Block on Trump's Asylum Ban Upheld by Supreme Court
We don't know what the long-term impact of the U.S. Supreme Court's recent decision on tribal sovereignty in Oklahoma will be. But many agree that the court's 5-4 ruling in McGirt v. Oklahoma could be tremendously significant for all Native Americans.
In McGirt, the justices ruled that nearly the entire eastern half of Oklahoma is really tribal land. Therefore, the court ruled, a tribe member's rape conviction is overturned because the location where the crime occurred should have been considered outside the boundaries of state criminal law.
Conservative Justice Neal Gorsuch wrote the ruling, joining with the court's four liberal members in concluding that essentially a deal is a deal. Or, put another way, a treaty is a treaty.
Jimcy McGirt, a Seminole man who served 23 years of a 500-year sentence imposed by an Oklahoma court, argued that 19th Century treaties creating the reservation had never been legally extinguished by Congress, so only federal authorities could prosecute his case. That's because the state of Oklahoma has no jurisdiction on Indian lands.
Taking a step that many SCOTUS observers consider remarkable, the justices agreed.
"Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law," Gorsuch wrote. "Because Congress has not said otherwise, we hold the government to its word."
Gorsuch's opinion references the "Trail of Tears," the forced removal in the 1830s of five Indian tribes from their ancestral homes in the southeastern U.S. to "Indian Territory" in what is now eastern Oklahoma.
The Muscogee (Creek) Reservation — the narrower subject of the McGirt case — covers about 3 million acres within Indian Territory, which contains the reservations of four other tribes. That area, the one that is the larger subject of the SCOTUS decision, is vast — about 19 million acres in size and covering nearly half the state. Although these are the reservation homes to five tribes, 85% of its 1.8 million residents are non-Native.
The fact that the land has become home to so many non-Natives was part of the state's argument against McGint in the case. Oklahoma claimed that Congress effectively ended the reservation during the so-called "allotment era" in the late 1800s, when Congress sought to pressure the tribes to change their "communal lifestyles" by parceling the land into smaller lots individual tribal members could own. Over time, these tribal lot parcel owners sold to many non-Natives.
So, what will the impact of the Supreme Court's decision for Native and non-Native Oklahomans within the reservation and elsewhere?
For starters, it could mean that state authorities will be prevented from prosecuting tribal members in that area. It also raises questions about hundreds of convictions, like those of McGirt.
"Lawyers were also examining whether it had broader implications for taxing, zoning and other government functions," the New York Times reported. "But many of the specific impacts will be determined in negotiations between state and federal authorities and five Native American tribes in Oklahoma."
Experts in Indian law told the Times they expected little impact on non-Natives in Indian Territory. "Not one inch of land changed hands today," Jonodev Chaudhuri, ambassador for the Creek Nation, told the Times. "All that happened was clarity was brought to potential prosecutions within Creek Nation."
Still, the state of Oklahoma made ominous assertions in its brief to the Supreme Court. "The State generally lacks the authority to tax Indians in Indian country, so turning half the State into Indian country would decimate state and local budgets," the brief claimed.
During oral arguments before the Court in May, Reuters summarized attorneys' arguments: "If the land is deemed a reservation, tribe members there would become exempt from state taxes, while certain Native Americans found guilty in state courts may be able to challenge their convictions on jurisdictional grounds. The tribe also may obtain more power to regulate alcohol sales and expand casino gambling."
Writing in The Atlantic, Julian Brave Noisecat, a member of the Secwepemc and St'at'imc Nations, speculated that tribal and state and local governments will find ways to reach agreement on criminal jurisdiction, gaming, and tobacco sales, among other issues. Exactly how things will shake out is hard to predict, Noisecat said, but "(f)or now, what's really changed is that, for the first time in decades, tribes might just get a fair day in court."