Last summer, the U.S. Supreme Court issued its highly anticipated ruling in McGirt v. Oklahoma. It is the most important sovereignty decision in the history of Oklahoma. The top court ruled that Muscogee (Creek) Nation lands reserved since the 19th-century remain an Indian reservation. That means the area is “Indian country” for legal jurisdiction purposes under the federal Major Crimes Act.
The decision likely also applies to the other four of the Five Tribes: the Cherokee, Chickasaw, Choctaw and Seminole nations, who have similar treaties. It also potentially has much broader state and tribal sovereignty implications.
How did we get here? The historical legal treatment of Oklahoma’s Indian Country is complicated. Shifting federal American Indian law policies and piecemeal statutes led to the historic confusion McGirt settled.
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The history of the Five Tribes
While 38 federally recognized American Indian tribes currently call Oklahoma home, only the Caddo, Comanche, Kiowa, Quapaw and Wichita were indigenous here. The rest, over 100 tribes, came by force or by treaty. Oklahoma, by the way, is a Choctaw word that means “red people”.
Under the U.S. Constitution, treaties stand above all laws. During the 1830s, the U.S. pursued a policy of westward expansion, tribal removal and treaty making. The early treaties with the Five Tribes and many others promised that future tribal homelands, or “reservations,” would never fall within the boundaries of a state without tribal consent.
After their arrival in Indian Territory, the Five Tribes for a while governed themselves relatively free from federal interference, despite increasingly greater numbers of non-American Indian settlers encroaching on their treaty lands. The issue of slavery, however, divided not only the U.S., but also tribal citizens. The Choctaws and Chickasaws sided with the Confederacy, while the Seminole, Creek and Cherokees had divided allegiances. After the Civil War, the U.S. forced reconstruction treaties upon the Five Tribes. The 1866 treaties abolished slavery, made “Freedmen” citizens of their respective nations, and ceded portions of their territories. The treaty era ended in the early 1870s.
Increasingly intense non-American Indian migration and the massive expansion of railroads fueled political pressure for Congress to make even more lands available for settlement. So Congress began passing laws, ramping up pressure on tribal governments. It passed the General Allotment Act of 1887, which broke up communal reservations into individual allotments to tribal citizens, and left “surplus” lands unassigned. Congress then opened the “unassigned lands” to white settlement in 1889, prompting the Oklahoma Land Run, and passed the Oklahoma Organic Act in 1890. Congress established the Dawes Commission in 1893 to negotiate allotment agreements with recalcitrant tribes and, in 1889, passed the Curtis Act to allot parcels to their citizens. More laws followed in 1906, including the Five Tribes Act and the Osage Allotment Act, to pave the way for Oklahoma to join the Union in 1907 as the 46th state. But no law expressly disestablished the reservations that had been created by the prior respective treaties.
While tribal governments were weakened (and the first few decades of the 20th century were bleak), tribal self-rule persisted. Most allotment laws granted American Indians U.S. citizenship, but Congress did not grant citizenship to all Native Americans until 1924. In 1936, Congress changed policy, passing the Oklahoma Indian Welfare Act to reorganize and strengthen Oklahoma tribal governments.
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An incorrect assumption, and a Supreme Court ruling
During the 20th century, the state Legislature, courts and governors assumed (incorrectly) that reservations no longer existed within Oklahoma. Perhaps for that reason, Oklahoma never took the necessary legal steps to assume civil and criminal jurisdiction over Native American affairs.
The U.S. Supreme Court, however, has since decided numerous cases holding that, despite various allotment laws that opened areas up to non-Indian settlement, tribal reservations remained. The court has held that only Congress can disestablish an American Indian reservation, and when it does so, it must do so explicitly. Otherwise, treaty reservations continue. Neither opening a reservation to settlement nor the historic expectations of non-Indians can abolish a reservation. The McGirt ruling is just the most recent, but perhaps the most sweeping, decision applying this law.
More:Oklahoma murder convictions reversed because of Indian reservation decision, more expected
McGirt was not a bolt from the blue. The decision was carefully premised on the rich history of tribal sovereignty in Oklahoma. While McGirt leaves open a number of civil and criminal legal questions, tribal, state and federal leaders are working to resolve the issues through cooperative agreements and appropriate legislation.
Mike McBride III is an attorney with Crowe & Dunlevy, crowedunlevy.com, and chairs the Indian Law & Gaming Practice Group.The foregoing should not be understood as, or considered a substitute for, specific legal advice.
