In the final and most shocking Supreme Court decision of the 2019-2020 term, Justice Gorsuch sided with the court's four liberals to affirm that a healthy chunk of east-central Oklahoma along with most of Tulsa is in fact the Creek Indian Nation because Congress never got around to officially dissolving that promise, and now as many as 1.8 million or so non-Native people are now squatting on various reservations.
The Supreme Court said Thursday that a large swath of eastern Oklahoma remains an American Indian reservation, a decision with potential implications for nearly 2 million residents and one of the most significant victories for tribal rights in years.
The land at issue contains much of Tulsa, the state’s second-largest city. The question for the court was whether Congress officially eliminated the Muscogee (Creek) Nation reservation when Oklahoma became a state in 1907.
In a 5-to-4 decision invoking the country’s long history of mistreating Native Americans, the court said “we hold the government to its word” and the land Congress promised to the Creek Nation is still Indian land.
“If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law,” wrote Justice Neil M. Gorsuch, who was joined by the court’s liberal justices.
“To hold otherwise would be to elevate the most brazen and longstanding injustices over the law,” Gorsuch said, “both rewarding wrong and failing those in the right.”
The dissent, led by Chief Justice John G. Roberts Jr., warned of significant upheaval in the criminal justice system, and in other areas of government such as taxing and zoning. But state and tribal leaders downplayed those concerns and said they are negotiating an agreement to address jurisdictional issues.
Most directly, the ruling means that federal officers, not state authorities, have the power to prosecute tribal members for major crimes committed in the defined area. Less certain is how the decision affects the authority of state and city leaders when it comes to imposing taxes, zoning laws and other regulations.
Oklahoma Attorney General Mike Hunter and leaders of five tribal groups issued a joint statement after the ruling indicating they have made “substantial progress toward an agreement” to submit to Congress and the Justice Department that would put in place a “framework of shared jurisdiction.”
“We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma,” according to the statement from Hunter and the Creek, Cherokee, Chickasaw, Choctaw and Seminole nations.
Lawmakers in Washington would have to pass legislation, for instance, for state officials to continue prosecuting crimes involving tribal members in the area affected by the Supreme Court’s ruling.
Somehow I don't see Nancy Pelosi and House Democrats going out of their way to dissolve these five nations anytime soon, which means Oklahoma and Washington DC are going to have to work out an agreement and stick to it.
But this is a huge tribal victory, one that almost certainly means that all of Eastern Oklahoma is Indian Country, along with the existing Osage Reservation northwest of Tulsa.
We'll see what can be worked out.