OKLAHOMA CITY – A ruling by the United States Supreme Court on the sovereignty of the Creek Nation could lead to major changes in criminal prosecutions on tribal land, according to two state legal experts.
But it’s too early to tell just how the ruling will affect other areas of state government.
On Thursday, the nation’s high court issued a 5-4 decision which said the Muscogee (Creek) Nation’s reservation was not officially terminated at Oklahoma statehood. That ruling, University of Oklahoma Law Professor Joseph Thai said, will have a huge impact on future criminal prosecutions on tribal land.
“The bottom line is that Oklahoma does not have legal power over Creek Indians who have committed crimes on the Creek Reservation,” Thai said. “Oklahoma has lived under this legal fiction that there is no such thing as the Creek Reservation.”
The court’s ruling, written by Associate Justice Neil Gorsuch, tore apart the state’s argument that the Creek reservation was eliminated at the time of Oklahoma statehood. Gorsuch’s ruling also quoted the book, And Still the Waters Run, by famed Oklahoma historian Angie Debo. That book, written in 1973, details scandals which deprived Native Americans of their rights and property.
“Today we are asked whether the land these treaties promised remains an Indian reservation for the purposes of federal criminal law,” Gorsuch’s wrote. “Because Congress has not said otherwise, we hold the government to its word.”
With the court’s ruling, Thai said Oklahoma’s government will now have to respect tribal sovereignty more than it has in the past. “This (ruling) has to do with the power of the tribe over its own people on its own reservation,” he said.
Thai said the court’s ruling will allow some defendants who were tried in state court to reopen those cases. But, he added, the argument that a ruling in favor of the tribes would ‘open the floodgates’ for those who believe they were wrongfully prosecuted was blown out of proportion.
Attorneys for the state argued before the courts throughout the legal process that a ruling for the tribes would allow thousands of state convictions to be throw out and that those convictions would have to be retried in federal court. The state said 113 rapists, 155 murders and 200 felons who committed against children could get new trials.
However, an analysis by The Atlantic magazine showed only a small number of cases would qualify.
“In total, less than 10 percent of the nearly 300 convictions we examined are still within the one-year statute of limitations,” the magazine noted. “While our research did not cover every inmate, it revealed a clear pattern: The majority are ineligible for federal habeas relief.”
Thai agreed.
“The sky is not gonna fall,” he said. “In some instances, the cases will be too old to prosecute. Others involving serious crimes where the evidence is still available might do something.”
Rose State University Political Science Professor James Davenport said the law could spark two groups in the state to act. One group, Davenport said, would look at the ruling and move to compromise and work with tribal nations. “Some will say the court has made the situation clear now – that the state needs to deal with the tribes as equals,” he said.
The second group, he said, could push back against the ruling and attempt to have Congress pass legislation that eliminates tribal reservations.
“As the ruling says, Congress can address this however it wants to,” Davenport said. “Though I don’t know how successful that would be. In the current environment it would be really, really, tricky and I don’t imagine that it (legislation) would be at the top of a priority list.”
Instead, Davenport said the court’s ruling could have an impact beyond that of criminal law. “It could raise revenue and other infrastructure questions,” he said. “I’m sure there will be pushing and pulling but right now it’s too early to tell.”
Native Law Professor Taiawagi Helton said he was delighted by the court’s decision. Helton, who specializes in American Indian and Indigenous Peoples law at the University of Oklahoma, said the court’s ruling reaffirmed the existence of tribal government.
“Now, hopefully, we are seeing the rejection of the argument that there isn’t Indian Country in Oklahoma,” he said.
Like Thai, Helton said the state’s prediction that thousands of criminal cases would need new trials or that hundreds of convicted felons would go free was wrong. And though there will be consequences that are sparked by the ruling, those could be sorted out, he said, with a policy that recognizes existing precedence or political compromise.
“The ruling proves that the parade of horrible the state described was ridiculous all along,” he said.
Helton said he believes the ruling will force a more cooperative approach between Oklahoma state government and tribal nations. “Many issues (between the state and tribes) are resolved with compacts,” he said. “I don’t think the ruling will be very disruptive. If anything, what we will more likely see is an increase in cooperative resources.”
And future debates, he said, would be tempered by the court’s action. Helton pointed to a ruling in 1993 when the high court turned down a claim by the Oklahoma Tax Commission that the Sac and Fox Nation did not have a formal reservation and was not in Indian Country. The state, Helton said, filed repeated lawsuits saying they had unrestrained authority in Indian Country.
The state lost each case which forced lawmakers to compromise with tribal leaders and negotiate compacts.
“Basically, the court said the Oklahoma Tax Commission brings this claim for the third time and…we reject it,” he said.
Helton said it was doubtful the McGirt ruling would affect any current negotiations between the tribes and the state. However, he said the ruling does let policymakers know that if they make “unreasonable or ridiculous arguments about Indian Country that maybe the Supreme Court won’t be a rubber stamp for state claims.”
The ruling, he said, is a simple reaffirmation of the rule of law.
“The court was willing to accept the fears articulated by the state,” Helton said. “But it didn’t cause them to override the court’s precedent.”