Supreme Court: Should Eastern Oklahoma Be Considered An Indian Reservation?
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Today the Supreme Court heard arguments over whether the entire eastern half of Oklahoma should be considered an Indian reservation. A case that began with a murder could end up having broad implications for everyone who lives in that part of the state, Native American or not. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: As most Americans think of it, there's no formal Indian reservation in Oklahoma today. But then most Americans know little about Indian history. Indians were forced off their land in the southeast of the United States by order of President Jackson and forced to march more than a thousand miles to relocate on reservations mainly in Oklahoma. What's left of those reservations is essentially a system of Indian identity and governance in the eastern half of Oklahoma that coexists with the state government.
That all got thrown into question when Patrick Murphy, a Native American sentenced to death in state court for killing another Indian, challenged his conviction, contending that he'd been tried in the wrong court. A federal appeals court subsequently ruled that he should have been tried in federal court because the eastern part of Oklahoma was still technically an Indian reservation. And crimes committed on reservations must, under federal law, be prosecuted in federal, not state court.
JAMES FLOYD: We were really forced into this case to defend our sovereignty.
TOTENBERG: James Floyd, chief of the Muscogee Creek Nation, said that when Oklahoma appealed to the Supreme Court, the tribe had to defend itself.
FLOYD: We have sovereignty. We have the reservation that was never diminished or taken away. And so if we didn't stand up, we'd basically ceded that point to the state of Oklahoma. And we refuse to do that.
TOTENBERG: Indeed, while Congress has revoked treaties regarding other Indian reservations, it never did that in Oklahoma. Today in the Supreme Court, lawyer Lisa Blatt representing Oklahoma told the justices that when the state became a state, that automatically stripped Indian lands of their reservation status. Justice Kagan, however, noted that the Supreme Court has repeatedly required that Congress explicitly terminate Indian land rights. And while Congress has done that in other places and for other reservations, it did not do that in Oklahoma. Justice Breyer noted that in 1906, Congress explicitly continued all tribal rights for the five tribes in Oklahoma.
Blatt replied with what she called earth-shattering consequences if the Supreme Court upholds those rights. She said 2,000 prisoners in state court who committed a crime in Indian territory and self-identify as Native American could have their cases reopened, including 155 murderers. Deputy Solicitor General Edwin Kneedler agreed with her position on behalf of the Trump administration. And in response to a question from Justice Ginsburg, he said there would be further consequences. He said that if the reservation still exists, that would mean that Native Americans living in the eastern half of the state would not have to pay state sales and income taxes.
Arguing the other side of the case was former Solicitor General Ian Gershengorn, who faced a barrage of practical questions. Justice Breyer - there are 1.8 million people living in this area. They've built their lives not necessarily on criminal law but on municipal regulations, property law, dog-related law. And now if we say this land belongs to the tribe, what happens to all those people, all those laws? Justice Alito - how can it be that none of this was recognized by anybody or asserted by the Creek Nation, as far as I'm aware, for a hundred years?
Gershengorn replied that the tribes in the state have joint agreements that long have governed how they'll proceed on law enforcement and other matters. But Justice Kavanaugh wasn't buying it, declaring all the practical implications say leave well enough alone here. If inside the courtroom the situation sounded dire, outside, both the Oklahoma attorney general and the Creek chief sounded as if they could live with the decision either way. Here's state Attorney General Michael Hunter.
MICHAEL HUNTER: We work together well collaboratively, thoughtfully, respectfully. So it won't be the end of the world, but it will certainly be, again, a misstep from the relationships that we have with tribes right now.
TOTENBERG: Chief Floyd agrees, noting that tribal members are citizens of the state, too.
FLOYD: If we were to win, you would not see some earth-shattering changes overnight.
TOTENBERG: A decision in the case is expected after the first of the year. Nina Totenberg, NPR News, Washington.
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Looking at learning more about Native American rights and treaties??? Folks, if the courts rule in favor of the Tribe/Nation - wow.
BTW - The Deputy Solicitor General of the U.S. needs to also learn his Native American law - tribal/nation members do pay state sales and income taxes under certain conditions.
Alito (from NJ ) has proven his lack of worth in Indian matters several times.
Hopefully we can hope for another favorable ruling by Gorsuch
I think there should be a Native American commission formed to research all US Native American treaties, contracts, agreements and original reservation boundaries and an effort should be made to honor as many of those broken promises as possible. And it's not about "reparations" so much as it's about choosing to honor our promises and agreements, whether we want to show our children and grandchildren that no matter how long it takes, no matter how hard it is, doing the right thing is its own reward.
DP - the Indian Claims Commission was founded in 1946 and purportedly completed their work in 1970.
Land was the dominant concern of the litigation by tribes before the Indian Claims Commission (ICC). The statutory authority did not permit this tribunal to grant or restore land to the tribes, but only to award money based upon a net acreage figure of lost lands times the monetary market value of an acre at the time of taking. This limitation on the authority of the ICC was resented by many tribal peoples, who wanted the return of their lands more than money—e.g., the Pit River Indians of northern California, and the Teton and Lakota of the Black Hills, South Dakota. In a few instances, by way of settlement acts, tribes gained some monetary funds to buy acreage when they had no communal land (as with the Penobscot and Passamaquoddy of Maine and the Catawba of the Carolinas). Special congressional acts on occasion did restore some acreage, as with the Havasupai at the Grand Canyon.
In preparing expert testimony for litigation brought by the tribes as plaintiffs or for the defense by the U.S. government, researchers explored all forms of data, including the earliest possible maps of original title—i.e., native or indigenous—territory and the cartographic presentations based upon treaties, statutes, and executive orders—generally identified as recognized title. In most cases, recognized title lands could be more easily demonstrated in litigation, while native territory depended upon Indian informants, explorers, trappers, military personnel, missionaries and early field ethnographers. Scholars sought to reconstruct native ecology in terms of food supply and other resources of the environment. In this way, some concept of original territory could be gained that could be mapped. As the Final Report of the ICC revealed, compromises over territorial parcels led to rejecting some acreage which had been used by more than one tribe over time.
The briefs, testimonies, quantum data, findings, and decisions were published in the 1970s in a multiple series of microfiche by Clearwater Publishing, Co., NY, which publisher was sold to CIS, then to Nexis/Lexis. Garland Publishing, NY, also in the 1970s, published some two hundred books containing some but not all of the materials pertaining to the claims cases.
I am a little confused (not great with legalese), so does that mean that this is a win for the tribes or not?
Perrie - as it stands now, SCOTUS has heard all the briefs/arguments/findings/discoveries. Their next task is to sort through all the paperwork/words/graphs/etc.. to make their determination whether or not the lands are still Indian lands so the correct venue of the court can be proceeded with. If the lands are still tribal/nation lands, then his case will have to be turned over to the Feds since it was a Capital/Major Crimes as the Feds have jurisdiction over Major Crimes committed on Indian lands.
The questions before the court are: "QUESTIONS PRESENTED (1) Whether any statute grants the State of Oklahoma jurisdiction over the prosecution of crimes committed by Indians in the area within the 1866 territorial boundaries of the Creek Nation, irrespective of the area’s reservation status. (2) Whether there are circumstances in which land qualifies as an Indian reservation but nonetheless does not meet the definition of Indian country as set forth in 18 U.S.C. § 1151(a)."
Thanks Rex - if anyone wants to see what the case is about, a great link to go to.
Yes. And that is just the Muscogee (Creek) Nation brief in response to the Court's request for supplemental briefs.
should be able to read more at the following: