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 But Congress has never withdrawn the promised reservation.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Maine, Texas, and Montana, who may now bring cases to restore sovereignty over lands once granted to them and never rescinded by Congress.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. Proposed tribal business model for the leaders of the Indian State (talk about going viral!): secede from the US after having written a libertarian/anarchist constitution and acted behind the scenes to assure recognitions by several foreign powers upon declaration (I suspect there would be a fair number of countries more than willing to poke Uncle Sam in the eye in this manner). Sell citizenship selectively to like-minded individuals (with no discrimination other than like-mindedness when it comes to governance) for amounts which permit a fair number to immigrate and receive passports. Promotion should stress the aim for real liberty, equality of opportunity &  justice, and border enforcement. In other words to secure those natural rights as defined under the original Bill of Rights (not the so-watered-down-as-to-be-drowned rights barely permitted now – better described as ‘hedonic license’ by Bork).

    Organize it. They will come.

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  2. Civil W: “… secede from the US after having written a libertarian/anarchist constitution …

    Unfortunately, the last time someone tried to secede from the US, it did not work out too well.

    Some Indian tribes are forward-looking — the Jicarilla Apache tried hard to set up a profit-making nuclear waste storage site on their mountain fastness.  But too many of the tribes have become impoverished wards of the State, dependent on handouts and providing Democrat votes.

    I recall an interesting long-ago talk with an academic who had studied Reservations across the US.  Many were dismal economic failures which left most tribal members dependent on public assistance, while a few were booming successes with outsiders commuting onto the reservation each day to work.  He concluded that the difference was the successful tribes had a rock-solid commitment to the sanctity of contracts — a deal meant what it said, and would not be subject to subsequent “re-interpretation”.

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  3. civil westman:
    Promotion should stress the aim for real liberty, equality of opportunity &  justice, and border enforcement.

    This is similar to the goals of the Free State Project, which aims to persuade a sufficient number of freedom-oriented people to move to New Hampshire to tilt the balance sufficiently to elect state and local government which will enact a liberty agenda and push the limits of state sovereignty to limit federal impositions on state autonomy.

    A harder-edged scenario is presented in Boston T. Party’s (Kenneth Royce) Môlon Labé, where the state is Wyoming (which many supporters of the Free State idea would have preferred as the destination) but the strategy is similar.

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  4. John Walker:

    civil westman:
    Promotion should stress the aim for real liberty, equality of opportunity &  justice, and border enforcement.

    This is similar to the goals of the Free State Project, which aims to persuade a sufficient number of freedom-oriented people to move to New Hampshire to tilt the balance sufficiently to elect state and local government which will enact a liberty agenda and push the limits of state sovereignty to limit federal impositions on state autonomy.

    A harder-edged scenario is presented in Boston T. Party’s (Kenneth Royce) Môlon Labé, where the state is Wyoming (which many supporters of the Free State idea would have preferred as the destination) but the strategy is similar.

    I remember the Free State Project. It seemed hopeful at first blush but it soon became clear it was doomed, not least because of the neighbors to the south, locally known as Massholes. The same fate will befall any such project because most people don’t actually favor “liberty, equality of opportunity &  justice, and border enforcement,” especially liberty. Another thing that’s not too popular is freedom of association, which I suppose is a subset of liberty.

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