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."
Gorsuch screws us again.
This isn't some concession. It's a legal case, decided by a court based on the law. You're imagining it is something else.
Does that make everyone residing in eastern Oklahoma an Indian?
And they were also slave owners and joined the Confederates during the Civil War.
No, but it does make them subject to tribal laws..............
Yes, I am imagining it as an excuse for the left to continue down the road to the destruction of America by any and all means.
I see that Chief Injustice Roberts, seeing that there was already a 5-4 socialist-liberal-communist majority voting against conservative principles and the Rule of Law, went ahead and safely voted “No” this time.
Well it is reverting back to that mean.
The value of the real estate has gone down considerable...............
Kavanaugh is a worthy replacement for former Justice John Paul Stevens, whose reputation was as the most loony-toons Court Justice in more than a hundred years. He was infamous for his bizaare opinions.
You three guys (among a few others) are doing a good job explaining a complicated situation on this thread. Unfortunately, even FR is not a very good place to do this because the entire body of law in this are is full of specific fact situations and then contrasting nuances, tribal treaties and contrasting agreements, and each tribe’s situation and history of relationships to the Federal and State governments are tribal specific.
Even the Five Tribes had different treaties and agreements, although they are generally similar and those tribes did in fact own most of eastern Oklahoma (which at one time was to enter the United States as the State of Sequoyah - until someone said “Whoa, we don’t want to let there be two US Senators who will inevitably be Indians!”)
People on FR are certainly smart enough to understand this complicated body of law, it’s just that even without any political aspect, there is a lot to understand here. This decision is probably the correct one given the history of the precedents going all the way back to the “Cherokee Cases” of Justice Marshall early in the 1800’s. It’s just that the outcome and fallout now, will cause some immediate problems, as well as long-term ones. The Congress could step in and do about whatever they want to resolve issues, but given the current BLM crisis and the Indian mascots issues, no one in Congress on either side of the aisle is likely to have the stomach for it.
Yes, and people need to keep in mind, no tribe pushed this issue, it was one member of a tribe trying to get out of a prison sentence that won’t change it, he’ll stay locked up.”Tribal Jurisdiction” is nothing new, it’s used on many reservations and always has been, so the law knows how to handle this and it already laid out.
Oh great! All we need is more casinos and poverty in Indian reservations.
Nope. Manhattan Island was purchased. There was a Bill of Sale.
Here is a web page I found showing the various Indian nations throughout Oklahoma history. Look close. Some reservations are not where they were today.
http://dougdawg.blogspot.com/2010/10/maps-and-history-of-oklahoma-county.html
They moved..................
From the opinion, it sounds like it depends on the ethnicity. Apparently, a non-enrolled person can be tried by the state, but an enrolled person must be tried by the federal government. Seems strange to me.
they don’t count, they were white racists
Land tittle insurance is going to get very expensive.
Some reservations are not where they were (ARE) today.
lOOK close at the Cheyenne-Arapaho reservation in 1868, when Custer raided the Washita. You will see the Washita is over a hundred miles west of their official reservation. So Custer was not raiding Cheyenne “Indian Land”.
A few years later they did receive the Washita but not in 1868.
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