Oklahoma band falls on Indian reservation, Supreme Court rules

WASHINGTON — Oklahoma state officials and business groups reacted cautiously to a Supreme Court ruling on Thursday that declared part of the state near Tulsa to be part of the reservation of the Muscogee (Creek) Nation, as the implications for criminal cases, taxes and regulations remained unclear.

Judge Neil Gorsuch’s 5-4 court ruling applied the 19th century treaties the United States made with the Creek, a historic recognition of Native American rights that could potentially lead to the classification of nearly half of the state as Indian country, if similar agreements with neighboring Cherokee, Chickasaw, Choctaw and Seminole tribes are honored.

At issue was whether Oklahoma’s admission to the Union in 1907 had dissolved the Muscogee (Creek) Reservation which now adjoins its second most populous city, Tulsa. The Supreme Court case arose when Native Americans being prosecuted in Oklahoma state courts began challenging their convictions, arguing that as residents of an Indian reservation, they could only be tried. by a federal court.

Judge Gorsuch firmly based his opinion on the fact that despite the many steps Congress had taken to curtail Creek self-government, it never formally extinguished the tribe’s sovereignty. To cancel the reservation, he wrote, Congress must say so explicitly.

But from its opening lines, the opinion made it clear that the sometimes shameful treatment of Native Americans bolstered the court’s resolve to recognize the rights of the Creeks.

“At the end of the trail of tears there was promise,” Justice Gorsuch wrote, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. “Forced from their ancestral lands in Georgia and Alabama, the Creek Nation was assured that their new lands in the West would be safe forever.”

Over time, “Congress has since broken more than a few of its promises to the tribe,” he wrote. But on Thursday, “we hold the government to its word”.

Four court conservatives dissented.

The court rejected arguments that recognition of the reservation would upset the Oklahoma government. Justice Gorsuch observed that during the 20th century the federal government had abandoned its campaign to force Native Americans to assimilate, recognizing instead the value of native culture, and he speculated that courtesy and cooperation would prevail in the new legal framework.

“Over time, Oklahoma and its tribes have proven they can work together successfully as partners,” he wrote.

In a joint statement Thursday, the State of Oklahoma and the Creek Tribe and the other four tribes pledged to work together on the issues raised by the court’s decision to preserve sovereign interests and the laws and regulations that “support public safety, our economy and private property”. rights.”

“We will continue our work, confident that we can accomplish more together than any of us could alone,” the statement said.

The image of the dissenting judges was quite different. Chief Justice John Roberts wrote that all promises of perpetual rights made by the United States to the Creeks were extinguished by the 1860s.

“The five tribes, whose members collectively held at least 8,000 slaves, signed treaties of alliance with the Confederacy and provided forces to fight alongside rebel troops,” wrote the chief justice, joined by the judges Clarence Thomas, Samuel Alito and Brett Kavanaugh.

Congress began shrinking the territory of the tribes and completely abolished their sovereignty with Oklahoma’s statehood, he wrote. “By conferring citizenship on the members of the tribe and giving them a vote in the formation of the state, Congress has incorporated them into a new political community,” he wrote. To hold otherwise “could destabilize the governance of large swathes of Oklahoma.”

Native American legal experts were divided on the extent of the ruling’s effects.

A clear change will be that the federal government, rather than the state, will now have jurisdiction over the territory to oversee and investigate major crimes, such as murder, rape or aggravated assault, that involve tribal members, according to legal experts.

Meanwhile, hundreds of criminal convictions previously handed down by prosecutors in the region may also need to be retried, they said.

But the ruling’s effect on other issues, from land ownership to business licenses, remains murky.

Since states are not allowed to tax Indians on reservations, experts said the state and tribe would likely have to negotiate tax issues and state tax revenue would likely decline somewhat.

“I think this is a huge win for tribes and tribal sovereignty in the short term,” said University of Chicago Law School professor Todd Henderson. “It creates huge uncertainty for everyone.”

Mr Henderson said he expects a flood of litigation to try to delineate the extent of the tribe’s jurisdiction over non-members. He said, for example, it was unclear whether a state license to operate certain businesses like a bar would be sufficient in the future.

“If I owned a business or property in the territory, I would be very unhappy,” he said.

Kevin Washburn, dean of the University of Iowa Law School, said most of the changes will affect tribal members living in the area, as the states have no criminal, tax or regulatory authority over Indians living on reservations.

He said he grew up in Oklahoma and was taught in school that Native American reservations were wiped out when the state was settled. “What this case shows is that it was never done legally,” he said. “For the Indian tribes, this is a very important decision, because it says that the United States respects the Indian treaties.”

He and other experts said most citizens living on land now considered part of the Creek Reservation will not notice the difference in their daily lives.

“At the government level, there are a lot of issues that need to be addressed, but it won’t change people’s lives very much,” he said.

Oklahoma Governor Kevin Stitt said his legal team has been following the case closely and is still reviewing the decision. “They will advise our team on the impact of the case and what actions, if any, are required from our office,” the governor said in a statement.

Chad Warmington, president and CEO of the Oklahoma State House, said the group was disappointed with the decision but was optimistic the state’s regulatory environment would not be changed d an ‘unfriendly’ way for businesses.

“We have a very productive working relationship with many of our state tribal governments and have no reason to believe that major disruptive changes are on the horizon,” Mr. Warmington said.

The case dates back to the old US government policy of driving Indians off their lands to make way for white settlement. In the early 19th century, he expelled the five tribes from their ancestral lands in present-day Georgia and Alabama, pushing them into the territorial plains of Oklahoma. This eviction is known as the Trail of Tears.

In treaties dating back to the 1830s, the United States promised to “guarantee a country and a permanent home to all the Creek Indian Nation”, but in the following decades it took official and practical measures that stripped of both their power and their property.

Tribal member Joy Harjo, the first Native American to be a United States Poet Laureate, said the decision “reaffirms our identity as a tribal nation. We had a very effective system of jurisprudence long before the European systems were instituted and imposed on us,” Ms. Harjo, whose offices are across from the Supreme Court, told the Library of Congress. “I see this decision as an opportunity to understand and integrate other approaches to governance, perhaps a step in healing the divide in this country.”

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Write to Jess Bravin at [email protected] and Kris Maher at [email protected]

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Nohemi M. Moore