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."
Time to give Manhattan back too.
Don’t flip out, fellow white people. This ruling does NOT invalidate any sale of land; if you bought land from Indians, or purchased land that was bought from Indians, you still own that land and the laws of that land are still the laws of the state as a whole.
I was asking a rhetorical question. I know that they are not applying the law equally because if he was he would have written the same point. “We want it to be the law but it is not currently the law so we must real as such”. Judges are the biggest usurpers of power in the entire government which is saying a lot.
No parole....................
Bet they won’t take or want Manna-Hattan back.
Give? It was bought, fair and square for $24 worth of trinkets.............
I don’t understand this notion that Indian tribes owned any land. The tribes themselves didn’t get along necessarily and took it from other tribes. Why all of a sudden did they own any part of a territory in a state?
There was a land rush when Oklahoma was opened up. Was that not covered in the case?
- - - “This opens a can of worms.” - - -
No. . . . This RIPS THE LID OFF of Pandora’s Box. There is a terrific lot of mischief that will follow.
I’m an Okie with experience in this legal area. Certainly, every convict will be scrambling to show some Indian tie, even if its as much as Elizabeth Warren.
The Court was very clear that this ruling applied only to the Indian Major Crimes Bill (a Federal law that applies to 10 major enumerated and described crimes). However, I think that view and statement is naive. I guess we will see.
It is a positive step that the Oklahoma Attorney General is working with the 5 Civilized Tribes to address some of the issues this ruling is going to cause.
“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 the victim is Native American but the perp is not, what happens? Still local?
Makes no difference..............
Reparations Now!!!
Native Americans are about the only people in this country who have a legitimate grievance against the US. We really did screw them over.
“The Supreme Court ruled Thursday that about half of the land in Oklahoma is within a Native American reservation...”
The next thing you know these geniuses will agonize over it for two years and come up with the ruling that what’s left is....Oklahoma.
>>The Court just interpreted (correctly) the language of a treaty signed by the US and ratified by congress.<<
Yeah, the problem here is, Congress never nullified that original treaty so it is still in effect. They could still do it, but in today’s political climate they won’t.
This will be seen a precedent by some, but it all hinges on if original treaties were ever nullified by Congress and nearly all of them were.
It’s best to remember however that the people of these tribes are generally very Conservative and not like some other more radical tribes. They’ve been farmers and ranchers since they were moved to Oklahoma, and even before that. Christians as well. I know, my dad is Choctaw from Oklahoma. He was just your average redneck.
Also, members of these tribes were given land allotments way back when and have sold some of their allotment to others, mostly white Americans, so those lands will still belong to those who legally purchased it from tribal members. Also, the tribes still had some rights, they were no longer considered reservations but were called “Tribal Jurisdiction Areas” and the cities, roads, etc built were done so with the tribes approval.
If there is some precedent here, my question is, what about the Indian Removal Act which was used to remove the tribes from their original lands. It went to the Supreme Court back then, who ruled in favor of the tribes. Jackson said “Let them enforce it” and removed the tribes anyway. This could be a can of worms.
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