TAHLEQUAH, Oklahoma – A U.S. Supreme Court ruling declaring the boundaries of an Oklahoma Native tribe remain intact is narrow in scope and does not affect property ownership, land titles or taxation by a county or the state, according to a former Cherokee Nation Supreme court justice and dean emeritus of the University of Arkansas School of Law.
In a new project by the Cherokee Phoenix, a virtual roundtable discussion was held among Stacy Leeds; Cherokee Nation Principal Chief Chuck Hoskin Jr.; and Tyler Thomas, executive editor of the Cherokee Phoenix newspaper. Hoskin and Leeds discussed the impact of the recent McGirt v. Oklahoma ruling, which held the Muscogee (Creek) Nation's territorial boundaries remain intact, deeming much of eastern Oklahoma as a reservation. Muscogee (Creek) Nation is one of the Five Civilized Tribes, which also includes the Cherokee, Choctaw, Chickasaw and Seminole Nations, and the first question on many Oklahomans' minds was whether the ruling extends to the other four of the five tribes.
Leeds said the ruling itself deals specifically with the Muscogee (Creek) Nation's reservation boundaries. But it essentially says that unless there was a clear showing that Congress intended to diminish or disestablish reservation boundaries, they remain intact.
"Now each of the tribes has a slightly different history from a legal standpoint, but it's so similar that we all presume this case applies to all Five Tribes," said Leeds. "I actually argue that [Cherokee Nation's] treaty language is a little bit stronger than Creek Nation. So I'm quite confident that this decision applies to Cherokee Nation and also to the other three of the Five Tribes, as well."
Hoskin said the have tribes always felt the reservations remained in place. Cherokee Nation had already filed an amicus brief with the court in support of the idea that the reservation was never disestablished.
"Tribes long believed that the reservations never went anywhere, but we've been working under these various federal laws and working with state officials, and we know they've had a different viewpoint over time," he said.
The ruling focused on the jurisdiction of criminal cases, and stated that since the reservations remained intact, McGirt should have been tried in federal court, rather than by the state. One of the concerns presented by Chief Justice John Roberts revolved around the state's ability to prosecute serious crimes in the future. Hoskin said cross-deputization agreements between local and state law enforcement agencies already in place will help with that, but also that the Cherokee Nation will need to play a role in ensuring the U.S Attorney's Office and local district attorneys have a good working relationship. He said the tribe must have a good relationship with its congressional delegation, because he suspects Congress will react to the case.
"So, mindful of that, we're going to use our good relationships with members of our congressional delegation to work with them on any legislative response to McGirt," he said. "And if there's one – and I suspect there will be one – Cherokee Nation needs to be involved, because if we've learned from history, if we're not engaged in the process we could get run over, and we're not going to get run over."
Hoskin and Leeds agreed the logical conclusion to the change in jurisdictional authority will require an expansion of the tribe's criminal justice system. Leeds said the tribe might have to go back to the days of when Cherokee Nation had district courts scattered throughout its jurisdiction. She also added that the tribe's current judges could handle more court cases than it does now.
Many concerns have been about the ownership of land, and taxation within the reservation. Leeds said the ruling in no way affects ownership and title of land.
"We're talking about reservation boundaries for jurisdictional purposes," she said. "So all of these pieces of land that are already on the county tax rolls, those aren't coming off. There's already federal legislation that says after the allotment – after restriction is lifted from those lands – those lands become fully taxable."
Leeds added that the case could have a bigger impact on civil jurisdictional questions, such as Indian Child Welfare, and other types of taxation not related to the land itself.
"The Supreme Court has been very clear in a number of cases that says the state has no inherent taxing authority inside of Indian Country, if that tax is being levied on Indians," said Leeds. "So the question about income tax, if people are receiving all of their income inside of their own tribe's jurisdiction – there's probably a very strong claim that the state has no taxing authority over that piece of activity."
Hoskin and Leeds discussed more potential impacts of the Supreme Court ruling, including how it could affect the tribe's court battle with Gov. Kevin Stitt over gaming compacts.
To hear the full conversation, visit www.cherokeephoenix.org, or visit the Cherokee Phoenix Facebook page.