Five lawyers in Washington, D.C. have announced that many of us have been living on Indian reservations all this time, we just didn’t know it. In response, several of our elected state leaders have made noises indicating they are in the process of giving away the store in resulting negotiations with tribal leaders, apparently driven by defeatism and panic. They should get off this losing course, and instead demand that the one body that can fix this mess do so: Congress.
First, how we got here. Jimcy McGirt, a revolting human being who was convicted of molesting, raping, and forcibly sodomizing his wife’s four-year-old granddaughter, has been justly rotting away in a cage for some 20 years as part of the 1,000-years-plus-life-in-prison sentence he was mercifully handed by an Oklahoma jury in 1997.
McGirt came up with a clever legal theory, though. He claimed the State of Oklahoma never had jurisdiction to prosecute him because he is Indian and his crimes were committed on Creek reservation land. You didn’t realize we have Indian reservations in Oklahoma? Neither did anyone else, including the tribes. We’ll get to that.
Under a very old federal law called the Major Crimes Act, specified crimes, including McGirt’s, must be tried in federal or tribal court if they involve an Indian in what the law calls “Indian Country.” That is, if the perpetrator or victim of a crime is Indian, and the crime takes place on tribal land, the State has no jurisdiction to prosecute.
McGirt claimed that the Creek reservation in Oklahoma—spanning 3 million acres and most of the City of Tulsa—was never explicitly dissolved by Congress, and therefore is still in existence today. The State dismissed McGirt’s contention, pointing out, in so many words, the obvious: if these were still Creek lands, someone, somewhere over the past century would have mentioned as much or acted like that was the case. The Oklahoma Court of Criminal Appeals agreed, denying McGirt’s claim and leaving him where he belongs, locked in a prison cell away from any future victims.
The United States Supreme Court had other plans. In a sharply divided 5-4 decision, the Court discovered that, unbeknownst to anyone (including the tribes until practically the day before yesterday) the Creek reservation was never “disestablished” by Congress. The Court dismissed the great weight of historical evidence, which featured many years and many actions by Congress that clearly communicated that what Congress was doing was dissolving tribal lands in favor of individual private ownership of property by tribal members and all of Indian territory blending into the new State of Oklahoma. The Court claimed it was not requiring “magic words” from Congress to achieve this dissolution of the tribal lands, but the majority opinion sure reads like anything short of magic words would not meet the Court’s approval.
Growing up, the difficult and sad history of how our Native American brethren ended up in Oklahoma was taught as both a reflection on the ugliness of those events, but also as a story, ultimately, of human triumph and reconciliation. We were taught that one of the most unique things about Oklahoma is that despite having the highest percentage Indian population of any state, we never had reservations. Oklahoma statehood combined Oklahoma and Indian Territories and sought to place Indian and Non-Indian citizens on equal footing in the governance of the state and in the eyes of the law. In this way, all would be Oklahomans, whatever their background. Indeed, there were many Indian founding fathers, playing key roles at the state constitutional convention and in elected offices early in statehood (and today, of course). The education I received thus treated Oklahoma statehood as a triumph of pluralism, and one that enriches our state’s culture in the present day.
The Supreme Court’s decision undermines that rich tradition and threatens to divide us. It will create jurisdictional disputes where none previously existed, necessitating adversarial negotiations between the state and the tribes.
While the legal machinations in the case and the history detailed in both the majority and dissenting opinions are interesting, they are only that (an interesting academic read) for the average Oklahoman who woke up last week with more than a century of settled expectations upended with the stroke of a pen—by people none of us voted for and who do not live here. That’s a hell of a way to redraw well-settled jurisdictional boundaries in what we still call a republic.
Nonetheless, we don’t have the luxury of musing endlessly about the academic, because the decision has far reaching, potentially dramatic consequences that must be dealt with. Most immediately, Jimcy McGirt’s conviction has been overturned, and his victim deserves justice. By my calculations, she is now around the age of 30. McGirt must now be re-tried in federal court and should be dispatched post haste.
Convicted criminals in a similar position to McGirt—according to the State there are nearly 1,700—now have viable claims for overturning their convictions. If the flood of claims the State warned of materializes, just processing and re-trying all these old cases will overwhelm the court system. It is conceivable, likely even, that guilty offenders long ago locked away for terrible crimes will walk free. Statutes of limitations alone may achieve this result for some, and stale evidence and long-gone witnesses will for others.
Going forward, if nothing is done, we will assuredly see the other four tribes who once held lands in Indian Territory take the position that they, too, still have reservations. They would likely win in court under the McGirt precedent. This will convert the entire eastern half of the state—comprised of 19 million acres and nearly 2 million people, only 10-15 percent of whom are members of tribes—into reservation land.
For this broad swath of our state, the criminal justice system will be transformed. Your elected district attorneys, district judges, and juries will have no role in prosecuting serious crimes if they involve an Indian (the federal law uses the term “Indian,” so it is not limited to enrolled members of the tribes; any Native American from any tribe triggers the Act if the crime is committed in this part of the state).
This is no small matter. Beyond practical logistics, our constitutional structure leaves the vast majority of policing and prosecuting to the states. Nearly 2 million Oklahomans likely have lost local control over crime fighting for a large volume of crimes committed in their communities. Non-Indian residents are not permitted to vote in tribal elections, and their influence over who becomes a federal prosecutor and how those individuals pursue their duties is so indirect (a vote for President every 4 years) as to be nonexistent.
The consequences described thus far are near certainties if nothing is done, as they flow directly from the Supreme Court’s decision. The majority and its supporters dubiously (and inexplicably) contend the decision is limited only to the Major Crimes Act. But remember, to reach its result, the Court first had to rule that the reservation is still intact. There is no logically consistent way for lower courts to ignore this precedent regarding a host of other issues. The broader implications may be sweeping, and not all of them are known (or knowable) at this stage. Here are some questions to ponder.
Are tribal members living on the reservations exempt from state taxes? An enterprising tax protester would have a very solid case if he brought such a lawsuit. What authority does the state have to tax an Indian living on a reservation? The state and local budget ramifications (to say nothing of the fundamental unfairness of categorically exempting citizens who use government services from paying for them) are immense.
Is medical marijuana now illegal in half the state? What good are state-issued dispensary licenses and medical marijuana cards on tribal land? The tribes have repeatedly reminded Oklahomans over the last few years that they never legalized marijuana and it’s still prohibited on tribal land.
Are Oklahoma regulations still valid in Indian Country? What about oil and gas drilling permits issued by the Corporation Commission? Will civil claims be adjudicated in tribal court? Are we heading for a two-class system where certain laws apply to tribal members and others to non-members? For that matter, what is the speed limit in Indian Country and can the Oklahoma Highway Patrol enforce it?
There are countless other unknowns and unknowables that will flow from this sudden jurisdictional change if it is left unaddressed. Just about the only certainty is that additional, costly litigation will be necessary to answer some of these questions.
Just because the particulars of precisely how this decision would destabilize life for the nearly 2 million people affected by it were unknown does not mean the destabilizing impact was unpredictable. Of course it is destabilizing to suddenly upend a century of settled societal expectations around which people have structured their lives. The dissent in the case rightly emphasized this destabilization as one of the principal reasons we leave these kinds of decisions to legislatures and the people, not to unelected judges.
Significantly, what is not in question is that Congress is the ultimate decision-maker on this matter—not the state, not the courts, not the tribes. Congress could, tomorrow, return the state to the status quo we’ve known for all of statehood by explicitly disestablishing the reservations. Even short of full disestablishment (given the history, you can imagine there would be little appetite to do something that sounds like taking away land from tribes, even if it was really just formalizing something that was done more than 100 years ago), Congress can pretty much do whatever it wants to alter the jurisdictions of the tribes and the state. Congress could delineate tribal and state jurisdiction along the lines they have always been, could give the tribes a much larger role than they enjoyed prior to the Supreme Court case, or come down somewhere in between. Whether there is political will in Congress is another question, but make no mistake, Congress is squarely in the driver’s seat.
I belabor this point because of the troubling consensus that appears to be congealing among elected state leaders, led by the Attorney General. Only a few months ago the AG rang alarm bells about the “parade of horribles” (Justice Gorsuch’s words) that would result from this ruling. Yet, hours after the Supreme Court ruling, the AG released a joint statement with the Five Tribes claiming to “have made substantial progress toward an agreement to present to Congress” that will establish a “framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights.” (Side note: who appointed the AG to lead any such negotiations? Certainly not the Oklahoma Constitution or the Legislature.).
It seems the message of this and other statements from state officials is that what is needed is a good, old fashioned, backroom bargaining session between state insiders and tribal leaders to sort all this out. No cause for concern, citizens of Oklahoma, the smart people will get around a table and determine what is best for you.
I am opposed to this sort of thing in principle, but it also makes little strategic sense for the state from a leverage standpoint. The Supreme Court just handed one side of that negotiation an enormous bargaining chip. The tribes, if they were so inclined, could at any time take their ball and go home, leaving the state with all the problems the ruling creates. Why would they give up this leverage without extracting significant concessions?
State leaders should not be so eager to rush into such a lopsided negotiation. Instead, they should demand action from Congress. Speaking of, where has our congressional delegation been in the several years this issue was barreling through the federal courts? One of our five congressmen was filing amicus briefs against the state; the rest have been mostly silent.
Starting the discussion with anything short of reminding tribal leaders that Congress could end all negotiations at any time is the only way for state leaders to avoid being taken to the cleaners. Let’s hope they stiffen their spines, just a little.
Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at [email protected].
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.