Loring: Tribes have been huge asset, not enemies

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By State Rep. Ben Loring

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  • McGirt v. Oklahoma Decision
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“At the end of the Trail of Tears was a promise.” So starts the U.S. Supreme Court decision written by Justice Gorsuch in the McGirt v. Oklahoma decision. This landmark ruling says that only the federal government, not Oklahoma, has the jurisdiction to prosecute Native Americans for serious crimes committed by or against them on Indian reservations, pursuant to the Major Crimes Act of 1885. 

It goes on to say that the Muscogee (Creek) Nation’s reservation was never “disestablished” by Congress and therefore still exists as a reservation. Even more important, the rationale of this decision will apply to not only the Creeks, but likely to all five of the Civilized Tribes and ultimately, in my opinion, to most every tribe in the state.

Gorsuch proceeds to tell the story of how broken promise after broken promise by the federal government led to this important decision. Just as an aside, this opinion is a fascinating discussion of Oklahoma’s rich and colorful (and, most often, very sad) Native history and of complex legal theory that is very well written by both Gorsuch for the majority and Roberts for the minority; both of them wrote excellent discussions of their reasoning. All in all, legally speaking, I believe the majority opinion to be the correct outcome. If you are interested in history or legal theory, this case is a “must-read.”

I have seen doomsday prognosticators claim that this opinion is the end of the civilized world as we know it in Oklahoma. I have seen groups like the Governor’s Commission on Cooperative Sovereignty pronounce what a rosy, wonderful friendship has always existed between this state and our tribes, and if “they” will just let “us” have our way once again everything will stay rainbows and butterflies.

This, despite the fact that many of those tribes were forced here at gunpoint through a death march that today would be considered nothing less than genocide. Let’s face reality: Many of the basic concepts of Indian law were set up more than 200 years ago to steal their land, despite all the treaties that guaranteed that land as their home “for as long as the rivers flow and the grass grows green.” 

Most of the tribes in Oklahoma got here because the federal government refused to stand up to the crooks and thieves who coveted their lands. Federal leaders finally decided to move as many tribes as they could to the most worthless land they could find, that being the vast stretches of “no man’s land” that no other state wanted. New promises were again made that this land would be theirs in perpetuity and would never be a part of any organized state.

Then, darn it, oil was discovered and a new crop of thieves and crooks wanted to take their lands again. The federal government was once again all too eager to help. Allotments became the new federally-authorized way to steal Indian land.

But it wasn’t just the feds. When Oklahoma was organized into a state, our forefathers guaranteed in our State Constitution that the state “... forever disclaim(s) all right and title in or to ... all lands lying within said limits owned or held by any Indian, tribe or nation;” and that “...same shall be and remain subject to the jurisdiction, disposal and control of the United States.” Art. 1, Sec. 3.

In 1953 Congress passed Public Law No. 280 which would have allowed Oklahoma and other states to assume civil and criminal jurisdiction over Indian Country. Despite what our Constitution said and despite dozens of Oklahoma tribes organizing anew under the 1934 Indian Reorganization Act, when asked if we as a state wanted that jurisdiction, Gov. Johnston Murray, through arrogance or ignorance, or both, declined, saying, in essence, that we have no tribes in Oklahoma so we don’t need it. That option remained available to Oklahoma until 1969 and no governor or legislators ever thought it was necessary, although both federal and state courts were already ruling that Oklahoma had no jurisdiction over major crimes committed by Native Americans on Indian Country (e.g. State v. Littlechief).

In 1978, F. Browning Pipestem, a pre-eminent scholar in the area, summarized our history: “In general, the state has assumed that no tribal jurisdiction exists; the federal authorities vascillate (sic); and the Indian tribes are caught between the denial and the vascillation (sic) in a reactionary posture without the means to take the initiative.”

Will there be inconveniences resulting from the McGirt decision? Most certainly. A state doesn’t ignore federal law and its own Constitution for more than a century without creating a lot of problems for itself.

Unfortunately, before this decision was handed down Governor Stitt had already created an atmosphere of hostility and mistrust between the tribes and the state by his needlessly attacking the gaming compacts. Now he is arguing that Congress needs to fix the “McGirt problem” that this state chose to create. He argues that Oklahoma Indian law should be different from every other state in the country. After all, we as a nation and we as a state have already broken so many promises with the tribes, what’s the big deal about breaking one more?

Or are we going to become a state and a country where our word actually means something? With a true spirit of cooperation and mutual respect, I am sure that we can work through whatever problems other states and their tribes figured out decades ago. Our tribes have been huge assets to Oklaho- ma. We shouldn’t now treat them as our enemies. After all, we, this state and this nation – not the tribes – are the ones who lied and broke promises.

State Rep. Ben Loring, a Miami Democrat, formerly was a state prosecutor in Ottawa County.