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Supreme Court ruling expanded tribal land. What does that mean for Arizona?

Arizona Republic logo Arizona Republic 7/12/2020 Debra Utacia Krol, Arizona Republic

In a decision hailed as a landmark in federal Indian law, the U.S. Supreme Court ruled this week that much of Oklahoma’s tribal lands had never been rescinded, and that the state had no criminal jurisdiction over those lands. 

Supreme Court Justice Neil Gorsuch joined the court’s four liberal justices in the 5-4 decision and wrote the opinion for the case, McGirt v. Oklahoma

The ruling primarily affects who gets to prosecute tribal members for serious crimes on tribal lands, and it won't affect non-Indian prosecutions by tribes or property ownership. However, some Indian law experts believe the ruling may lead to more civil and regulatory oversight by tribal governments on land within historic reservation boundaries. 

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And it's unclear yet whether the case can be used by some Arizona tribes to reclaim sovereignty over lands that were removed from original reservation boundaries.

Robert J. Miller, a law professor at the Sandra Day O’Connor College of Law’s Indian Legal Program in Arizona State University, said language holds the key to determining if any Arizona tribal nations are eligible to pursue a similar remedy. "What did Congress say?" he said. "If it did not expressly take away the tribe's reservation or change its borders, then things that happen later do not." 

The court's ruling

The case was brought by Jimcy McGirt, a citizen of the Seminole Nation of Oklahoma in east-central Oklahoma. McGirt was convicted in state court on rape charges and sentenced to life in prison. The crime was committed within the reservation lands that had been established for the Muscogee (Creek) Nation in 1832. A subsequent treaty enacted in 1866 reduced the Creek land base to its current 3-million-acre historical boundary, but also compensated the tribe for the lost lands. Serious crimes committed by American Indians on tribal lands come under federal jurisdiction through the Major Crimes Act.

The state of Oklahoma argued in part that since the lands had been allotted in small parcels to individual Native citizens through an 1887 law known as the Dawes Act, the trust land status of the reservation had been rescinded, and the land should now be considered subject to state law.

However, McGirt’s attorney, Ian Gershengorn, countered that since the law authorizing the allotments never actually removed reservation (also known as trust land) status from those lands, federal and not state courts had jurisdiction over the case.

The Supreme Court agreed. “On the far end of the Trail of Tears was a promise,” Gorsuch wrote. “Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.”

The case, he wrote, asked the Supreme Court “whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”

Gorsuch is versed in federal Indian law, and his appointment in 2017 was hailed by many Indian law experts and tribal nations as a voice for understanding and applying the law to the government’s interactions with tribes. He’s known as an “originalist” – or, as one legal blog notes, “Gorsuch believes the U.S. Constitution should be construed as it was by its original drafters.” He’s also the only Westerner on the court.

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What does the McGirt case really mean?

Miller said that the ruling affects only the Creek treaty lands and the nearly 1.1 million people living within the historic Creek boundary line. Miller is an enrolled citizen of the Eastern Shawnee Tribe in far northeastern Oklahoma, which also was part of the allotment act era.

However, if all the so-called “Five Civilized Tribes,” which also include the Cherokee, Choctaw, Chickasaw and Seminole nations with lands that were placed into trust in the 19th century choose to pursue similar remedies, some 1.8 million residents would be affected. And     Miller said that others of the 39 tribes in Oklahoma may have similar standing to reassert sovereignty over their historic reservation boundaries. 

“In the second paragraph of the decision, Gorsuch states the issue the court is answering,” Miller said. “The Supremes are very specific and careful about the exact question they are addressing in appeals; it is only about criminal jurisdiction.” 

Indian nations don't have criminal jurisdiction over non-Indians except for narrowly-defined circumstances, most notably when a tribal court obtains authorization from the U.S. Department of Justice to prosecute domestic violence suspects under the Violence Against Women Act

Also, a document shared by the Native American Rights Fund and the Native American Journalists Association said that land ownership in the historic Creek lands would not be affected by the ruling. 

But Miller also said that there could be some changes underway in the historic Creek lands. For example, tribal members may no longer be subject to state taxation if they live and work within the boundaries, he said. Non-Indians who own land within the Creek Nation may find that the tribe now has some zoning or regulatory jurisdiction. They might be taken to tribal court for civil cases. 

Miller said that McGirt could now be prosecuted by the federal government, given the heinous nature of his crime, which involved raping a 4-year-old girl. "Federal criminal penalties are often harsher than state ones. So Mr. McGirt or future Indian defendants sometimes face higher criminal sentences because of the federal system," Miller said. The Creek Nation could also prosecute McGirt, but since tribes can only sentence a convicted person to no more than 1 year in jail, the feds would be the logical court to take the case, he said. 

What happened in Arizona? 

Miller said that the 21 Indian reservations in Arizona may – or may not –  be affected by the decision. "If Congress did the removing [of tribal lands], it's valid," he said. "Congress has the power to abrogate Indian treaties and U.S. treaties with foreign governments." However, Miller said Congress must say "expressly" that a reservation is diminished, or its lands reduced, or disestablished, or returned to federal, state or local control, as several other cases specify. 

If a tribe were to determine that parts of its lands were taken without express congressional statement and some kind of payment for those lands, a suit could be brought to remedy that, Miller said. 

At least one Arizona tribe, the San Carlos Apache Tribe, has had their original trust lands reduced.

Their lands were diminished five times between 1872 and 1902 by a series of presidential actions. This included one of the most sacred places to Apache people. Dził Nchaa Sí'an, known now as Mount Graham, was placed under public domain in 1873 and is now part of Coronado National Forest. 

Miller compared Gorsuch's written opinion to "judicial poetry," and said that the justice has been what Native rights organizations like the National Congress of American Indians hoped for; "Gorsuch knows some Indian law and does not hesitate to vote for tribal positions even when conservatives would probably argue that he has turned into a liberal." 

Debra Utacia Krol covers Indigenous issues at the intersection of climate, culture and commerce in Arizona and the Southwest. Reach the reporter at debra.krol@AZCentral.com or at 602-444-8490. Follow her on Twitter at @debkrol.

Coverage of tribal issues at the intersection of climate, culture and commerce is supported by the Catena Foundation and the Water Funder Initiative. 

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This article originally appeared on Arizona Republic: Supreme Court ruling expanded tribal land. What does that mean for Arizona?

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