Recent U.S. Supreme Court Decision Favors Native Americans

By B.N. Frank

Most would agree that Native Americans haven’t always been treated fairly by the U.S. government.  Fortunately for them, that is changing.

From Full Measure:

Tribal Triumph

By FULL MEASURE STAFF Sunday, October 10th 2021

A U.S. Supreme Court decision you may not have heard about has upended the criminal justice system in Oklahoma. It effectively said a historical glitch in procedures means millions of acres of Oklahoma is under control of the Indian population. Lisa Fletcher reports the implications stretch far and wide.

Tahlequah, Oklahoma: a small city with a big influence. This is the capital of two Indian tribes, including the Cherokee.

It seems idyllic. But for the head of the Cherokee tribal police, Shannon Buhl, things have never been busier.

Shannon Buhl: It’s horrific. We would average in tribal court between 30 and 50 cases a year. Our attorney general’s office here has processed a thousand cases in a month and a half.

The rapidly rising caseload is thanks to a startling Supreme Court decision that gave the tribes what they’d long wanted: recognition their original reservations still exist and giving them much more control over what happens in them.

Lisa: What is it now?

Buhl: It’s everything. It’s everything within our historical boundaries. So north out of Tulsa to Kansas, that whole chunk of eastern Oklahoma is now Indian country.

Historically, most of the eastern portion of the state — about 43 percent of what’s now Oklahoma — belonged to five Indian tribes: the Cherokee, Choctaw, Chickasaw, Creek, and Seminole, who were forced there in the 1830s from their ancestral lands in the southeast. A forced migration that became known as the Trail of Tears.

In 1907, Congress dissolved the reservations when it created the state of Oklahoma, at least that’s what everyone thought.

In 2020, a Seminole Indian, Jimmy McGirt, brings a case to the Supreme Court arguing he should never have been prosecuted in state court because his crime occurred on Indian land. The crime he was convicted of was rape. The Supreme Court agreed, saying Congress never properly dissolved the reservation’s boundaries, meaning his conviction and hundreds of others were invalid.

So, as state criminal convictions are thrown out, federal and tribal courts like this one are taking cases at a break-neck pace.

The state’s Republican governor Kevin Stitt opposes the decision, saying it’ll impact much more than criminal cases

Governor Stitt: McGirt is the biggest issue that’s ever hit a state since the Civil War okay? That’s how big of an issue this is for the state of Oklahoma.

The governor believes the ruling will ultimately affect taxation, land rights, and even the oil riches that support much of the state’s economy.

Stitt: The tribes are starting to say, and even the Biden administration has said that “no, no, no, no. This is also a reservation now for zoning, or taxation,” or in their case, they said, “mining.” They told me, the Department of Interior said, “The State of Oklahoma no longer has the right to exercise its department of mining and its regulation of mines in eastern Oklahoma.

Though mining of coal and other minerals are relatively small scale, oil is big business, worth more than a billion dollars to the state treasury in 2019 in taxes alone.

Stitt: There are some people that think that if the reservation still exists and we’re never disestablished, then they would still exist for all purposes.

Based in Tahlequah, Chuck Hoskin is the principal chief of the nearly 400 hundred thousand strong Cherokee Nation.

Chuck Hoskin: This land that we’re on now, that covers now 14 counties of what is now Oklahoma was promised to the Cherokee nation in terms of our legal authority and that that legal authority never went away.

Lisa: How do you work with a state that has a governor that says, it is an unprecedented assault on the sovereignty of Oklahoma.

Hoskin: Well, first of all, I would point out to the governor actual assaults on sovereignty, such as the suppression of the Cherokee Nation for most of the 20th century, our forced removal on the Trail of Tears. Those are real assaults on sovereignty.

Lisa: Could you assert rights at this point though over the oil that is now on your land?

Hoskin: I don’t think McGirt changes our ability to do that. I would say, at this moment, we don’t have the interest or ability to wholesale displace the state of Oklahoma from its more than a century of regulatory law over the oil and gas industry.

The governor’s office is promising to challenge the Supreme Court’s decision, and efforts by tribes or the federal government to use it to chip away at the state’s authority to collect taxes or regulate industries.

Stitt: The Supreme Court divided a modern-day state in half, and basically said the state of Oklahoma no longer exists like we thought it did, since statehood in 1907.

But the tribes are embracing the ruling and what it means for tribal power.

Hoskin: We have to find solutions on McGirt because McGirt has so many direct implications for every single person who lives, works, passes through reservation lands, and in Oklahoma, that’s substantially half of the state of Oklahoma. So I think we can do it. But I’m an optimist.

The chief may be optimistic, but while the Supreme Court ruling settled one issue, it also left big questions about legal authority unresolved.

For Full Measure, I’m Lisa Fletcher in Oklahoma.

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