1906 finally arrived, Congress adopted the Five

Civilized Tribes Act. But instead of dissolving the tribal

government as some may have expected, Congress

“deem[ed] proper” a different course, simply cutting away

further at the Tribe’s autonomy. Congress empowered the

President to remove and replace the principal chief of the

Creek, prohibited the tribal council from meeting more than

30 days a year, and directed the Secretary of the Interior to

assume control of tribal schools. §§6, 10, 28, 34 Stat. 139–

140, 148. The Act also provided for the handling of the

Cite as: 591 U. S. ____ (2020) 15

Opinion of the Court

Tribe’s funds, land, and legal liabilities in the event of dis-

solution. §§11, 27, id., at 141, 148. Despite these additional

incursions on tribal authority, however, Congress expressly

recognized the Creek’s “tribal existence and present tribal

governmen[t]” and “continued [them] in full force and effect

for all purposes authorized by law.” §28, id., at 148.

In the years that followed, Congress continued to adjust

its arrangements with the Tribe. For example, in 1908, the

Legislature required Creek officials to turn over all “tribal

properties” to the Secretary of the Interior. Act of May 27,

1908, §13, 35 Stat. 316. The next year, Congress sought the

Creek National Council’s release of certain money claims

against the U. S. government. Act of Mar. 3, 1909, ch. 263,

35 Stat. 781, 805. And, further still, Congress offered the

Creek Nation a one-time opportunity to file suit in the fed-

eral Court of Claims for “any and all legal and equitable

claims arising under or growing out of any treaty or agree-

ment between the United States and the Creek Indian Na-

tion.” Act of May 24, 1924, ch. 181, 43 Stat. 139; see, e.g.,

United States v. Creek Nation, 295 U. S. 103 (1935). But

Congress never withdrew its recognition of the tribal gov-

ernment, and none of its adjustments would have made any

sense if Congress thought it had already completed that job.

Indeed, with time, Congress changed course completely.

Beginning in the 1920s, the federal outlook toward Native

Americans shifted “away from assimilation policies and to-

ward more tolerance and respect for traditional aspects of

Indian culture.” 1 Cohen §1.05. Few in 1900 might have

foreseen such a profound “reversal of attitude” was in the

making or expected that “new protections for Indian

rights,” including renewed “support for federally defined

tribalism,” lurked around the corner. Ibid.; see also M.

Scherer, Imperfect Victories: The Legal Tenacity of the

Omaha Tribe, 1945–1995, pp. 2–4 (1999). But that is ex-

actly what happened. Pursuant to this new national policy,

16 MCGIRT v. OKLAHOMA

Opinion of the Court

in 1936, Congress authorized the Creek to adopt a constitu-

tion and bylaws, see Act of June 26, 1936, §3, 49 Stat. 1967,

enabling the Creek government to resume many of its pre-

viously suspended functions. Muscogee (Creek) Nation v.

Hodel, 851 F. 2d 1439, 1442–1447 (CADC 1988).6

The Creek Nation has done exactly that. In the interven-

ing years, it has ratified a new constitution and established

three separate branches of government. Ibid.; see Mus-

cogee Creek Nation (MCN) Const., Arts. V, VI, and VII. To-

day the Nation is led by a democratically elected Principal

Chief, Second Chief, and National Council; operates a police

force and three hospitals; commands an annual budget of

more than $350 million; and employs over 2,000 people.

Brief for Muscogee (Creek) Nation as Amicus Curiae 36–39.

In 1982, the Nation passed an ordinance reestablishing the

criminal and civil jurisdiction of its courts. See Hodel, 851

F. 2d, at 1442, 1446–1447 (confirming Tribe’s authority to

do so). The territorial jurisdiction of these courts extends

to any Indian country within the Tribe’s territory as defined

by the Treaty of 1866. MCN Stat. 27, §1–102(A). And the

State of Oklahoma has afforded full faith and credit to its

judgments since at least 1994. See Barrett v. Barrett, 878

——————

6 The dissent calls it “fantasy” to suggest that Congress evinced “any

unease about extinguishing the Creek domain” because Congress “did

what it set out to do: transform a reservation into a State.” Post, at 22–

23. The dissent stresses, too, that the Creek were afforded U. S. citizen-

ship and the right to vote. Post, at 20. But the only thing implausible

here is the suggestion that “creat[ing] a new State” or enfranchising Na-

tive Americans implies an “intent to terminate” any and all reservations

within a State’s boundaries. Post, at 15. This Court confronted—and

rejected—that sort of argument long ago in United States v. Sandoval,

231 U. S. 28, 47–48 (1913). The dissent treats that case as a one-off:

special because “the tribe in Sandoval, the Pueblo Indians of New Mex-

ico, retained a rare communal title to their lands.” Post, at 21, n. 4. But

Sandoval is not only a case about the Pueblos; it is a foundational prec-

edent recognizing that Congress can welcome Native Americans to par-

ticipate in a broader political community without sacrificing their tribal

sovereignty.

Cite as: 591 U. S. ____ (2020) 17

Opinion of the Court

P. 2d 1051, 1054 (Okla. 1994); Full Faith and Credit of

Tribal Courts, Okla. State Cts. Network (Apr. 18, 2019),

https://www.oscn.net/applications/oscn/DeliverDocument.

asp?CiteID=458214.

Maybe some of these changes happened for altruistic rea-

sons, maybe some for other reasons. It seems, for example,

that at least certain Members of Congress hesitated about

disestablishment in 1906 because they feared any reversion

of the Creek lands to the public domain would trigger a stat-

utory commitment to hand over portions of these lands to

already powerful railroad interests. See, e.g., 40 Cong. Rec.

2976 (1906) (Sen. McCumber); Id., at 3053 (Sen. Aldrich).

Many of those who advanced the reorganization efforts of

the 1930s may have done so more out of frustration with

efforts to assimilate Native Americans than any disaffec-

tion with assimilation as the ultimate goal. See 1 Cohen

§1.05; Scherer, Imperfect Victories, at 2–4. But whatever

the confluence of reasons, in all this history there simply

arrived no moment when any Act of Congress dissolved the

Creek Tribe or disestablished its reservation. In the end,

Congress moved in the opposite direction.7

D

Ultimately, Oklahoma is left to pursue a very different

sort of argument. Now, the State points to historical prac-

tices and demographics, both around the time of and long

after the enactment of all the relevant legislation. These

facts, the State submits, are enough by themselves to prove

disestablishment. Oklahoma even classifies and catego-

——————

7 The dissent ultimately concedes what Oklahoma will not: that no

“individual congressional action or piece of evidence, standing alone, dis-

established the Creek reservation.” Post, at 9–10. Instead we’re told we

must consider “all of the relevant Acts of Congress together, viewed in

light of contemporaneous and subsequent contextual evidence.” Ibid. So,

once again, the dissent seems to suggest that it’s the arguments in the

next section that will get us across the line to disestablishment.

18 MCGIRT v. OKLAHOMA

Opinion of the Court

rizes how we should approach the question of disestablish-

ment into three “steps.” It reads Solem as requiring us to

examine the laws passed by Congress at the first step, con-

temporary events at the second, and even later events and

demographics at the third. On the State’s account, we have

so far finished only the first step; two more await.

This is mistaken. When interpreting Congress’s work in

this arena, no less than any other, our charge is usually to

ascertain and follow the original meaning of the law before

us. New Prime Inc. v. Oliveira, 586 U. S. ___, ___ (2019)

(slip op., at 6). That is the only “step” proper for a court of

law. To be sure, if during the course of our work an ambig-

uous statutory term or phrase emerges, we will sometimes

consult contemporaneous usages, customs, and practices to

the extent they shed light on the meaning of the language

in question at the time of enactment. Ibid. But Oklahoma

does not point to any ambiguous language in any of the rel-

evant statutes that could plausibly be read as an Act of dis-

establishment. Nor may a court favor contemporaneous or

later practices instead of the laws Congress passed. As So-

lem explained, “[o]nce a block of land is set aside for an In-

dian reservation and no matter what happens to the title of

individual plots within the area, the entire block retains its

reservation status until Congress explicitly indicates other-

wise.” 465 U. S., at 470 (citing United States v. Celestine,

215 U. S. 278, 285 (1909)).

Still, Oklahoma reminds us that other language in Solem

isn’t so constrained. In particular, the State highlights a

passage suggesting that “[w]here 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.” 465 U. S., at 471. While acknowledg-

ing that resort to subsequent demographics was “an unor-

thodox and potentially unreliable method of statutory in-

terpretation,” the Court seemed nonetheless taken by its

Cite as: 591 U. S. ____ (2020) 19

Opinion of the Court

“obvious practical advantages.” Id., at 472, n. 13, 471.

Out of context, statements like these might suggest his-

torical practices or current demographics can suffice to dis-

establish or diminish reservations in the way Oklahoma en-

visions. But, in the end, Solem itself found these kinds of

arguments provided “no help” in resolving the dispute be-

fore it. Id., at 478. Notably, too, Solem suggested that

whatever utility historical practice or demographics might

have was “demonstrated” by this Court’s earlier decision in

Rosebud Sioux Tribe v. Kneip, 430 U. S. 584 (1977). See

Solem, 465 U. S., at 470, n. 10. And Rosebud Sioux hardly

endorsed the use of such sources to find disestablishment.

Instead, based on the statute at issue there, the Court came

“to the firm conclusion that congressional intent” was to di-

minish the reservation in question. 430 U. S., at 603. At

that point, the Tribe sought to cast doubt on the clear im-

port of the text by citing subsequent historical events—and

the Court rejected the Tribe’s argument exactly because this

kind of evidence could not overcome congressional intent as

expressed in a statute. Id., at 604–605.

This Court has already sought to clarify that extratextual

considerations hardly supply the blank check Oklahoma

supposes. In Parker, for example, we explained that “[e]vi-

dence of the subsequent treatment of the disputed land . . .

has ‘limited interpretive value.’ ” 577 U. S., at ___ (slip op.,

at 11) (quoting South Dakota v. Yankton Sioux Tribe, 522

U. S. 329, 355 (1998)).8 Yankton Sioux called it the “least

——————

8 The dissent suggests Parker meant to say only that evidence of sub-

sequent treatment had limited interpretative value “in that case.” Post,

at 12. But the dissent includes just a snippet of the relevant passage.

Read in full, there is little room to doubt Parker invoked a general rule:

“This subsequent demographic history cannot overcome our conclusion

that Congress did not intend to diminish the reservation in 1882. And it

is not our rule to ‘rewrite’ the 1882 Act in light of this subsequent demo-

graphic history. DeCoteau, 420 U. S., at 447. After all, evidence of the

changing demographics of disputed land is ‘the least compelling’ evi-

20 MCGIRT v. OKLAHOMA

Opinion of the Court

compelling” form of evidence. Id., at 356. Both cases em-

phasized that what value such evidence has can only be in-

terpretative—evidence that, at best, might be used to the

extent it sheds light on what the terms found in a statute

meant at the time of the law’s adoption, not as an alterna-

tive means of proving disestablishment or diminishment.

To avoid further confusion, we restate the point. There

is no need to consult extratextual sources when the mean-

ing of a statute’s terms is clear. Nor may extratextual

sources overcome those terms. The only role such materials

can properly play is to help “clear up . . . not create” ambi-

guity about a statute’s original meaning. Milner v. Depart-

ment of Navy, 562 U. S. 562, 574 (2011). And, as we have

said time and again, once a reservation is established, it re-

tains that status “until Congress explicitly indicates other-

wise.” Solem, 465 U. S., at 470 (citing Celestine, 215 U. S.,

at 285); see also Yankton Sioux, 522 U. S., at 343 (“[O]nly

Congress can alter the terms of an Indian treaty by dimin-

ishing a reservation, and its intent to do so must be clear

and plain”) (citation and internal quotation marks omitted).

The dissent charges that we have failed to take account

of the “compelling reasons” for considering extratextual ev-

idence as a matter of course. Post, at 11–12. But Oklahoma

and the dissent have cited no case in which this Court has

found a reservation disestablished without first concluding

that a statute required that result. Perhaps they wish this

case to be the first. To follow Oklahoma and the dissent

down that path, though, would only serve to allow States

and courts to finish work Congress has left undone, usurp

——————

dence in our diminishment analysis, for ‘[e]very surplus land Act neces-

sarily resulted in a surge of non-Indian settlement and degraded the “In-

dian character” of the reservation, yet we have repeatedly stated that not

every surplus land Act diminished the affected reservation.’ Yankton

Sioux, 522 U. S., at 356. . . . Evidence of the subsequent treatment of the

disputed land by Government officials likewise has ‘limited interpretive

value.’ Id., at 355.” 577 U. S., at ___ (slip op., at 11).

Cite as: 591 U. S. ____ (2020) 21

Opinion of the Court

the legislative function in the process, and treat Native

American claims of statutory right as less valuable than

others. None of that can be reconciled with our normal in-

terpretive rules, let alone our rule that disestablishment

may not be lightly inferred and treaty rights are to be con-

strued in favor, not against, tribal rights. Solem, 465 U. S.,

at 472.9

To see the perils of substituting stories for statutes, we

need look no further than the stories we are offered in the

case before us. Put aside that the Tribe could tell more than

a few stories of its own: Take just the evidence on which

Oklahoma and the dissent wish to rest their case. First,

they point to Oklahoma’s long historical prosecutorial prac-

tice of asserting jurisdiction over Indians in state court,

even for serious crimes on the contested lands. If the Creek

lands really were part of a reservation, the argument goes,

all of these cases should have been tried in federal court

pursuant to the MCA. Yet, until the Tenth Circuit’s Mur-

phy decision a few years ago, no court embraced that possi-

bility. See Murphy, 875 F. 3d 896. Second, they offer state-

ments from various sources to show that “everyone” in the

late 19th and early 20th century thought the reservation

system—and the Creek Nation—would be disbanded soon.

Third, they stress that non-Indians swiftly moved on to the

reservation in the early part of the last century, that Tribe

——————

9 In an effort to support its very different course, the dissent stitches

together quotes from Rosebud Sioux Tribe v. Knelp, 430 U. S. 584 (1977),

and South Dakota v. Yankton Sioux Tribe, 522 U. S. 329 (1998). Post, at

10–11. But far from supporting the dissent, both cases emphasize that

“[t]he focus of our inquiry is congressional intent,” Rosebud, 430 U. S., at

588, n. 4; see also Yankton Sioux, 522 U. S., at 343, and merely

acknowledge that extratextual sources may help resolve ambiguity about

Congress’s directions. The dissent’s appeal to Solem fares no better. As

we have seen, the extratextual sources in Solem only confirmed what the

relevant statute already suggested—that the reservation in question was

not diminished or disestablished. 465 U. S., at 475–476.

22 MCGIRT v. OKLAHOMA

Opinion of the Court

members today constitute a small fraction of those now re-

siding on the land, and that the area now includes a “vi-

brant city with expanding aerospace, healthcare, technol-

ogy, manufacturing, and transportation sectors.” Brief for

Petitioner in Carpenter v. Murphy, O. T. 2018, No. 17–1107,

p. 15. All this history, we are told, supplies “compelling”

evidence about the lands in question.

Maybe so, but even taken on its own terms none of this

evidence tells the story we are promised. Start with the

State’s argument about its longstanding practice of assert-

ing jurisdiction over Native Americans. Oklahoma pro-

ceeds on the implicit premise that its historical practices

are unlikely to have defied the mandates of the federal

MCA. That premise, though, appears more than a little

shaky. In conjunction with the MCA, §1151(a) not only

sends to federal court certain major crimes committed by

Indians on reservations. Two doors down, in §1151(c), the

statute does the same for major crimes committed by Indi-

ans on “Indian allotments, the Indian titles of which have

not been extinguished.” Despite this direction, however,

Oklahoma state courts erroneously entertained prosecu-

tions for major crimes by Indians on Indian allotments for

decades, until state courts finally disavowed the practice in

1989. See State v. Klindt, 782 P. 2d 401, 404 (Okla. Crim.

App. 1989) (overruling Ex parte Nowabbi, 60 Okla. Crim.

III, 61 P. 2d 1139 (1936)); see also United States v. Sands,

968 F. 2d 1058, 1062–1063 (CA10 1992). And if the State’s

prosecution practices disregarded §1151(c) for so long, it’s

unclear why we should take those same practices as a reli-

able guide to the meaning and application of §1151(a).

Things only get worse from there. Why did Oklahoma

historically think it could try Native Americans for any

crime committed on restricted allotments or anywhere else?

Part of the explanation, Oklahoma tells us, is that it

thought the eastern half of the State was always categori-

cally exempt from the terms of the federal MCA. So

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Opinion of the Court

whether a crime was committed on a restricted allotment,

a reservation, or land that wasn’t Indian country at all, to

Oklahoma it just didn’t matter. In the State’s view, when

Congress adopted the Oklahoma Enabling Act that paved

the way for its admission to the Union, it carved out a spe-

cial exception to the MCA for the eastern half of the State

where the Creek lands can be found. By Oklahoma’s own

admission, then, for decades its historical practices in the

area in question didn’t even try to conform to the MCA, all

of which makes the State’s past prosecutions a meaningless

guide for determining what counted as Indian country. As

it turns out, too, Oklahoma’s claim to a special exemption

was itself mistaken, yet one more error in historical prac-

tice that even the dissent does not attempt to defend. See

Part V, infra.10

To be fair, Oklahoma is far from the only State that has

overstepped its authority in Indian country. Perhaps often

in good faith, perhaps sometimes not, others made similar

mistakes in the past. But all that only underscores further

the danger of relying on state practices to determine the

meaning of the federal MCA. See, e.g., Negonsett, 507 U. S.,

at 106–107 (“[I]n practice, Kansas had exercised jurisdic-

tion over all offenses committed on Indian reservations in-

volving Indians” (quoting memorandum from Secretary of

the Interior, H. R. Rep. No. 1999, 76th Cong., 3d Sess., 4

(1940)); Scherer, Imperfect Victories, at 18 (describing “na-

tionwide jurisdictional confusion” as a result of the MCA);

——————

10 The dissent tries to avoid this inconvenient history by distinguishing

fee allotments from reservations, noting that the two categories are le-

gally distinct and geographically incommensurate. Post, at 27. But this

misses the point: The reason that Oklahoma thought it could prosecute

Indians for crimes on restricted allotments applied with equal force to

reservations. And it hardly “stretches the imagination” to think that

reason was wrong, post, at 28, when the dissent itself does not dispute

our rejection of it in Part V.

24 MCGIRT v. OKLAHOMA

Opinion of the Court

Cohen §6.04(4)(a) (“Before 1942 the state of New York reg-

ularly exercised or claimed the right to exercise jurisdiction

over the New York reservations, but a federal court decision

in that year raised questions about the validity of state ju-

risdiction”); Brief for United States as Amicus Curiae in

Carpenter v. Murphy, O. T. 2018, No. 17–1107, pp. 7a–8a

(Letter from Secretary of the Interior, Mar. 27, 1963) (not-

ing that many States have asserted criminal jurisdiction

over Indians without an apparent basis in a federal law).11

Oklahoma next points to various statements during the

allotment era which, it says, show that even the Creek un-

derstood their reservation was under threat. And there’s

no doubt about that. By 1893, the leadership of the Creek

Nation saw what the federal government had in mind:

“They [the federal government] do not deny any of our

rights under treaty, but say they will go to the people them-

selves and confer with them and urge upon them the neces-

sity of a change in their present condition, and upon their

refusal will force a change upon them.” P. Porter & A.

McKellop, Printed Statement of Creek Delegates, reprinted

in Creek Delegation Documents 8–9 (Feb. 9, 1893). Not a

decade later, and as a result of these forced changes, the

leadership recognized that “ ‘[i]t would be difficult, if not im-

possible to successfully operate the Creek government

now.’ ” App. to Brief for Respondent 8a (Message to Creek

——————

11 Unable to answer Oklahoma’s admitted error about the very federal

criminal statute before us, the dissent travels far afield, pointing to the

fact an Oklahoma court heard a civil case in 1915 about an inheritance—

involving members of a different Tribe—as “evidence” Congress dises-

tablished the Creek Reservation. See post, at 21 (citing Palmer v. Cully,

52 Okla. 454, 455–465, 153 P. 154, 155–157 (1915) (per curiam)). But

even assuming that Oklahoma courts exercised civil jurisdiction over

Creek members, too, the dissent never explains why this jurisdiction im-

plies the Creek Reservation must have been disestablished. After all,

everyone agrees that the Creeks were prohibited from having their own

courts at the time. So it should be no surprise that some Creek might

have resorted to state courts in hope of resolving their disputes.

Cite as: 591 U. S. ____ (2020) 25

Opinion of the Court

National Council (May 7, 1901), reprinted in The Indian

Journal (May 10, 1901)). Surely, too, the future looked even

bleaker: “ ‘The remnant of a government now accorded to us

can be expected to be maintained only until all settlements

of our landed and other interests growing out of treaty stip-

ulations with the government of the United States shall

have been settled.’ ” Ibid.

But note the nature of these statements. The Creek Na-

tion recognized that the federal government will seek to get

popular support or otherwise would force change. Like-

wise, the Tribe’s government would continue for only so

long. These were prophesies, and hardly groundbreaking

ones at that. After all, the 1901 Creek Allotment Agree-

ment explicitly said that the tribal government “shall not

continue” past 1906. §46, 31 Stat. 872. So what might

statements like these tell us that isn’t already evident from

the statutes themselves? Oklahoma doesn’t suggest they

shed light on the meaning of some disputed and ambiguous

statutory direction. More nearly, the State seeks to render

the Creek’s fears self-fulfilling.12

We are also asked to consider commentary from those

outside the Tribe. In particular, the dissent reports that

the federal government “operated” on the “understanding”

that the reservation was disestablished. Post, at 32. In

support of its claim, the dissent highlights a 1941 statement

from Felix Cohen. Then serving as an official at the Interior

Department, Cohen opined that “ ‘all offenses by or against

Indians’ in the former Indian Territory ‘are subject to State

——————

12 The dissent finds the statements of the Creek leadership so proba-

tive that it cites them not just as evidence about the meaning of treaties

the Tribe signed but even as evidence about the meaning of general pur-

pose laws the Creek had no hand in. See post, at 26 (citing Chief Porter’s

views on the legal effects of the Oklahoma Enabling Act). That is quite

a stretch from using tribal statements as “historical evidence of ‘the man-

ner in which [treaties were] negotiated’ with the . . . Tribe.” Parker, 577

U. S., at ___ (slip op., at 9) (quoting Solem v. Bartlett, 465 U. S. 463, 471

(1984)).

26 MCGIRT v. OKLAHOMA

Opinion of the Court

laws.’ ” Ibid. (quoting App. to Supp. Reply Brief for Peti-

tioner in Carpenter v. Murphy, O. T. 2018, No. 17–1107, p.

1a (Memorandum for Commissioner of Indian Affairs (July

11, 1941)). But that statement is incorrect. As we have just

seen, Oklahoma’s courts acknowledge that the State lacks

jurisdiction over Indian crimes on Indian allotments. See

Klindt, 782 P. 2d, at 403–404. And the dissent does not dis-

pute that Oklahoma is without authority under the MCA to

try Indians for crimes committed on restricted allotments

and any reservation. All of which highlights the pitfalls of

elevating commentary over the law.13

Finally, Oklahoma points to the speedy and persistent

movement of white settlers onto Creek lands throughout

the late 19th and early 20th centuries. But this history

proves no more helpful in discerning statutory meaning.

Maybe, as Oklahoma supposes, it suggests that some white

settlers in good faith thought the Creek lands no longer con-

stituted a reservation. But maybe, too, some didn’t care and

——————

13 Part of the reason for Cohen’s error might be explained by a portion

of the memorandum the dissent leaves unquoted. Cohen concluded that

Oklahoma was free to try Indians anywhere in the State because, among

other things, the Oklahoma Enabling Act “transfer[red] . . . jurisdiction

from the Federal courts to the State courts upon the establishment of the

State of Oklahoma.” App. to Supp. Reply Brief for Petitioner in Carpen-

ter v. Murphy, O. T. 2018, No. 17–1107, p. 1a (Memorandum for Commis-

sioner of Indian Affairs (July 11, 1941)). Yet, as we explore below, the

Oklahoma Enabling Act did not send cases covered by the federal MCA

to state court. See Part V, infra. Other, contemporaneous Interior De-

partment memoranda acknowledged that Oklahoma state courts had

simply “assumed jurisdiction” over cases arising on restricted allotments

without any clear authority in the Oklahoma Enabling Act or the MCA,

and much the same appears to have occurred here. App. to Supp. Reply

Brief for Respondent in Carpenter v. Murphy, O. T. 2018, No. 17–1107,

p. 1a (Memorandum from N. Gray, Dept. of Interior, for Mr. Flanery

(Aug. 12, 1942)). So rather than Oklahoma and the United States having

a “shared understanding” that Congress had disestablished the Creek

Reservation, post, at 27, it seems more accurate to say that for many

years much uncertainty remained about whether the MCA applied in

eastern Oklahoma.

Cite as: 591 U. S. ____ (2020) 27

Opinion of the Court

others never paused to think about the question. Certain

historians have argued, for example, that the loss of Creek

land ownership was accelerated by the discovery of oil in

the region during the period at issue here. A number of the

federal officials charged with implementing the laws of

Congress were apparently openly conflicted, holding shares

or board positions in the very oil companies who sought to

deprive Indians of their lands. A. Debo, And Still the Wa-

ters Run 86–87, 117–118 (1940). And for a time Okla-

homa’s courts appear to have entertained sham competency

and guardianship proceedings that divested Tribe members

of oil rich allotments. Id., at 104–106, 233–234; Brief for

Historians et al. as Amici Curiae 26–30. Whatever else

might be said about the history and demographics placed

before us, they hardly tell a story of unalloyed respect for

tribal interests.14

In the end, only one message rings true. Even the care-

fully selected history Oklahoma and the dissent recite is not

nearly as tidy as they suggest. It supplies us with little help

——————

14 The dissent asks us to examine a hodge-podge of other, but no more

compelling, material. For example, the dissent points to later statutes

that do no more than confirm there are former reservations in the State

of Oklahoma. Post, at 30–31. It cites legislative history to show that

Congress had the Creek Nation—or, at least, its neighbors—in mind

when it added these in 1988. Post, at 31, n. 7. The dissent cites a Senate

Report from 1989 and post-1980 statements made by representatives of

other tribes. Post, at 30, 32–33. It highlights three occasions on which

this Court referred to something like a “former Creek Nation,” though it

neglects to add that in each the Court was referring to the loss of the

Nation’s communal fee title, not its sovereignty. Grayson v. Harris, 267

U. S. 352, 357 (1925); Woodward v. DeGraffenreid, 238 U. S. 284, 289–

290 (1915); Washington v. Miller, 235 U. S. 422, 423–425 (1914). The

dissent points as well to a single instance in which the Creek Nation dis-

claimed reservation boundaries for purposes of litigation in a lower court,

post, at 32, but ignores that the Creek Nation has repeatedly filed briefs

in this Court to the contrary. This is thin gruel to set against treaty

promises enshrined in statutes.

28 MCGIRT v. OKLAHOMA

Opinion of the Court

in discerning the law’s meaning and much potential for mis-

chief. If anything, the persistent if unspoken message here

seems to be that we should be taken by the “practical ad-

vantages” of ignoring the written law. How much easier it

would be, after all, to let the State proceed as it has always

assumed it might. But just imagine what it would mean to

indulge that path. A State exercises jurisdiction over Na-

tive Americans with such persistence that the practice

seems normal. Indian landowners lose their titles by fraud

or otherwise in sufficient volume that no one remembers

whose land it once was. All this continues for long enough

that a reservation that was once beyond doubt becomes

questionable, and then even farfetched. Sprinkle in a few

predictions here, some contestable commentary there, and

the job is done, a reservation is disestablished. None of

these moves would be permitted in any other area of statu-

tory interpretation, and there is no reason why they should

be permitted here. That would be the rule of the strong, not

the rule of law.

IV

Unable to show that Congress disestablished the Creek

Reservation, Oklahoma next tries to turn the tables in a

completely different way. Now, it contends, Congress never

established a reservation in the first place. Over all the

years, from the federal government’s first guarantees of

land and self-government in 1832 and through the litany of

promises that followed, the Tribe never received a reserva-

tion. Instead, what the Tribe has had all this time qualifies

only as a “dependent Indian community.”

Even if we were to accept Oklahoma’s bold feat of reclas-

sification, however, it’s hardly clear the State would win

this case. “Reservation[s]” and “Indian allotments, the In-

dian titles to which have not been extinguished,” qualify as

Indian country under subsections (a) and (c) of §1151. But

“dependent Indian communities” also qualify as Indian

Cite as: 591 U. S. ____ (2020) 29

Opinion of the Court

country under subsection (b). So Oklahoma lacks jurisdic-

tion to prosecute Mr. McGirt whether the Creek lands hap-

pen to fall in one category or another.

About this, Oklahoma is at least candid. It admits the

entire point of its reclassification exercise is to avoid So-

lem’s rule that only Congress may disestablish a reserva-

tion. And to achieve that, the State has to persuade us not

only that the Creek lands constitute a “dependent Indian

community” rather than a reservation. It also has to con-

vince us that we should announce a rule that dependent In-

dian community status can be lost more easily than reser-

vation status, maybe even by the happenstance of shifting

demographics.

To answer this argument, it’s enough to address its first

essential premise. Holding that the Creek never had a res-

ervation would require us to stand willfully blind before a

host of federal statutes. Perhaps that is why the Solicitor

General, who supports Oklahoma’s disestablishment argu-

ment, refuses to endorse this alternative effort. It also may

be why Oklahoma introduced this argument for affirmance

only for the first time in this Court. And it may be why the

dissent makes no attempt to defend Oklahoma here. What

are we to make of the federal government’s repeated treaty

promises that the land would be “solemnly guarantied to

the Creek Indians,” that it would be a “permanent home,”

“forever set apart,” in which the Creek would be “secured in

the unrestricted right of self-government”? What about

Congress’s repeated references to a “Creek reservation” in

its statutes? No one doubts that this kind of language nor-

mally suffices to establish a federal reservation. So what

could possibly make this case different?

Oklahoma’s answer only gets more surprising. The rea-

son that the Creek’s lands are not a reservation, we’re told,

is that the Creek Nation originally held fee title. Recall that

the Indian Removal Act authorized the President not only

to “solemnly . . . assure the tribe . . . that the United States

30 MCGIRT v. OKLAHOMA

Opinion of the Court

will forever secure and guaranty to them . . . the country so

exchanged with them,” but also, “if they prefer it, . . . the

United States will cause a patent or grant to be made and

executed to them for the same.” 4 Stat. 412. Recall that the

Creek insisted on this additional protection when negotiat-

ing the Treaty of 1833, and in fact received a land patent

pursuant to that treaty some 19 years later. In the eyes of

Oklahoma, the Tribe’s choice on this score was a fateful one.

By asking for (and receiving) fee title to their lands, the

Creek inadvertently made their tribal sovereignty easier to

divest rather than harder.

The core of Oklahoma’s argument is that a reservation

must be land “reserved from sale.” Celestine, 215 U. S., at

285. Often, that condition is satisfied when the federal gov-

ernment promises to hold aside a particular piece of feder-

ally owned land in trust for the benefit of the Tribe. And,

admittedly, the Creek’s arrangement was different, be-

cause the Tribe held “fee simple title, not the usual Indian

right of occupancy.” United States v. Creek Nation, 295

U. S. 103, 109 (1935). Still, as we explained in Part II, the

land was reserved from sale in the very real sense that the

government could not “give the tribal lands to others, or to

appropriate them to its own purposes,” without engaging in

“ ‘an act of confiscation.’ ” Id., at 110.

It’s hard to see, too, how any difference between these two

arrangements might work to the detriment of the Tribe.

Just as we have never insisted on any particular form of

words when it comes to disestablishing a reservation, we

have never done so when it comes to establishing one. See

Minnesota v. Hitchcock, 185 U. S. 373, 390 (1902) (“[I]n or-

der to create a reservation it is not necessary that there

should be a formal cession or a formal act setting apart a

particular tract. It is enough that from what has been there

results a certain defined tract appropriated to certain pur-

poses”). As long as 120 years ago, the federal court for the

Indian Territory recognized all this and rightly rejected the

Cite as: 591 U. S. ____ (2020) 31

Opinion of the Court

notion that fee title is somehow inherently incompatible

with reservation status. Maxey v. Wright, 54 S. W. 807, 810

(Indian Terr. 1900).

By now, Oklahoma’s next move will seem familiar. Seek-

ing to sow doubt around express treaty promises, it cites

some stray language from a statute that does not control

here, a piece of congressional testimony there, and the scat-

tered opinions of agency officials everywhere in between.

See, e.g., Act of July 31, 1882, ch. 360, 22 Stat. 179 (refer-

ring to Creek land as “Indian country” as opposed to an “In-

dian reservation”); S. Doc. No. 143, 59th Cong., 1st. Sess.,

33 (1906) (Chief of Choctaw Nation—which had an arrange-

ment similar to the Creek’s—testified that both Tribes “ob-

ject to being classified with the reservation Indians”); Dept.

of Interior, Census Office, Report on Indians Taxed and In-

dians Not Taxed in the U. S. 284 (1894) (Creeks and neigh-

boring Tribes were “not on the ordinary Indian reservation,

but on lands patented to them by the United States”). Ok-

lahoma stresses that this Court even once called the Creek

lands a “dependent Indian community,” though it used that

phrase in passing and only to show that the Tribe’s “prop-

erty and affairs were subject to the control and manage-

ment of that government”—a point that would also be true

if the lands were a reservation. Creek Nation, 295 U. S., at

109. Unsurprisingly given the Creek Nation’s nearly 200-

year occupancy of these lands, both sides have turned up a

few clues suggesting the label “reservation” either did or did

not apply. One thing everyone can agree on is this history

is long and messy.

But the most authoritative evidence of the Creek’s rela-

tionship to the land lies not in these scattered references; it

lies in the treaties and statutes that promised the land to

the Tribe in the first place. And, if not for the Tribe’s fee

title to its land, no one would question that these treaties

and statutes created a reservation. So the State’s argument

inescapably boils down to the untenable suggestion that,

32 MCGIRT v. OKLAHOMA

Opinion of the Court

when the federal government agreed to offer more protec-

tion for tribal lands, it really provided less. All this time,

fee title was nothing more than another trap for the wary.

V

That leaves Oklahoma to attempt yet another argument

in the alternative. We alluded to it earlier in Part III. Now,

the State accepts for argument’s sake that the Creek land

is a reservation and thus “Indian country” for purposes of

the Major Crimes Act. It accepts, too, that this would nor-

mally mean serious crimes by Indians on the Creek Reser-

vation would have to be tried in federal court. But, the

State tells us, none of that matters; everything the parties

have briefed and argued so far is beside the point. It’s all

irrelevant because it turns out the MCA just doesn’t apply

to the eastern half of Oklahoma, and it never has. That

federal law may apply to other States, even to the western

half of Oklahoma itself. But eastern Oklahoma is and has

always been exempt. So whether or not the Creek have a

reservation, the State’s historic practices have always been

correct and it remains free to try individuals like Mr.

McGirt in its own courts.

Notably, the dissent again declines to join Oklahoma in

its latest twist. And, it turns out, for good reason. In sup-

port of its argument, Oklahoma points to statutory artifacts

from its territorial history. The State of Oklahoma was

formed from two territories: the Oklahoma Territory in the

west and Indian Territory in the east. Originally, it seems

criminal prosecutions in the Indian Territory were split be-

tween tribal and federal courts. See Act of May 2, 1890,

§30, 26 Stat. 94. But, in 1897, Congress abolished that

scheme, granting the U. S. Courts of the Indian Territory

“exclusive jurisdiction” to try “all criminal causes for the

punishment of any offense.” Act of June 7, 1897, 30 Stat.

83. These federal territorial courts applied federal law and

Cite as: 591 U. S. ____ (2020) 33

Opinion of the Court

state law borrowed from Arkansas “to all persons . . . irre-

spective of race.” Ibid. A year later, Congress abolished

tribal courts and transferred all pending criminal cases to

U. S. courts of the Indian Territory. Curtis Act of 1898, §28,

30 Stat. 504–505. And, Oklahoma says, sending Indians to

federal court and all others to state court would be incon-

sistent with this established and enlightened policy of ap-

plying the same law in the same courts to everyone.

Here again, however, arguments along these and similar

lines have been “frequently raised” but rarely “accepted.”

United States v. Sands, 968 F. 2d 1058, 1061 (CA10 1992)

(Kelly, J.). “The policy of leaving Indians free from state

jurisdiction and control is deeply rooted in this Nation’s his-

tory.” Rice v. Olson, 324 U. S. 786, 789 (1945). Chief Jus-

tice Marshall, for example, held that Indian Tribes were

“distinct political communities, having territorial bounda-

ries, within which their authority is exclusive . . . which is

not only acknowledged, but guarantied by the United

States,” a power dependent on and subject to no state au-

thority. Worcester v. Georgia, 6 Pet. 515, 557 (1832); see

also McClanahan v. Arizona Tax Comm’n, 411 U. S. 164,

168–169 (1973). And in many treaties, like those now be-

fore us, the federal government promised Indian Tribes the

right to continue to govern themselves. For all these rea-

sons, this Court has long “require[d] a clear expression of

the intention of Congress” before the state or federal gov-

ernment may try Indians for conduct on their lands. Ex

parte Crow Dog, 109 U. S. 556, 572 (1883).

Oklahoma cannot come close to satisfying this standard.

In fact, the only law that speaks expressly here speaks

against the State. When Oklahoma won statehood in 1907,

the MCA applied immediately according to its plain terms.

That statute, as phrased at the time, provided exclusive fed-

eral jurisdiction over qualifying crimes by Indians in “any

Indian reservation” located within “the boundaries of any

34 MCGIRT v. OKLAHOMA

Opinion of the Court

State.” Act of Mar. 3, 1885, ch. 341, §9, 23 Stat. 385 (em-

phasis added); see also 18 U. S. C. §1151 (defining “Indian

country” even more broadly). By contrast, every one of the

statutes the State directs us to merely discusses the assign-

ment of cases among courts in the Indian Territory. They

say nothing about the division of responsibilities between

federal and state authorities after Oklahoma entered the

Union. And however enlightened the State may think it

was for territorial law to apply to all persons irrespective of

race, some Tribe members may see things differently, given

that the same policy entailed the forcible closure of tribal

courts in defiance of treaty terms.

Left to hunt for some statute that might have rendered

the MCA inapplicable in Oklahoma after statehood, the

best the State can find is the Oklahoma Enabling Act. Con-

gress adopted that law in preparation for Oklahoma’s ad-

mission in 1907. Among its many provisions sorting out the

details associated with Oklahoma’s transition to statehood,

the Enabling Act transferred all nonfederal cases pending

in territorial courts to Oklahoma’s new state courts. Act of

June 16, 1906, §20, 34 Stat. 277; see also Act of Mar. 4,

1907, §3, 34 Stat. 1287 (clarifying treatment of cases to

which United States was a party). The State says this

transfer made its courts the inheritors of the federal terri-

torial courts’ sweeping authority to try Indians for crimes

committed on reservations.

But, at best, this tells only half the story. The Enabling

Act not only sent all nonfederal cases pending in territorial

courts to state court. It also transferred pending cases that

arose “under the Constitution, laws, or treaties of the

United States” to federal district courts. §16, 34 Stat. 277.

Pending criminal cases were thus transferred to federal

court if the prosecution would have belonged there had the

Territory been a State at the time of the crime. §1, 34 Stat.

1287 (amending the Enabling Act). Nor did the statute

make any distinction between cases arising in the former

Cite as: 591 U. S. ____ (2020) 35

Opinion of the Court

eastern (Indian) and western (Oklahoma) territories. So,

simply put, the Enabling Act sent state-law cases to state

court and federal-law cases to federal court. And serious

crimes by Indians in Indian country were matters that

arose under the federal MCA and thus properly belonged in

federal court from day one, wherever they arose within the

new State.

Maybe that’s right, Oklahoma acknowledges, but that’s

not what happened. Instead, for many years the State con-

tinued to try Indians for crimes committed anywhere

within its borders. But what can that tell us? The State

identifies not a single ambiguous statutory term in the

MCA that its actions might illuminate. And, as we have

seen, its own courts have acknowledged that the State’s his-

toric practices deviated in meaningful ways from the MCA’s

terms. See supra, at 22–23. So, once more, it seems Okla-

homa asks us to defer to its usual practices instead of fed-

eral law, something we will not and may never do.

That takes Oklahoma down to its last straw when it

comes to the MCA. If Oklahoma lacks the jurisdiction to

try Native Americans it has historically claimed, that

means at the time of its entry into the Union no one had the

power to try minor Indian-on-Indian crimes committed in

Indian country. This much follows, Oklahoma reminds us,

because the MCA provides federal jurisdiction only for ma-

jor crimes, and no tribal forum existed to try lesser cases

after Congress abolished the tribal courts in 1898. Curtis

Act, §28, 30 Stat. 504–505. Whatever one thinks about the

plausibility of other discontinuities between federal law

and state practice, the State says, it is unthinkable that

Congress would have allowed such a significant “jurisdic-

tional gap” to open at the moment Oklahoma achieved

statehood.

But what the State considers unthinkable turns out to be

easily imagined. Jurisdictional gaps are hardly foreign to

this area of the law. See, e.g., Duro v. Reina, 495 U. S. 676,

36 MCGIRT v. OKLAHOMA

Opinion of the Court

704–706 (1990) (Brennan, J., dissenting). Many tribal

courts across the country were absent or ineffective during

the early part of the last century, yielding just the sort of

gaps Oklahoma would have us believe impossible. Indeed,

this might be why so many States joined Oklahoma in pros-

ecuting Indians without proper jurisdiction. The judicial

mind abhors a vacuum, and the temptation for state prose-

cutors to step into the void was surely strong. See supra, at

23–24.

With time, too, Congress has filled many of the gaps Ok-

lahoma worries about. One way Congress has done so is by

reauthorizing tribal courts to hear minor crimes in Indian

country. Congress chose exactly this course for the Creeks

and others in 1936. Act of June 26, 1936, §3, 49 Stat. 1967;

see also Hodel, 851 F. 2d, at 1442–1446. Another option

Congress has employed is to allow affected Indian tribes to

consent to state criminal jurisdiction. 25 U. S. C. §§1321(a),

1326. Finally, Congress has sometimes expressly expanded

state criminal jurisdiction in targeted bills addressing spe-

cific States. See, e.g., 18 U. S. C. §3243 (creating jurisdic-

tion for Kansas); Act of May 31, 1946, ch. 279, 60 Stat. 229

(same for a reservation in North Dakota); Act of June 30,

1948, ch. 759, 62 Stat. 1161 (same for certain reservations

in Iowa); 18 U. S. C. §1162 (creating jurisdiction for six ad-

ditional States). But Oklahoma doesn’t claim to have com-

plied with the requirements to assume jurisdiction volun-

tarily over Creek lands. Nor has Congress ever passed a

law conferring jurisdiction on Oklahoma. As a result, the

MCA applies to Oklahoma according to its usual terms:

Only the federal government, not the State, may prosecute

Indians for major crimes committed in Indian country.

VI

In the end, Oklahoma abandons any pretense of law and

speaks openly about the potentially “transform[ative]” ef-

fects of a loss today. Brief for Respondent 43. Here, at

Cite as: 591 U. S. ____ (2020) 37

Opinion of the Court

least, the State is finally rejoined by the dissent. If we

dared to recognize that the Creek Reservation was never

disestablished, Oklahoma and dissent warn, our holding

might be used by other tribes to vindicate similar treaty

promises. Ultimately, Oklahoma fears that perhaps as

much as half its land and roughly 1.8 million of its residents

could wind up within Indian country.

It’s hard to know what to make of this self-defeating ar-

gument. Each tribe’s treaties must be considered on their

own terms, and the only question before us concerns the

Creek. Of course, the Creek Reservation alone is hardly in-

significant, taking in most of Tulsa and certain neighboring

communities in Northeastern Oklahoma. But neither is it

unheard of for significant non-Indian populations to live

successfully in or near reservations today. See, e.g., Brief

for National Congress of American Indians Fund as Amicus

Curiae 26–28 (describing success of Tacoma, Washington,

and Mount Pleasant, Michigan); see also Parker, 577 U. S.,

at ___–___ (slip op., at 10–12) (holding Pender, Nebraska,

to be within Indian country despite tribe’s absence from the

disputed territory for more than 120 years). Oklahoma re-

plies that its situation is different because the affected pop-

ulation here is large and many of its residents will be sur-

prised to find out they have been living in Indian country

this whole time. But we imagine some members of the 1832

Creek Tribe would be just as surprised to find them there.

What are the consequences the State and dissent worry

might follow from an adverse ruling anyway? Primarily,

they argue that recognizing the continued existence of the

Creek Reservation could unsettle an untold number of con-

victions and frustrate the State’s ability to prosecute crimes

in the future. But the MCA applies only to certain crimes

committed in Indian country by Indian defendants. A

neighboring statute provides that federal law applies to a

broader range of crimes by or against Indians in Indian

country. See 18 U. S. C. §1152. States are otherwise free

38 MCGIRT v. OKLAHOMA

Opinion of the Court

to apply their criminal laws in cases of non-Indian victims

and defendants, including within Indian country. See

McBratney, 104 U. S., at 624. And Oklahoma tells us that

somewhere between 10% and 15% of its citizens identify as

Native American. Given all this, even Oklahoma admits

that the vast majority of its prosecutions will be unaffected

whatever we decide today.

Still, Oklahoma and the dissent fear, “[t]housands” of Na-

tive Americans like Mr. McGirt “wait in the wings” to chal-

lenge the jurisdictional basis of their state-court convic-

tions. Brief for Respondent 3. But this number is

admittedly speculative, because many defendants may

choose to finish their state sentences rather than risk

reprosecution in federal court where sentences can be

graver. Other defendants who do try to challenge their

state convictions may face significant procedural obstacles,

thanks to well-known state and federal limitations on post-

conviction review in criminal proceedings.15

In any event, the magnitude of a legal wrong is no reason

to perpetuate it. When Congress adopted the MCA, it broke

many treaty promises that had once allowed tribes like the

Creek to try their own members. But, in return, Congress

allowed only the federal government, not the States, to try

——————

15 For example, Oklahoma appears to apply a general rule that “issues

that were not raised previously on direct appeal, but which could have

been raised, are waived for further review.” Logan v. State, 2013 OK CR

2, ¶ 1, 293 P. 3d 969, 973. Indeed, JUSTICE THOMAS contends that this

state-law limitation on collateral review prevents us from considering

even the case now before us. Post, at 2 (dissenting opinion). But while

that state-law rule may often bar our way, it doesn’t in this case. After

noting a potential state-law obstacle, the Oklahoma Court of Criminal

Appeals (OCCA) proceeded to address the merits of Mr. McGirt’s federal

MCA claim anyway. Because the OCCA’s opinion “fairly appears to rest

primarily on federal law or to be interwoven with federal law” and lacks

any “plain statement” that it was relying on a state-law ground, we have

jurisdiction to consider the federal-law question presented to us. See

Michigan v. Long, 463 U. S. 1032, 1040–1041, 1044 (1983).

Cite as: 591 U. S. ____ (2020) 39

Opinion of the Court

tribal members for major crimes. All our decision today

does is vindicate that replacement promise. And if the

threat of unsettling convictions cannot save a precedent of

this Court, see Ramos v. Louisiana, 590 U. S. ___, ___–___

(2020) (plurality opinion) (slip op., at 23–26), it certainly

cannot force us to ignore a statutory promise when no prec-

edent stands before us at all.

What’s more, a decision for either party today risks up-

setting some convictions. Accepting the State’s argument

that the MCA never applied in Oklahoma would preserve

the state-court convictions of people like Mr. McGirt, but

simultaneously call into question every federal conviction

obtained for crimes committed on trust lands and restricted

Indian allotments since Oklahoma recognized its jurisdic-

tional error more than 30 years ago. See supra, at 22. It’s

a consequence of their own arguments that Oklahoma and

the dissent choose to ignore, but one which cannot help but

illustrate the difficulty of trying to guess how a ruling one

way or the other might affect past cases rather than simply

proceeding to apply the law as written.

Looking to the future, Oklahoma warns of the burdens

federal and tribal courts will experience with a wider juris-

diction and increased caseload. But, again, for every juris-

dictional reaction there seems to be an opposite reaction:

recognizing that cases like Mr. McGirt’s belong in federal

court simultaneously takes them out of state court. So

while the federal prosecutors might be initially under-

staffed and Oklahoma prosecutors initially overstaffed, it

doesn’t take a lot of imagination to see how things could

work out in the end.

Finally, the State worries that our decision will have sig-

nificant consequences for civil and regulatory law. The only

question before us, however, concerns the statutory defini-

tion of “Indian country” as it applies in federal criminal law

under the MCA, and often nothing requires other civil stat-

40 MCGIRT v. OKLAHOMA

Opinion of the Court

utes or regulations to rely on definitions found in the crim-

inal law. Of course, many federal civil laws and regulations

do currently borrow from §1151 when defining the scope of

Indian country. But it is far from obvious why this collat-

eral drafting choice should be allowed to skew our interpre-

tation of the MCA, or deny its promised benefits of a federal

criminal forum to tribal members.

It isn’t even clear what the real upshot of this borrowing

into civil law may be. Oklahoma reports that recognizing

the existence of the Creek Reservation for purposes of the

MCA might potentially trigger a variety of federal civil stat-

utes and rules, including ones making the region eligible for

assistance with homeland security, 6 U. S. C. §§601, 606,

historical preservation, 54 U. S. C. §302704, schools, 20

U. S. C. §1443, highways, 23 U. S. C. §120, roads, §202, pri-

mary care clinics, 25 U. S. C. §1616e–1, housing assistance,

§4131, nutritional programs, 7 U. S. C. §§2012, 2013, disa-

bility programs, 20 U. S. C. §1411, and more. But what are

we to make of this? Some may find developments like these

unwelcome, but from what we are told others may celebrate

them.

The dissent isn’t so sanguine—it assures us, without fur-

ther elaboration, that the consequences will be “drastic pre-

cisely because they depart from . . . more than a century [of]

settled understanding.” Post, at 37. The prediction is a fa-

miliar one. Thirty years ago the Solicitor General warned

that “[l]aw enforcement would be rendered very difficult”

and there would be “grave uncertainty regarding the appli-

cation” of state law if courts departed from decades of “long-

held understanding” and recognized that the federal MCA

applies to restricted allotments in Oklahoma. Brief for

United States as Amicus Curiae in Oklahoma v. Brooks,

O.T. 1988, No. 88–1147, pp. 2, 9, 18, 19. Yet, during the

intervening decades none of these predictions panned out,

and that fact stands as a note of caution against too readily

crediting identical warnings today.

Cite as: 591 U. S. ____ (2020) 41

Opinion of the Court

More importantly, dire warnings are just that, and not a

license for us to disregard the law. By suggesting that our

interpretation of Acts of Congress adopted a century ago

should be inflected based on the costs of enforcing them to-

day, the dissent tips its hand. Yet again, the point of look-

ing at subsequent developments seems not to be determin-

ing the meaning of the laws Congress wrote in 1901 or 1906,

but emphasizing the costs of taking them at their word.

Still, we do not disregard the dissent’s concern for reli-

ance interests. It only seems to us that the concern is mis-

placed. Many other legal doctrines—procedural bars, res

judicata, statutes of repose, and laches, to name a few—are

designed to protect those who have reasonably labored un-

der a mistaken understanding of the law. And it is precisely

because those doctrines exist that we are “fre[e] to say what

we know to be true . . . today, while leaving questions about

. . . reliance interest[s] for later proceedings crafted to ac-

count for them.” Ramos, 590 U. S., at ___ (plurality opin-

ion) (slip op., at 24).

In reaching our conclusion about what the law demands

of us today, we do not pretend to foretell the future and we

proceed well aware of the potential for cost and conflict

around jurisdictional boundaries, especially ones that have

gone unappreciated for so long. But it is unclear why pes-

simism should rule the day. With the passage of time, Ok-

lahoma and its Tribes have proven they can work success-

fully together as partners. Already, the State has

negotiated hundreds of intergovernmental agreements

with tribes, including many with the Creek. See Okla.

Stat., Tit. 74, §1221 (2019 Cum. Supp.); Oklahoma Secre-

tary of State, Tribal Compacts and Agreements,

www.sos.ok.gov/tribal.aspx. These agreements relate to

taxation, law enforcement, vehicle registration, hunting

and fishing, and countless other fine regulatory questions.

See Brief for Tom Cole et al. as Amici Curiae 13–19. No one

before us claims that the spirit of good faith, “comity and

42 MCGIRT v. OKLAHOMA

Opinion of the Court

cooperative sovereignty” behind these agreements, id., at

20, will be imperiled by an adverse decision for the State

today any more than it might be by a favorable one.16 And,

of course, should agreement prove elusive, Congress re-

mains free to supplement its statutory directions about the

lands in question at any time. It has no shortage of tools at

its disposal.

*

The federal government promised the Creek a reserva-

tion in perpetuity. Over time, Congress has diminished

that reservation. It has sometimes restricted and other

times expanded the Tribe’s authority. But Congress has

never withdrawn the promised reservation. As a result,

many of the arguments before us today follow a sadly famil-

iar pattern. Yes, promises were made, but the price of keep-

ing them has become too great, so now we should just cast

a blind eye. We reject that thinking. If Congress wishes to

withdraw its promises, it must say so. Unlawful acts, per-

formed 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.

The judgment of the Court of Criminal Appeals of Okla-

homa is

Reversed.

——————

16 This sense of cooperation and a shared future is on display in this

very case. The Creek Nation is supported by an array of leaders of other

Tribes and the State of Oklahoma, many of whom had a role in negotiat-

ing exactly these agreements. See Brief for Tom Cole et al. as Amici

Curiae 1 (“Amici are a former Governor, State Attorney General, cabinet

members, and legislators of the State of Oklahoma, and two federally

recognized Indian tribes, the Chickasaw Nation and Choctaw Nation of

Oklahoma”) (brief authored by Robert H. Henry, also a former State At-

torney General and Chief Judge of the Tenth Circuit).

Cite as: 591 U. S. ____ (2020) 1

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 18–9526

_________________

JIMCY MCGIRT, PETITIONER v. OKLAHOMA

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 reserva-

tion 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 redis-

covered reservations encompass the entire eastern half of

the State—19 million acres that are home to 1.8 million peo-

ple, only 10%–15% of whom are Indians.

Across this vast area, the State’s ability to prosecute se-

rious crimes will be hobbled and decades of past convictions

could well be thrown out. On top of that, the Court has pro-

foundly destabilized the governance of eastern Oklahoma.

The decision today creates significant uncertainty for the

State’s continuing authority over any area that touches In-

dian affairs, ranging from zoning and taxation to family and

2 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

environmental law.

None of this is warranted. What has gone unquestioned

for a century remains true today: A huge portion of Okla-

homa is not a Creek Indian reservation. Congress disestab-

lished 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. Ne-

braska v. Parker, 577 U. S. 481, ___ (2016) (slip op., at 5).

Under those precedents, we determine whether Congress

intended to disestablish a reservation by examining the rel-

evant Acts of Congress and “all the [surrounding] circum-

stances,” 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, pre-

ferring 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.

I

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 pre-

sent day Oklahoma. The expanse set aside for the Creek

and the other Indian nations that composed the “Five Civi-

lized Tribes”—the Cherokees, Chickasaws, Choctaws, and

Seminoles—became known as Indian Territory. See F. Co-

hen, 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 v.

Lewallen, 276 U. S. 58, 60 (1928). They “enact[ed] and ex-

ecut[ed] their own laws,” “punish[ed] their own criminals,”

and “rais[ed] and expend[ed] their own revenues.” Atlantic

Cite as: 591 U. S. ____ (2020) 3

ROBERTS, C. J., dissenting

& Pacific R. Co. v. Mingus, 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, 7 Stat. 419;

see Marlin, 276 U. S., at 60. Congress promised the Tribes

that their lands would never be “included within, or an-

nexed to, any Territory or State,” see, e.g., Treaty with

Creeks and Seminoles, Art. IV, Aug. 7, 1856, 11 Stat. 700

(1856 Treaty), and that their new homes would be “forever

secure,” Indian Removal Act, §3, 4 Stat. 412; see also Treaty

with the Creeks, Arts. I and XIV, Mar. 24, 1832, 7 Stat. 368.

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 Gib-

son, 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. Af-

ter 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, 14 Stat. 786 (1866

Treaty); see Cohen §4.07(1)(a), at 289, and n. 9. The trea-

ties 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, 14 Stat. 785. Due

to “said liabilities,” the treaties departed from prior prom-

ises and required each Tribe to give up the “west half ” of its

4 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

“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 In-

dian Territory would be “forever set apart as a home” for

the Tribes. E.g., Art. III, id., at 786.1

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, set-

tlers rapidly transformed vast stretches of territorial wil-

derness 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 mean-

ingful 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 dol-

lars 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

——————

1 I assume that the Creek Nation’s territory constituted a “reservation”

at this time. See ante, at 5–6. The State contends that no reservation

existed in the first place because the territory instead constituted a “de-

pendent Indian communit[y].” Brief for Respondent 8 (quoting 18

U. S. C. §1151(b)). The United States disagrees and states that defining

the territory as a dependent Indian community could disrupt the appli-

cation of various federal statutes. Tr. of Oral Arg. 79–80. I do not ad-

dress this debate because, regardless, I conclude that any reservation

was disestablished.

Cite as: 591 U. S. ____ (2020) 5

ROBERTS, C. J., dissenting

Tribes failed to hold the communal lands for the “equal ben-

efit” 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 en-

tire property of the Territory that could be rendered profit-

able.” Id., at 297, 299, n. 1 (internal quotation marks omit-

ted). 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 “ex-

clusion 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 ap-

plicable 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 dis-

mantled 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 contempo-

raneous understanding was shared by the tribal leadership

6 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

and the State of Oklahoma. The tribal leadership acknowl-

edged 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 un-

questioned 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 re-

peatedly 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 “res-

ervations were destroyed” when “Oklahoma entered the

Union.” S. Rep. No. 101–216, pt. 2, p. 47 (1989).

II

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 ap-

proach is wholly inconsistent with our precedents on reser-

vation disestablishment, which require a highly contextual

inquiry. Our “touchstone” is congressional “purpose” or “in-

tent.” South Dakota v. Yankton Sioux Tribe, 522 U. S. 329,

343 (1998). To “decipher Congress’ intention” in this spe-

cialized area, we are instructed to consider three categories

of evidence: the relevant Acts passed by Congress; the con-

temporaneous understanding of those Acts and the histori-

cal context surrounding their passage; and the subsequent

understanding of the status of the reservation and the pat-

tern of settlement there. Solem v. Bartlett, 465 U. S. 463,

470–472 (1984). The Court resists calling these “steps,” be-

Cite as: 591 U. S. ____ (2020) 7

ROBERTS, C. J., dissenting

cause “the only ‘step’ proper for a court of law” is interpret-

ing the laws enacted by Congress. Ante, at 17–18. Any la-

bel is fine with us. What matters is that these are catego-

ries of evidence that our precedents “direct[ ] us” to examine

in determining whether the laws enacted by Congress dis-

established a reservation. Hagen v. Utah, 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

In Solem v. Bartlett, 465 U. S. 463 (1984), a unanimous

Court summarized the appropriate methodology. “Con-

gress [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 In-

dian lands,” which is the “most probative evidence of con-

gressional 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 dises-

tablishment. Id., at 471.

Second, we consider “events surrounding the passage of

——————

2 Our precedents have generally considered whether Congress dises-

tablished or diminished a reservation by enacting “surplus land Acts”

that opened land to non-Indian settlement. Here Congress did much

more than that, as I will explain. Even so, there is broad agreement

among the parties, the United States, the Creek Nation, and even the

Court that our precedents on surplus land Acts provide the governing

framework for this case, so I proceed on the same course. See Brief for

Petitioner 1; Brief for Respondent 29, 35, 40; Brief for United States as

Amicus Curiae 4–5; Brief for Muscogee (Creek) Nation as Amicus Curiae

1–2; ante, at 7–8, 18–19.

8 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

[an] Act—particularly the manner in which the transaction

was negotiated with the tribes involved and the tenor of leg-

islative Reports presented to Congress.” Ibid. When such

materials “unequivocally reveal a widely held, contempora-

neous 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 “statu-

tory language that would otherwise suggest reservation

boundaries remained unchanged.” Ibid.

Third, to a “lesser extent,” we examine “events that oc-

curred 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 au-

thorities dealt with [the areas].” Ibid. In addition, “we have

recognized that who actually moved onto opened reserva-

tion lands is also relevant.” Ibid. “Where non-Indian set-

tlers 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 diminish-

ment is, of course, the statutory language.” Id., at 344 (in-

ternal quotation marks omitted). The Court continued that

it would also consider, second, “the historical context sur-

rounding the passage of the . . . Acts,” and third, “the sub-

sequent treatment of the area in question and the pattern

of settlement there.” Ibid. (quoting Hagen, 510 U. S., at

411).

Cite as: 591 U. S. ____ (2020) 9

ROBERTS, C. J., dissenting

The Court today treats these precedents as aging relics

in need of “clarif[ication].” Ante, at 19. But these prece-

dents 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 v. Parker, 577 U. S.

481, ___ (2016) (slip op., at 5). First, the Court explained,

“we start with the statutory text.” Ibid. “Under our prece-

dents,” the Court continued, “we also ‘examine all the cir-

cumstances 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 evi-

dence of the contemporaneous and subsequent understand-

ing of the status of the reservation by members and non-

members, as well as the United States and the State.” 577

U. S., at ___ (slip op., at 6) (internal quotation marks omit-

ted). These inquiries include, respectively, the “history sur-

rounding 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 ap-

proach reiterated throughout these precedents. The Court

briefly recites the general rule that disestablishment re-

quires 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 gov-

ernance, 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 cur-

rent demographics” do not “by themselves” “suffice” to dis-

establish 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 evi-

10 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

dence, standing alone, disestablished the Creek reserva-

tion. Rather, Oklahoma contends that all of the relevant

Acts of Congress together, viewed in light of contemporane-

ous and subsequent contextual evidence, demonstrate Con-

gress’s intent to disestablish the reservation. “[O]ur tradi-

tional 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 (em-

phasis added). Yet the Court refuses to confront the cumu-

lative import of all of Congress’s actions here.

The Court instead announces a new approach sharply re-

stricting 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. v. Oliveira, 586 U. S. ___,

___ (2019) (slip op., at 6)).

But, if that is the right approach, what have we been do-

ing all these years? Every single one of our disestablish-

ment cases has considered extratextual sources, and in do-

ing so, none has required the identification of ambiguity in

a particular term. That is because, while it is well estab-

lished 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 in-

dicate[ ]” 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).

Cite as: 591 U. S. ____ (2020) 11

ROBERTS, C. J., dissenting

Our precedents disagree. They explain that disestablish-

ment 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 congres-

sional action may result in disestablishment” is “quite in-

consistent” with our precedents. Rosebud Sioux Tribe v.

Kneip, 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 sug-

gest reservation boundaries remained unchanged”); see

also DeCoteau v. District County Court for Tenth Judicial

Dist., 420 U. S. 425, 444 (1975); Mattz v. Arnett, 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 “re-

quired” disestablishment, ante, at 20; under these prece-

dents, we cannot determine what Congress “required” with-

out 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 consider-

ing extratextual evidence. At the turn of the century, the

possibility that a reservation might persist in the absence

12 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

of “tribal ownership” of the underlying lands was “unfamil-

iar,” and the prevailing “assumption” was that “Indian res-

ervations 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 disestablish-

ment—did not always “detail” precise changes to reserva-

tion boundaries. Ibid. Recognizing this distinctive back-

drop, 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 evi-

dence 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 ade-

quacy of evidence in a particular case says nothing about

whether our precedents require us to consider such evi-

dence in others.3

——————

3 The Court rejects this reading of Parker based on a quotation that

ends with what sounds like a general principle that “[e]vidence of the

subsequent treatment of the disputed land by Government officials like-

wise has ‘limited interpretive value.’ ” Ante, at 19, n. 8 (quoting Parker,

577 U. S., at ___ (slip op., at 11)). But that sentence was actually the

topic sentence of a new paragraph that addressed the particular evidence

of subsequent treatment of the particular land by the particular govern-

ment officials in that case. Id., at ___–___ (slip op., at 11–12). It is clear

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ROBERTS, C. J., dissenting

The Court finally resorts to torching strawmen. No one

relying on our precedents contends that “practical ad-

vantages” require “ignoring the written law.” Ante, at 27.

No one claims a State has “authority to reduce federal res-

ervations.” 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 bor-

ders. Ibid. Such notions have nothing to do with our prec-

edents. What our precedents do provide is the settled ap-

proach for determining whether Congress disestablished a

reservation, and the Court starkly departs from that ap-

proach here.

III

Applied properly, our precedents demonstrate that Con-

gress disestablished any reservation possessed by the

Creek Nation through a relentless series of statutes leading

up to Oklahoma statehood.

A

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 appropri-

ately 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 commit-

ment” to “compensate” the Tribe. Ante, at 8–12 (internal

quotation marks omitted). But that is only the beginning

——————

that Parker merely concluded that the evidence cited by the parties pro-

vided a “mixed record of subsequent treatment” that did not move the

needle either way. Ibid. (internal quotation marks omitted). Parker did

not silently overturn our precedents requiring us to consider—and accord

“weight” to—subsequent evidence that plainly favors, or undermines,

disestablishment. Rosebud Sioux Tribe v. Kneip, 430 U. S. 584, 604

(1977); see supra, at 6–9.

14 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

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” disestab-

lishment when prior statutes also indicate congressional in-

tent). 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, 11

Stat. 699. But here, given that Congress sought direct al-

lotment to tribe members in order to enable private owner-

ship by both Indians and the 300,000 settlers in the terri-

tory, it would have made little sense to “cede” the lands to

the United States or “restore” the lands to the “public do-

main,” as Congress did on other occasions. So too with a

“commitment” to “compensate” the Tribe. Rather than buy-

ing 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 disestablish-

ment). That other allotment statutes have contained vari-

ous “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

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ROBERTS, C. J., dissenting

disestablish a reservation. Hagen, 510 U. S., at 411. There

are good reasons the statutes here do not include the lan-

guage 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 reserva-

tion 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 Indi-

ans and non-Indians. In 1890, Congress subjected the In-

dian Territory to specified federal criminal laws. Act of May

2, 1890, §31, 26 Stat. 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., at 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), 30 Stat. 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 ex-

16 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

ercising “any authority” to perform “any act” previously au-

thorized by “any law,” and transferred “all civil and crimi-

nal 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 na-

tions 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 ter-

ritory—“whether Indian, freedmen, or otherwise.” Act of

Apr. 28, 1904, ch. 1824, §2, 33 Stat. 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., George v. Robb, 4 Ind. T. 61,

64 S. W. 615, 615–616 (1901); Colbert v. Fulton, 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,

30 Stat. 499. The Act gave incorporated towns “all the pow-

ers” 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 (empha-

sis 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,

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ROBERTS, C. J., dissenting

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 govern-

mental 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 con-

tinue” past March 1906, essentially preserving it only as

long as Congress thought necessary for the Tribe to wind

up its affairs. §46, 31 Stat. 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, 34

Stat. 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 dis-

tribute 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 re-

duced in 1908, when Congress amended the Five Tribes Act

to require tribal officers and members to surrender all re-

maining tribal property, money, and records. Act of May

27, 1908, §13, 35 Stat. 316.

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, 34 Stat. 148). By that point, however,

such “authorized” purposes were nearly nonexistent, and

the Act’s statement is readily explained by the need to

18 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

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 consti-

tution and bylaws. Ante, at 15. That, however, simply high-

lights the drastic extent to which Congress erased the Na-

tion’s authority at the turn of the century.

Third, Congress destroyed the foundation of sovereignty

by stripping the Creek Nation of its territory. The commu-

nal 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 v. Trapp, 224 U. S. 665,

667 (1912). Well aware of this impediment, Congress es-

tablished the Dawes Commission and directed it to negoti-

ate with the Five Tribes for “the extinguishment of the na-

tional or tribal title to any lands” within the Indian

Territory. Act of Mar. 3, 1893, §16, 27 Stat. 645. That ex-

tinguishment 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 ulti-

mately sought to extinguish the title through allotment.

See ante, at 9.

In the Original Creek Agreement of 1901, Congress did

just that. The agreement provided that “[a]ll lands belong-

ing 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, 31 Stat. 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

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ROBERTS, C. J., dissenting

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 pro-

vided for the complete termination of the Creek Nation’s in-

terest in the lands, as well as the interests of individual

Creek members apart from their personal allotments. In-

deed, the language Congress used in the Original Creek

Agreement resembles what the Court regards as model dis-

establishment language. See ante, at 8, 10 (looking for lan-

guage 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 alien-

ation 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, 34

Stat. 143. The Secretary was also ordered to assume con-

trol 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

20 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

parcels. Contrary to the Court’s portrayal, this is not a sce-

nario in which Congress allowed a tribe to “continue to ex-

ercise governmental functions over land” that it “no longer

own[ed] communally.” Ante, at 11. 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 incorpo-

rated 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 confer-

ring citizenship on all native born Indians elsewhere in the

country. Act of Mar. 3, 1901, ch. 868, 31 Stat. 1447. In the

Oklahoma Enabling Act of 1906—the gateway to state-

hood—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 pro-

posed. §§2, 4, 34 Stat. 268, 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 con-

vention. See Brief for Seventeen Oklahoma District Attor-

neys et al. as Amici Curiae 9–13.

The Enabling Act also ensured that Indians and non-In-

dians would be subject to uniform laws and courts. It re-

placed Arkansas law, which had applied to all persons “ir-

respective of race,” 1897 Act, 30 Stat. 83, with the laws of

the adjacent Oklahoma Territory until the new state legis-

lature provided otherwise. Enabling Act §§2, 13, 21, 34

Stat. 268–269, 275, 277–278; see Jefferson v. Fink, 247

U. S. 288, 294 (1918). All of the pending cases in the terri-

torial courts arising under federal law were transferred to

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ROBERTS, C. J., dissenting

the newly created U. S. District Courts of Oklahoma. See

§16, 34 Stat. 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 fol-

lowing year, clarifying that all cases for crimes that would

have fallen under federal jurisdiction had they been com-

mitted 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 de-

termination in the State courts of Oklahoma.” §3, id., at

1287. As for civil cases, the new state courts were immedi-

ately empowered to resolve even disputes that previously

lay at the core of tribal self-governance. E.g., Palmer v.

Cully, 52 Okla. 454, 463–469, 153 P. 154, 157–158 (1915)

(per curiam) (marital dispute).4

In sum, in statute after statute, Congress made abun-

dantly 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 bound-

aries of any State” and on which a tribe was “assured a right

to self-government.” Ante, at 6. That territory was elimi-

nated. By establishing uniform laws for Indians and non-

——————

4 The Court, citing United States v. Sandoval, 231 U. S. 28, 47–48

(1913), argues that including a tribe within a new State is not necessarily

incompatible with the continuing existence of a reservation. Ante, at 15–

16, n. 6. But the tribe in Sandoval, the Pueblo Indians of New Mexico,

retained a rare communal title to their lands—which Congress explicitly

extinguished here. 231 U. S., at 47. More fundamentally, the Court’s

argument suffers from the same flaw that runs through its entire ap-

proach, which maintains that each of Congress’s actions alone would not

be enough for disestablishment but never confronts the import of all of

them.

22 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

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, Con-

gress dismantled the tribal government. By extinguishing

the Nation’s title, Congress erased the geographic bounda-

ries 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 ab-

sence of “a statute requir[ing] that result.” Ante, at 20.

Hardly. The numerous statutes discussed above demon-

strate 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 restrict-

ing 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 ulti-

mately 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

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ROBERTS, C. J., dissenting

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 reser-

vation into a State. “Mustering the broad social consensus

required to pass new legislation is a deliberately hard busi-

ness,” 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.

B

Under our precedents, we next consider the contempora-

neous 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 reser-

vation. At the very least, the statutes leave some ambigu-

ity, and thus “extratextual sources” ought to be consulted.

Ante, at 20.

Turning to such sources, our precedents direct us to “ex-

amine all the circumstances” surrounding Congress’s ac-

tions. Parker, 577 U. S., at ___ (slip op., at 6) (quoting Ha-

gen, 510 U. S., at 412). This includes evidence of the

24 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

“contemporaneous understanding” of the status of the res-

ervation and the “history surrounding the passage” of the

relevant Acts. Parker, 577 U. S., at ___ (slip op., at 8) (in-

ternal quotation marks omitted); see Yankton Sioux Tribe,

522 U. S., at 351–354; Solem, 465 U. S., at 471. The avail-

able evidence overwhelmingly confirms that Congress elim-

inated any Creek reservation. That was the purpose iden-

tified by Congress, the Dawes Commission, and the Creek

Nation itself. And that was the understanding demon-

strated 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 gov-

ernments were ill equipped to handle the largescale settle-

ment of non-Indians in the territories. See supra, at 4–5;

Woodward, 238 U. S., at 296–297. The Senate Select Com-

mittee on the Five Tribes explained that it was “impera-

tive[ ]” 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 inde-

pendent self-government of the Five Tribes ha[d] practi-

cally ceased,” “[t]he policy of the Government to abolish

classes in Indian Territory and make a homogeneous popu-

lation [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 commu-

nal or tribal title to the land, the vesting of possession and

title in severalty among the citizens of the Tribes, and the

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ROBERTS, C. J., dissenting

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 “uni-

formity 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 “un-

wavering aim” was to “ ‘wipe out the line of political distinc-

tion between an Indian citizen and other citizens of the Re-

public’ ” 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 “recog-

niz[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 de-

scribed Congress’s decisions to the Creek people and legis-

lature in messages published in territorial newspapers dur-

ing the run-up to statehood. Following the extinguishment

of the Nation’s title, dissolution of tribal courts, and curtail-

ment 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), re-

printed in The Indian Journal (May 10, 1901)). The “rem-

nant 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 inter-

ests . . . have been settled.” App. to Brief for Respondent

26 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

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, 34 Stat. 148. While the Court be-

lieves that meant Congress decided against disestablishing

the reservation, see ante, at 14–15, Chief Porter saw things

differently. From his vantage point as the contemporane-

ous leader of the government at issue, Congress had tempo-

rarily 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 govern-

ment.” 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 of-

ficially 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 In-

dian Journal (Oct. 9, 1908)). And any “appeal to the gov-

ernment 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]on-

tributions” for such efforts would be “just that much money

thrown away,” and “all attorneys at Washington or else-

Cite as: 591 U. S. ____ (2020) 27

ROBERTS, C. J., dissenting

where who encourage and receive any part of such contri-

butions 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, 23

Stat. 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 argu-

ment, 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., Bigfeather v. State, 7 Okla. Crim. 364,

123 P. 1026 (1912) (manslaughter); Rollen v. State, 7 Okla.

Crim. 673, 125 P. 1087 (1912) (assault with intent to kill);

Jones v. State, 3 Okla. Crim. 593, 107 P. 738 (1910) (mur-

der); see also Brief for Petitioner in Carpenter v. Murphy,

O. T. 2018, No. 17–1107, pp. 40–41 (collecting more cases).

——————

5 The Court discounts the views of the principal chiefs as mere predic-

tions about what Congress “would” do, ante, at 25, but the Court ignores

statements made after statehood, describing what Congress did do. The

Court also asserts that the chiefs’ views cannot serve as “evidence” of the

“meaning” of laws enacted by Congress. Ante, at 25, n. 12. That is in-

consistent with our precedent, which specifically instructs us to deter-

mine Congress’s intent by considering the “understanding of the status

of the reservation by members” of the affected tribe. Parker, 577 U. S.,

at ___ (slip op., at 6). The contemporaneous understanding of the leaders

of the tribe is highly probative.

28 MCGIRT v. OKLAHOMA

ROBERTS, C. J., dissenting

These prosecutions were lawful, the Oklahoma Supreme

Court recognized at the time, because Congress had not in-

tended to “except out of [Oklahoma] an Indian reservation”

upon its admission as a State. Higgins v. Brown, 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 re-

maining 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 terri-

tory. 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 v.

Klindt, 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 uni-

form lawlessness: The State must have “overstepped its au-

thority” in prosecuting thousands of cases for over a cen-

tury. Ante, at 23. Perhaps, the Court suggests, the State

——————

6 The Court claims that the Oklahoma courts’ reasons for treating re-

stricted allotments as Indian country must apply with “equal force” to

the unrestricted fee lands at issue here, but the Court ultimately admits

the two types of land are “legally distinct.” Ante, at 23, n. 10. And any

misstep with regard to the small number of restricted allotments hardly

means the Oklahoma courts made the far more extraordinary mistake of

failing to notice that the Five Tribes’ reservations—encompassing 19 mil-

lion acres—continued to exist.

Cite as: 591 U. S. ____ (2020) 29

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