Last week, in McGirt vs. Oklahoma, the U.S. Supreme Court ruled 5-4 that as pertaining to the Major Crimes Act, much of the eastern part of Oklahoma remains Native American reservations of the Five Civilized Tribes. They ruled the reservations were never disestablished by Congress as part of the Oklahoma Enabling Act of 1906. The Enabling Act was the law passed by Congress paving the way for Oklahoma to join the union. The Enabling Act gave the tribes ‘suzerainty’ governing rights to handle internal matters for tribal members within the boundaries, but allowed the state to retain jurisdiction for law enforcement and prosecution. This new SCOTUS ruling means Native Americans who commit a major crime in the area formerly known as Indian Territory must now be tried by the federal courts, not the state courts when they commit a major crime. The plaintiff in the case, Jimcy McGirt, an enrolled member of the Seminole tribe, was originally convicted in Wagoner County in 1996 of first degree rape, lewd molestation and forcible sodomy. McGirt, 71, was sentenced to 1,000 years plus life without parole. He argued because the crimes took place on the former Creek reservation, the feds should have had jurisdiction, not the state.
In the majority opinion, Justice Neil Gorsuch, the newest appointee to the court, said the U.S. government had promised the Five Civilized Tribes land forever and that Congress did not disestablish the reservations with the Enabling Act. Gorsuch wrote: “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.” In the dissenting opinion, Chief Justice John Robert wrote: “None of this is warranted. What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation. Congress disestablished any reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century.” Three observations:
First, the implications of the ruling will dramatically impact the Oklahoma criminal justice system. Native Americans who have been convicted on major crimes in state court in the eastern half of the state will have to be reprosecuted in federal court. If the statute of limitation is run out, that could be a problem. If witnesses can’t be located or have died, that could be an issue. There will likely be criminals who get out of prison because of this ruling.
Second, while this ruling focused on criminal law, it opens up a can of worms in tax collection, water rights, land ownership and a myriad of other areas. If the reservations are in fact intact, then what can the state enforce? Can they legally collect state taxes from citizens of another sovereign nation if they can’t prosecute them for a crime? Expect future litigation to cite this landmark ruling to justify not submitting to state laws and rules.
Third, the tribes and state government better work together to protect all Oklahoma citizens. The tribes and the feds don’t have the law enforcement and criminal justice personnel to handle the amount of crime in half the state. Law enforcement is primarily done at the local level in the state. If local law enforcement believes they could be liable for arresting and prosecuting Native Americans in half the state, they could back off and crime will increase. The feds and the tribes better quickly figure out a plan to cooperate with local law enforcement to keep Oklahomans safe.
Prior to statehood, Oklahoma was two territories- Oklahoma territory (western half) and Indian Territory (eastern half). Since 1907, Oklahoma has been one state. If Congress didn’t dot every i and cross every t, when they passed the Enabling Act disestablishing the reservations, then they should fix it. This ruling divides Oklahoma and rolls us back to pre-statehood/territorial days.