September 20, 2020

Volume X, Number 264

September 18, 2020

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Indian Land Then, Remains Indian Land Now: The Supreme Court Confirms That a Significant Portion of Eastern Oklahoma Is a Native American Reservation

On July 9, 2020, the United States Supreme Court held in McGirt v. Oklahoma that, for purposes of the Major Crimes Act (MCA), land in eastern Oklahoma reserved for the Creek Nation pursuant to a treaty ratified by Congress over a century ago remains “Indian country” today. The Supreme Court’s ruling brings long-overdue justice to the Creek Nation, whose ancestors were displaced from their ancestral lands in Georgia and Alabama during the Trail of Tears. It also affirms that a Native American reservation is subject to being diminished only by clear congressional action. McGirt does not fundamentally change the landscape of federal Indian law or the law applicable to reservations. McGirt, however, has the potential to impact questions of not only criminal jurisdiction but also civil jurisdiction, including taxing and regulatory authority, within the Creek Nation’s reservation. The ruling indicates that courts will look carefully at other historic reservations whose boundaries have ostensibly been modified without express Congressional action.

McGirt in Context

Starting in 1833, Congress entered into treaties with the Creek Nation providing for a “permanent home” with “full jurisdiction” over-enrolled members and their property.1 Those congressional promises were followed by a formal patent to the Creek Nation for the land in 1852.2 Over the years, Oklahoma has asserted various types of jurisdiction within and over the lands reserved to the Creek Nation, including criminal jurisdiction over crimes committed by Native Americans.3 In McGirt, the Supreme Court considered whether the state had jurisdiction to prosecute a Native American for a major crime committed within the boundaries of the land base reserved to the Creek Nation, even though the MCA limits such jurisdiction to the federal government.4

McGirt Court’s Key Findings

Recognizing federal treaties as the “supreme Law of the Land,” the McGirt court held that Congress had not taken clear and express action to diminish or disestablish the Creek Nation’s reservation, and therefore it remains in existence. Accordingly, under the MCA, the state does not have jurisdiction to prosecute Native Americans within the reservation.5 The Court reasoned that to hold otherwise would lead to impermissible results: “A State could encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States.”6 The Court explained that historical practices, demographics, and extra-textual considerations, including congressional legislation dividing the reservation into individual allotments for individual ownership, did not reduce or disestablish the reservation.7 In short, acts other than clearly intended Congressional action to modify the United States’ treaties with the Creek Nation cannot disestablish or diminish the reservation.8 Thus, despite prior federal and state action to break promises with the Creek Nation, Congress has never clearly expressed an intention to disestablish or diminish the reservation.9

Potential Implications for Civil Jurisdictional Issues in Eastern Oklahoma and Other Tribes

The Supreme Court’s holding in McGirt did not create new law, but rather affirmed that treaties are the supreme law of the land and that the Creek Nation’s reservation continues to exist absent clear and express Congressional action modifying or reducing it. Although the Court’s holding focuses on the statutory definition of “Indian country” under the MCA, the decision may also impact civil regulatory authority within the Creek Nation’s reservation. It could also serve as a model for other tribes around the country looking to substantiate their own reservation land bases.

The Supreme Court recognized that its decision could result in “cost and conflict around jurisdictional boundaries,” but concluded with a tone of optimism about future state and tribal partnerships, which could include new legislation and/or memorandums of agreement between the state and tribe regarding jurisdiction within the reservation.10 In addition to state and tribal jurisdiction, the federal government may have primary permitting authority under various federal statutes, including the Clean Water Act, within the reservation. In the civil context, the decision is unlikely to upset private agreements in the eastern half of Oklahoma. The tribe could, however, potentially assert additional regulatory roles, such as taxing or land use authority, over certain activities and areas within the outer boundaries of the reservation. While this could impact the development of oil and gas, wind, solar, and agricultural facilities, for instance, or operations at existing facilities, these are not new or insurmountable issues. In fact, similar jurisdictional issues have been addressed in other parts of the country where there are checkerboard reservations, i.e., reservations consisting of land owned by private individuals and tribes.

Each tribe will have to consider its individual treaty and jurisdictional issues in their own terms and circumstances. The McGirt ruling does not recognize the existence of any reservation other than the Creek Nation’s reservation in eastern Oklahoma or change the jurisdictional law within reservations. Other tribes may, however, be in a similar situation as the Creek Nation was before the Supreme Court’s decision, and will need to analyze their own treaty language and history to determine whether they should bring a similar action to ensure that their own reservation boundaries are consistent with historical treaties.

Conclusion

By confirming the existence of the Creek Nation’s reservation in eastern Oklahoma, the Court has reaffirmed foundational principles of federal Indian law and has established that those principles apply in a large part of eastern Oklahoma, specifically to the exclusion of state law with respect to major crimes committed by Native Americans under the MCA. The case may also impact civil jurisdiction, including taxing and regulatory authority, within the Creek Nation’s reservation. Regardless, McGirt makes clear that (1) treaties remain “the supreme law of the Land,”11 (2) “disestablishment may not be lightly inferred” and (3) “treaty rights are to be construed in favor of, not against, tribal rights.”12 Absent an explicit act from Congress, those treaties must be enforced as written, regardless of how much time has passed or how circumstances have changed.


1Subsequent treaties have been considered sufficient to establish a Creek reservation with an “unrestricted right of self-government [and] with ‘full jurisdiction’ over-enrolled Tribe members and their property.” See Treaty with the Creek Nation of Indians, art. XV, 1856, 11 Stat. 700; see also Treaty with the Creek Nation of Indians, art. III, June 14, 1866, 14 Stat. 786.

2McGirt v. Oklahoma, No. 18-9526, 2020 S. Ct. WL 3848063, at *5 (S. Ct. July 9, 2020).

3Id. at *1.

4Id. at *3-5.

5Id. at *5.

6McGirt at *5.

7Id. at *10-12.

8Id. at *5 (there must be a clearly expressed congressional intent for disestablishment with “[an] ‘[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests”).

9Id.

10Id. at *22.

11Id. at *7.

12Id. at *21

Copyright 2020 K & L GatesNational Law Review, Volume X, Number 199

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About this Author

Benjamin Mayer, KL Gates Law Firm, Environmental Law Attorney
Associate

Ben Mayer is an associate in K&L Gates’ Seattle office. Ben’s practice focuses on litigation and transactions involving energy, environmental, land use and natural resource issues.

Ben counsels public and private clients on the requirements of and compliance with laws regulating the human and natural environments, including the Clean Water Act, the Endangered Species Act, the National Historic Preservation Act, federal and state cleanup laws and federal and state environmental policy acts.

206-370-8074
Matt Clark Associate Seattle Environment, Land and Natural Resources
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Matthew Clark is an associate in the Seattle office of K&L Gates in the environment, land and natural resources practice group. Mr. Clark’s practice focuses on litigation, regulatory compliance, and transactions involving energy and infrastructure, environmental permitting, natural resource development, and land use.

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Bart Freedman, KL Gates Law Firm, Complex Commercial Litigation Attorney
Partner

Mr. Freedman’s practice encompasses a broad range of environmental, business, eminent domain, and Indian Law litigation in federal and state courts, as well as alternative dispute resolution.

In the area of environmental law, his experience includes Endangered Species Act, natural resource damages, hazardous waste matters, cost-recovery litigation under CERCLA, criminal defense of Clean Water Act enforcement, civil tort claims and regulatory matters. Bart currently represents King County in the acquisition of property for the Brightwater...

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Endre M. Szalay, KL Gates, Seattle, Washington, environmental law, CWA, NEPA, ESA, Environment Land and Natural Resources group
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Endre Szalay is an associate in the Environment, Land and Natural Resources group in the Seattle office. His practice focuses on compliance counseling and litigation under a range of environmental statutes, including the Clean Water Act (CWA); National Environmental Policy Act (NEPA); Endangered Species Act (ESA); Comprehensive, Environmental Response, Compensation and Liability Act (CERCLA); Model Toxic Control Act (MTCA); and state and local land-use laws.

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Adam Tabor Environmental Attorney KL Gates Seattle
Associate

Adam Tabor is an associate at the firm’s Seattle office. He is a member of the environment, land, and natural resources practice group. Adam’s practice focuses on natural resource, federal Indian law, energy, environmental, and transportation issues. He counsels public and private clients on the requirements of federal and state environmental laws and regulations, federal and state natural resource laws and regulations, and federal and state transportation laws and regulations.

Adam also provides litigation and pre-litigation strategic advice to clients, including multi-party...

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