Posted on 07/10/2020 10:12:36 AM PDT by Red Badger
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."
Kevin Washburn is dean of the law school at the University of Iowa, where he teaches a course on federal Indian law — "It's basically 15 weeks of how the law in the United States has failed my people," he said.
He served as assistant secretary of Indian affairs from 2012 to 2016, and he's a citizen of the Chickasaw Nation of Oklahoma. He called the court's ruling "a great decision."
"For Indian people, their land is really important, and treaties are really important. They're sacred. And this reaffirms the sacredness of those promises and those treaties."
"Now and then there's a great case that helps you keep the faith about the rule of law," he said. "And this is one of those."
The 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.
Oklahoma Attorney General Mike Hunter released a joint statement with the Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole nations on Thursday, indicating that they "have made substantial progress toward an agreement to present to Congress and the U.S. Department of Justice addressing and resolving any significant jurisdictional issues."
Ian Heath Gershengorn, an attorney at Jenner & Block, argued McGirt's case before the Supreme Court. He said his team was thrilled with the result and had felt optimistic knowing that Gorsuch could prove to be the deciding vote.
Gorsuch joined with the court's more liberal members in the decision. Prior to his appointment to the high court, Gorsuch was a judge on the 10th U.S. Circuit Court of Appeals, which frequently sees cases involving Native American lands.
"Justice Gorsuch has made very clear in his short time on the bench that he takes the text deeply seriously," Gershengorn said. "And I think you saw that the core of his analysis today was a textual one. We felt like we had the right argument at the right time for the right justice."
How many square inches of America will be left when this proceeds to its logical conclusion?
Wiki - The state’s name is derived from the Choctaw words okla and humma, meaning “ red people”.
Wiki - The state’s name is derived from the Choctaw words okla and humma, meaning “ red people”.
What about the Europeans who were here first, and wiped-out by the Indians?
“It’s basically 15 weeks of how the law in the United States has failed my people,” he said.
And any white person in Oklahoma can truthfully say that “the Supreme Court failed my people.”
They can say that, but it is racist, since white people no longer have an identity in this country, except for being racist.
Depends on how often Congress abandoned their job. It is theirs to modify, which they failed to do.
Do you wish to blame the Indians, the federal government that agreed to treaties, or the Congress that neglected its role?
In my mind this is a conservative, textual decision by Gorsuch. Not a liberal emotion based decision.
I dislike the Chief Justice opposing the decision on emotional grounds or what he thinks ‘it is right’:
“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.”
Come on! Boo hoo.
A deal is a deal even if the outcome hurts you.
A signed deal or a treaty is even more so.
Is there a treaty covering the rest of it?
This opens a can of worms.
I understand that the case at hand was dealing with criminal cases which should have been handled in a tribal court, not state court in Oklahoma.
But this could be an enormous landmark ruling, if they are saying that much of the state is really an Indian reservation.
For example, are property owners in Oklahoma now actually squatters or renters on Indian land, as a result of this case? Will this case be used as precedent to push such claims? Will property owners be compelled to buy back their property from the Indian tribe which now is said to own that land?
I was told on a thread yesterday that it was far fetched to bring up these matters. But time will tell how this legal precedent is applied to other cases.
“How many square inches of America will be left when this proceeds to its logical conclusion?”
The Court just interpreted (correctly) the language of a treaty signed by the US and ratified by congress.
All this decision does is make it clear that Indians who commit crimes on the reservation are to be tried by Indians, not by the State of Oklahoma — as the treaty the US signed and ratified requires.
No land changed hands.
so... all indian crimes are tried in federal court instead of state court? works for me. Better penal system; harsher penalties.
The early Europeans got what they deserved for exercising their white privilege. (is a /s really needed?)
Throughout history invading armies conquered lands and claimed them for their leader. Is there a history teacher out there who can tell me which present day country is NOT the product of a conquest? A country that belongs to the descendants of the FIRST tribe that populated the land?
There is no way to undo the takeover of lands by conquering armies. You just have to live with the results.
Gorsuch -
because Congress has not said otherwise, we hold the government to its word,
Great, agreed but why wasn’t this applied the other day when the case was about LGBT?
It’s because the criteria for judging cases will vary from case to case, depending on which criteria push the liberal agenda. It pains me to say such things, but in the LGBT case they were eager to make a political statement about equal homosexual and transexual rights, so that’s why they used the criteria they did to settle that case.
They will view this as a basis to return it all.
A good many parts of New York State (which concluded its own agreements with the various tribes prior to becoming part of the Federal Union) is still subject to unsettled claims, and many whole municipalities there are essentially squatting on land to which the title has never been settled. Theoretically, payment of an annual land lease is supposed to rectify this anomaly, but there are no records for many years that the lease fees were ever paid, or if they were, the payment was not accepted by the tribes.
Look up the history of the Iroquois Confederacy.
The law is no barrier.
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