Oklahoma tribal jurisdiction problem


And here with us at Ann Arbor Michigan. Today is Riyaz. Kenji partner with Kenji and Ketson he is currently representing the Muskogee Creek nation. In mcgirt case that we are talking about also here is a partner with pipes. Tin Law Mary Catherine Nagel and she's a citizen of the Cherokee nation. She joins US OUT OF DENVER. Colorado thank you both for being here and Riyaz before the break you were talking about The significance of the history. And just where we got to today and of course. There are more Things that you'd like to share just paint this picture fully. Please do and also open up. Why we're even talking about any of this about where land exists and it doesn't under tribal jurisdiction in how it applies to this case Go ahead continue your thank you You know where we got to where we are. Today is a really interesting question. So it Congress An axe the statutes and the in the very early part of the Twentieth Century Paving the way for Oklahoma statehood as I was saying before the break. None of those statutes Say Anything about just establishing the creek reservation but what happens is in nineteen o seven. Oklahoma becomes a state. That's right around the same time that oil is discovered in Oklahoma and you have this tremendous influx of settlers The Creek Allotment Act which was passed in nineteen. O One Took the what was communal. Ownership of the creek. Nation parceled out Lots to creek members almost exclusively to treat creek members. The land of the reservation was divided up with the idea being that Consistent with federal policy of the time. That the creeks were would own their land in individually they would learn to become farmers they would be acculturated but it would still be their land But we all know what happened What's been described as a orgy of plunder and exploitation with that land having all of a sudden become incredibly valuable because of the oil deposits. There was all manner of Fraud Cheating and worse. Outright murders To dispossess the creeks of their land so in a pretty short amount of time. A reservation that under federal statute entreaty was still meant to be controlled by the creek. People in terms of landownership Ended up having a very large proportion of non Indian ownership and because of that confluence of factors over time. Sort of the argument welled up while there's not even a creek reservation here anymore. Look at look at it demographically. It's largely Non-indian and what this litigation is really about is reaffirming the rule of law which says that even despite what happened in terms of this orgy of plunder and exploitation and the transfer of land title to a largely to non Indians Congress disestablished the reservation boundaries and those remain intact so that the creek nation while it might not own much of the land within the reservation just as true for my say my home state of Michigan which does not own most of the land within Michigan's borders that those borders still still exist in talk to me a little bit about the authority of the courts. Mary Catherine especially Intertribal nations when it comes to all of this and we think about where jurisdiction lays plenty of issues when it comes to policing as well as Crimes committed anything more. You want to share just to make things clear when we talk about Why murders even claiming this happened on indigenous land? Sure yes one thing. Very clear right Anyone who studied federal Indian Law Understand that it is. You know a giant complex network when A crime is committed within the borders of a reservation on tribal lands or against the native victim or by native perpetrator. There is a huge complex jurisdictional analysis that law enforcement that You know a potential prosecutor whether there'd be federal state or tribal. Everyone has to undergo an this crazy analysis right and at the end of the day And we can agree or disagree with this law but the law is that you know and again I can come up with some exceptions but by March if the victim is not native and the perpetrator is native. Even if it's on a reservation in most instances the state right is going to have jurisdiction and so at the end of the day you know we know right now. Creek. Nation has a reservation. That's never been disestablished. It exists let's say regardless of whether the status quo is maintained changed really not going to alter whether or not Oklahoma has criminal jurisdiction over over the majority of the crimes committed within the borders of what we understand the the creek nation reservation today. Why because federal law is crazy it that way and we can debate it but at the end of the day. Oklahoma is going to maintain its jurisdiction over. You know the majority of population is very point out is not Indian and they're going to maintain jurisdiction over the majority of those crimes however Tribes ever in nineteen seventy eight. The Supreme Court eliminated tribal criminal jurisdiction over non Indians who come under tribal lands and commit crimes. And that's been very unfortunate and Indian country and a lot of our are made of women understand that this is contributing to wide native women suffer the highest rate of domestic violence sexual assault and murder in the United States. Today it's the Department of Justice is noted majority of violent crimes committed against native victims are committed by Non Indians. Congress has taken action to address this vision all from nineteen seventy eight and twenty thirteen restored tribal criminal jurisdiction acts criminal acts of domestic violence dating violence in violation of protection whereas committed by Non Indians so our lives today can protect their citizens living on travel and some those crimes but if you look at volatility thirteen statute very clear that those categories of non-indian crimes the try to prosecute them if the crime is committed on quote Indian country and that is a very a term defined by Congress to include a treasure ovation. So if you have a reservation today which not just create nation. That has this issue right. You've got tried to sue or standing rock or you know Fort Birth hold or Tulalip. Who have reservations that have survived statehood and have survived allotment right but if Oklahoma wins and Oklahoma gets to say no no no if your reservation was created before the state came into existence. You can no longer have a reservation today regardless of whether Congress ever just established you then all of a sudden those types who may have already or may seek to implement Vala twenty thirteen's restore criminal jurisdiction will now be put a law where they cannot protect their own tribal citizens against these three categories of non Indian perpetrated crimes anywhere within their borders. And instead they'll have to go under undergo and even more complicated analysis About the individual status at that parcel of land is that individual personal of land and restrict status. Is it in trust status. Is it non Indian fee lands In which case it would not be Indian country under the statute and so it. Actually the court's decision this case could have far reaching implications for the ability of tribal nations to implement vase restored criminal jurisdiction. And that's something. Oklahoma doesn't want to talk about right because really what's at stake here is not Oklahoma sovereignty but the sovereignty of our tribal nations. And that's really I think important to keep in mind and something that you know. Certainly Oklahoma won't be spreading in their conversations about this case. And so I WANNA get your your take to just thinking of the justices who are GonNa be hearing this and what you just explained. How deep is their knowledge on on? How tangled all of this is especially when we come to Violence in our nation's in I do want to let folks know that we did reach out to the state of Oklahoma In and invited them to be on the program. Today we did not hear back from them In America for Neagle tell me about The analysis of you know the knowledge of the point. You just brought up in how verse justices are in all of that. Well you know and I will defer to answer this question too because certainly the supreme court is his area of expertise but justice course such as a as an intellectual heavyweight when it comes to federal Indian Law You know historically a lot of the justices on this court did not study Indian law in law school. It's an area. They're very unfamiliar with. We're very fortunate that just gorsuch will be hearing this case. And if you've looked at the precedents. He has written his the decisions he wrote in the Tenth Circuit and since he's gotten to the Supreme Court it is clear that he in a very intellectual way under stands federal Indian law the complex framework of Criminal Law on tribal lands Dealing with tribal citizens. Both you know in reservations offers divisions rush. You know he understands all of this in a way that I think few other justices can parallel I think there are few other justices on the Supreme Court that have done a lot to educate themselves on these issues. Like justice. Sort of your

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