In a fascinating ruling with major long-term potential consequences, NPR reports that the Supreme Court has ruled that much of eastern Oklahoma is Indian territory.
The Supreme Court ruled Thursday that about half of the land in Oklahoma is within a Native American reservation, a decision that will have major consequences for both past and future criminal and civil cases.
The court’s decision hinged on the question of whether the Creek reservation continued to exist after Oklahoma became a state.
“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word,” Justice Neil Gorsuch wrote in the majority opinion.
The decision was 5-4, with Justices Gorsuch, Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer in the majority, while Justices John Roberts, Brett Kavanaugh, Samuel Alito and Clarence Thomas dissented.
The ruling will have significant legal implications for eastern Oklahoma. Much of Tulsa, the state’s second-largest city, is located on Muscogee (Creek) land. The Muscogee (Creek) Nation cheered the court’s decision.
“The Supreme Court today kept the United States’ sacred promise to the Muscogee (Creek) Nation of a protected reservation,” the tribe said in a statement. “Today’s decision will allow the Nation to honor our ancestors by maintaining our established sovereignty and territorial boundaries.”
In a dissenting opinion, Roberts, the chief justice, wrote that the decision “will undermine numerous convictions obtained by the State, as well as the State’s ability to prosecute serious crimes committed in the future,” and “may destabilize the governance of vast swathes of Oklahoma.”
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he ruling has a number of significant consequences for criminal law in the relevant portion of Oklahoma.
The first is that going forward, certain major crimes committed within the boundaries of reservations must be prosecuted in federal court rather than state court, if a Native American is involved. So if a Native American is accused of a major crime in downtown Tulsa, the federal government rather than the state government will prosecute it. Less serious crimes involving Native Americans on American Indian land will be handled in tribal courts. This arrangement is already common in Western states like Arizona, New Mexico and Montana, said Washburn.
Then there’s the issue of past decisions — many of them are now considered wrongful convictions because the state lacked jurisdiction. A number of criminal defendants who have been convicted in the past will now have grounds to challenge their convictions, arguing that the state never had jurisdiction to try them.
The case before the court, McGirt v. Oklahoma, concerned Jimcy McGirt, an enrolled member of the Seminole Nation of Oklahoma who was convicted of sex crimes against a child on Creek land. In post-conviction proceedings, McGirt argued that the state lacked jurisdiction in the case and that he must be retried in federal court. The high court agreed.
The ruling will affect lands of the Muscogee and four other Oklahoma tribes with identical treaties. Civil court issues are also affected.
It’s important to note that the case concerned jurisdiction, not land ownership.
Ruling that these lands are in fact reservations “doesn’t mean the tribe owns all the land within the reservation, just like the county doesn’t own all the land within the county. In fact, it probably doesn’t own very much of that land,” Washburn explained. “That’s not what a reservation is these days.”
Washburn compares a reservation to a county — terms that describe jurisdictional boundaries. (source)
The potential impact of this ruling cannot be stated enough, because it speaks directly to a question of authority and legal legitimacy .
I did some research on this, and it seems that the states generally do not have jurisdiction over crimes occurring in “Indian country” with three exceptions. Public Law 280 (18 U.S.C. § 1162) in 1953 authorized states to exercise jurisdiction over offenses by or against Indians. It provided for broad state-concurrent criminal jurisdiction on those states and reservations impacted by Public law 280 (both mandatory states and those states which opted to assume PL280 jurisdiction). In addition, some tribes have been affected by federal legislation in which states have received a federal mandate to exercise jurisdiction outside of Public Law 280 such through state-wide enactments, restoration acts, or land claims settlement acts. Likewise, when it comes to crimes between “non-Indians”, the U.S. Supreme Court has ruled, such as in United States v. McBratney, 104 U.S. 621 (1881), and Draper v. United States, 164 U.S. 240 (1896), that state courts have the jurisdiction to punish wholly non-Indian crimes in Indian country.
This supreme court ruling significantly changes this relationship because as it says that states lack jurisdiction over Indian territory when it concerns crimes committed by Indians, it brings in federal authority as opposed to state authority and in some cases, actions which might be treated as a criminal action in federal or state court may need to be treated as civil actions in a tribal court for Indians or non-Indians. This may be due to many factors, including legal jurisdiction limitations (such as the lack of tribal jurisdiction over non-Indians), practical jurisdictional limitations (such as Public Law 280), and resource limitations. The basic point is that victims of crime in “Indian country” and their advocates are potentially not subject to the natural procession of American law by way of local, state, and then federal courts, but my have to take up disputes either in a tribal, federal, or civil court outside of traditional proceedings.
But the complications do not end with the simple execution of criminal justice. What about all forms of state or local ordinances, and the question of if they are enforceable is another issue that is going to have to be raised, especially in civil matters such as loans, fines, and minor offenses. With jurisdictional power handed over to the federal government and tribes, are municipal and state police going to be allowed to continue the enforcement of law, and if so, what particular laws under what conditions?
What this ruling has done is to open a major window for the ongoing process of the federalization of police, taking authority away from local enforcement agents and transferring it instead to Washington. This is not a means of securing order and the rule of law, but since federal police have limited abilities to enforce law, it is rather a means to balkanize large regions of the country by the removal of the effective enforcement of the law save for concentrated urban areas where the presence of federal authorities could be effectively executed.
There are more consequences to this than what one can even think of as to how the relationship between the enforcement of law is able to function. What one can say is that this is not “Making American Great Again”, or as I have humorously commented many times, “Making American Broke Again”, but as a very serious matter, is “Making America Balkanized”. Perhaps it is more effectively described as making America like much of Russia east of the Urals, by way of using the strong arm of central control from the capitol (Washington instead of Moscow) to keep control on an ever-divided nation while crime and degeneracy increase to disturbing levels with a lot of it going unsolved or without the will to solve it.