Loyal v. Murphy - Possibility of Indian Reservations in Oklahoma

[Zuplar]

Not sure if anyone has seen this, but I learned about it this week and found it extremely interesting. I found out it from law enforcement as it was talked about at a conference and what would happen to Oklahoma jurisdiction if reservations are “reinstated” in Oklahoma. Apparently this is something that could have wide ranging effects on how the state operates, but looks to be decided later this year or next year.

https://newrepublic.com/article/1474...k-tribal-lands

[aDark]

Not sure if anyone has seen this, but I learned about it this week and found it extremely interesting. I found out it from law enforcement as it was talked about at a conference and what would happen to Oklahoma jurisdiction if reservations are “reinstated” in Oklahoma. Apparently this is something that could have wide ranging effects on how the state operates, but looks to be decided later this year or next year.

https://newrepublic.com/article/1474...k-tribal-lands

Thank you so much for sharing. This is massively interesting. If the Supreme Court sides with the tribes on this issue it would have a monumental impact on how Oklahoma and it's Courts operate going forward. I wonder if this would open floodgates for building of Casinos in areas which were previously believed to be outside of the tribe's control.

[Zuplar]

Thank you so much for sharing. This is massively interesting. If the Supreme Court sides with the tribes on this issue it would have a monumental impact on how Oklahoma and it's Courts operate going forward. I wonder if this would open floodgates for building of Casinos in areas which were previously believed to be outside of the tribe's control.

What this could do is essentially split the state in 2. All the reservations would, which if they went with 1889 boundaries, would effectively have jurisdiction over the Eastern portion of the state, including Tulsa. It would become the largest reservation by population in the US. I can tell you this, I wouldn't want to be living in these parts of the state if they are made back to reservations.

[CloudDeckMedia]

This isn’t the only case. “Little Traverse Bay Band of Odawa Indians v. Gov. Snyder” is an 1855 Michigan dispute in which the tribe claims that the land was wrongfully taken from them, and they seek to impose tribal governance over 337 square miles of Lake Michigan shoreline. They don’t seek ownership of the land directly, but to reassert tribal law. The result would be to replace existing councils, boards & commissions with tribal equivalents, the tribe would assess & collect all property taxes, set & enforce zoning laws, and so on. This is happening - property owners I know have paid tens of thousands APIECE into legal defense funds.

[aDark]

What this could do is essentially split the state in 2. All the reservations would, which if they went with 1889 boundaries, would effectively have jurisdiction over the Eastern portion of the state, including Tulsa. It would become the largest reservation by population in the US. I can tell you this, I wouldn't want to be living in these parts of the state if they are made back to reservations.

Admittedly, I haven't studied Indian law in many years. But, my understanding is that if the lands were deemed "Indian lands" then jurisdiction of Indian affairs matters would indeed return to the tribes. However, property ownership would not change. Therefore, a return to "reservations" isn't a fair statement. Yes, you'd have tribal members once again resolving tribal disputes in their own courts or federal court, as opposed to say Tulsa County. Beyond that, the privately owned lands would simply stay where they currently are. Now, if a nation owned some property which was not "on the reservation" previously (aka, they didn't have jurisdiction to build a casino) they could now operate that land as if it was and had always been Indian land. Does this make sense?

In short, I don't think half of the state becomes a reservation in the modern understanding of the term.

[Zuplar]

Admittedly, I haven't studied Indian law in many years. But, my understanding is that if the lands were deemed "Indian lands" then jurisdiction of Indian affairs matters would indeed return to the tribes. However, property ownership would not change. Therefore, a return to "reservations" isn't a fair statement. Yes, you'd have tribal members once again resolving tribal disputes in their own courts or federal court, as opposed to say Tulsa County. Beyond that, the privately owned lands would simply stay where they currently are. Now, if a nation owned some property which was not "on the reservation" previously (aka, they didn't have jurisdiction to build a casino) they could now operate that land as if it was and had always been Indian land. Does this make sense?

In short, I don't think half of the state becomes a reservation in the modern understanding of the term.

Yeah that makes sense. I was basing my thoughts on what I had read in a few other articles in this, in which they were making the assumption that it would revert to reservations in the traditional sense. What you talk about seems more likely and wouldn't be nearly as bad.

[aDark]

Yeah that makes sense. I was basing my thoughts on what I had read in a few other articles in this, in which they were making the assumption that it would revert to reservations in the traditional sense. What you talk about seems more likely and wouldn't be nearly as bad.

I think it would still have significant impact. Especially from a taxation standpoint. Imagine a tribal member living on several acres which, as of today, has no special qualities. Does that land immediately revert back to "reservation" status thereby preventing the city from taxation of property? Does that land maintain zoning regulations or is that outside of the city/county's jurisdiction?

If the lands did revert back to a traditional "reservation" it would be mass chaos. I'm not suggesting what was done was right or that it shouldn't be - just making an observation.

I know one thing for certain, if the 10th circuit ruling is upheld the Eastern District Court of Oklahoma just got a LOT busier!

[Zuplar]

I think it would still have significant impact. Especially from a taxation standpoint. Imagine a tribal member living on several acres which, as of today, has no special qualities. Does that land immediately revert back to "reservation" status thereby preventing the city from taxation of property? Does that land maintain zoning regulations or is that outside of the city/county's jurisdiction?

If the lands did revert back to a traditional "reservation" it would be mass chaos. I'm not suggesting what was done was right or that it shouldn't be - just making an observation.

I know one thing for certain, if the 10th circuit ruling is upheld the Eastern District Court of Oklahoma just got a LOT busier!

And see that's where I was thinking, everyone who owns land in these potential "reservations" would now be subject to tribal jurisdiction as opposed to the state of Oklahoma. I can't imagine that flying, but the case in general is interesting because it sounds like the 10th Circuit ruling has already said that congress didn't dissolve them properly, and the main question is what exactly are the boundaries of these reservations.

Just one more reason that the upcoming Supreme court nomination is so important.

[gopokes88]

It's interesting but there is no chance the SC is ruling in favor of the tribes.

[Midtowner]

I think they stand a better chance than you think. I would hope Congress would intervene here and return things to the status quo.

[Zuplar]

I think they stand a better chance than you think. I would hope Congress would intervene here and return things to the status quo.

I agree. They’ve waited this long to raise questions about it doesn’t make sense to reverse it now.

[dankrutka]

I'm not an expert on any of this, but I have quite a different take on the article as it seems like the Muscogee Creek Nation has a pretty solid case.

First, it's important to eastablish that land was stolen from Indigenous Nations as the article points out in a couple places:

Until now, state and federal officials assumed those boundaries no longer existed. To prepare Oklahoma for statehood in the late nineteenth century, Congress stripped the Creek Nation and other tribes in the territory of their courts, governments, and laws. The federal government also compelled the Creek to convert their tribal lands into allotments for private ownership by the tribe’s members, with the surplus land to be sold to white settlers.

To re-gain their stolen lands and sovereignty would only be just. And, for those claiming that this would somehow lead to some unprecedented chaos:

“This is something that almost all other tribes in this country have outside of Oklahoma, and this would put Oklahoma tribes on an equal footing with Indian tribes elsewhere,” Judith Royster, a University of Tulsa law professor who specializes in Indian law, told me.

However this gets worked out, it's long past due and I fully support Indigenous soveriengty for Oklahoma's nations. Indigenous Nations can work with state and county governments on solutions that make sense. No one would want chaos. There seems to be a lot of sensational accounts from oil and gas, which is typical of their lobby which just used similarly absurd and self-interested arguments during the teacher's strikes. However, it seems likely that:

Royster disputed that interpretation, telling me that the immediate impact on civil matters for Oklahomans would be minimal. “Nothing’s going to happen to my property, nothing’s going to happen to my day-to-day life,” she said. “Nobody except criminals and the federal courts are going to see any immediate changes because of this.”

This case actually seems pretty straightforward. The state surpassed their jurisdiction and this case is fixing that. But maybe this can also return Indigenous sovereignty that was "stripped" away in illegal and unethical ways.

[Zuplar]

Dan your take has been my thoughts, you just did a much better job expressing that.

[aDark]

And see that's where I was thinking, everyone who owns land in these potential "reservations" would now be subject to tribal jurisdiction as opposed to the state of Oklahoma. I can't imagine that flying, but the case in general is interesting because it sounds like the 10th Circuit ruling has already said that congress didn't dissolve them properly, and the main question is what exactly are the boundaries of these reservations.

Well, the tribal jurisdiction would still only control tribal issues. I.E. a Native American attacks a Native American on tribal lands = tribal court. A Native American attacks a Native American on non-tribal land, like a Walmart parking lot = state court. If a Native American attacked a non-Native American it would not be a tribal court affair. That's why the case is so interesting, it's only arguably in the wrong the jurisdiction because both parties are Native American. So, if the supreme court did pass this law the old boundaries would be revived but that would not result in non-Natives being hailed into tribal court. But, the situation where a Native American attacked a Native American in a Walmart parking lot *would* now be decided in tribal court (or federal court). When I took Federal Indian Law at OU CoL we studied the intricacies of tribal court v. state court in depth. I will look for my old outline and post the table which simplifies this situation. It's super interesting.

[Midtowner]

But maybe this can also return Indigenous sovereignty that was "stripped" away in illegal and unethical ways.

The holdings are pretty uniform that tribal sovereignty can be stripped by Congress. The issue here is whether Congress did that. I think Congress' intent in passing numerous laws related to stripping tribal governments of authority, forbidding tribal councils from meeting, etc., while you may not like it, Congress' intent isn't difficult to divine. If the SCOTUS upholds this, I hope for swift action from Congress to set things straight.

[Zuplar]

Well, the tribal jurisdiction would still only control tribal issues. I.E. a Native American attacks a Native American on tribal lands = tribal court. A Native American attacks a Native American on non-tribal land, like a Walmart parking lot = state court. If a Native American attacked a non-Native American it would not be a tribal court affair. That's why the case is so interesting, it's only arguably in the wrong the jurisdiction because both parties are Native American. So, if the supreme court did pass this law the old boundaries would be revived but that would not result in non-Natives being hailed into tribal court. But, the situation where a Native American attacked a Native American in a Walmart parking lot *would* now be decided in tribal court (or federal court). When I took Federal Indian Law at OU CoL we studied the intricacies of tribal court v. state court in depth. I will look for my old outline and post the table which simplifies this situation. It's super interesting.

Thanks for that clarification, I think I understand it as best as I can.

[dankrutka]

The holdings are pretty uniform that tribal sovereignty can be stripped by Congress. The issue here is whether Congress did that. I think Congress' intent in passing numerous laws related to stripping tribal governments of authority, forbidding tribal councils from meeting, etc., while you may not like it, Congress' intent isn't difficult to divine. If the SCOTUS upholds this, I hope for swift action from Congress to set things straight.

Right, which is why the entire history of U.S. relations with Indigenous Peoples should be upended and thrown out. Should we keep relying on precedents grounded in racism, injustice, and greed?

[BoulderSooner]

Well, the tribal jurisdiction would still only control tribal issues. I.E. a Native American attacks a Native American on tribal lands = tribal court. A Native American attacks a Native American on non-tribal land, like a Walmart parking lot = state court. If a Native American attacked a non-Native American it would not be a tribal court affair. That's why the case is so interesting, it's only arguably in the wrong the jurisdiction because both parties are Native American. So, if the supreme court did pass this law the old boundaries would be revived but that would not result in non-Natives being hailed into tribal court. But, the situation where a Native American attacked a Native American in a Walmart parking lot *would* now be decided in tribal court (or federal court). When I took Federal Indian Law at OU CoL we studied the intricacies of tribal court v. state court in depth. I will look for my old outline and post the table which simplifies this situation. It's super interesting.

This is not correct. In the reservation the state would have 0 jurisdiction Only federal court and tribal court. Including state highway patrol and county sheriffs (unless changed to tribal sheriffs)

[Midtowner]

Right, which is why the entire history of U.S. relations with Indigenous Peoples should be upended and thrown out. Should we keep relying on precedents grounded in racism, injustice, and greed?

That doesn't really make sense. This case isn't indicative of our entire history of relations with indigenous people. This is just a potential massive legal shift based upon a ruling no one wanted, which might convey legal responsibilities onto tribes in such a way that law enforcement and jurisdictional issues for half of this state, including Tulsa are completely upended. Congress could simply act to set things back in order. If you want to read racism, injustice and greed into that, cool on you. I'm just all about not having to pay 6 sets of Bar dues every year and having to learn six different procedures for everything. 7 if you count CFR courts.

And please spare me the hyperbolic moral outrage. I don't play that game.

[dankrutka]

I want to make sure I understand your argument. Are you claiming that Muscogee Creek Nation sovereignty is NOT a historical issue? Did you believe the article to be factually incorrect? Several people in the article seem to contradict your conclusions about the implications of this case, but you don’t really address their points in your post.

I’m not an expert on this topic so I’m happy to learn and discuss. Is your dismissiveness really necessary?

[Midtowner]

Having read the briefs, it appears that Congress' clear intent was to disestablish tribal governments in Oklahoma, wipe out a lot of sovereignty because several of the tribes were on the wrong side of the Civil War. We've been operating under the assumption that all of that was valid for 125+ years.

Yes, I think Congress, if the Supreme Court says there is something invalid, should restore us to the status quo, I don't think is unreasonable. I also don't think that tribal governments are ready for that sort of responsibility.

[Zuplar]

I agree, if the tribes wanted to argue sovereignty, they should have done it back then. Waiting all this time is absurd and not realistic IMO.

[bombermwc]

One interesting point would be that because we have operated this was for 125 years, we've now operated this way, longer than those tribes had that land hre in OK. Remember, most tribes here now were force-migrated here from other areas. Like the Chicksaw being from northern AL, MS, Southern TN, etc.

The lines have changed over the years on which tribe was where in OK as well, so it depends on which version of the "treaties" they decide are valid and which aren't. Then they'd have to decide why that is the case to prevent other legal battles.

The migration into Oklahoma is why this issue is so much more complex as there are very few tribes that have actual historic claims to the land. Those that got moved here in the late 1800's simply aren't ancestral. And their traditions and ways of life dramatically changed once they got here. These issues didnt come up as much because after those changes, many people in those tribes integrated with the surrounding communities rather than staying with their tribal ways. That right there can be seen as a choice to abandon the claims of that ancestry. So now, generations later, we're coming back to someone trying to force the claim back on something their family gave up long ago.

Hell, my family came here from Europe. They made the choice to leave behind what they had across the pond. But now if i want it, should i be in my rights to take it from whomever has it now? Granted, that's not a pure apples to apples comparison, but i only say that because the number and deepness of the issues tied to this are so great, that i feel like the court will decide NOT to reinstate anything. And as the court is going to be leaning Republican (oh, im sorry "conservative"), then I see that as even less of a chance of the court siding with the tribes. Wouldn't want all those old disgruntled white guys giving up their fake version of the 1950's now would we?

[OKCRT]

Maybe the Gov. needs to pay the tribes a lump some for the land that they forced the tribes to take and then forced them to open to settlers. Like eminent domain?

[Midtowner]

This isn't going to be about Republican vs. Democrat special interests. This is going to be about how strict construction/originalist vs. interpretive judges construe laws.