McGirt vs. Oklahoma ruling: the exception that proves the rule. The rule being, according to Supreme Court Justice Neil Gorsuch, ‘treaties matter’

The Mille Lacs Messenger recently discussed implications this ruling could have on the Mille Lacs Band’s lawsuit against Mille Lacs County. “Supreme Court ruling regarding Oklahoma reservation” T.A. LeBrun, Jul 17, 2020.

This is a long read but well worth the time if you want to understand all the implications for the McGirt ruling on related legal efforts in Minnesota. Our starting point in listing a few takeaways below is that PERM honors all treaties as written.

The Supreme Court in McGirt v Oklahoma ruled recently that the disestablishment of the Muscogee Creek Nation’s reservation in Oklahoma was never properly completed.

The McGirt case was over the claim that a 1997 conviction in a State court should be overturned because the State of Oklahoma lacked jurisdiction. If the Muscogee Creek reservation was actually “properly” disestablished, Oklahoma State’s law enforcement prevails and the conviction should not be overturned. If the reservation was not properly disestablished, the old Federal jurisdiction over major crimes on a reservation prevails and the conviction should be overturned.

In a 5-4 ruling, the majority found that Congress, used “imprecise” language and failed to actually disestablish the 1866 boundaries of the reservation. Therefore, the conviction should be overturned.

Actually, Congress had taken steps toward the termination of the reservation, diminishing the reservation over time. But, according to the Court’s majority, Congress never came up with a sufficiently robust termination of a promised “reservation in perpetuity.”

Chief Justice John Roberts disagreed. He said that Congress did not tiptoe around its intention to disestablish reservation lands. Roberts said, “Quite the opposite. Through an open and concerted effort, Congress did what it set out to do: transform a reservation into a state.”

The ruling will likely be a headache for Oklahoma but not so much for Minnesota. First, Minnesota is a ‘Public Law 280’ state, which means the Federal-State criminal law enforcement relationship would not change whether a reservation is disestablished or not.

Second, the Mille Lacs reservation was fully disestablished by not one but three acts of Congress: the 1863 Treaty, the 1864 Treaty, and the Nelson Act of 1898. All three were “acts of Congress.”

If the courts somehow recognize the claimed existence of the long-disestablished Mille Lacs reservation, tribal civil regulation would be expanded over the full 61,000 acres of claimed territory. This includes jurisdiction over the harvest of natural resources.

However, under McGirt, Federal authority could displace some state authority such as in the area of environmental enforcement for example, according to attorney Randy Thompson, who represents the County in the current tribal lawsuit against the County.

On a positive note in Minnesota, as in Oklahoma, all parties in these lawsuits have publicly stated that they would “continue to cooperate with” the other parties.


Douglas Meyenburg, President, PERM

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Supreme Court ruling regarding Oklahoma reservation

By T.A. LeBrun Jul 17, 2020

County and Band weigh in

The U.S. Supreme Court on Thursday of last week ruled that the eastern half of Oklahoma can now be considered Native American territory. The State of Oklahoma warned this decision could create “civil, criminal, and regulatory turmoil.”

Locally, residents wonder what implications, if any, this decision could have on the Mille Lacs Band of Ojibwe’s lawsuit against Mille Lacs County (the County, sheriff, and county attorney) regarding boundary definition and policing.

The Supreme Court voted 5-4, with Justice Neil Gorsuch siding with the Court’s four liberal justices. According to a July 9 USA Today article, the case concerned an appeal from Jimcy McGirt, a Native American, who claimed his state rape conviction from 1997 should be overturned because the State of Oklahoma lacked jurisdiction, adding that the reservation was never properly terminated by Congress.

USA Today also reported that in another case, the U.S. Court of Appeals for the 10th Circuit ruled the state lacked jurisdiction to prosecute a gruesome murder because it happened within 3 million acres belonging to the Muscogee (Creek) Nation.

The State of Oklahoma and five Native American Nations released a statement within hours of Thursday’s ruling promising cooperation. It stated: “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.”

Local entities respond

Randy Thompson, the hired counsel for Mille Lacs County, responded to the recent Supreme Court ruling, stating, “Last week, the U.S. Supreme Court issued a 5-4 decision in the case McGirt v. Oklahoma recognizing the continued existence of the Creek Reservation in Eastern Oklahoma. This decision–which found that a substantial part of eastern Oklahoma is still a part of the Muscogee Nation’s reservation–is obviously significant for those directly affected. For Mille Lacs County residents, there are questions about McGirt’s impact relating to 1) who can exercise law enforcement authority and for what crimes in the 61,000 acres; and 2) who can exercise civil regulatory authority, such as traffic offenses, zoning, and permits. It also raises questions about how the U.S. Supreme Court will decide other cases involving Indian Country nationwide.”

Thompson added that while McGirt may have far-reaching consequences for eastern Oklahoma and its residents, tribal members, and non-members alike, the decision should have no immediate impact on Mille Lacs County and its residents. And, even if the Court were to ultimately conclude that the 1855 Mille Lacs Reservation still exists, the impacts here would be less than what may occur in Oklahoma, said Thompson.

On the impact to law enforcement, Thompson said, “In Oklahoma, for example, the state can no longer exercise criminal jurisdiction over tribal members for serious state law felony violations within the boundaries of the reinstated reservation; that responsibility now falls to the federal government. McGirt also opens at least the possibility that Muscogee tribal members can ask for their state court convictions to be thrown out. Such an outcome is unlikely here for a number of reasons not the least of which is Minnesota’s status as what’s known as a ‘Public Law 280’ state, which gives the state criminal jurisdiction over all persons including tribal members in Indian Country, an authority that would continue even if the Court recognizes the existence of the Reservation.”

On the impact to civil regulation, Thompson said that what could change, however, is civil regulatory authority over matters like traffic offenses, zoning, permits and similar matters involving tribal members or the Band. And, as is already happening, federal authority could displace some state authority such as in the area of environmental enforcement, he added.

Thompson posed the question: What does the Band want in the lawsuit against the County? In its lawsuit against the County, he stated, the Band is seeking the authority to investigate crimes under inherent tribal authority throughout the 61,000 acres involving many persons. The prospect of other efforts to expand tribal jurisdiction over all persons and lands in the 61,000 acres would remain a possibility, whether it would be federal laws such as the Violence Against Women Act or a tribe’s ability to regulate liquor sales in Indian Country, or some other future Congressional or judicial authorization, Thompson stated.

On how the McGirt decision will impact the litigation between the Band and the County, Thompson said McGirt makes clear that Justice Neil Gorsuch, appointed in 2017 by President Trump, will likely be the decisive vote on Indian law cases when there is a split between the conservative and liberal factions of the Court. “Anticipating the direction of Justice Gorsuch’s positions, however, is less clear: On the one hand, Justice Gorsuch has been supportive of tribal interests in cases where Congressional intent concerning the status of a reservation is unclear, but in other matters, where he thinks Congressional intent can be determined, Justice Gorsuch gives substantial deference to the will of Congress,” noted Thompson.

As a result of this duality, Thompson concluded, McGirt has “something for everyone” concerning the litigation between the Mille Lacs Band and the County. “The Band, not surprisingly, believes that McGirt strengthens their case for reconstituting the boundaries of its original reservation. At the same time, however, the Court’s decision and supporting analysis could also be read as adding support to the County’s position: The language used in the treaties and legislation that disestablished the Mille Lacs Reservation–specifically the use of “cede” and “relinquish”–make clear the intent of Congress in a way never done in connection with the Creek Reservation in Oklahoma,” said Thompson. “In short, while the decision in McGirt provides some helpful insights into how the current Court will interpret treaty rights cases, it does not directly impact those living in Mille Lacs County, nor does it change the matters at issue in the case brought against the County by the Band in 2017.”

Mille Lacs County Attorney Joe Walsh stated in regards to how this ruling may affect the local lawsuit currently in court, “The McGirt decision underscores the need for prosecutors to carefully examine jurisdictional issues in tribal areas to avoid circumstances where serious and violent criminals are released on a technicality. We have carefully examined jurisdictional issues in the Mille Lacs County Attorney’s Office to avoid such a result here.”

Mille Lacs County Sheriff Don Lorge concurred and said, “We would continue to work with tribal police regardless of any outcome.”

The Mille Lacs Band of Ojibwe issued a statement regarding how the Oklahoma decision may impact the local reservation dispute.

“The Mille Lacs Band of Ojibwe has always supported public safety for its Reservation and the region. Our tribal police officers are POST-certified by the State of Minnesota and are federally deputized by the United States,” the statement read. “They have taken a solemn oath to uphold the Constitution of the U.S., the laws of the United States, the Constitution of Minnesota, the laws of Minnesota, and the laws of the Mille Lacs Band. Since 1991, we have partnered with the County on law enforcement, and our goal is to continue to work with the Country to provide public safety to the region. Unlike Oklahoma, Minnesota is a Public Law 280 state. Thus, the existence of the Mille Lacs Reservation does not affect State and County law enforcement authority within the 61,000 acres.”

The complete USA Today article, referred to above, can be found HERE

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