"The Court has only decided that the federal government has no prosecutorial jurisdiction against citizens of the so-called "Five Civilized Tribes" in about half of OK"
The issue at hand was state government prosecutorial jurisdication, not federal. From the article:
Under U.S. law, tribe members who commit crimes on tribal land cannot be prosecuted in state courts and instead are subject to federal prosecution, which sometimes can be beneficial to defendants.
Just a couple notes here from a person of tribal descent (I am Wasq'u, a tribe in the PNW), for those trying to make sense of it.
This ruling, as I understand it, resolves a narrow technicality—but that technicality has potentially enormous implications.
The Court has only decided that the federal [EDIT: state! sorry!] government has no prosecutorial jurisdiction against citizens of the so-called "Five Civilized Tribes" in about half of OK—this is what the press means when it calls this territory "Indian reservations." They did not decide things like: Do the tribes get the taxes from people living in Tulsa? Do non-natives have to abide by rules of the respective nations? Does the tribal government have the ability to reclaim land through land-for-trust? And so on.
Further narrowing the ruling, my understanding is that this only applies when all persons involved in the crime (e.g., the victim) are also tribal citizens.
But, this ruling does open the door to a lot of those types of questions. It is possible we see several cases related to the sovereignty of these nations over the next few years, possibly greatly expanding the scope of the jurisdiction of the tribal governments.
> In this case, either way, half of Oklahoma belongs to the tribe.
If I am not mistaken, this ruling only pertains to the Major Crimes Act[0]. It doesn't mean half of Oklahoma "belongs to the tribe", it just means half of Oklahoma doesn't have criminal jurisdiction for a short list of crimes when they are committed by tribal citizens.
Currently the federal government has a wide range of powers over reservation land such as the ability to prosecute crime. For better or for worse, Congress can expand these powers at any time to include dissolving the reservation. The law in all these aforementioned areas is well settled.
The issue in this case was with a state government, specifically Oklahoma. This ruling will limit Oklahoma's ability to prosecute crime when (1) it occurs on the reservation and (2) involves members of the tribe. Congress would have to act to change this, or some agreement could be reached with the tribe.
Over native americans on tribal land. The state still has authority over everyone else. And the tribal police don't have authority over them. It's convoluted.
I'm really not trying to discuss the legality of it.
However, that analogy does not match up with what I read.
>The first is that going forward, certain major crimes committed within the boundaries of reservations must be prosecuted in federal court rather than state court, if a Native American is involved. So if a Native American is accused of a major crime in downtown Tulsa, the federal government rather than the state government will prosecute it. Less serious crimes involving Native Americans on American Indian land will be handled in tribal courts. This arrangement is already common in Western states like Arizona, New Mexico and Montana, said Washburn.
So it's not the territory that determines jurisdiction, but citizenship. In other words, based on who you are not where you are.
The ruling is about whether or not the state can enforce state law on Native Americans on this land. It doesn't change whether or how Oklahoma law applies non-native Americans.
>"The decision means that for the first time much of eastern Oklahoma is legally considered reservation land. More than 1.8 million people live in the land at issue, including roughly 400,000 in Tulsa, Oklahoma’s second-largest city."
[...]
>"Unless changes are made, tribe members who live within the boundaries would now become exempt from certain state obligations such as paying state taxes, while certain Native Americans found guilty in state courts would be able to challenge their convictions on jurisdictional grounds."
> a lot more than 1 because of Native American jurisdictions
Native American jurisdictions generally only have criminal jurisdiction over their own members for actions on their own land, that jurisdiction is Constitutionally an application of federal sovereignty, so where it applies it doesn't add an additional possible prosecution, just replaced (or provides an additional option) for one of the existing possible prosecutions. So, there's no double jeopardy impact.
> Now, with this latest ruling, the court has clarified that tribal police can search non-Indians suspected of state or federal crimes in Indian country and detain them until handing them off to federal or state authorities.
Non-Indians who commit crime on the reservation I grew up around are already searched and detained by tribal police until state police arrive. Crimes there do not go unpunished. The article claims this is a new policy, but a look at the syllabus seems to indicate that it's just an affirmation of existing policies that were being challenged in this case.
> As a “general proposition,” the “inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Montana v. United States, 450 U.S. 544, 565. The Court identified in Montana two exceptions to that general rule, the second of which fits almost like a glove here: A tribe retains inherent authority over the conduct of non-Indians on the reservation “when that conduct threatens or has some direct effect on . . . the health or welfare of the tribe.” Id., at 566. The conclusion that Saylor’s actions here fall within Montana’s second exception is consistent with the Court’s prior Montana cases. See Strate v. A–1 Contractors, 520 U.S. 438, 456 n. 11; see also Atkinson Trading Co. v. Shirley, 532 U.S. 645, 651. Similarly, the Court has held that when the “jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.” Duro v. Reina, 495 U.S. 676, 697. Ancillary to the authority to transport a non-Indian suspect is the authority to search that individual prior to transport, as several state courts and other federal courts have held. While that authority has sometimes been traced to a tribe’s right to exclude non-Indians, tribes “have inherent sovereignty independent of th[e] authority arising from their power to exclude,” Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408, 425 (plurality opinion), and here Montana’s second exception recognizes that inherent authority. In addition, recognizing a tribal officer’s authority to investigate potential violations of state or federal laws that apply to non-Indians whether outside a reservation or on a public right-of-way within the reservation protects public safety without implicating the concerns about applying tribal laws to non-Indians noted in the Court’s prior cases. Finally, the Court doubts the workability of the Ninth Circuit’s standards, which would require tribal officers first to determine whether a suspect is non-Indian and, if so, to temporarily detain a non-Indian only for “apparent” legal violations. 919 F.3d 1135, 1142. The first requirement produces an incentive to lie. The second requirement introduces a new standard into search and seizure law and creates a problem of interpretation that will arise frequently given the prevalence of non-Indians in Indian reservations. Pp. 3–7.
It's actually a lot more complicated than that. Tribal law is mostly for intra tribal criminal cases, and does not have jurisdiction over people who aren't members of the tribe or when a crime is committed outside a reservation. So, going from having a relatively small portion of a state, where most people were probably part of a tribe to having have a state in that status makes thinks very complicated for law enforcement. It's not like the tribes just randomly took over half of Oklahoma and established a new state. For most people, Oklahoma will still have jurisdiction over them.
Summary from the Ballotpedia page: "The court reversed the OCCA's decision in a 5-4 ruling, holding that under the Indian Major Crimes Act, lands reserved for the Creek Nation in eastern Oklahoma constituted Indian Country. As a result, the state of Oklahoma could not legally try a Creek citizen for criminal conduct in state court.[1] Justice Gorsuch delivered the majority opinion. Chief Justice Roberts and Justice Thomas each filed dissenting opinions."
Unresolved. All they've really judged is the jurisdiction of the state government over tribal members in this area of the state. It does not affect non-tribal members. And it may also only apply to tribal members who have committed crimes against other tribal members.
So the scope is very limited at this point, but it does open the door for more interesting discussions.
I follow court news pretty closely and was genuinely curious about this decision. Here is a brief description of what I understand the decision to mean (I am not an expert by any means). Under the federal "Major Crimes Act" (MCA) members of various Native American tribes are not subject to state prosecution for crimes committed in "Indian territory". This case was brought by McGirt, a member of the Creek Nation, who challenged his conviction based on the original treaty establishing the Creek reservation in eastern Oklahoma. The headline is a bit misleading: for purposes of the MCA, eastern OK is now considered a part of the Creek Nation. This means McGirt must be convicted with the reservation's justice system or in federal court. It also has the consequence (discussed extensively in Roberts' dissent) that many existing convictions could potentially be vacated. It will be interesting to see how the Creek nation works with Oklahoma to address these changes.
There's a difference in that now major crimes between tribe members have to be tried in federal rather than state court. Minor ones would be tried by tribal courts, which already exist.
> I don't support trying to redress ills from over a century ago
That isn't what this decision is doing. This decision is pointing out that the current state of the law is not what the State of Oklahoma claims to think it was. (But even that claim is dubious since, as the Court's opinion notes, Oklahoma admitted more than 30 years ago that it was improperly taking jurisdiction over cases that should have been tried in Federal courts.) It's not saying "we should give eastern Oklahoma back to the Creeks". It's saying "eastern Oklahoma, according to current law, is a Creek reservation". And it gives plenty of examples of how this fact has been implicitly recognized for quite a while.
The decision also does not affect anything involving non-Indians on the land in question. The city of Tulsa doesn't have to move. Nobody has to leave their homes. No business arrangements have to change. All it does is explicitly recognize that a certain class of criminal cases need to be tried in Federal courts instead of Oklahoma state courts.
There actually is very little for the court to clarify; reservations exist in lots of other places and the procedures and handling are well established. The unclear part that has been resolved is whether this century-old agreement for those swaths of Oklahoma is still in force, and apparently it is, so it's a reservation. From there on it's procedural copypasta.
The only possibly-unclear thing I see is reimbursement of recently paid state taxes by tribe members, I think they can claim back some.
Exhibit A of something that wouldn't apply to all tribes the same because they are too different. Some are more sovereign than others in some aspects. There is nothing uniform about the concept of indigenous lands, but the arbitrage comes from everyone treating them as an amorphous group. Even the most progressive and inclusive people do this, but fortunately it just comes down to reading comprehension. If you can read or are willing to read, you'll find some unchallenged and interesting thing you might be willing to pursue. You likely will have to go to the area to find what to read though, "area" because I'm not willing to call them all "tribes".
> I mean, they have their own criminal courts and everything, but they are limited in their ability to mete out punishment. As far as I understand, they cannot form treaties with other nations. They can't raise armies. States can compel establishments within native american tribal territories to collect sales taxes on non-native people.
Yes, that is why I made the point that I think they would be best served by granting them fully sovereign status. You can't be granted sovereign status if you're already sovereign. The USA maintains its authority over the cherokee in the same way it maintains authority over certain aspects of the states.
> The US doesn't really have subjects at all, right? We have citizens
Citizens of the US are subject to the laws of the United States. To be subject to a law means that you must follow it under penalty of legal proceedings.
> But it is likewise incorrect to say they are sovereign, at least as we typically think of national sovereignty.
This is an overly simplistic view of sovereignty. Per the Constitution, the individual 50 states are fully sovereign. They have given up some sovereignty to the federal government, in certain matters, such as international relations. However, that doesn't take away from the fact that, according to US federal law, they are to be treated as sovereign entities. This shared sovereignty is the basis of American federalism. The tribes operate under a similar arrangement. The Constitution allows the federal government to enter into treaties with the Indians as if they are foreign governments. The current US policy is to grant them 'tribal sovereignty' which is a half sovereignty enjoyed by the states. However, unlike the states, where they chose deliberately to give up their sovereignty to become part of the United States, the tribes were forced to sign treaties, forcibly uprooted, forcibly slaughtered, etc.
The issue at hand was state government prosecutorial jurisdication, not federal. From the article:
Under U.S. law, tribe members who commit crimes on tribal land cannot be prosecuted in state courts and instead are subject to federal prosecution, which sometimes can be beneficial to defendants.
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