Redrawing Oklahoma’s legal boundaries

BRIAN BASHAM, HOST: It’s Tuesday, the 28th of July, 2020.

Thanks for joining us today for The World and Everything in It. Glad to have you along! Good morning, I’m Brian Basham.

MARY REICHARD, HOST: And I’m Mary Reichard. 

First up … a landmark Supreme Court ruling.

In 19-97, a state court in Oklahoma convicted Native American Jimcy McGirt… of committing heinous crimes against a 4-year-old Native American girl near Tulsa. He got 500 years plus life without parole for his crimes.

But McGirt’s lawyers argued he committed those crimes on Native American land. That meant only a federal or tribal court could try him, not the state of Oklahoma. In May, McGirt made that case before the U.S. Supreme Court.

BASHAM: The legal question boiled down to whether the land where McGirt committed his crime is or was an Indian reservation. To the surprise of many legal analysts, the Supreme Court ruled 5-4 in McGirt’s favor … voiding his state conviction. WORLD’s Sarah Schweinsberg reports now on how that could affect other criminal cases in the state.

SARAH SCHWEINSBERG, REPORTER: The Supreme Court’s ruling sent shockwaves through Oklahoma. 

News headline: And in the wake of that landmark Supreme Court ruling that the Muscogee Creek Nation is still an Indian reservation…. A huge case coming out of Washington D.C. 

That’s because the high court found that much of eastern Oklahoma is actually Native American reservation land. 

How? 

Jimcy McGirt committed his crime near Tulsa, which sits in the historical boundaries of the Creek Reservation. Congress and the Creek Tribe signed a treaty in 18-32 that created the Creek Reservation. 

That after Congress forced the Creek to head west on the Trail of Tears along with the Choctaw, Chickasaw, Cherokee, and Seminoles. They settled in what is now Eastern Oklahoma. 

Over time, federal policies encouraged white settlers to come to the area. By the 20th century, the territory applied for statehood, and Congress admitted Oklahoma to the Union in 19-07. 

Ann Tweedy is a tribal law professor at the University of South Dakota. She says McGirt’s lawyers successfully argued that Congress never formally repealed its treaty with the Creek Nation. Or, in legal terms, it never “disestablished” the Creek Reservation. 

Tweedy: A 2016 case called Nebraska v. Parker, that said that the statutory language prong is the most important, and so here, the court followed that 2016 case and said, yes, the statutory language is the central question, and here, it doesn’t show that Congress intended to disestablish this reservation.

Under this line of reasoning, the Creek Reservation still exists along with the Choctaw, Chickasaw, Cherokee, and Seminole reservations. 

The decision affects a large swath of the state’s population. About 1-point-8 million people in Eastern Oklahoma now live on reservation land. And 400-thousand of them live in Tulsa—Oklahoma’s second largest city. 

But only about 15 percent of Eastern Oklahoma’s population is Native American. Tweedy says on questions of Native American sovereignty, the Supreme Court has typically taken those demographics into account. This decision is a significant departure.

Tweedy: The majority opinion… talks about the fact that the Creek Nation wouldn’t have anticipated this large number of non-Natives on its reservation, just as the non-Natives might not have anticipated being on a reservation. It’s a two way street. 

So what are the everyday implications of the ruling?

The first and biggest involves criminal cases. Tweedy says crimes involving Native American perpetrators or victims will now most likely be handled by a tribal court or the federal government. Not Oklahoma. 

Tweedy: If a non-Indian commits a crime against a non Indian, then that would go to state court. But other than that, most things are going to go to federal court. And if the crime is committed by a Native American, it could also go to tribal court.

But discerning which cases fall under whose jurisdiction isn’t that simple, says Zack Smith. He’s a legal fellow at the Heritage Foundation.

Smith: It’s unclear which set of courts, Oklahoma courts or federal courts, have to be the ones to resolve any disputes. It just creates a lot of confusion.

The ruling also calls into question past state criminal convictions. Legal analysts estimate as many as 2,000 other state convictions could now be overturned and left in limbo. 

Cases like Jimcy McGirt’s will have to be retried. 

5 Smith: It’ll be up to the federal government to try him if they want to move forward with this case, which is a very difficult thing for them to do because he was convicted in 1997… It’s tough to retry someone after that many years. 

Ann Tweedy and Zack Smith both say the case also raises questions about tax law, civil jurisdiction, family law, land use, and environmental regulations. Resources will also have to be shuffled between state and federal offices. 

SMITH: I think we’re really just beginning to scratch the surface of the areas this, this decision could impact. 

But some legal observers say states and tribes have been negotiating jurisdictions for more than a century now. This will be doable as well. Forrest Tahdooahnippah is a tribal law lawyer and a member of the Comanche Nation of Western Oklahoma. 

Tahdooahnippah: The idea of the majority is this is going to certainly change the status quo. But it’s something that… will just bring the tribe and the state back to the negotiating table to re-address and solve any sort of gray areas that may exist.

Tahdooahnippah says he also believes the case is significant but that the power it gives back to the tribes is overblown. It’s more symbolic than anything. 

Tahdooahnippah: Because there’s not Indians that live and work there, you know, the state will still have a lot of jurisdiction… And so it was just giving the tribe recognition that this reservation was never taken away.. 

But Tahdooahnippah says the ruling will most likely inspire other tribes without legal jurisdiction over their historic reservations to seek recognition.  

Tahdooahnippah: There’s a more likelihood that the rights will be upheld, unless there really is a very specific congressional statute that says this treaty right is going to no longer exist.

Reporting for WORLD, I’m Sarah Schweinsberg.

A detail of the 1790 Treaty of the Muscogee (Creek) Nations and the United States on display at the Smithsonian’s National Museum of the American Indian in Washington. (Kevin Wolf/AP Images for Smithsonian’s National Museum of the American Indian, via AP, File)

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