The Supreme Court Ruling on Native American Reservations

On July 9th the Supreme Court ruled, in a 5-4 decision, that almost half of Oklahoma shall now be considered a Native American Reservation. The ruling has garnered response from several sources including tribal leaders and activists who support the decision and state officials who, for the most part, oppose the decision. Many argue that the ruling is a much needed step towards repaying the massive debts this country owes to its native population. Others believe that the territories in question were never truly considered reservations and considering them as such will reek havoc on the state of Oklahoma. To understand why the Supreme Court came to this decision it is important to examine the history of Native American treatment in the United States as well as the laws that govern these groups.

The territory in question is a conglomerate of five nations: The Chickasaw nation, the Muscogee (creek) Nation, the Cherokee Nation, the Seminole Nation, and the Choctaw Nation. For those of you that know a little about Native American history, you'll notice that none of these tribes are native to Oklahoma. In 1830 President Andrew Jackson initiated the Indian Removal act. The act, as evidenced by its name, removed the five nations from their native lands centered in the southeastern United States. Andrew Jackson and members of congress signed the bill into law due to a combination of two reasons. First: Tribal land was treated similar to a sovereign nation that belonged only to a specific tribe. This meant that no american citizen could utilize the vast land under a tribe's control. The second reason for the bill's passage was the fact that many nation's lands were considered extremely valuable. Several sat on gold mines and many more were seen as vast expanses to utilize as plantations. With the hope of becoming rich and an inability to reach these lands, the United States Government forcibly removed over 100,000 Native Americans from their homes.

In theory, the Indian Removal Act was at worse humane towards the affected tribes. The act stated that the president had the power to "negotiate" with tribes for relocation and contained a clause that the president could not "coerce" tribes into relocating. It also promulgated that displaced Native Americans would have a their own reservations that no American could encroach upon. However, in reality, many historians consider the act as a genocide against the native populations of the U.S.. First, although the act stated that the president could negotiate with the tribes, negotiations rarely took place. No Native American tribe was consulted or even alerted to the passage of the Indian Removal act nor were they contacted by a government official when they were asked to leave their lands. Often presidents would ignore the coercion clause and threaten invasion to force Native Americans off their lands. Furthermore, the Cherokee Nation named the 1,200 mile march that Native Americans were forced to complete the "Trail of Tears" due to the inhumanity Natives Americans suffered. Several presidents sent soldiers to "escort" the tribes to their new territory, often the soldiers would force the marches at the point of a bayonet and place the natives in chains. This coupled with high rates of dysentery, cholera, Whooping Cough, and Typhus caused some 15,000 Native Americans to perish during the journey.

Once Native Americans arrived at their territory in modern day Oklahoma the abuse continued. Congress no longer regarded the reservations as sovereign nations (due to the fact that the tribes had entered into agreements with the U.S. government) and they reserved the right to rescind any agreements congress entered with a tribe. This prompted congress to begin to sell the land to eager settlers heading west. By the 1930's, tribes had lost over 60% of their original land. Furthermore, tribes had few avenues to keep people off of their land as the jurisdiction and weight of tribal law can be described as sketchy at best (something I have lived researching this topic.) Furthermore, American courts rarely ruled in favor of Native Americans; which gave them no power at the federal or state level. It wasn't until the Nixon Administration that Tribal Governments and their laws were given real weight and jurisdiction. Even so, Tribal law is still forming and isn't always fully recognized by states or the Federal Government to this day.

This brings us to the Supreme Court case. The case centered around a man named Jimcy McGirt who was tried and convicted for sex crimes in Oklahoma State Courts. He argued that the crime took place on reservation land and that due to the treaty that Congress created, McGirt was only entitled to be prosecuted by a Federal Prosecutor. He argued that Congress had never formally rescinded its treaty with the nations. Oklahoma however, argues that Congress ended the reservation in the allotment period. The allotment period describes a time where the U.S. government pressured several Native American tribes to abandon their reservations to sell to individuals. Furthermore they point to the several infractions Congress made against the nation (i.e. voiding tribal courts) to display that the area is no longer considered a reservation by Congress. The court, however, sided with McGirt stating that although several infractions had been made against the Creek Nation, Congress had never voided the treaty. Neil Gorsuch, the swing vote, wrote in his opinion that “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.”

Now that the court has ruled that the reservations listed in the picture must be respected by state law, the question then becomes how does life change for both the native population and non-native population of the reservation? The first question becomes: who can live on a reservation? For the native population designated to that region, your right to reside in tribal land holdings remains the same as it was if you were living in Oklahoma. Due to the fact that the indicated piece of land is now considered a federally protected region, much like D.C. or Puerto Rico, all native peoples still retain the same rights that they would all throughout the U.S. as citizens. However, what happens to the non-native population? In this situation if you own the land that you reside on (whether you came into that land by breaking the treaty or not) you may keep the land. The ruling tribe does retain the ability to kick non-native peoples off of the land if they came into the property illegally; however, this is extremely difficult to trace and becomes an almost insurmountable feat for the ruling tribe. Furthermore, no tribe has indicated that they wish to kick non-natives off of their lands. If you wish to move into one of these regions, as long as you obtain property from a company who legally purchased the land from the tribe, you are welcome to reside.

Another question many ask is: what happens to voting in these regions? With regards to local elections, people vote on local Tribal Government (which differs per jurisdiction) as long as they have tribal heritage. If you do not have tribal heritage, it is unclear whether you will be allowed to vote in Oklahoma State Elections or in Tribal Elections. The Supreme Court has delegated deciding issues like these to the tribes and the state of Oklahoma. Another issue that the tribes and Oklahoma must work out is who takes care of public services. Certain issues, like taxes, have already been decided upon. The government does mandate that those who live on a reservation do pay Federal Income Tax, however, it is up to the Tribal Government to decided if they would like to levy other taxes (the taxes a tribe levies will most likely be decided on when the tribes know what public services they will be responsible for.) With regards to elections on the national level, it is unclear whether the populations residing in the reservations will be factored into Oklahoma's congressional representation and electoral college representation. However, the Federal Government could use D.C.'s blueprint with regards to specific electoral college votes (allotting three to each nation or as a whole.) The Federal Government will have to decide however, if it will award these nations congressional representation or if they will continue with Oklahoma's current setup.

The final question many have asked (including the state of Oklahoma as a reason not to rule for McGirt) is: Who has jurisdiction over crimes? The MCA (major crimes act) states that there must be a "jurisdictional hook" or a specific factor that ties a case to tribal court, otherwise the state or the Federal Government may try the case. The specific "jurisdictional hook" outlined for reservations is lineage to a ruling tribe. If either the victim or the defendant is of native origin and the crime was committed on native land, the case must be tried in Tribal Court (barring it is not a federal offense.) Furthermore those cases that were tried previously that contain a jurisdictional hook for tribal court, may be retried in federal or tribal court depending on the jurisdiction. However with regards to re-trials, the defendant must choose whether they want to be tried again. Many tend to forgo this option because they see it as safer to serve their sentences rather then serve new ones. Oklahoma's native population is around 10%-15% of its total state population, meaning that with lower population numbers and few asking for a re-trial, the number of cases that will be retried is minuscule.

Although this ruling represents a massive win for the native populations of the U.S., there is still much more work to be done before full implementation of the ruling can be completed. For instance, the ruling on Brown V. Board of Education was handed down in 1954; however, full integration of all schools didn't occur until the late 70s and early 80s. With all of the different aspects of governance that must be agreed upon by tribal and state governments (adding the fact that neither tends to agree with the other) may stall full installation of The Supreme Court's ruling for years to come. Although the transition may take several years, many native activists and leaders will be eager to finally see tribal law earn respect on the national stage.

Citations:

“McGirt V. Oklahoma.” Supremecout.gov, www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf.

Liptak, Adam, and Jack Healy. “Supreme Court Rules Nearly Half of Oklahoma Is Indian Reservation.” The New York Times, The New York Times, 9 July 2020, www.nytimes.com/2020/07/09/us/supreme-court-oklahoma-mcgirt-creek-nation.html.

Pauls, Elizabeth Prine. “Trail of Tears.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 11 Nov. 2019, www.britannica.com/event/Trail-of-Tears.

“The Trail of Tears.” PBS, Public Broadcasting Service, www.pbs.org/wgbh/aia/part4/4h1567.html.

“Indian Removal Act.” Wikipedia, Wikimedia Foundation, 9 July 2020, en.wikipedia.org/wiki/Indian_Removal_Act.

The Cherokee Removal: Watch It! : lsintspl3.wgbh.org/en-us/lesson/midlit11-soc-splcher/10.

The Editors of Encyclopaedia Britannica. “Indian Removal Act.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 13 Nov. 2019, www.britannica.com/topic/Indian-Removal-Act.

History.com Editors. “Trail of Tears.” History.com, A&E Television Networks, 9 Nov. 2009, www.history.com/topics/native-american-history/trail-of-tears.

Epps, Garrett. “Can Congress Void a Tribal Treaty Without Telling Anyone?” The Atlantic, Atlantic Media Company, 14 Jan. 2019, www.theatlantic.com/ideas/archive/2019/01/herrera-v-wyoming/580243/.

“Frequently Asked Questions.” Native American Rights Fund, www.narf.org/frequently-asked-questions/.

“Brown v. Board of Education (1954).” Our Documents - Brown v. Board of Education (1954), www.ourdocuments.gov/doc.php?flash=false&doc=87.

“School Segregation and Integration  :  Articles and Essays  :  Civil Rights History Project  :  Digital Collections  :  Library of Congress.” The Library of Congress, www.loc.gov/collections/civil-rights-history-project/articles-and-essays/school-segregation-and-integration/.