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Impact of SCOTUS Ruling on Oklahoma Reservations

Written by Mike Swatek Subject: Justice and Judges

Impact of SCOTUS Ruling on Oklahoma Reservations

The US Supreme Court held that the treaty-guaranteed geographic borders of the Muscogee (Creek) Nation survived Oklahoma statehood and that these reservation boundaries remain legally valid jurisdictional markers for criminal jurisdiction over tribal citizens.

Accused tribal members are now not subject to either civil or criminal state jurisdiction within their reservation. There are no changes for non-natives, unless they manage to be incorrectly charged in a tribal jurisdiction.

Felonies now fall under the jurisdiction of federal courts or possibly tribal courts in some cases. The "Major Crimes Act" passed in 1885 is the tool the feds are using to retain jurisdiction in felonies by natives on their reservation. Prior state convictions of tribal members for acts within their reservation may now be overturned and re-adjudicated. However, felony convictions may then go before federal courts which tend to be more harsh than the state courts. About 1700 prior convictions could be effected. Approximately 4,000 new felonies per year would now be eligible for federal, instead of state, prosecution.

With the exception of the Municipal Court of Oklahoma City and the Municipal Court of Tulsa, the Municipal Courts in Oklahoma are courts of no record that operate under the administration of the Supreme Court but are NOT part of the state court system, per Okla Const. art. VII, § 1. So, all municipal courts, except Tulsa (OKC includes no reservation land) may be able to handle native cases within their reservation, such as in traffic court. Otherwise, all courts in Oklahoma, including county/district courts, are state courts.

Traffic violations in OKC, Tulsa and outside all other municipalities go to state courts. Traffic offenses in municipalities outside Tulsa will likely go to the municipal court, as they do today. All other traffic offenses by tribe members on their reservation would be under the jurisdiction of the tribe, if not a felony, unless there is a tribal agreement allowing the state court prosecution.

Tribe members currently have Oklahoma state drivers licenses which indicate registered tribal affiliations. This only has to be produced when operating a motor vehicle or under arrest, if it's on hand.

The tribe may assume adjudication regarding non-federal taxes, state regulatory issues and a range of civil laws that may includes adoptions, hunting and fishing regulations, state environmental protections and health care. The retroactivity considerations and other outcomes will develop out of case precedent over the years ahead.

The state generally lacks authority to tax Native Americans on reservations. With tax violations going to tribal courts, all non-municipal and Tulsa taxes upon natives, within their reservation, may also be challenged.

Oklahoma tribes have frequently entered into agreements with the state, counties and municipalities to make sure there are no problems. Oklahoma has hundreds of tribal-state agreements, including those dealing with tax and regulatory issues, currently on the books. However, many may no longer be advantageous for the tribe with the state's loss of the claimed authority which was wielded over the tribes.

If they don't already exist, it's likely that inter-tribal agreements will be implemented for accused natives on another tribes reservation, assuming they first don't fall into the hands of the state.

Federal courts will be a busier with native felonies which were handled by the Oklahoma state judiciary. Tribal courts will be much busier and possibly overloaded in the near-term with most cases which previously went to state courts.

There is going to be confusion for law enforcement over which jurisdiction to assign a case to. A clever person not carrying an ID might foster a misunderstanding. It's usually very easy to get a case dropped when assigned to the wrong jurisdiction.

In high native population locales, police and deputies are often cross-deputized with the tribal Marshall to have the ability to charge anyone. This is less so as the native concentration drops. An agreement between the tribe and local law enforcement could fill this gap.

State highway patrol are unlikely to be cross-deputized due to working across multiple reservations. Lacking that, and being state officers, they may not have the ability to file tribal charges.

My experience with the Cherokee Marshals has been nearly benign. I've never seen them on the roadside poaching for extortion payments. A few years ago, friends mentioned one handing out speed warnings in a small nearby community, but no extortion was demanded. Once, I encountered a Cherokee Marshall "safety" check where most were being pulled over to verify papers and see what they can. That was several years ago. It irritated so many around here that I've never seen or heard of it happening again. I would much rather have to deal with a Cherokee Marshall than a state trooper, if given the choice.

The Cherokee Nation has grown to the point that it's experienced a secession. The United Keetoowah Band of Cherokee Indians in Oklahoma (UKB) has broken away and essentially formed their own tribe with a minimum 25% Cherokee blood requirement for a return to smaller numbers. Many of my neighbors are Keetoowah. They have their own vehicle tags, but not Marshals. They once had their own casino in the Cherokee capital at Tahlequah, but the Cherokee Nation got it shut down on a technicality, certainly not improving the love loss. Eventually it's always the same with a growing nation or state.

Mike Swatek
Indian Territory
13 July 2020

References:

https://slate.com/news-and-politics/2020/07/supreme-court-mcgirt-oklahoma-tribal-courts.html

https://oklahomawatch.org/2020/07/09/the-supreme-court-affirmed-native-american-rights-in-oklahoma-heres-what-that-could-mean/

https://www.lewrockwell.com/2020/07/ryan-mcmaken/what-the-supreme-court-got-right-in-its-indian-tribe-ruling/

https://CherokeePhoenix.org

https://www.ukb-nsn.gov/

https://en.wikipedia.org/wiki/Judiciary_of_Oklahoma

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