Now that the U.S. Supreme Court has jettisoned Roe v. Wade, maybe it can revisit another decision: McGirt v. Oklahoma and its companion, Sharp v. Murphy. Or maybe Congress might, you know, DO something?
In McGirt v. Oklahoma, the Supreme Court ruled that, at least as far as criminal justice goes, the Creek (Muscogee) Indian Reservation had never been abolished and still exists. That understanding was soon expanded to declare that the former reservations of six tribes (Creek, Cherokee, Choctaw, Chickasaw, Seminole and Quapaw) had never been dissolved as reservations and still exist. (See map above).
That would make 43% of Oklahoma "Indian Country", including Tulsa, the state's second-largest city, now said to be divided between the Creek and Cherokee "reservations".
As a result, in 43% of Oklahoma, the state can't prosecute cases in which Indians are either perpetrators or victims, and tribal and federal authorities don't have the resources to take most of the cases. Prison inmates of Indian extraction are trying to get criminal convictions overturned because they were imposed by state courts. Indians are even trying to evade state income taxes.
That madness was brought to us two years ago by Associate Justice Neil Gorsuch (always suspect in VDARE.com’s eyes) in alliance with the court’s Leftists: Stephen Breyer, Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg.
The McGirt-Sharp decision arose from two criminal cases from the 1990s, involving child molester Jimcy McGirt (right, in orange shirt) and murderer Patrick Murphy (right, lower). They argued that their trials in state courts were illegitimate and unconstitutional because Congress did not abolish Oklahoma’s Indian reservations when the territory became a state in 1907. Only tribes and federal courts, remember, have jurisdiction on reservations.
In the 19th century, Oklahoma was indeed Indian territory, where tribes from various parts of the country had been relocated and admittedly placed on reservations. But in 1901, Oklahoma Indians were declared U.S. citizens, several decades before the Indian Citizenship Act of 1924. In 1907, statehood abolished reservations, then divided the land between Indian families and public sales. Indians participated in creating the new state and attended its constitutional conventions. Everyone understood that Oklahoma was to be a society for whites, Indians and black freedmen.
Even Wikipedia refers to the “Former Indian Reservations in Oklahoma.” And while at least one map purportedly shows one reservation, that of the Osage, what it shows is not a reservation. The Osage Reservation became Osage County, although the tribe retained all underground mineral rights.
The former reservations are also called Tribal Statistical or Jurisdiction Areas, within which a tribe has small properties that feature offices, police, courts, cemeteries, assembly halls, pow wow grounds, and for the paying paleface, casinos and travel plazas. But again, those are not reservations, even if for some tax purposes, many Indians are treated as if they are, and even if Oklahoma tribes issue license plates.
It's a practical system. The tribes have a modicum of self-government and a constructive relationship with the wider society. They have a good deal.
The Bureau of Indian Affairs manages the rental of Indian farmland owned by Indians. My family, by the way, is among the many Oklahomans who rent that land.
But again, those lands upon which the tribes enjoy some few and defined privileges are not reservations within that term’s commonly accepted and understood meaning. Since 1907, not a single Oklahoma Indian tribe has lived on a reservation comparable to the Navajo Nation—almost 28,00 square miles in Utah, Arizona, and New Mexico—or South Dakota’s 3,500-square- mile Pine Ridge Indian (Sioux) Reservation.
We know that because the tribes do not govern the “reservations” that Gorsuch and his Leftist allies called into existence by judicial fiat. And even by the quite expansive Oklahoma definition of an Indian, each tribe composes less than 20 percent of the population on those “reservations.”
McGirt’s result: In the 43% of Oklahoma within these so-called "reservations," Oklahoma can't prosecute crimes in which Indians are either perpetrators or victims. But the tribes and federal government in those areas can't prosecute most of the cases because they don't have the assets to do so.
As Chief Justice John Roberts warned in his dissent,"[T]he court has profoundly destabilized the governance of eastern Oklahoma".
(The great Justice Clarence Thomas wrote that SCOTUS shouldn't have heard the case at all.)
Oklahoma’s GOP Governor Kevin Stitt, himself a card-carrying Cherokee (see below), explained it this way: “The FBI is not prosecuting car thefts and burglaries, any kind of drugs, DUIs” [How The Supreme Court Turned Half Of Oklahoma Into A Lawless Land, by Jennie Taer, Daily Caller, June 22, 2022].
“We have people who are not afraid of the law anymore,” Sheriff Tim Turner of Haskell County was quoted as saying. “We’ve made everything in Oklahoma misdemeanors, simple drug possession, to fines under $1,000 misdemeanors, and we are decriminalizing, which is making the outlaws of Oklahoma more bold and more broad.”
On March 30, Stitt appeared on Tucker Carlson’s show:
So basically this all started when McGirt, who was a child rapist, showed his Indian card and got his conviction overturned. And for those of you that haven’t been to Oklahoma in a while, it’s literally half of our state. So if you think about Tulsa with a million people, we have now had a change of rules. The state, if there’s an Indian involved, has lost jurisdiction to prosecute those crimes. Our police have lost jurisdiction. And when you think about who’s an Indian, you could be 1/500th, 1/1000th. I’ve actually got my Indian card. My six children with blond hair and blue eyes, they all have their Indian card.
So our police are having a tough time because you can’t tell who an Indian is and who’s not an Indian in the eastern part of Oklahoma.
Maybe Senator Elizabeth Warren can help!
Seriously, taking the two criminals above as example, Jimcy (which actually an African name) may be mixed, but he really looks like an Indian. Patrick Murphy on the other hand, is a Black Cherokee, and a sheriff or state trooper would have no way of knowing he had an "Indian Card." Neither man is getting out of jail—they've been resentenced in Federal Court.
All kidding aside, the situation is serious. Stitt described the case of three men who nearly beat to death an 85-year-old man. One skated out of prison because he showed his “Indian card.”
And Stitt warned that Death Row inmates are testing their DNA to overturn “unconstitutional” convictions.
Naturally, tribal leaders who back McGirt didn’t much care for Stitt’s appearance, and claim the situation isn’t all that dire.
The Biden Justice Department does not agree and, amazingly enough, confirms Stitt. Its “congressional justification” paper for 2023 explains that the agency “and its dedicated employees face an unprecedented challenge in serving justice in Oklahoma”—
Criminal felony caseloads in the USAOs (United States Attorneys’ Offices) for the Eastern and Northern Districts of Oklahoma have increased exponentially, and will continue to increase, as the MvO decision remains in effect. Between July 2020 and August 2021, the USAOs in Oklahoma received a combined total of approximately 6,700 referrals from law enforcement. For perspective, this is more than a 400 percent increase compared to all matters received annually prior to [McGirt]. … Oklahoma will need to handle up to 4,400 additional felony defendants per year—or 366 per month.
Due to limited resources, the USAOs in Oklahoma are prioritizing violent felonies under the Major Crimes Act and referring hundreds of misdemeanors and non-violent felonies to Tribal authorities, which are also not equipped to handle the heavy influx of cases. Despite herculean efforts by the Department’s workforce, the resource constraints have limited the Eastern and Northern Districts of Oklahoma to opening only 22 percent and 31 percent of all felony referrals from law enforcement as of the end of fiscal year 2021. As enforcement of non-violent crime is relatively low, Oklahoma communities may see a surge in such crimes, and many people may not be held accountable for their criminal conduct due to resource constraints.
In May, FBI Director Christopher Wray said McGirt “poses significant and long-term operational and public safety risks,” and requested 76 positions to be added to the Oklahoma City field office [FBI director warns of post-McGirt risks, asks senators for more Oklahoma funding, by Chris Casteel, Oklahoman, May 28, 2022].
And who can guarantee that this will remain limited to law enforcement?
“If it’s limited just to criminal (cases), we can absolutely fix this. We absolutely can sit down and fix this,” Stitt said. But he added:
I will not agree that (tribal members) do not have to pay taxes to the state of Oklahoma. That would be me giving up our sovereignty as the state of Oklahoma.
[Gov. Stitt concerned about what McGirt ruling doesn't say, its far-reaching interpretations, by Randy Krebhiel, Tulsa World, April 24, 2022]
Wouldn’t you know it, the Indians don’t want McGirt limited to criminal cases. “Legal experts have argued that the ruling should also extend to civil law and other matters, including taxation,” Tulsa World’s Krebhiel continued:
This month, an Oklahoma Tax Commission administrative judge concluded that a Muscogee citizen working for the tribe and living within the reservation borders should get a refund on state income tax.
Already, Indians are filing lawsuits to evade taxes, reported [Federal lawsuit challenges Oklahoma's right to tax Native Americans under McGirt ruling, by Molly Young, Oklahoman, February 21, 2022]. The Creek tribe plans a similar lawsuit to say its members who live on that reservation—which is most of Tulsa—are exempt from the state income tax [McGirt Mess Continues to Grow, by Jonathan Small, OCPA, May 23, 2022].
How this could affect the oil and gas industry, property law, environmental law, water rights, hunting, fishing and trapping, family law, and other matters is obvious. McGirt could throw a monkey wrench into every jot and tittle of the state’s laws and regulations.
As of now, only the U.S. Congress can solve this problem with a very clear constitutional solution.
Article I, Section 8 of the Constitution says “Congress shall have Power… To regulate Commerce…with the Indian Tribes.”
Given that McGirt says Congress did not abolish the reservations 115 years ago, Congress must abolish them now and return Oklahoma to pre-McGirt status.
Otherwise, as Stitt says, the state will lose its sovereignty.
Rather like the U.S. is doing.
American citizen Allan Wall (email him) moved back to the U.S.A. in 2008 after many years residing in Mexico. Allan's wife is Mexican, and their two sons are bilingual. In 2005, Allan served a tour of duty in Iraq with the Texas Army National Guard. His VDARE.COM articles are archived here; his Mexidata.info articles are archived here; his News With Views columns are archived here; his US Inc blog items are here, and his website is here.