Indian Law Principles
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Prepared by Kennis M. Bellmard [email protected] 405-365-8900
1 1. Pre-European Invasion (to 1492)
2. Colonial Period
3. Treaty Period (1789-1871)
4. Post Treaty Period after 1871
5. Indian Reorganization (1880s-1930s)
6. Termination Period (1953-1968)
7. Indian Self-Governance (from 1968)
8. Indian Gaming Regulatory Act (IGRA) (from 1988)
9. Tribal Nation Development (from 1989 to present)
2 3 NORTHWEST ORDINANCE 1787 An ordinance of the Congress of the Confederation, or the Confederation Congress, formally referred to as the United States in Congress Assembled, outlined areas which Indian tribes had lost or relinquished. It also mentioned how the law of the government was to be used in such areas, and that the general behavior of the Americans towards the tribes was to be friendly in nature and of good faith. However, many Native Indians rejected this ordinance, which led to warfare between the Tribes and American military forces.
On the 7th of August 1789, The U.S. Congress reconfirmed the ordinance, with a few amendments under the provisions of the newly effective Constitution of the United States.
4 Article 1, Section 8, Clause 3 of the U.S. Constitution (Indian Commerce Clause)
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
(sentence 2)To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
5 MARSHALL TRILOGY Three Supreme Court cases, collectively known as the “Marshall Trilogy” in reference to their author, Chief Justice John Marshall, relying in part on international law concepts, established the legal foundation for the relationship that exists between the US federal government and Indian tribes.
6 Johnson v. M'Intosh 21 U.S. 543 (1823). Johnson v. M'Intosh 21 U.S. 543 (1823). In a land dispute Marshall found, based on the Doctrine of Discovery first established by the Spanish to justify taking of Aboriginal lands, that the title to Indian lands belonged to the US Government and that Indians enjoyed only a right of occupancy. Indians were held to only have a claim to “aboriginal title.” Aboriginal title gives Indian tribes the right to occupy their lands but gives the Indians no ownership of that land. Thus, aboriginal title is similar to a lease: the lessee does not own the property but has the right to occupy and use the property. Aboriginal title is also subject to the U.S. government’s ability to “extinguish” that title. This means that Indians have a right to live on and use their homelands until the federal government removes, or extinguishes, that right. Cherokee Nation v. Georgia 30 U.S. 1 (1831). Cherokee Nation v. Georgia 30 U.S. 1 (1831). Based on the Commerce Clause, the Supreme Court determined that Indian nations were not quite states but not foreign nations either. The Supreme Court found that the Cherokee Nation is not a foreign nation, because of the U.S. Constitution’s “Indian Commerce Clause.” The Indian Commerce Clause gives Congress the power to manage the United States’ affairs with the Indian tribes. Marshall made a textual argument in support of this finding under the Indian Commerce Clause: “foreign nations” and “Indian tribes” appear separately in the Indian Commerce Clause. Because the Founding Fathers wrote “Indian tribes” and “foreign nations” separately, Marshall reasoned that the Founding Fathers did not intend Indian tribes to be foreign nations. Marshall explained that, if Indians are not foreign nations, they are more properly referred to as “domestic dependant nations.” Furthermore, Marshall considered the Indians to be “savage,” and in need of receiving the gift of civilization from the white man. Thus, the Indians are in a “state of pupilage” and the U.S. acts as a guardian to a ward. This means that the U.S. government is in a position of authority similar to a parent managing the affairs of a child. The Indians are “pupils,” or students, of the European way of life and civilization. Worcester v. Georgia 31 U.S. 515 (1832). Worcester v. Georgia 31 U.S. 515 (1832). The Court found that state law was inoperative within reservation boundaries. The issue in Worcester v. Georgia, was whether Georgia could rightfully incarcerate a non-Indian residing on Cherokee land for violating Georgia laws. The Court held that the Indian Commerce Clause reserved management of all Indian affairs exclusively for Congress. Justice Marshall interpreted this to mean that the states had no right to impose their laws on the Indians. Furthermore, because the U.S. government owed a duty of protection to the Indians, and the States had no such duty, federal Indian law “pre-empted” state laws. The result is that state law generally does not apply within Indian Country. Bureau of Indian Affairs (BIA) was established in 1824 as the agency within the War Department for dealing with Native Americans until 1849, when Congress transferred it to the newly founded Department of the Interior. On May 28, 1830, the Indian Removal Act was passed.
10 The Cherokee Tobacco, 78 U.S. 616 (1870)
This case involved ,1) the question of the intent of Congress, and 2) the question of assuming the intention to exist, the question of its power, to tax certain tobacco in the Territory of the Cherokee nation in the face of a prior treaty between that nation and the United States that such tobacco should be exempt from taxation.
The case involved Elias C. Boudinot, partner, Stand Watie who refused to pay taxes on tobacco they manufactured and sold.
The 107th section of the Internal Revenue Act of July 20, 1868, states:
"The internal revenue laws imposing taxes on distilled spirits, fermented liquors, tobacco, snuff, and cigars, shall be construed to extend to such articles produced anywhere within the exterior boundaries of the United States, whether the same shall be within a collection district or not,” applies to and is in force in the Indian territory embraced within the Western District of Arkansas, and occupied by the Cherokee nation of Indians, notwithstanding the 10th article of the prior treaty of 1866, between the United States and that nation, by which it was agreed that "Every Cherokee Indian and freed person residing in the Cherokee nation shall have the right to sell any products of his farm, including his or her livestock, or any merchandise or manufactured products, and to ship and drive the same to market without restraint, paying any tax thereon which is now or may be levied by the United States on the quantity sold outside of the Indian territory."
The United States Supreme Court ruled that an act of Congress may supersede a prior treaty.
11 United States v. Kagama, 118 U.S. 375 (1886) Two Indians were charged with murdering another Indian within the Hoopa Indian Reservation in California.
The US Supreme Court held that the ninth section of the Indian Appropriation Act of March 3, 1885, 23 Stat. 385, which provides jurisdiction to the courts of the Territories of the crimes named (murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny), committed by Indians within the Territories, and that which gives jurisdiction in like cases to courts of the United States for the same crimes committed on an Indian reservation within a State of the Union is valid.
While the Government of the United States has recognized in the Indian tribes heretofore a state of semi-independence and pupilage, it has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress, they being within the geographical limit of the United States and being necessarily subject to the laws which
Congress may enact for their protection and for the protection of the people with whom they come in contact.
The States have no such power over them as long as they maintain their tribal relations.
The Indians owe no allegiance to a State within which their reservation may be established, and the State gives them no protection. 12 “DAWES ACT” Dawes General Allotment Act, also called Dawes Severalty Act, (February 8, 1887), U.S. law providing for the distribution of Indian reservation land among individual Native Americans, with the aim of creating responsible farmers in the white man’s image. It was sponsored in several sessions of Congress by Massachusetts Senator Henry L Dawes . Under its terms, the president determined the suitability of the recipients and issued the grants, usually by a formula of 160 acres to each head of household and 80 acres to each unmarried adult, with the stipulation that no grantee could alienate his land for 25 years. The Native Americans who thus received land became U.S. citizens, subject to federal, state, and local laws. The original supporters of the act were genuinely interested in the welfare of the Native Americans, but there were not enough votes in Congress to pass it until it was amended to provide that any land remaining after the allotment Under the Dawes Act, Native American life deteriorated in a manner not anticipated by its sponsors. The social structure of the tribe was weakened; many nomadic Native Americans were unable to adjust to an agricultural existence; others were swindled out of their property; and life on the reservation came to be characterized by disease, filth, poverty, and despondency. The act also provided that any “surplus” land be made available to whites, who by 1932 had acquired two-thirds of the 138,000,000 acres (56,000,000 hectares) Native Americans had held in 1887.to the Native Americans would be available for public sale. The combined influence of friends of the Native Americans and land speculators assured passage of the act.
13 INDIAN COUNTRY DEFINED 18 USC § 1151 - INDIAN COUNTRY DEFINED Except as otherwise provided in sections 1154 and 1156 of this title, the term “Indian country”, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. . 25 CFR § 151.2 - Definitions
§ 151.2 Definitions. (a) Secretary means the Secretary of the Interior or authorized representative.
(b) Tribe means any Indian tribe, band, nation, pueblo, community, rancheria, colony, or other group of Indians, including the Metlakatla Indian Community of the Annette Island Reserve, which is recognized by the Secretary as eligible for the special programs and services from the Bureau of Indian Affairs. For purposes of acquisitions made under the authority of 25 U.S.C. 488 and 489, or other statutory authority which specifically authorizes trust acquisitions for such corporations, “Tribe” also means a corporation chartered under section 17 of the Act of June 18, 1934 (48 Stat. 988; 25 U.S.C. 477) or section 3 of the Act of June 26, 1936 (49 Stat. 1967; 25 U.S.C. 503).
(c) Individual Indian means:
(1) Any person who is an enrolled member of a tribe;
(2) Any person who is a descendent of such a member and said descendant was, on June 1, 1934, physically residing on a federally recognized Indian reservation;
(3) Any other person possessing a total of one-half or more degree Indian blood of a tribe;
(4) For purposes of acquisitions outside of the State of Alaska, Individual Indian also means a person who meets the qualifications of paragraph (c)(1), (2), or (3) of this section where “Tribe” includes any Alaska Native Village or Alaska Native Group which is recognized by the Secretary as eligible for the special programs and services from the Bureau of Indian Affairs.
15 IRA and the OIWA (1930’s) Indian Reorganization Act, (IRA) also called Wheeler– Howard Act, (June 18, 1934), measure enacted by the U.S. Congress, aimed at decreasing federal control of American Indian affairs and increasing Indian self-government and responsibility. It can about in part due to the Meriam survey on the state of life on the reservations. The deplorable conditions under the programs established by the Dawes General Allotment Act (1887), as detailed in the Meriam report of 1928, spurred demands for reform. The Oklahoma Indian Welfare Act of 1936 (OIWA) (also known as the Thomas-Rogers Act) extended the 1934 Wheeler- Howard or Indian Reorganization Act to include those tribes within the boundaries of the state of Oklahoma.
16 PL-280 (1953) 28 U.S.C. § 1360. STATE CIVIL JURISDICTION IN ACTIONS TO WHICH INDIANS ARE PARTIES
(a) Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State:
State of Indian country affected Alaska All Indian country within the State. California All Indian country within the State. Minnesota All Indian country within the State, except the Red Lake Reservation. Nebraska All Indian country within the State Oregon All Indian country within the State, except the Warm Springs Reservation. Wisconsin All Indian country within the State.
(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein.
(c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section.
17 PL-280 Congress provided the "states" criminal & civil jurisdiction in Indian country. This did not include the power to tax, regulate, or decide the ownership or use of Indian property.
.
18 Williams v. Lee, 358 U.S. 217 (1959)
Respondent, who is not an Indian, operated a general store in Arizona on the Navajo Indian Reservation under a license required by federal statute. He brought this action in an Arizona state court against petitioners, a Navajo Indian and his wife who live on the Reservation, to collect for goods sold to them there on credit. They moved to dismiss on the ground that jurisdiction lay in the tribal court, rather than in the state court.
Held: The motion should have been granted, since the exercise of state jurisdiction in this case would undermine the authority of the tribal courts over Reservation affairs, and hence would infringe on the right of the Indians to govern themselves, which right was recognized by Congress in the Treaty of 1868 with the Navajos, and has never been taken away.
19 Indian Civil Right Acts 1968
The Indian Civil Rights Act of 1968 applies to the Indian tribes of the United States and makes many but not all of the guarantees of the Bill of Rights applicable within the federally recognized tribes. The Act appears today in Title 25, sections 1301 to 1303 of the United States Code.
20 SELF DETERMINATION The Indian Self-Determination and Education Assistance Act of 1975 (Public Law 93-638) authorized the Secretary of the Interior, the Secretary of Health, Education, and Welfare, and some other government agencies to enter into contracts with, and make grants directly to, federally recognized Indian tribes.
21 CRIMINAL LAW
Oliphant v. Suquamish, 435 U.S. 191 (1978) Tribes can't exercise criminal jurisdiction over non-Indians. The Court referenced the Treaty of Point Elliott, signed by the Suquamish Indian Tribe to buttress this holding.
Duro v. Reina, 495 U.S. 676 (1990) An Indian tribe may not assert criminal jurisdiction over a nonmember Indian.
Tribes are limited to “retaining the sovereignty needed to control their own internal relations and preserve their own unique customs and social order,…”
22 “Duro Fix” In response, to the “Duro” case Congress amended a section of the Indian Civil Rights Act, 25 U.S.C. sec. 1301, to include the power to "exercise criminal jurisdiction over all Indians" as one of the powers of self-government. Nevada v. Hicks, 533 U.S. 353 (2001) Very fact specific case. U.S. v. Lara 541 US 193 (2004) ◦ Interpreted the “Duro Fix” as a recognition of inherent tribal authority over non member. An individual can be tried by feds and tribe and It IS NOT a violation of double jeopardy.
23 TAXATION McClanahan v. Arizona State Tax, 411 U.S. 164 (1973)
Rosalind McClanahan was a Navajo Indian who lived and worked on the Navajo Reservation. The State of Arizona taxed her income. The Court held that State of Arizona has no jurisdiction to impose a tax on the income of Navajo Indians residing on the Navajo Reservation and whose income is wholly derived from reservation sources, as is clear from the relevant treaty with the Navajos and federal statutes.
This was consistent with the decision in Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, holding that since Congress has broadly occupied the field of trading with Indians on reservations by all-inclusive regulations and statutes, the States may not impose additional burdens on the traders or the Indians, and therefore this tax may not be imposed on appellant who was an operator of a retail trading post on the Navajo Indian Reservation under a license granted by the Commissioner of Indian Affairs pursuant to 25 U.S.C. § 261.
24 Bryan v. Itasca County, 426 U.S. 373 (1976)
Petitioner, an enrolled Chippewa Indian, brought this suit in state court seeking a declaratory judgment that the State of Minnesota and respondent county lacked authority to impose a personal property tax on his mobile home located on land held in trust for members of his tribe, and that imposition of such a tax contravened federal law. The trial court rejected the contention. The Minnesota Supreme Court affirmed, holding that the grant of civil jurisdiction to the State in § 4(a) of Pub.L. 280 includes taxing authority, and, since § 4(b) does not exempt nontrust property from such authority, the county had power to assess the tax. Section 4(a) gave various States, including Minnesota, with respect to all Indian country within the State except as specifically exempted,
Held: Public Law 280 did not grant States the authority to impose taxes on reservation Indians. The central focus of Pub.L. 280, embodied in § 2 of the Act, was to confer on the States criminal jurisdiction with respect to crimes involving Indians, and no mention was made of a congressional intent to authorize the States to tax Indians or Indian property on Indian reservations, a significant omission in light of applying the canons of construction to statutes affecting Indian immunities, where some mention would normally be expected had Congress contemplated sweeping change in the status of reservation Indians.
25 POWERS OF TRIBES Montana v. US 450 U.S. (1981) ` The inherent sovereign powers of the Tribe do not extend to non-members of the Tribe on fee land except: 1) a tribe can regulate the activities of nonmembers who enter consensual relationships with the Tribe or its members through commercial dealing, contracts, leases, or other arrangements or 2) when the conduct threatens or has some direct effect on the political integrity, economic security or health and welfare of the Tribe.
26 National Farmers Union v. Crow 471 US 845 (1985) Parties must exhaust tribal remedies before filing an action in federal court ◦ Tribal Court must first determine whether it has jurisdiction Strate v. A-1 Contractors 520 US 438 (1997) Held that a state highway running through the reservation trust land was equivalent of fee land and therefore Montana rule applies
27 POWERS OF TRIBES Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)
A female member of the Santa Clara Pueblo and her daughter, brought this action for declaratory and injunctive relief against petitioners, the Pueblo and its Governor, alleging that a Pueblo ordinance that denies tribal membership to the children of female members who marry outside the tribe, but not to similarly situated children of men of that tribe, violates Title I of the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301-1303. The ICRA's only express remedial provision, 25 U.S.C. § 1303, extends the writ of habeas corpus to any person, in a federal court, "to test the legality of his detention by order of an Indian tribe." The District Court held that jurisdiction was conferred by 28 U.S.C. § 1343(4) and 25 U.S.C. § 1302(8), apparently concluding that the substantive provisions of Title I impliedly authorized civil actions for declaratory and injunctive relief, and also that the tribe was not immune from such a suit. Subsequently, the court found for petitioners on the merits. The Court of Appeals, while agreeing on the jurisdictional issue, reversed on the merits. The US Supreme Court reversed the decision of the Court of Appeals holding:
1. Suits against the tribe under the ICRA are barred by the tribe's sovereign immunity from suit, since nothing on the face of the ICRA purports to subject tribes to the jurisdiction of federal courts in civil actions for declaratory or injunctive relief. 2. Nor does § 1302 impliedly authorize a private cause of action for declaratory and injunctive relief against the Pueblo's Governor. Congress' failure to provide remedies other than habeas corpus for enforcement of the ICRA was deliberate, as is manifest from the structure of the statutory scheme and the legislative history of Title I. (a) Congress was committed to the goal of tribal self-determination, as is evidenced by the provisions of Title I itself. Section 1302 selectively incorporated and in some instances modified the safeguards of the Bill of Rights to fit the unique needs of tribal governments, and other parts of the ICRA similarly manifest a congressional purpose to protect tribal sovereignty from undue interference. Creation of a federal cause of action for the enforcement of § 1302 rights would not comport with the congressional goal of protecting tribal self-government. (b) Tribal courts, which have repeatedly been recognized as appropriate forums for adjudicating disputes involving important interests of both Indians and non-Indians, are available to vindicate rights created by the ICRA. (c) After considering numerous alternatives for review of tribal criminal convictions, Congress apparently decided that review by way of habeas corpus would adequately protect the individual interests at stake while avoiding unnecessary intrusions on tribal governments. Similarly, Congress considered and rejected proposals for federal review of alleged violations of the ICRA arising in a civil context. It is thus clear that only the limited review mechanism of § 1303 was contemplated. (d) By not exposing tribal officials to the full array of federal remedies available to redress actions of federal and state officials, Congress may also have considered that resolution of statutory issues under § 1302, and particularly those issues likely to arise in a civil context, will frequently depend on questions of tribal tradition and custom that tribal forums may be in a better position to evaluate than federal courts. 28 Indian Gaming Regulatory Act The Indian Gaming Regulatory Act was enacted by the United States Congress on October 17, 1988, to regulate the conduct of gaming on Indian Lands. IGRA establishes the National Indian Gaming Commission and the regulatory structure for Indian gaming in the United States. Public Law 100-497-Oct. 17, 1988 100th Congress Sec. 2701.
29 SOVEREIGN IMMUNITY TRIBES CAN NOT BE SUED WITHOUT THEIR CONSENT Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998)
Held: Indian tribes enjoy sovereign immunity from civil suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation. As a matter of federal law, a tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity. See, e. g., Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 476 U. S. 877,890. immunity through explicit legislation,
30 SOVEREIGN IMMUNITY TRIBES CAN NOT BE SUED WITHOUT THEIR CONSENT C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Okla., 532 U.S. 411 (2001) No waiver by submitting to arbitration. Michigan v. Bay Mills Indian Cmty, 572 U.S. 782 (2014)As “domestic dependent nations,” Indian tribes exercise “inherent sovereign authority” that is subject to plenary control by Congress; unless Congress acts, which it has not in this case, the tribes retain their historic sovereign authority from suit, regardless of whether a suit is brought by a state or arises from a tribe’s commercial activities off Indian lands.
31 Dollar General Corp. v. Mississippi Band of Choctaw Indians, 579 U.S. ___ (2016) Dollar General Corporation operated a store on land held in trust for the Mississippi Band of Choctaw Indians (Tribe). The store operates pursuant to a lease and business license agreement with the Tribe. In the spring of 2003 a 13-year-old member of the Tribe alleged that he was sexually molested by the store manager, Dale Townsend, while he was working at the store as part of an internship program that the Tribe runs and in which the Townsend agreed to participate. In 2005, Doe sued Townsend and Dollar General in tribal court. Both defendants moved to dismiss the case for lack of subject matter jurisdiction, and the tribal court denied the motions. The Choctaw Supreme Court upheld the denial of the motions by finding that the U.S. Supreme Court’s decision in Montana v. United States, which allowed a tribe to regulate the activities of nonmembers who enter into a consensual arrangement with the tribe, applied in this case. The defendants then sued the Tribe in federal district court and sought injunctions to stop the suit in tribal court. The district court granted the injunction for Townsend but not for Dollar General because the company had failed to carry its burden to show that the Montana decision did not apply in this case. The U.S. Court of Appeals for the Fifth Circuit affirmed. In the US Supreme Court there was no holding because an eight-member court was equally divided on the issue, allowing the decision of the lower court to stand.
32 Nebraska v. Parker, 577 U.S. ___ (2016)
In 1854, the Omaha Tribe entered into a treaty with the United States to establish a 300,000-acre reservation and to “cede” and “forever relinquish all right and title to” its remaining land in present- day Nebraska for a fixed price. In 1865, the Tribe entered into another treaty, agreeing to sell land to the government for a fixed sum. In 1872, the Tribe sought to sell more land. Instead of a fixed-sum purchase, Congress authorized the Secretary of the Interior to survey, appraise, and sell tracts of reservation land to settlers and to deposit proceeds with the Treasury for the Tribe’s benefit. Congress took the same approach in 1882 with respect to roughly 50,000 acres of reservation land (22 Stat. 341). Peebles purchased land under the terms of the 1882 Act and established the village of Pender. In 2006, the Tribe sought to subject Pender retailers to tits amended beverage control ordinance pursuant to 18 U.S.C. 1161 (permitting tribes to regulate liquor sales on reservation land and in “Indian country”). Concluding that the 1882 Act did not diminish the Reservation, the district court ruled in favor of the Tribe. The Eighth Circuit and Supreme Court affirmed. Only Congress may diminish the boundaries of an Indian reservation, and its intent to do so must be clear. The 1882 Act had none of the common textual indications that express clear intent, but falls into a category of surplus land acts that “merely opened reservation land to settlement.” Although the Tribe has been absent from the disputed territory for more than 120 years, the Court stated that subsequent demographic history is the “least compelling” evidence; the justifiable expectations of non-Indians living on the land cannot alone diminish reservation boundaries.
Congress has the sole power to reduce the boundaries of an Indian reservation, and it must show a clear intent to do so, even if demographic history and the justifiable expectations of non-Indians living on the land suggest that the boundaries should be reduced. The 1882 Act did not diminish the Omaha Indian Reservation.
33 McGirt v. Oklahoma, 591 U.S. ___ (2020) The Major Crimes Act (MCA) provides that, within “the Indian country,” “[a]ny Indian who commits” certain enumerated offenses “shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States,” 18 U.S.C. 1153(a). “Indian country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” McGirt was convicted by an Oklahoma state court of sexual offenses. He unsuccessfully argued in state post conviction proceedings that the state lacked jurisdiction to prosecute him because he is an enrolled member of the Seminole Nation and his crimes took place on the Creek Reservation.
The Supreme Court held that McGirt was entitled to a federal trial. For MCA purposes, land reserved for the Creek Nation since the 19th century remains “Indian country.” An 1856 Treaty promised that “no portion” of Creek lands “would ever be embraced or included within, or annexed to, any Territory or State,” 11 Stat. 700, and that the Creeks would have the “unrestricted right of self-government,” with “full jurisdiction” over enrolled Tribe members. Once a federal reservation is established, only Congress can diminish or disestablish it. Congress did not end the Creek Reservation during the “allotment era,” when Congress sought to pressure many tribes to abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribal members. Other limitations on the promised right to self- governance, including abolishing the Creeks’ tribal courts and requiring Presidential approval for certain tribal ordinances fell short of eliminating all tribal interest in the contested lands. Many of Oklahoma’s arguments rest “on state prosecutorial practices that defy the MCA, rather than on the law’s plain terms.” Acknowledging the potential consequences of its ruling, such as unsettling convictions and frustrating the state’s ability to prosecute future crimes, the Court stated that Oklahoma and its tribes have proven that they can work successfully together and Congress remains free to supplement its statutory directions about the lands. 34 35 QUESTIONS?
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