Activists, Leaning In, Advance Case for Reparations, Eastern Oklahoma is still Indian Country
Straight out of a Twilight Zone scenario, it took a crime to right a wrong: The U.S. Supreme Court on Thursday ruled that half of Oklahoma – including the City of Tulsa – is Native American tribal land. It also admitted that the federal government never formally disestablished the expansive reservation, which is home to the Muscogee (Creek) Nation.
The decision means that the state of Oklahoma does not have the legal authority to prosecute cases involving American Indians across about 3m acres, including most of the state’s second largest city, Tulsa, and fourth largest city, Broken Arrow – legally considered reservation land. More than 1.8 million people live in the land at issue, including roughly 400,000 in Tulsa, Oklahoma’s second-largest city.
Tribal citizens locally and nationally, see Thursday’s decision as a victory for tribal sovereignty and a precedent-setter for other tribes.
However, Kimberly Tiger acknowledged that there are legal gray areas looming. “Now that the dust has settled a little, I see a lot of questions that come to light, especially with the court systems,” she said.
Under US law, felonies such as murder, rape or arson are prosecuted in federal or tribal court if committed by or against a tribal citizen on Native land, including reservations. Cases that involve both a non-Native perpetrator and a non-Native victim are under the state’s purview.
The Supreme Court case focused in part on a citizen of the Seminole Nation of Oklahoma and of Creek descent, Jimcy McGirt, who was convicted in the state court system in 1997 of first-degree rape, sodomy and lewd molestation of his wife’s underage granddaughter. He is currently serving a 500-year prison sentence.
McGirt argued in his appeal that since Congress never formally disestablished the Muscogee (Creek) Nation’s reservation, and the crime happened within the tribe’s boundaries, the state did not have jurisdiction.
The 5-4 decision in favor of McGirt was authored by conservative justice Neil Gorsuch, joining the court’s four liberals in the majority.
“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,” Gorsuch wrote.
Gorsuch rejected the state’s arguments, which he said would require turning a “blind eye” to the federal government’s past promises.
In a joint statement, the state, the Creek Nation and the other four of what is known as the “Five Tribes” of Oklahoma said they were making “substantial progress” toward an agreement on shared jurisdiction that they would present to the federal government. The other tribes are the Cherokee, Chickasaw, Choctaw and Seminole.
“The Nations and the state are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws and regulations that support public safety, our economy and private property rights,” the statement said.
Unless changes are made, tribe members who live within the boundaries would now become exempt from certain state obligations such as paying state taxes, while certain Native Americans found guilty in state courts would be able to challenge their convictions on jurisdictional grounds. The tribe also may obtain more power to regulate alcohol sales and expand casino gambling.
Under U.S. law, tribe members who commit crimes on tribal land cannot be prosecuted in state courts and instead are subject to federal prosecution, which sometimes can be beneficial to defendants.
Reservations were established beginning in the 19th century after U.S. authorities expelled Native Americans from their traditional lands.
In a joint statement, leaders of the Muscogee (Creek) Nation, Seminole Nation, Cherokee Nation, Chickasaw Nation and Choctaw Nation, along with Oklahoma’s attorney general, reiterated that neither McGirt nor Patrick Murphy, a Muscogee (Creek) defendant in a similar case, would automatically be released.
We have a shared commitment to maintaining public safety and long-term economic prosperity for the nations and Oklahoma,” they said.
“The nations and the state are committed to implementing a framework of shared jurisdiction.”
Mike McBride III, the attorney general of the Seminole Nation of Oklahoma, said he does not anticipate that eastern Oklahoma will descend into legal chaos, which was the scenario depicted by attorneys from the state and federal governments during oral arguments.
“I don’t think life is going to change that much for the non-Indian,” he said. “The biggest change will be for Native Americans who live within the Muscogee (Creek) Nation reservation and whether they have to answer for crimes in federal court or tribal court. There is some uncertainty regarding civil jurisdiction and that will have to get those worked out between governments. However, nobody’s land is going to get seized.”
For Muscogee (Creek) Nation citizen Cherrah Giles, the McGirt case felt particularly personal. The Tulsa native is also a survivor of domestic violence and sexual assault, and is the chairwoman of the board of directors for the National Indigenous Women’s Resource Center, a national domestic violence non-profit organization that filed an amicus brief in the case.
Although she welcomed the ruling as an opportunity for her tribe to better protect its citizens, she empathized with the victims’ families involved in the McGirt and Murphy cases.
“It was a horrendous crime,” she said. “I don’t want those families re-traumatized. We just want the same safety and security in our communities. Everyone deserves the same right to protection.”
Giles said that she, like Tiger, was surprised by the ruling. And the opinion’s opening line, which acknowledged the tribe’s forced removal from the south-eastern United States to what is now Oklahoma, struck a chord with her.
“There’s no bad time to make good on a promise,” she said, speaking of the federal government’s 19th-century assurances that Native land rights would be respected.
“That was the icing on the cake. The court could have given us an opinion and been generic. To call that out that there was a promise … we’re going to make good on it.”
At issue was whether the Muscogee (Creek) Nation territory where the crime was committed should be considered a Native American reservation or whether Congress eliminated that status around the time Oklahoma became a state in 1907.
Oklahoma argued that the Creek Nation never had a reservation. But even if one existed, the state and President Donald Trump’s administration argued, it long ago was eliminated by Congress. (The traumatic 19th century event was known as the “Trail of Tears.” At the time, the U.S. government pledged that the new land would be theirs in perpetuity.)
A reservation is land managed by a tribe under the federal Bureau of Indian Affairs and generally exempt from state jurisdiction.
(Combined Reports and Reuters stories by Lawrence Hurley edited by Will Dunham.)