By Allan Wall, July 20, 2020
The U.S. Constitution, in Article I, Section 8, stipulates that Congress shall have the authority “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
The state of Oklahoma has 39 federally-recognized Indian tribes, so this is a very real issue for the Sooner State.
Oklahoma officials deal with a patchwork of competing jurisdictions – the state of Oklahoma, the counties, the municipalities, the Indian tribes, and the Feds.
Casinos, for example; Indians have a monopoly on casinos, and OK Governor Kevin Stitt has been negotiating to get the tribes to pass along a higher percentage of their casino earnings to the state coffers.
On July 9th, 2020, the United States Supreme Court, in McGirt v. Oklahoma (and a companion case), ruled that, at least for purposes of criminal law, the land formerly comprising the territory of the Creek (also called Muskogee) Indians is still reservation land.
The ruling may even be used to make the same argument for four other tribes: the Cherokee, Choctaw, Chickasaw, and Seminole. Along with the Creek, these five tribes were called the “Five Civilized Tribes” and their land covered most of eastern Oklahoma.
(See map here which shows the territory of the Five Tribes in the late 1800s.)
By statehood, in 1907, these territories were dissolved, with tribal members receiving parcels of land and most of the rest of the property winding up in ownership of non-Indians.
Now two cases with similar arguments have reached the Supreme Court:
- Sharp v. Murphy. Patrick Murphy, member of the Creek (Muskogee) tribe was on death row for murder, but argued that the state of Oklahoma did not have jurisdiction to try him, that only the federal government could do that. This case worked its way up to the Tenth Circuit which upheld it. When it reached the Supreme Court in 2018, Justice Neil Gorsuch recused himself as he had formerly been a justice on the Tenth Circuit when that court ruled on the case. So the Supreme Court was tied 4-4 and had to wait for McGirt vs. Oklahoma.
- McGirt v. Oklahoma. Jimcy McGirt was sentenced to life imprisonment for raping a four-year old girl, but argued that as an Indian (Seminole) who had committed his crime on Indian (Creek) land, the state of Oklahoma couldn’t try him, only the Feds.
The Supreme Court heard McGirt vs.Oklahoma and ruled, 5-4, in favor of McGirt, attaching the Sharp v. Murphy case to it as well.
The majority opinion, written by Justice Neil Gorsuch, declared that for purposes of criminal law, the former Creek land was still Creek land, because Congress had never declared otherwise.
The dissent was written by Chief Justice John Roberts, who contended that in past statutes, Congress had disestablished the Creek reservation.
Furthermore, Roberts wrote that “the Court has profoundly destabilized the governance of eastern Oklahoma. The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”
Indeed, the McGirt v. Oklahoma has already affected two cases in Tulsa, a city mostly in the former Creek nation territory. First, the Tulsa DA announced that, because of McGirt v. Oklahoma, state charges were being dropped against a man who left his two children in a hot car where they died. Two, an American Indian woman was shot in the head, her dead body left in a city park. That case has already been turned over to the Feds, with a suspect in custody.
One can see the sorts of problems this ruling could cause, not to mention how many prisoners currently serving time might choose to contest their sentences.
A week after the decision, Oklahoma Attorney General Mike Hunter announced a deal with four of the Five Tribes (not the Seminoles) for jurisdiction-sharing in criminal cases.
The next day though, the Creek Nation announced it didn’t support the deal, opposing “any proposed legislation that diminishes the Nation’s sovereignty.”
It sounds like Congress, as per the previously-mentioned Article I, Section 8, needs to step in and fix things.
Allan Wall is a native Oklahoman.
Visit his website.