In a momentous opinion related to jurisdiction over Indigenous lands in the United States (also referred to as "tribal lands"), the U.S. Supreme Court ("the Court") ruled that a large tract of eastern Oklahoma is part of the Muscogee (Creek) Nation reservation.
The majority of the Court in McGirt v. Oklahoma, U.S. No. 18-9526, 7/9/20 (PDF), held that approximately three million acres of tribal lands were never officially dissolved when Oklahoma became a state. The area subject to the ruling includes much of Tulsa and the surrounding area, which is populated by 1.8 million people.
This case relates to an individual, Jimcy McGirt, a member of the neighbouring Seminole Nation, who was serving a 1000 years (plus life) sentence in a state prison under Oklahoma criminal law for a crime that occurred on land determined to be part of the Creek Nation reservation. According to federal legislation, states lack jurisdiction over major crimes committed by Native Americans on tribal lands. As the lands where the crime allegedly occurred were found to be tribal lands (or "Indian country" as described in the federal Major Crimes Act), the majority held that Mr. McGirt was convicted of state charges without jurisdiction and must be re-tried in federal court (where it is unclear whether Mr. McGirt will fare any better).
In the five-judge majority opinion, the Court noted that the lands at issue were described as belonging to the Creek Nation in a series of treaties and federal legislation from 1832 and 1833. The court has previously held that similar language in other treaties is sufficient to create a reservation. A later treaty, from 1856, promised that "no portion" of Creek Nation lands "would ever be embraced or included within, or annexed to, any Territory or State". This treaty also stated that the Creek Nation would have the "unrestricted right of self-government".
The majority opinion held that, though Congress had broken many promises to the Creek Nation in the past, persistence in breaking its obligations did not amount to clear intention to disestablish the reservation. Despite the persistent settlement, division and allotment of the Creek Nation lands from the 1890's to present, the majority held that there was no clear intention to effect the "total surrender of all tribal interests" and therefore, "congressional intrusions on pre-existing treaty rights fell short of eliminating all tribal interests in the land". The Court held the lands at issue continue to be part of the Creek Nation reservation.
Though narrowly this decision relates to the criminal jurisdiction over Indigenous peoples in the U.S., it appears to have resounding implications for Oklahoma's jurisdiction to lands, the sovereign interests of the Creek Nation in the United States, and their rights to self-government. This may also spur other Indigenous groups in the U.S. to launch similar legal arguments related to potentially un-dissolved tribal lands.
The implications may include:
- The state may lose significant revenue as a result of the decision, as the state generally lacks authority to tax Native Americans on reservations.
- Non-Creek Nation members, including businesses operating within the Creek Nation reservation, may be subject to taxation by the Creek Nation in addition to the taxes imposed at federal, state and municipal levels. One amicus brief described this as a potential deterrent for non-tribal members to conduct business activity in "Indian country". This is likely to be the subject of negotiations between the state and the Creek Nation.
- There may be jurisdictional issues regarding who has authority with respect to other matters including environmental protection, hunting and fishing regulation, and health care. The majority opinion dismissed these concerns, as "Oklahoma and its Tribes have proven they can work successfully together as partners."
Parallels to the Canadian Context
The law governing reservations and Indigenous lands in the United States differs significantly from Canadian law. In Canada, many similar claims related to reserve lands are addressed through the Specific Claims Tribunal, which has jurisdiction to consider claims made by Indigenous groups against the federal government regarding the entitlement, administration and compensation related to land.
However, in Canada, the closer parallel to the McGirt case may be the unresolved claims of Aboriginal title, in particular, in British Columbia. Though some questions regarding governance and jurisdiction over Aboriginal title lands have been resolved by the Canadian courts in the Tsilhqot'in decision, many are left to negotiation between Indigenous, federal and provincial governments. In Canada, governments have expressed a preference for resolving these uncertainties through the negotiation of modern treaties. This lengthy negotiation process is ongoing for many Indigenous groups in British Columbia.
Originally published JULY 20, 2020.
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