The US supreme court has ruled that a large part of eastern Oklahoma remains a Native American reservation, a decision state and federal officials warn could throw the entire state into chaos.
The court’s 5-4 decision, written by Justice Neil Gorsuch, means that Oklahoma prosecutors lack the authority to pursue criminal cases against Native American defendants in parts of Oklahoma that include most of Tulsa, the state’s second-largest city.
“On the far end of the Trail of Tears was a promise,” Gorsuch wrote in a decision on Thursday, joined by the court’s liberal members. “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 … Today we are asked whether the land these treaties promised remains an Indian [Native American] reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”
The court’s ruling casts doubt on hundreds of convictions won by local prosecutors. But Gorsuch suggested optimism. “In reaching our conclusion about what the law demands of us today, we do not pretend to foretell the future and we proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long,” he wrote.
“But it is unclear why pessimism should rule the day. With the passage of time, Oklahoma and its Tribes have proven they can work successfully together as partners.”
Oklahoma’s three US attorneys quickly released a joint statement expressing confidence that “tribal, state, local and federal law enforcement will work together to continue providing exceptional public safety” under the ruling.
Jonodev Chaudhuri, the ambassador of the Muscogee (Creek) Nation and a former chief justice of the tribe’s supreme court, said the state’s argument that such a ruling would cause legal havoc was overblown.
“All the sky-is-falling narratives were dubious at best,” Chaudhuri said. “This would only apply to a small subset of Native Americans committing crimes within the boundaries.
“This case didn’t change ownership of any land. It didn’t impact the prosecutions of non-Indians in any way. All it did was bring clarity to jurisdictional questions regarding the border, and it enhanced the Creek Nation’s ability as a sovereign nation to work with other sovereign interests to protect people and to work in common interests.”
Forrest Tahdooahnippah, a Comanche Nation citizen and attorney who specialises in tribal law, said the ruling’s short-term implications are largely confined to the criminal context and that serious felonies committed by Native Americans in parts of eastern Oklahoma will be subject to federal jurisdiction.
“In the long term, outside of the criminal context, there may be some minor changes in civil law,” he said. “The majority opinion points out assistance with Homeland Security, historical preservation, schools, highways, clinics, housing, and nutrition programmes, as possible changes. The Creek Nation will also have greater jurisdiction over child welfare cases involving tribal members.”
The case centred on an appeal by a Native American who claimed that state courts had no authority to try him for a crime committed on reservation land that belongs to the Muscogee (Creek) Nation. The reservation once encompassed 3m acres (12,100 sq km), including most of Tulsa.
The supreme court failed to reach a decision last term when it reviewed a federal appeals court ruling in a separate case that threw out a state murder conviction and death sentence. In that case, the appeals court said the crime occurred on land assigned to the tribe before Oklahoma became a state and Congress never clearly eliminated the Creek Nation reservation it created in 1866.
The case the justices decided on Thursday involved 71-year-old Jimcy McGirt, who is serving a 500-year prison sentence for molesting a child. Oklahoma state courts rejected his argument that his case did not belong in Oklahoma state courts and that it should be handled by federal prosecutors.
McGirt could potentially be retried in federal court but was not expected to be released from prison. He would probably have charges brought against him in federal court, said Michael McBride of the Oklahoma City-based law firm Crowe & Dunlevy.
Following the ruling, the state of Oklahoma issued a joint statement with the Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole nations in which they vowed to work together on an agreement to address any unresolved jurisdictional issues raised by the decision.
