The words I put in an earlier post today again proves what they say: “Day-by-day, case-by-case, the Supreme Court is busy designing a Constitution for a country I do not recognize.”by Justice Antonin Scalia
The Supreme Court case of McGirt v. Oklahoma began with a horrific crime, and ended this morning with 1.8 million Oklahomans’ land being declared within an Indian reservation for the purposes of prosecuting any crimes committed by American Indians. The decision has met celebration among some American Indians, as well as deep concern from legal experts and state officials. The implications are immense, and only beginning to be understood.
The case began with Jimcy McGirt’s state conviction of raping his wife’s grand-daughter, who was four years old. In his defense, the man’s lawyers claimed the crime happened within a presumed-defunct Creek reservation. If the reservation was indeed operating, then the state had no right to sentence McGirt. More importantly, it meant that territory making up almost all of Eastern Oklahoma, including Tulsa, falls under Creek Nation jurisdiction for American Indian descendants who commit crimes in the territory.
“On the far end of the Trail of Tears was a promise,” began Trump-appointee Justice Neil Gorsuch in the majority opinion. He and the four leftist justices that joined him went on to describe how under Andrew Jackson, the Creek were removed from their lands with the promise of a new, immense reservation in what is now Oklahoma. This reservation became smaller over the century as it was slowly drained of its sovereignty, and many white settlers bought individual plots of the land from the Creek owners. As a result, only 10-15 percent of the area’s population today is American Indian.
For a century, it was assumed this process meant the end of the reservation. But the Supreme Courts’ majority opinion argued that as it was never formally abolished by Congress, the immense Creek Reservation still exists, and all those living in its borders today are on Indian land.
This does not mean the 1.8 million Oklahomans have lost their land. But everyone within the territory will now have to contend with new rules and a greatly altered system of justice.
‘Profoundly Destabilized the Governance of Eastern Oklahoma’
This case appears to establish that the state of Oklahoma does not have the right to convict American Indians within the 19-million-acre zone. While McGirt’s rape case can be addressed through a federal retrial, hundreds of felons with tribal membership are currently imprisoned and their convictions will now be in doubt. This uncertainty was placed in the forefront of Chief Justice John Roberts’ dissent.
“Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out,” he wrote alongside the other conservative justices. The case also raises complex issues of governance. The tens of thousands of American Indians living across the state will now only be subject to federal and tribal laws.
Non-American Indians within Eastern Oklahoma, which make up 85-90 percent of the population, will remain subject to state criminal laws, according to the majority opinion.
The decision also raises the possibility of other governance changes within the state. The Indian Child Welfare Act is a particularly disturbing example of this. Under this federal law, children of American Indians descent are stripped of many numerous protections if they live on a reservation. As a consequence of this decision, thousands of American Indians children may be losing critical safety nets.
Furthermore, as explored by Naomi Riley, the ICWA makes it all but impossible for children with American Indians ancestry to get adopted. This is done through strict rules keeping adoptions within the ethnic community, which in practice can mean children left in unstable foster homes for years.
Still, some tribal attorneys have stated the total changes will be minor. “In the long term, outside of the criminal context, there may be some minor changes in civil law,” said Forrest Tahdooahnippah in a recent interview with the Associated Press. Others, such as the dissenting justices, are less certain.
“The Court has profoundly destabilized the governance of eastern Oklahoma,” Roberts stated. “The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”
It will likely take years of court cases to fully address the questions raised for those, both tribal and not, living in eastern Oklahoma.
Jonah Gottschalk is an intern at the Federalist. He studies Modern History and International Relations at the University of St Andrews.