With so many people focused on the spiking COVID-19 cases, mounting economic problems, the upcoming Presidential campaign, and other national and international stories, a recent ruling by the Supreme Court did not get the attention it deserved. But it will - and may even become one of the most important decisions in years.
On July 9, the Court ruled 5-4 that a three million acre stretch of land in Oklahoma including Tulsa, the state’s second largest city, are part of an Indian reservation.
Here’s what happened. In 1997, Jimcy McGirt, a Native American, was convicted by a court in Oklahoma for raping a four-year-old girl and related crimes. He was sentenced by an Oklahoman court to 1,000 years plus life in prison. But the Supreme Court overturned that conviction. It ruled that part of Oklahoma belonged to the Creek Indians, and therefore the Oklahoman court lacked jurisdiction to prosecute him.
Writing for the majority opinion, Neil Gorsuch said, “On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.” Gorsuch’s ruling re-enforced those assurances.
But in a dissenting view, Chief Justice John Roberts wrote that “A century of practice confirms that the Five Tribes’ prior domains were extinguished….and until a few years ago the Creek Nation itself acknowledged that it no longer possessed the reservation the Court discovers today.
“Across this vast area, (Oklahoma’s) ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.” Roberts said. The state’s Solicitor General, Mithun Mansinghani, had warned such a ruling might necessitate the release of over 1,700 inmates.
The Creeks are one of five tribes (the others are Cherokee, Choctaw, Chickasaw, and Seminole) who were ordered to leave their homelands in and around Georgia in the 1830s by President Andrew Jackson. They were forced to journey west; thousands died on that trek. The Creeks and members of other tribes started a new home in Oklahoma and called it Tulasi, or “Old Town.” This “Trail of Tears,” which Gorsuch referred to in his opinion, is still a painful memory to Native Americans.
According to The New York Times, “What followed their journey were decades of betrayals, broken treaties and attempts to legislate and assimilate tribes out of existence. The Muscogees (Creeks) lost nearly half their lands in an 1866 Reconstruction treaty and over the following decades additional lands were taken and sold to private owners. Some state officials actually denied that there had ever been a Creek reservation on land that became Oklahoma.
The Supreme Court confirmed what the Muscogees had been saying all along: that part of Oklahoma belongs to them. The ruling brought Native Americans relief, joy, and vindication,” wrote The Times.
“There were a lot of scare tactics,” Jason Salsman, the Muscogee press secretary said. A Muscogee victory would mean “turn the prisoners loose, give us your tax dollars, your land is our land. Nothing could be further from the truth.”
Salsman’s comments will reassure many Oklahomans, but the Court’s ruling will, nevertheless, generate uncertainty, chaos, legal wrangling, and potentially a flood of lawsuits.
“The outcome could have far-reaching implications for the State of Oklahoma and its citizens as it relates to property rights and land titles, taxation, and other matters involving tribal affairs,” the law firm Phillips Murrah concluded.
While it’s still too early to understand the full implications of the Court’s decision, some lawyers believe those implications may extend far beyond the borders of Oklahoma.
For starters, past convictions could be reversed. The Times reports that in the future, both criminal and civil cases in the state could be impacted.
Moreover, the Court’s decision may extend to four other reservations in the state. In other words, while the Court has already cut Oklahoma in half, the cutting may not be over.
And it also raises numerous questions. Will millions of people still have to pay taxes to Oklahoma or will the taxes they’ve paid be refunded? Can the tribes collect back rent? Do title insurance companies and banks bear any liability?
Oklahoma is a major energy producer, and the oil and gas industries now face uncertainties about taxation, drilling rights, and environmental issues. And what about the state’s electoral votes – will those be affected?
While these issues are being resolved, the immediate future of the 1.8 million people living in eastern Oklahoma is in limbo. Oklahoma no longer has jurisdiction over them, but the tribes who do are completely unprepared to take control of those areas.
At one time, the entire continental US was owned and populated by Native Americans, and the injustices perpetrated against them didn’t begin or end with the Creeks. Some of those Indian nations may see the Court’s decision as a green light to pursue their own grievances, and the Court’s ruling could serve as a legal precedent in those.
Democrats recently introduced a bill in Congress ordering the government to pay reparations to African Americans. The Court’s ruling, combined with the current atmosphere focusing on injustices, could add momentum to that bill.
There’s an additional potential grievance that could surface: Mexico laying claim to huge swaths of the Southwest and suing for compensation.
We’re living in very volatile, unpredictable, and dangerous times. Basic ideologies and long-established beliefs and institutions are starting to fall apart and no one knows where the chips will fall and what those will mean.
It’s not exactly clear where the train is heading but undoubtedly, it’s picking up speed. Better fasten your seat belts.