- Legal Eagle is coming in loud and clear thanks to Ting Mobile. Today we're talking about ♪ Oklahoma ♪ - Where the wind doesn't
come sweeping down the plain and the waving wheat does not smell sweet because it appears that
Oklahoma is no more. Is it possible that the Supreme Court gave away half of the state? Well, in what some people
are calling legal insanity, the Supreme Court in the immigrant cases decided that Native-Americans
still have reservations in most of Eastern Oklahoma in
an area that includes Tulsa. The Supreme Court says that
Native-American reservations have jurisdiction over some of the crimes that happen in that huge
swath of Eastern Oklahoma. And Justice Roberts is warning that this is just the tip of the iceberg, that perhaps all of the
laws may eventually fall under the reservation jurisdiction and no longer be part of Oklahoma. So the question is, did the Supreme Court just
give away half of Oklahoma? (soft music) Hey Legal Eagles. It's time to think like a lawyer. Because if you live in Tulsa, Oklahoma, you might be wondering whose
laws you have to follow and who you have to pay your taxes to. But some of the more fundamental questions are what is a Native-American reservation? And how does that impact
the laws that apply in a given geographical area? And does Eastern Oklahoma
belong to the state of Oklahoma or other Native-American reservations? Or did Oklahoma ever in fact
exist as a state itself? (indistinct) Well, the bombshell decision
of McGirt versus Oklahoma, delves into the interplay
between state law and the validity of
land rights established by treaties granted by the US Government. With some, including
the descent contending that this decision will
upend governance in Oklahoma. And I've had many people ask
what this case is really about. And you would think that a decision that begins with the words "On the far end of the trail
of tears was a promise" will surely find its way into
case law books in the future. But this was a five, four decision that's even more interesting because the author of
the majority opinion, Justice Neil Gorsuch broke
with his right leaning cohorts on the Supreme Court. And of course it gets
even more interesting with multiple descents
with Clarence Thomas writing his own descent because more often than not, Thomas can't even agree with
the majority of the minority in its entirety. So without further ado, let's break down the incredible case of McGirt versus the state of Oklahoma and find out what's going on here. So this case starts with the conviction of one named Jimcy McGirt. Which of course is the most
Oklahoma name you've ever heard in your entire life. And McGirt was found guilty
of three sexual offenses and sentenced to life in prison in 1996. He challenged his conviction on the basis that the Oklahoma State Court lacked jurisdiction to prosecute him because he's an enrolled member of the Seminole nation of Oklahoma and his crimes took place on
designated reservation land. And if indeed that's
true that McGirt's crimes took place on reservation land. Then he should have been
prosecuted in Federal Court, not Oklahoma State Court
under the Major Crimes Act. The deciding factor for purposes of the Supreme Court analysis was whether the land
given to Native-Americans and treaties by the US government, remains an Indian reservation for purposes of federal criminal law. Now, before we dive into
the specific arguments by both the petitioner
and the state of Oklahoma, I think it's important to
provide some history here because that backdrop
informs this particular case and explains why these treaties
existed in the first place. Most remember in middle
school history class, learning about what is
commonly referred to as the "Trail of Tears" And here's a quick refresher. The 1830s Native-Americans
occupied large tracks of land in states such as Georgia,
Tennessee, North Carolina, Alabama, and Florida. They resided on this land for generations, of course, long before Columbus, the Pilgrims or the Mayflower because of the viability of this land, white settlers wanted to
use their land for farming. So in 1830, president Andrew Jackson
signed the Indian Removal Act, which gave the federal
government authority to exchange this land
held by Native-Americans for land out West in an
Indian colonization zone, which is now present day, Oklahoma. Faced with an invasion
by the US government and all of the atrocities that we know go hand in hand with that the Native-Americans
left behind their homes, which were alluded while they
were forced to journey on foot to the land in Oklahoma, without any supplies or
assistance from the government that was kicking them out. Thousands of Native-Americans
lost their lives on this forced expedition, which is why one tribal leader
accurately referred to it as "a trail of tears and death." 4,000 people died on the trail of tears. Now, while the main issues involved, whether there is a reservation or if it was just established by Congress and what that means. It's important to know
why this determination has such a significant impact. In 1885, Congress passed
the Major Crimes Act, which places certain crimes
committed by Native-Americans in Native-American territory as subject to federal
not state jurisdiction. It states that within quote
"the "Indian Country", any Indian who committed
certain enumerated offenses against the person or
property of another Indian or any of that person shall be subject to the same law penalties as all other persons committing
any of the above offenses within the exclusive jurisdiction
of the United States." The MCA defines quote "Indian Country" as "all land within the limits
of any Indian reservation under the jurisdiction of
the United States government, not withstanding the
issuance of any patent and including rights of way
running through the reservation. So the determination of
reservation or no reservation is the difference between
some crimes being adjudicated by the federal court, as opposed to the state court. So let's turn to the issues that were at issue in
McGirt versus Oklahoma. The first question is
did Congress establish a Native-American reservation
in the first place? If there was no reservation established, then the petitioner's entire
argument would be moot. State law, not the federal MCA
would be the controlling law. The majority opinion concluded
that McGirt was right. That Congress did establish a reservation for the land in question. Large swaths of Oklahoma. To arrive at this conclusion, the court had to scrutinize
the original treaty with the group known as the Creek Nation that was ratified and
enacted into law in 1833. The treaty in no uncertain terms declared the parcel of land that they were giving in what is now located within Oklahoma to be a quote "a permanent home to the whole Creek Nation of Indians." The treaty even spells out how
they would accomplish this. The United States, it
provides would quote, "grant a patent in fee simple to the Creek Nation of Indians
for the assigned land." To continue, "so long as
they shall exist as a nation and continue to occupied the country hereby assigned to them." Within these lands, the
creeks were to be secured in their unrestricted
right of self-governance with full jurisdiction over
all enrolled tribe members and their property. This treaty, though many
Oklahomans aren't happy about it is not really ambiguous. It clearly defines the
large swaths of area that fall under this treaty and become a Native-American reservation. So the next question is, does the reservation still exist today or has it been disestablished by a subsequent congressional acts? And the majority opinion
notes that over the years, Congress has violated
its treaty obligations. And this initially undivided land is now fractured into various portions, held by tribe members and
unaffiliated members alike. Nevertheless, the court
opinion notes rather strongly that the federal treaties and statutes are the Supreme law of the land and that it's up to
Congress and Congress alone to decide if it wants to
breach those treaties. The point being that only Congress, not the states and certainly
not the judicial branch can explicitly disestablish
the reservation. This reminder of the importance
of separation of powers among the three branches of government has been flashed out
in countless opinions, as well as Saturday morning
episodes of Schoolhouse Rock. ♪ Ring one, Executive ♪ ♪ Two is Legislative, that's Congress ♪ ♪ Ring three, Judiciary ♪ ♪ See it's kind of like my circus ♪ ♪ My circus. ♪ - But in writing the opinion for the majority Justice Gorsuch, summed it up pretty well saying that, "Legislators might seek
to pass laws that tiptoe to the edge of disestablishment and hope that judges facing no possibility of electoral consequences themselves will deliver the final push, but wishes don't make for laws and saving the political branches the embarrassment of
disestablishing a reservation is not one of our constitutionally
assigned prerogatives." Recall the Gorsuch is a textualist. He looks to the text of the various laws, and while he might not agree with what the law says politically, if he thinks that the text
militates a certain outcome, that's the way that he is going to vote on the Supreme Court. And the bottom line is
that this is on Congress. And if they want to
disestablish the reservation, they need to do it explicitly without getting the courts
to do its dirty work. But that's not the end of the inquiry. Because the question remains, did some sort of
subsequent act of Congress actually disestablished the reservation? Oklahoma actually claimed that Congress did disestablish the land
within the reservation, starting around around the 1880s. As a result of the rationally
authorized Dawes Commission, the tribes were pressured to abandon their customary communal living and issue out individual
tracks of lands to its members. Both the General Allotment Act of 1887 and the Creek Act of 1901
encouraged Creek members to divide up their lands. This eventually resulted in
some individual tribe members selling their land to non
Native-Americans as well. But according to the majority, this was nothing like an
actual act of Congress disestablishing the entire reservation. Prior Supreme Court cases
already had held that allotment is completely consistent with the continued reservation status. Moreover, as we talked about the language of the treaty itself also made this clear by
defining "Indian Country" as "all land within the limits
of any Indian reservation, not withstanding the
issuance of any patents, and including any rights-of-way running through the reservation." In other words, the treaty
provides for the land to be encumbered and divided in a way that doesn't affect the
overall reservation itself. And to drive the point home, the court provides an analogy that shows that fallacy
of equating allotment. In other words, dividing up the land to disestablish it, getting rid of the reservation entirely. The federal government has
issued its own allotment to the form of what are called patents that transfer legal title
to homesteads in the West. And no one is going to argue that the United States
sovereignty over the land that they gave these homestead patents to is in any way diminished because
of these particular acts. And the same holds true for the land buying the Creek Nation. The plan might have been
to go from allotment to disestablishment of the reservation, but Congress never followed through. And so the reservation still exists. And although Congress took other actions that impacted the Creek
Nation's reservation status, like abolishing their tribal courts and transferring all
of their pending civil and criminal cases to
United States courts, the Supreme Court has held
that none of these acts disestablished the reservation itself, even what's called the five
civilized tribes act of 1906, which took away more of
the Native-American rights stomped short of actually
disestablishing the reservation, the Creek Nation still retained their tribal government power to do such things as collect taxes, operate schools and legislate
through tribal ordinances. However, arguably the strongest evidence that the court provided was that in 1936, Congress authorized the Creek Nation to adopt a constitution and bylaws, which actually restored powers that they had previously been deprived of. And to give you a little idea of what the government now looks like, it contains three separate
branches of government, much like the US government generally, a democratically elected principal chief, its own police force, hospitals, and an annual budget of 350 million. So in other words, the Creek Nation still exists. And so does the reservation
in most of Eastern Oklahoma. Now that said Oklahoma and the descent trying to use circumstantial
and the land's demographics as evidence of disestablishment. In defending their position, Oklahoma suggested a three step process to determine disestablishment
where the court, A, reviews the laws passed by Congress. B, examines the contemporary events at the time these laws were passed and C evaluates subsequent
events and demographics. In laying out this approach, Oklahoma and the descent, point out that state's ongoing practice of prosecuting Native-Americans
located in "Indian Country" for over a century, as well as the massive
influx of white settlers into the Creek Nations
lands over the years. And they also point to various statements made during the allotment era, including those from the Creek Nation. That seemed to indicate that
most believed the reservation was on his last leg and in the process of being disestablished. But the majority's
response to this argument is basically thanks
for the history lesson, but that's not dispositive. It doesn't matter. Well, the court didn't deny
that the context can be useful. It's only useful if the court is interpreting ambiguous statutory terms, which is a common Canon of construction. When you're dealing with a language, whether it's a statute or a contract, if you have a contract dispute and two parties want different things and you look to the contract and it's absolutely crystal clear, then there's no reason to then think about what the parties might have
said in negotiating the contract because the contractual
language in this case is perfectly clear. But if the contract isn't clear, then you're going to have to look at what's called parole evidence, evidence outside of the
four corners of the contract to determine what to do. And that's what the court is doing here. And as far as the court was concerned, there weren't any ambiguous terms here. The treaty might be old,
but the terms were clear. And as the majority pointed out, Oklahoma and the dissenting
justice identify any cases where these kinds of
extratextual considerations led to the disestablishment
of a reservation. So that takes us to Oklahoma's final sort of last ditch argument, which actually the dissenters
in this case seized upon. And it's what we attorneys
call a policy argument. A policy argument is designed
to appeal to common sense by highlighting the real world impact that a legal ruling could actually have. These types of arguments rely more on the factual implications of a ruling rather than the actual statutory language or constitutional framework. And in this case, the argument went something like this. If the court decides that
the reservation exists today, then one of two things
could potentially happen. One other similarly situated tribes, pre-existing treaties, will claim that their
reservations still exist as well with all the rights and privileges that go along with that. Number two and more to the point, this decision would destroy
both the numerous convictions that have already been doled out as well as their ability
to prosecute future crimes on Native-American reservation land. And in the past, these kinds of policy
arguments have actually worked to shoot down Native-American
claims on their own land, but here are the majority
wasn't having it. First they point out
that the MCA is limited. It only applies to certain types of crimes and B it does not apply to cases involving non Native-American victims or defendants. And the court also shoots
down on the claim that the sky is falling by reminding us that the population of the area
only consists of 10 to 15% of Native-Americans, and many convictions
would not be challenged because of the limitations
on post conviction review and a desire to not roll
the dice in federal court. After all, just because you're
not supposed to be tried in state court doesn't mean you get away. It just means you're tried
in federal court instead. And above all Justice Gorsuch
rejected histrionic claims saying that we proceed
well aware of the potential for constant conflict around
jurisdictional boundaries, especially ones that have gone
unappreciated for so long. But it's unclear why
pessimism should rule the day. With the passage of time Oklahoma and its triumphs have proven that they can work successfully
together as partners. And one of the things
that's really interesting about this particular
case is you get a sampling of the kinds of arguments that you see in a lot of
different Supreme Court cases. Some argue from the original text, some argue from the context
in which laws are passed and some just flat out reject all that and just argue from the policy arguments. But it's interesting to see what worked in this particular case and what didn't. But finally we get to why you
probably came to this video in the first place. What are the implications of this potentially momentous case? Well in general, this is an important decision
because first of all, Gorsuch's opinion was
seen as an acknowledgement that often Native-Americans have been promised many
things by Congress. And those promises have
generally not been held up and here Gorsuch and the majority are holding Congress's feet to the fire and making them follow through with what was originally promised, even if it was promised over 100 years ago or rather over 200 years ago. And although Congress has
diminished and restricted different tribes authority on
their reservations severely, the reservation still exists until Congress says otherwise. And of course, Congress can say otherwise. And at the heart of this
battle is a fairly arcane law that deals with simply
who has jurisdiction to actually prosecute crimes. Here "the MCA applies to
Oklahoma on it' usual term saying that only the federal government and not the state may
prosecute Native-Americans for crimes committed in Indian Country." Of course, the larger question is whether this decision
in the words of Ted Cruz gives away half of Oklahoma. But really the practical
implications of this decision are not that dramatic. The case does not change
any land ownership in Eastern Oklahoma. Oklahomans are not going to be forced to abandon their homes
and walk a thousand miles in search of a new home. The decision also does not grant the tribe criminal jurisdiction over Non-Native Americans. But it does mean that state
prosecutors lack of authority to pursue criminal cases against
Native-American defendants in parts of Oklahoma, that
includes most of Tulsa, the state's second largest city. But in fairness, there's a lot less unresolved. The majority decision
left open the possibility of other impacts between
territorial rights and taxation and other
jurisdictional issues. But the court felt that Oklahoma and the Native-American tribes could resolve these things amicably. It's unlikely that anything
dramatic is going to happen. After this decision, the state and five tribes
issued a joint statement, stating that "The nations and the state are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming
jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights. We will continue our work confident that we can accomplish more together than any of us could alone." So even if you live in Eastern Oklahoma, it's unlikely that your day to day life is going to be affected very much. And if you live in Western Oklahoma, and you're trying to get ahold of a friend in Eastern Oklahoma you'll
want a cell phone service that works in both, regardless of whether Eastern Oklahoma remains a part of the state. And Ting Mobile is just the
cell service to reach the state formerly known as Oklahoma. Ting provides great LTE coverage because it uses the T-Mobile
sprint and Verizon networks. So you get the benefit
of three massive networks wherever you go, no matter which part of
the state you live in. Ting Mobile is a different
kind of mobile provider. With Ting you only pay for
the actual data and services you use at the end of the month. And because you're paying for
only what you actually use, Ting customers pay on
average is $23 per month for one device. And with Ting, you can
use almost any cell phone, including the newest
iPhone and Pixel phones. And you can use the same phone number you're using right now. There's no contract overage fees or any other carrier tricks. You just pay a fair price for the talk, text and data
that you use every month. And ting has award-winning
customer service. Because they don't have any
brick and mortar stores. They pour all their
resources into their phone and online support. If you have any issues, you can just give them a call and you'll immediately
talk to a real human being. Ting is an especially good deal if you're around WiFi all the time, which of course, most of us are because we're working from home. Because you aren't actually using any data on the cell service. You're just using your Wifi. So you'll end up paying way
less than you do right now. And Ting gives you the option
to pay only for what you use. And if you go to LegalEagle.Ting.com, you can use your last bill to compare just how much you would save. And Legal Eagles will get a $25 credit by going to LegalEagle.Ting.com. And that could cover your
entire first month of service. So just click on the
link in the description. And since there are no contracts, you can try it for a month. No strings attached. Again, all you have to
do is click the link in the description or go to LegalEagle.Ting.com and get a $25 credit for
whatever service you want. Plus clicking on that link
really helps out this channel. So do you agree with my analysis? Are you mad that you watched
20 minutes of click bait about a dry Supreme Court case that probably won't have
much real world effect? Leave your objections in the comment. And check out this playlist with all of my others real law reviews talking about all the crazy stuff that's happening with
the protests, COVID-19 and basically all of the news. There's a lot of it. So click on this playlist
and I'll see you in court.
Legal Eagle is a pretty solid show, this one is no exception. Definitely worth a watch.
I like his little dig in there.
They deserve it. It’s their land.
YES!
My friends have been spreading so much misinformation about this. Glad to get his take on it.
There is a case now with the creek tribe is attempting to gain jurisdiction over oil and gas.