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Supreme Court Says Oklahoma Indian ‘Reservations’ Are Real
Well, this is interesting. Especially if you live in eastern Oklahoma, including the state’s second-largest city, Tulsa.
While much of the media will focus on the two US Supreme Court decisions involving whether 1) Congress or 2) Manhattan prosecutors may access President Trump’s tax returns, I find the McGirt v. Oklahoma State Appeals Court decision of greater interest. Justice Neil Gorsuch joined the court’s four “liberals” in what read to me like a walk through history, except the parts he glossed over (like, the post-Civil War treaties in 1866, which were described in great detail in Chief Justice John Roberts’ dissent).
A little history. In 1832, President Andrew Jackson (with support from former President Thomas Jefferson), forced five major eastern Native American tribes to relocate to Oklahoma Indian Territory – Cherokee, Chickasaw, Choctaw, Creek and Seminole. They were promised the land in perpetuity. One of those tribes, the Seminoles, resisted, resulting in a brief war. Thousands died on the “Trail of Tears” from Georgia, North Carolina, Alabama, and Florida to their new lands. Other tribes joined them. Most of their lands encompass eastern and southern Oklahoma.
Most Oklahomans, at least at one time, have lived in one of these lands. My home town was part of the Chickasaw Nation. I also lived on land once reserved for the Cherokee and the subject of today’s court ruling, the Creek.
You have to wait to read until Chief Justice Roberts’ dissent to get to what I consider the most interesting aspect that appears to have been largely ignored by the majority. When southern states seceded from the Union, confederate General Albert Pike (Arkansas) approached the five major tribes about aligning with the confederacy. With the memories of the “Trail of Tears” along with the reality that those tribes owned some 8,000 slaves, they all eventually aligned with, and fight for, the confederacy.
In fact, the very last Confederate general to surrender, in late June 1865, was Stand Watie – A Cherokee – long after Gens. Robert E. Lee and Joseph E. Johnston, both of which occurred in April 1865. I guess he never got Lee’s and Johnston’s text messages.
In 1866, the U.S. Government told the rebellious tribes that their treaties were going to be “renegotiated.” Slavery was ended, and their lands were eventually opened up for settlement, starting in 1889 with the “Oklahoma land run.” My ancestors participated in the second land run, in 1891, that included Lincoln County (Chandler). The tribal nations were allowed to exist, including their own executive, legislative, and judicial systems, but their jurisdiction was limited to members of their tribes.
And that was the nub of today’s decision. Jimcy McGirt was prosecuted and found guilty in state court on three charges of sexual assault (raping his great-granddaughter). He argued, post-prosecution, that because he was a member of the Seminole tribe and committed his crimes in Creek Nation “territory,” he should be prosecuted only in federal court. There have been some 1,700 Indian tribal members convicted of crimes by states courts, this today’s decision could set them free. Some 10 percent of the residents within the old Creek Nation boundaries are actual tribal members.
It doesn’t mean Indian reservations are back (nor, hopefully, slavery or support for the confederacy). But wow, it scrambles the legal and penal systems in Oklahoma, and I bet other states that are home to Indian lands and tribes are paying some attention (unlike Oklahoma, their tribes mostly have actual reservations lands). Many of the casinos in these states and others are owned and operated by Indian Nations. Including those in Oklahoma.
Social justice warriors are relatively silent on the matter, thus far, with no celebrations for the return of “stolen land” or whatnot. Not a word yet from famous former Oklahoman and cultural appropriator (and possible Vice President) Elizabeth Warren. History is a little hard or complicated for them, it seems.
Published in History
“It doesn’t mean Indian reservations are back (nor, hopefully, slavery or support for the confederacy). But wow, it scrambles the legal and penal systems in Oklahoma, and I bet other states that are home to Indian lands and tribes are paying some attention (unlike Oklahoma, their tribes mostly have actual reservations lands). Many of the casinos in these states and others are owned and operated by Indian Nations. Including those in Oklahoma.”
Solem v Bartlett, a case arising from reservation lands in my native South Dakota, governs this. If an enrolled member of a tribe commits a crime on land that is designated part of a reservation, the case goes to either federal court or tribal court (if the tribe has one). Note that this doesn’t stop South Dakota from vigorously prosecuting and imprisoning enrolled tribal members who commit crimes on non-reservation cities like Sioux Falls and Rapid City.
Ample warning was given to Oklahoma that this was coming.
Reservations were a mistake from the onset. It divides Americans into legal classes by ethnicity. Either indians are Americans or they’re not. Either they live in separate, sovereign nations or they must live by the same laws as all Americans. The middle ground is full of contradictions that condemn indians to a charade.
This precedent of class-based legal structures provides ground for sharia courts and institutional racism. At most, reservations should be legally equivalent to states and subject to all the usual requirements.
Now, while the decision states that Tulsa being a part of the Creek Nation is for “Major Crimes Act” purposes, I sure hope the City of Tulsa and its bar owners read this decision from 2016. I don’t think the courts are going to differentiate between a town of 1000 people and a city of more than 400,000 people.
Can you imagine how wealthy the Creek Nation would be if it could assess a licensing/fee scheme on Tulsa bar owners?
It’s time to dissolve the Indian Tribes and treat them like Americans. If they want to have ethic clubs, like the local Italian Community center, more power to them.
From my understanding of Indian Reservation and Territory law and how it interacts with state law, this sounds like the decision that I would have expected. Why Oklahoma thought it would have dominion over the people of those of Indian tribes within their own reservation or territory is beyond me.
I admit however that I am generally unfamiliar with the case except what is described here. Further, lest anyone be offended that I used the term Indian versus Native American (whatever that is to mean), Indian is the term used in the US Constitution to describe the nations of peoples recently resident here at the time of the Constitution’s writing and ratification.
The difference here may be that in this case, the Creek Nation land is merely territory and not reservation, but I admittedly am unaware of the significance in law. However, if like the Nebraska v. Parker case where the tribe did have unenforced regulations or a failure to provide required services, the question would not be whether the tribe would had a reduced authority to enact the legislation / regulation based upon the acts of congress, but whether they had any legitimacy given that there may unequal treatment under the law. Either start enforcing your regulations and laws in-whole or have none would be my train of thought.
Actually, according to the Chief’s dissent, McGirt was convicted of molesting, raping, and forcibly sodomizing his wife’s 4-year-old granddaughter.
You should read the dissent. The situation is complicated, and apparently there hasn’t really been a reservation for about 100 years. It also doesn’t look like there was ever anything called a “reservation,” but the original grant to the Creeks (and the other 4 tribes given land in Oklahoma at one point) probably qualified as part of “the Indian country,” which is the relevant statutory term, at some point in the past.
Again according to the Chief’s dissent, the five tribes actually allied with the Confederacy. This is not mentioned in the majority opinion. It may not be relevant to the legal issue presented, technically, but it is relevant to the implied claims of broken promises on the part of the federal government.
By the way, this decision could be easily remedied by Congress, with a law disestablishing any reservations that supposedly exist in Oklahoma (as to the 5 tribes in question, that is — there may be others).
Maybe we should do away with reservations altogether.
What? They’ve cancelled my reservation?
Paraphrasing a disappointed Jerry Seinfeld at the car rental counter, “Anyone can take a reservation, but it takes a Supreme Court to keep a reservation.”
But seriously, this is a terrible decision, as the dissent by the much-aligned Roberts, CJ, makes plain.
Oh, and on the same day, our august high Court decreed that
thisany sitting president is henceforth subject to any old state prosecutors’ whims, aka fishing expeditions, via grand jury subpoenas even amidst the term of holding office. Or maybe it’s just presidents whose party begins with “R.”In other appalling legal news of the day, Sullivan, J., still refusing to dismiss the case against Gen. Flynn, is asking on his own apparently to have the entire appeals court revisit the issue en banc. And I say bunk.
Maybe some Republicans should supoeana the tax records of the SCOTUS majority and see how they feel about fishing expeditions now . . .
Particularly since treaty violations (not violations of statutes, of treaties) by the federal government are handled adminstratively or adjudicated by — the federal government.
States? Like with 2 senators?
Thanks for posting this, Bucknelldad. I thought this was by far the most interesting decision to be announced, and it surprised me. Usually when there are arguments that turn on historical technicalities like this, I expect them to be small, with uninteresting results, or big but swept under the rug by the courts basically saying, “It doesn’t matter any more.” The technicality I mean is that Congress didn’t actually disestablish this reservation, even if they passed a lot of other laws that had the effect of chipping away at them.
I’m actually glad for this result, even though it will make a mess of things in eastern Oklahoma, because it holds the Congress to its promise to guarantee these lands to the tribes in perpetuity. Or at least until Congress decides to take them away officially.
Well, yes, but there they are, and the people who created them were not completely insane.
The Court has been pretty consistent in the decisions I’ve read this week that they are only sticking to what Congress has itself enacted and it’s like the Court is opening some really big barn doors and inviting Congress to step up and correct its own laws. Of course, Congress will likely never end the reservations, but they should.
I don’t know of any people who lost title to their land at the close of the War Between the States. Even Robert E. Lee’s estate eventually won in the US Supreme Court to have his home returned to him, and his son promptly sold it back. Why would the indians lose their property just because they fought for the Confederacy?
Because choosing the losing side in a civil war has consequences.