Eastern Ok­la­homa deemed Na­tive Amer­i­can ter­ri­tory

Rul­ing raises ju­ris­dic­tion ques­tions

USA TODAY US Edition - - FRONT PAGE - Richard Wolf and Kevin John­son

WASH­ING­TON – The Supreme Court ruled Thurs­day that the eastern half of Ok­la­homa can be con­sid­ered Na­tive Amer­i­can ter­ri­tory, a de­ci­sion the state warned could cre­ate “civil, crim­i­nal and reg­u­la­tory tur­moil.”

The 5-4 de­ci­sion was writ­ten by As­so­ciate Jus­tice Neil Gor­such and joined by the court’s four lib­eral jus­tices. The jus­tices con­sid­ered the is­sue for the sec­ond time af­ter fail­ing to de­cide a dif­fer­ent case last year, when Gor­such was re­cused and the court likely dead­locked.

The case con­cerned an ap­peal from Jimcy McGirt, a Na­tive Amer­i­can, who claimed his state rape con­vic­tion from 1997 should be over­turned be­cause Ok­la­homa lacked ju­ris­dic­tion. Con­gress, his lawyer Ian Ger­shen­gorn said, never prop­erly ter­mi­nated the reser­va­tion.

Dur­ing oral ar­gu­ments in May, the jus­tices reached back to 1907 to de­ter­mine whether Con

gress, us­ing im­pre­cise lan­guage, failed to dis­es­tab­lish the 1866 bound­aries of the reser­va­tion. If so, vir­tu­ally half of Ok­la­homa – home to 1.8 mil­lion res­i­dents and in­clud­ing Tulsa, where Pres­i­dent Don­ald Trump re­cently held a con­tro­ver­sial cam­paign rally amid a global pan­demic – would re­main sub­ject to fed­eral crim­i­nal laws.

“We do not pre­tend to fore­tell the fu­ture, and we pro­ceed well aware of the po­ten­tial for cost and con­flict around ju­ris­dic­tional bound­aries, es­pe­cially ones that have gone un­ap­pre­ci­ated for so long,” Gor­such wrote. “But it is un­clear why pes­simism should rule the day. With the pas­sage of time, Ok­la­homa and its Tribes have proven they can work suc­cess­fully to­gether as part­ners.

“The fed­eral gov­ern­ment promised the (Musco­gee Creek Na­tion) a reser­va­tion in per­pe­tu­ity,” Gor­such wrote, adding that while Con­gress has “di­min­ished” the sanc­tu­ary over time, law­mak­ers had “never with­drawn the promised reser­va­tion.”

“As a re­sult, many of the ar­gu­ments be­fore us to­day fol­low a sadly fa­mil­iar pat­tern. Yes, prom­ises were made, but the price of keep­ing them has be­come too great, so now we should just cast a blind eye. We re­ject that think­ing.”

Chief Jus­tice John Roberts, in a dis­sent­ing opin­ion, said that Con­gress made no at­tempt to con­ceal its in­ten­tion to “dis­es­tab­lish” reser­va­tion lands.

“The court sug­gests that Con­gress sought to ‘tip­toe to the edge of dis­es­tab­lish­ment,’ ” Roberts wrote. “Quite the op­po­site. Through an open and con­certed ef­fort, Con­gress did what it set out to do: trans­form a reser­va­tion into a state.”

The state’s so­lic­i­tor gen­eral, Mithun Mans­ing­hani, warned in May that a rul­ing for Na­tive Amer­i­cans could re­quire the re­lease of more than 1,700 in­mates. That didn’t sit well with sev­eral jus­tices who feared a chaotic over­haul of longde­cided crim­i­nal cases.

“What makes this case hard is that there have been hun­dreds, hun­dreds of pros­e­cu­tions, some very heinous of­fenses of the state law. On your view, they would all be­come un­done,” As­so­ciate Jus­tice Ruth Bader Ginsburg told Ger­shen­gorn.

As­so­ciate Jus­tice Sa­muel Al­ito asked, “Won’t (res­i­dents) be sur­prised to learn that they are liv­ing on a reser­va­tion and that they are now sub­ject to laws im­posed by a body that is not ac­count­able to them in any way?”

In last year’s case, the U.S. Court of Ap­peals for the 10th Cir­cuit ruled the state lacked ju­ris­dic­tion to pros­e­cute a grue­some mur­der be­cause it hap­pened within 3 mil­lion acres be­long­ing to the Musco­gee (Creek) Na­tion. The rul­ing threat­ened more than 19 mil­lion acres in eastern Ok­la­homa once in­hab­ited by five Na­tive Amer­i­can tribes.

Within hours of Thurs­day’s rul­ing, the state and five Na­tive Amer­i­can na­tions re­leased a state­ment promis­ing co­op­er­a­tion.

“The na­tions and the state are com­mit­ted to im­ple­ment­ing a frame­work of shared ju­ris­dic­tion that will pre­serve sov­er­eign in­ter­ests and rights to self­gov­ern­ment while af­firm­ing ju­ris­dic­tional un­der­stand­ings, pro­ce­dures, laws, and reg­u­la­tions that sup­port pub­lic safety, our econ­omy, and pri­vate prop­erty rights,” they said. “We will con­tinue our work, con­fi­dent that we can ac­com­plish more to­gether than any of us could alone.”

Many Ok­la­homa pub­lic of­fi­cials, in­clud­ing Repub­li­can U.S. Rep. Tom Cole and Demo­cratic for­mer Gov. Brad Henry, had urged the jus­tices to rule in fa­vor of the Na­tive Amer­i­can tribes whose sovereignt­y they said has been good for the state.

“In one area af­ter an­other – tax­a­tion, gam­ing, mo­tor ve­hi­cle regis­tra­tion, law en­force­ment, and wa­ter rights – the Na­tions’ sovereignt­y within their reser­va­tions and the state’s recog­ni­tion of that sovereignt­y have pro­vided the frame­work for the ne­go­ti­a­tion of in­ter-gov­ern­men­tal agree­ments that ben­e­fit all Ok­la­homans,” they said.

The Trump ad­min­is­tra­tion took the state’s side, telling the jus­tices that Con­gress long ago broke up the Creek Na­tion’s lands, abol­ished its courts and set a timetable for the tribe’s dis­so­lu­tion.

Last year, 10 states in­clud­ing Maine, Texas and Mon­tana warned that the bound­aries of tribal lands have ju­ris­dic­tional con­se­quences there as well. They said a de­ci­sion in the tribe’s fa­vor “would be con­fus­ing and costly at best, and dis­as­trous at worst,” af­fect­ing health and en­ergy pol­icy, en­vi­ron­men­tal reg­u­la­tion, eco­nomic devel­op­ment and taxes.

HAN­NAH GABER/USA TO­DAY

Supreme Court As­so­ciate Jus­tice Neil Gor­such says be­cause Con­gress never dis­es­tab­lished the tribes’ reser­va­tions, the land re­mains Na­tive Amer­i­can ter­ri­tory.

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