Did the U.S. Supreme Court Just Return Part of Oklahoma to the Indians?

Oklahoma Indian reservationsIn a Supreme Court decision handed down yesterday, 2020-07-09, McGirt v. Oklahoma [PDF], the court ruled 5–4 in an opinion written by Neil Gorsuch, joined by Ginsburg, Breyer, Sotomayor, and Kagan, that an 1833 treaty between the United States and the Creek Nation granting the Indian nation a reservation “in perpetuity” remains in force.  Gorsuch wrote for the majority,

The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation.

The decision voided the 1997 rape conviction of Jimcy McGirt, an Indian, who argued that Oklahoma had no jurisdiction to prosecute crimes on tribal land, where only federal law applies.  The area involved is almost half of Oklahoma, with a population of 1.8 million, and including most of the city of Tulsa.  Oklahoma warned that such a ruling could result in the release of 1700 inmates convicted under state law in the territory.  Gorsuch ruled,

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.

McGirt’s conviction by Oklahoma was overturned, but he faces re-trial in a federal court.

If this decision is broadly construed to grant Indian reservation status to a large part of Oklahoma, then state criminal law would not apply there, and the tribe would be sovereign in regulating matters such as alcohol and gambling.  Further, there are other tribes with similar claims in Oklahoma and states including Maine, Texas, and Montana, who may now bring cases to restore sovereignty over lands once granted to them and never rescinded by Congress.

Here is coverage of the decision from a variety of sources and viewpoints.

Here is a video about the decision and its implications from The Oklahoman.

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Author: John Walker

Founder of Ratburger.org, Autodesk, Inc., and Marinchip Systems. Author of The Hacker's Diet. Creator of www.fourmilab.ch.

29 thoughts on “Did the U.S. Supreme Court Just Return Part of Oklahoma to the Indians?”

  1. I’m glad you  noticed this …minor, unimportant(?!?)  decision!  It is the beginning of the dismantling of these United States, IMEHBNUO(in my extremely humble but not uninformed opinion.)

    The writ of Oklahoma state law no longer runs in…Oklahoma.

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  2. History teaches us that when a new land is conquered, primitive indigens must be removed.  This is true whether conquering the New World by armed force…or Hawai’i by a fruit company.  Not to do this is the difference between “borrowed” and “owned,” Panama to Hong Kong.

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  3. Exactly, Nunc.  And is there any territory on this green Earth(and I say “green” to exclude, possibly, some of the frozen nether regions)  which was not at some point occupied by some Ethnic/ cultural group other than its present occupants?
    I hate hearing the US called a “Nation of Immigrants”.  Yuh: us AND every other, bleeping, posturing nation in the 21st century world.  It just depends on how far back you wanna go.

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  4. While the larger issue is treaties and tribal rights, this guy raped children. Hopefully tribal justice will turn out to be a bit more (if you’ll excuse the phrase) savage than the state’s.

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  5. Not a lawyer — but I have sat through various lectures by attorneys telling me “You can’t do that” because of the law against Perpetuities.  Hence the strange language in some contracts saying that they run until the last surviving offspring of some fecund public figure dies.  Did Congress ever have the authority to grant anything in Perpetuity?

    Still not a lawyer — but I recall the language in the US Constitution nixing Double Jeopardy.  Retrying someone in Federal Court for an offence which has been dismissed in State Court seems to be getting rather close to that no-no.

    On the other hand, this ruling implies that the Creeks could convert to Islam and install Sharia Law on the reservation.  Then attorneys for rapists would be arguing that their clients should be tried under State Law (with nice civilized State penalties) rather than Tribal Law.

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  6. Gavin Longmuir:
    Not a lawyer — but I have sat through various lectures by attorneys telling me “You can’t do that” because of the law against Perpetuities.  Hence the strange language in some contracts saying that they run until the last surviving offspring of some fecund public figure dies.  Did Congress ever have the authority to grant anything in Perpetuity?

    Still not a lawyer — but I recall the language in the US Constitution nixing Double Jeopardy.  Retrying someone in Federal Court for an offence which has been dismissed in State Court seems to be getting rather close to that no-no.

    On the other hand, this ruling implies that the Creeks could convert to Islam and install Sharia Law on the reservation.  Then attorneys for rapists would be arguing that their clients should be tried under State Law (with nice civilized State penalties) rather than Tribal Law.

    The Logan Act: circa 1798, damn near the entire life of the “republic”. I would say that is pretty much perpetual.

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  7. Gavin Longmuir:
    Not a lawyer — but I have sat through various lectures by attorneys telling me “You can’t do that” because of the law against Perpetuities.  Hence the strange language in some contracts saying that they run until the last surviving offspring of some fecund public figure dies.  Did Congress ever have the authority to grant anything in Perpetuity?

    Still not a lawyer — but I recall the language in the US Constitution nixing Double Jeopardy.  Retrying someone in Federal Court for an offence which has been dismissed in State Court seems to be getting rather close to that no-no.

    On the other hand, this ruling implies that the Creeks could convert to Islam and install Sharia Law on the reservation.  Then attorneys for rapists would be arguing that their clients should be tried under State Law (with nice civilized State penalties) rather than Tribal Law.

    Also as to double jeopardy, 1) a case based on State law would not be affected by a case based on Federal law because technically it would be two different bodies of government prosecuting you. 2) the Federal government has ZERO policing authority in terms of criminal offenses such as rape. When the feds go after you for a crime, it is usually a criminal violation of something that they have specific power to regulate, i.e., commerce, printing money, etc.

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  8. Gavin Longmuir:
    Not a lawyer — but I have sat through various lectures by attorneys telling me “You can’t do that” because of the law against Perpetuities.

    As I understand Gorsuch’s argument, the question of perpetuities does not come into the matter.  His decision rests upon the fact that Congress ratified a treaty with the Creek Nation in 1833 and has never since enacted a bill to abrogate the treaty or rescind its grant of powers to the Creek.  It was apparently thought that Oklahoma’s statehood in 1907 rendered the treaty moot, but according to the majority it didn’t.  If Congress had enacted legislation renouncing the treaty, that would have settled the issue, but they didn’t, and this is apparently the case for the other tribes which made up the near half of Oklahoma which, between 1834 and 1907 was called “Indian Territory”.

    Congress could probably fix the problem even today by abrogating the treaty, but that would be hard to get through in the present atmosphere of diversity madness, and would be seen as another ruthless power and land grab by the white man.

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  9. Robert A. McReynolds:
    2) the Federal government has ZERO policing authority in terms of criminal offenses such as rape

    Under the Major Crimes Act of 1885, federal courts have original jurisdiction for major crimes including murder, rape, and arson, committed on Indian reservations, even if the perpetrator and victim were both Indians.  The FBI has full jurisdiction to investigate major crimes on Indian reservations.

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  10. John W:  “Under the Major Crimes Act of 1885, federal courts have original jurisdiction for major crimes including murder, rape, and arson, committed on Indian reservations …

    That would seem to suggest that the State of OK never had any jurisdiction to prosecute the accused in the first place.  So why did OK launch the prosecution?  Feds not interested because they have been too busy trying to bring down President Trump?

    It is hard to avoid the conclusion that we have too many laws, and too little justice.

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  11. Gavin Longmuir:
    So why did OK launch the prosecution?

    Because they did not consider the territory in which the crime was committed to be an Indian reservation.  They were operating on the assumption (and argued before the Supreme Court) that statehood rendered the 1833 treaty irrelevant.

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  12. Oh…..fiddle-dee-dee! (Since stronger expressions are prohibited here.j  The SC has punted on the majority of major-league important decisions this term:DACA, Trump’s financial records… do t tell me they couldnta weaseled their way outta this one.  And yuh, as JW points out in Comment 11: is it realistic, is it even conceivable, that Congress  will take action with regard to this ancient treaty and supervening statehood? 😂😂😂😂😂😂 do not make me laugh…..

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  13. John Walker:

    Robert A. McReynolds:
    2) the Federal government has ZERO policing authority in terms of criminal offenses such as rape

    Under the Major Crimes Act of 1885, federal courts have original jurisdiction for major crimes including murder, rape, and arson, committed on Indian reservations, even if the perpetrator and victim were both Indians.  The FBI has full jurisdiction to investigate major crimes on Indian reservations.

    Ah yes there is the nuance: committed on Indian reservations. Good catch. I took the original comment to mean that if prosecution in State court failed, one could bring up federal charges irrespective of the alleged crime taking place on Indian lands or not. But in the context of the post, I can admit to missing that in my comment. Thanks John.

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  14. Hypatia:
    Oh…..fiddle-dee-dee! (Since stronger expressions are prohibited here.j  The SC has punted on the majority of major-league important decisions this term:DACA, Trump’s financial records… do t tell me they couldnta weaseled their way outta this one.  And yuh, as JW points out in Comment 11: is it realistic, is it even conceivable, that Congress  will take action with regard to this ancient treaty and supervening statehood? 😂😂😂😂😂😂 do not make me laugh…..

    Hyp, the current “leadership” of Congress probably has no freaking clue that this was once promised to Indians as their new, sovereign land outside of Georgia, Florida, and Alabama. Seeing them attempt to actually do something in this regard would be comical.

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  15. Interestingly, “Sequoyah” does not appear anywhere in the opinion.

    I wonder whether it was addressed in the lower courts.

    Sequoyah was a bid by the tribes to establish a state (Sequoyah) in the “Indian Territory” section of OK that the SC now finds to be outside the sovereignty of the state.

    Rather than admit two states (one from Oklahoma Territory and the other from Indian Territory), the Sequoyah proposal was merged with the separate plan to admit the Oklahoma Territory.

    Imagine that the two states had been admitted. It would be absurd to then treat the state of Sequoyah as non-sovereign over the entirety of its territory.

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  16. If one stops to consider all the things Congress has undertaken since 1833 “in the public interest” and “for our own good”,  it is more than a little ironic that it never saw fit to assure that the citizens of Oklahoma were actually sovereign over the land they inhabited. What effect, by the way, does this have on land ownership? Does anyone in OK own any real property in fee simple anymore? This is merely another crystal clear example of the failure of the United States to competently govern itself. Other leading indicators are on display daily in the ‘news’; lagging indicators of the same congress’ (sic) failure to govern are exemplified by its incontinence as to management the public fisc, known as perpetual (that word again) deficit spending. Notice of this malfeasance will arrive suddenly in the near future when toilet paper becomes more valuable than paper money (did we just witness a harbinger of that?).

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  17. California just “liberated” 3100 felons for “compassionate reasons” re the Wuhan virus.  Where I the duly convicted convicts, I would have stood fast and, declaring the guards to be trespassers, tossed them out.  That having been done…demand free lunch.

    youtu.be/Mn87b06h274

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  18. civil westman:
    What effect, by the way, does this have on land ownership? Does anyone in OK own any real property in fee simple anymore? This is merely another crystal clear example of the failure of the United States to competently govern itself.

    I wonder if Tribal property laws are significantly different than Oklahoma property laws?   I bet they are, especially with regard to water rights and mineral rights.

    Oklahoma is going to be a lawyer paradise.  Robert McR., you ought to consider a move out west.

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  19. MJBubba:

    civil westman:
    What effect, by the way, does this have on land ownership? Does anyone in OK own any real property in fee simple anymore? This is merely another crystal clear example of the failure of the United States to competently govern itself.

    I wonder if Tribal property laws are significantly different than Oklahoma property laws?   I bet they are, especially with regard to water rights and mineral rights.

    Oklahoma is going to be a lawyer paradise.  Robert McR., you ought to consider a move out west.

    I have but a bit north: Wyoming. I just need Mrs. RMcR to give it the okay. Even we libertarians must submit to some authority, ya know.

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  20. Robert A. McReynolds:

    MJBubba:

    civil westman:
    What effect, by the way, does this have on land ownership? Does anyone in OK own any real property in fee simple anymore? This is merely another crystal clear example of the failure of the United States to competently govern itself.

    I wonder if Tribal property laws are significantly different than Oklahoma property laws?   I bet they are, especially with regard to water rights and mineral rights.

    Oklahoma is going to be a lawyer paradise.  Robert McR., you ought to consider a move out west.

    I have but a bit north: Wyoming. I just need Mrs. RMcR to give it the okay. Even we libertarians must submit to some authority, ya know.

    I get that, but just consider the opportunity.  Tribal courts will be immediately overwhelmed and will have to staff up dramatically to take over all the business formerly handled in state courts.  And there is going to be a flurry of contract law reviewing to see if the change from state law to Tribal law helps or hurts the parties to every contract.

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  21. Every prisoner convicted in state courts will get a new trial, I suppose.  The Tribes will have to work out a system of courts, and probably will need to pass some legislation to cover things that have been handled by the State of Oklahoma.

    Plus a flurry of casino construction.

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  22. MJBubba: “Oklahoma is going to be a lawyer paradise ...”

    Tribal societies did not have lawyers.  This might raise another question for the Supreme Court — Is a tribe with lawyers still a tribe?

    Setting aside the deep issues, the reality is that formerly tribal societies do now have lawyers.  Entertaining sidelight — in one of Tony Hillerman’s fascinating novels about tribal police on the Navajo Reservation, he mentioned that, since the Navajo language had never needed a word for “lawyer”, one had to be invented.  The chosen word translates as “Person Who Talks Fast“.

    Maybe this would be a good time to remind the Oklahoma tribes about the debate over whether the general happiness of a society is inversely related to the square of the number of lawyers, or to the cube.

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