Tribes, Oklahoma Committed To Working Together On Matters Of Jurisdiction And Public Safety

Jul 10, 2020

The U.S. Supreme Court ruling that a huge area of eastern Oklahoma is a Native American reservation was applauded by tribes.

The decision in McGirt v. Oklahoma centered on a Seminole man convicted in an Oklahoma state court. The Supreme Court ruled he should have been tried in the federal system. The sweeping ruling also basically says the eastern half of Oklahoma is Indian Country.

The central question in the case: Who has jurisdiction to prosecute crimes committed by Indians on Indian land? The Supreme Court ⁠— in a 5-4 decision ⁠— said the federal government does, not states.

The court also decided another key question: Were the Muscogee Creek Nation's boundaries in Oklahoma as set by a Treaty the Tribe signed with Congress in 1866 ever dissolved? The court said no.

Historically, Tribes have not fared well at the U.S. Supreme Court.

Attorney General for the Cherokee Nation, Sarah Hill, wrote a brief in support of the Muscogee (Creek) Nation. She was surprised by the ruling and says it reaffirms tribal sovereignty.

"There's an emotional reaction to seeing the Supreme Court say what tribes and tribal advocates had been saying for a long time, which is that these promises that were made in these treaties had meaning," said Hill, who was reached by phone shortly after the ruling.

Sarah Deer, a Muscogee (Creek) Nation citizen, lawyer and professor of Women, Gender, and Sexuality studies and Public Affairs and Administration at the University of Kansas also filed a brief in support of Muscogee (Creek) Nation. She said this decision is monumental for Tribes.

"It's not just about Oklahoma. It's not just about Creek Nation. It's not just about Oklahoma tribes. This case will be cited for decades to come because of its strong language supporting the sovereignty of tribal nations and the promises and the treaties," said Deer.

Deer also responded to the way Justice Neil Gorsuch wrote the majority.

"I know that justices don't make decisions based on emotion, but we can have emotional responses to the language," Deer said.

Indeed, the first passage written by Gorsuch cites the Trail of Tears.

On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding 'all their land, "East of the Mississippi river," the U. S. government agreed by treaty that "[t]he Creek country west of the Mississippi shall be solemnly guaranteed to the Creek Indians." 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.

At issue now is what happens to other felony convictions on Native American land in Oklahoma that were tried in state courts.

Hill believes it won't be an issue because the state and the Tribes have a long history of cooperating.

"I don't see anything in the court's opinion that makes me feel like it raises issues that can't be solved by the state and the tribes working together to make sure that its citizens are protected," said Hill.

After the decision, Oklahoma Attorney General Mike Hunter released a joint statement with the Five Tribes:

The Nations and the State are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights. We will continue our work, confident that we can accomplish more together than any of us could alone.

Hunter said the Tribes and the State are working on legislation with Oklahoma's Congressional delegation on a way forward. He says they're confident they can reach an agreement involving criminal jurisdiction and that even before the Supreme Court’s decision, they were already working on it.

"This opinion doesn't, vitiate land titles or of existing contracts or interest in any interest in real property, it's limited to the major crimes act," said Hunter.

Deer agrees that Tribes and the state of Oklahoma have been working together.

"You know, the paradigm that this is going to upend life, as we know it in Oklahoma is sheer hyperbole," said Deer. "There's nothing to indicate that criminals are going to be released en masse to the plight of Oklahoma people. Most non-Natives who live within the boundaries of the reservation will see no change in their lives."

Oklahoma's Congressional delegation echoed Hunter's statement in a press release that went out shortly after the Supreme Court decision was handed down.

Today, the Supreme Court provided a long-awaited ruling on McGirt v. Oklahoma on an issue concerning the Five Tribes of Oklahoma and all Oklahomans. We are reviewing the decision carefully and stand ready to work with both tribal and state officials to ensure stability and consistency in applying law that brings all criminals to justice. Indeed, no criminal is ever exempt or immune from facing justice, and we remain committed to working together to both affirm tribal sovereignty and ensure safety and justice for all Oklahomans.

Oklahoma Governor Kevin Stitt still has questions. He thinks the ruling opens the door for other issues such as taxation. Even the court’s dissenting Justices said it could affect a variety of other non-criminal issues.

"This is a federal issue. It's something Congress needs to address to put some parameters on exactly how we're supposed to deal with this," said Stitt when asked at a Thursday press conference regarding the state's COVID-19 response.

For Native Americans in Oklahoma and throughout the nation, the ruling is a profound win. Advocates say it will give them greater leverage such as when they negotiate with states on environmental issues like protecting land and water resources.

Attorney General Hill of the Cherokee Nation applauds the Supreme Court ruling, but she's still cautious.

"The actual day to day issues that Indigenous people or tribal people face in the state, making sure that those are resolved and making sure that the the tribal sovereignty is respected. All of those things, those fights will still continue," Hill said.

Fights like other criminal justice issues and ongoing negotiations about gaming compacts.

In Oklahoma there are 39 federally-recognized tribes. And for now, they and the state pledge to keep working together to sort through the implications of the Supreme Court ruling.