Gorsuch and 4 lib Justices rule Native American tribe controls large swath of Oklahoma for fed crime purposes

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The U.S. Supreme Court on Thursday ruled that nearly half of all land in Oklahoma, including the city of Tulsa, falls within the boundaries of the Muscogee (Creek) Indian Reservation, rejecting counterclaims from the state and the federal government.

The 5-4 ruling upholds 19th-century treaties the U.S. government signed with the tribe, The Wall Street Journal reported. Justice Neil Gorsuch, a Trump appointee, joined the high court’s liberals in writing for the majority.

The issue involved whether the admission of Oklahoma into the Union in 1907 actually dissolved the Muscogee (Creek) Reservation which covered most of the state’s eastern half, a region that includes the state’s second-most populous city, Tulsa.

“Congress never formally voted to terminate Creek sovereignty, but the federal and state governments contended that the effect of Oklahoma statehood following several actions to diminish Indian self-rule amounted to the same thing,” the WSJ reported.

The issue rose to prominence when Native Americans who had been prosecuted in state courts in Oklahoma began to contest their convictions by arguing that because they were actually residents of an Indian reservation they had to be tried in federal courts only.

Eight of the Supreme Court’s nine justices deadlocked on the issue in 2018 after Gorsuch recused himself. But he participated in the renewed case which was brought by Jimcy McGirt, a Creek Indian who had been convicted in state court of raping a 4-year-old girl who belongs to the Seminole Tribe in suburban Tulsa.

In addition, however, the case cast doubts over hundreds of additional state convictions as well as future prosecutions of Creek residents who allegedly committed crimes and infractions on land that had historically been designated as part of their reservation.

The case also “held broader implications” legally regarding eastern Oklahoma, “where taxing powers and contracts involving members of the tribe could be affected,” the WSJ reported.

In addition, the case stems from previous policies followed by the U.S. government to push Native Americans from lands they inhabited in order to allow for white settlements. Earlier in the 19th century, for instance, the U.S. government ejected the Five Tribes — the Creeks, Choctaw, Chickasaw, Cherokee, and Seminoles — from their historic lands in what are now Georgia and Alabama, moving them to the Oklahoma plains. The event is remembered as the “Trail of Tears.”

The treaties date back to the 1830s, in which the U.S. government promised to “secure a country and permanent home to the whole Creek nation of Indians.” However, in subsequent years, the government instead implemented policies and measures that took away both power and property from the tribe.

In May during oral arguments, Justice Brett Kavanaugh noted that the tribes sided with the Confederacy against the Union, which likely was in response to derogatory and harmful federal actions to strip them of their autonomy.

The high court’s official Twitter account explained that the ruling does not mean that ‘land is being returned’ to the Creek Nation, but rather has to do with legal jurisdiction.

“The court holds that, because Congress failed to formally undo the Muscogee (Creek) Nation’s 19th-century reservation, the land in eastern Oklahoma remains a Native American reservation for purposes of federal criminal law,” a tweet from SCOTUS Blog noted.

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Jon Dougherty

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