Lately, we’ve heard a lot about the notion of “lawlessness” and the need to restore “law and order” within the United States. For Indigenous nations, “law and order” has a particularly loaded past. Tribes have watched the United States, a country that prides itself on the rule of law, systematically disregard its own laws, unilaterally abrogate its own treaties, and, at times, disregard the decisions of its own Supreme Court.
The “Five Tribes” in eastern Oklahoma—Muscogee (Creek) Nation, Cherokee Nation, Choctaw Nation, Chickasaw Nation, and Seminole Nation—share a common history where external narratives and scare tactics of “lawlessness” inside tribal jurisdictions have been invented and recycled to justify incursions on tribal sovereignty and limit Indigenous autonomy. It is necessary, so the story goes, to bring in non-native police powers and non-native legal institutions for the sake of bringing law and order to Indian Country.
Yesterday’s long-awaited United States Supreme Court decision in McGirt v. Oklahoma pulled no punches in recognizing and reaffirming the political and territorial boundaries of the Muscogee (Creek) Nation. The court held that the treaty-guaranteed geographic borders of the Muscogee (Creek) Nation survived Oklahoma statehood and that these reservation boundaries remain legally valid jurisdictional markers for criminal jurisdiction over tribal citizens.
The court noted that Oklahoma repeatedly overstepped and stretched its governmental powers beyond what federal law provides. In short, Oklahoma has no legal authority to prosecute Native Americans for crimes committed within an Indian reservation. Oklahoma spent a century actively creating a law on the ground that was contrary to the law on the books.
The Supreme Court’s rebuke is powerful: “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”
If ever there were a statement to capture the collective experience of Indigenous peoples and other marginalized communities across the United States, that was it. Might does not make right.
So now what? Will Oklahoma fall into chaos, as attorneys for the state warned?
The one-sided false narrative of lawlessness is tired. Undoubtedly, the horrendous crimes that gave rise to this legal dispute are taken deeply to heart. Justice must be served, and all parties in Oklahoma share in the seriousness of this moment. No population has a higher stake in ending violence within Indian Country than do Indigenous people and Indigenous governments. Indigenous populations have fought and died for the right to maintain their own legal institutions. As a former special district court judge for the Muscogee (Creek) Nation and former Supreme Court justice for the Cherokee Nation, I know this right is not taken lightly.
Before McGirt, Oklahoma tried the overwhelming majority of criminal cases involving Native American defendants before Oklahoma judges and Oklahoma juries. The only exercise of tribal criminal jurisdiction Oklahoma seemed comfortable with was a small piece of the pie: Tribes could arrest tribal citizens on the few parcels of land that unquestionably remained under federal/tribal ownership and control. Under this scenario, tribes policed Native Americans on Native-owned land, but not inside Native “territory.”
After McGirt, most felony cases with Native American defendants will be prosecuted by either the U.S. attorney or the tribal prosecutor, or both. Tribal courts will retain exclusive jurisdiction over lower level crimes. This means tribal judges and juries, as prescribed by tribal law, will be the ones to decide what happens to their citizens.
Criminal prosecutions will not cease. Criminal defendants will not walk free. Future perpetrators will not escape accountability. If anything, concerns of overpolicing Indigenous people outweigh any concerns of lawlessness. There are no jurisdictional gaps.
When practical law enforcement issues arise, the tribes and state and federal officials will partner to work out the details. With or without McGirt, Oklahoma is home to 38 federally recognized tribes, most with tribal courts and law enforcement of their own. Hundreds of tribal-state cross-deputization agreements are already in place that address arrest powers, extradition, and 911 emergency response. Oklahoma’s criminal docket will decline to some extent. The Native American population in Oklahoma is just over 9 percent. Conversely, federal and tribal criminal dockets will increase and a ramp up in capacity will be required over time.
The Supreme Court case has attracted mainstream attention, but the Indigenous nations involved in this case are not dealing with an unprecedented moment.
The Muscogee (Creek) Nation and its companion tribes have strong histories of rebuilding, expanding, and improving their legal institutions after incidents of state encroachment that included near annihilation. After removal, the nations completely rebuilt their homes and all their government institutions. This time is different in only one regard: Tribal courts and law enforcement are at a stronger starting point, and therefore the acceleration will be easier than ever.
On the eve of the forced federal Indian removal, Alabama and Georgia put laws in place purporting to strip Muscogee (Creek) Nation officials of authority over tribal citizens by threatening them with dire punishment for attempting to enforce Creek laws. Other states followed suit. The Cherokee Nation successfully fought this state incursion in the United States Supreme Court in Cherokee Nation v. Georgia and Worcester v. Georgia. When the Supreme Court ruled that the laws of Georgia had no force and effect inside the Cherokee Nation, President Andrew Jackson purportedly said, “[Chief Justice] John Marshall has made his decision. Now let him enforce it.” By 1839, the Five Tribes were all physically relocated to their current locales in what would become Oklahoma, with the same political and territorial boundaries the U.S. Supreme Court upheld in McGirt.
The post-removal period was an Indigenous awakening. Like the other nations, the Muscogee (Creek) Nation adopted a new constitution, deputized its own Lighthorse police force, and self-funded a comprehensive judicial system that exceeded the standards of its frontier counterparts. The Indigenous nations exercised full criminal jurisdiction over tribal citizens and those who consented to their jurisdiction. The U.S. marshals were legally bound by treaty to remove and prosecute non-Indian intruders. This was the only non-native law enforcement presence agreed to by the tribes. Other treaty guarantees preserved tribal authority over tribal citizens, at least until the next threat to tribal sovereignty materialized.
On the eve of Oklahoma statehood, federal authorities once again tried to strip Muscogee (Creek) Nation officials of their authority over tribal citizens. They threatened to federally abolish the Creek judiciary unless the tribe agreed to divide and individually allot its lands as a precursor to impending statehood. During this time, federal courts were first placed inside Indian Territory, again for the purpose of imposing criminal jurisdiction over tribal citizens when it was not needed. After the federal land run on Indigenous institutions, Oklahoma eagerly picked up the torch.
History is replete with attempts to overstep and stamp out Indigenous self-governance, especially when it comes to Indigenous policing and tribal courts. These efforts have been met with sustained Indigenous resistance and steadfast commitment to protecting tribal courts and tribal police. Law enforcement is where the rubber meets the road, and therefore it is the most visible manifestation of Indigenous authority.
The sun came up just fine in Tulsa today. Oklahoma state court judges will do their jobs and exercise jurisdiction over most crimes that take place in Oklahoma for the rest of their careers.
Thirty-six miles to the south, Muscogee (Creek) Nation judges will do their jobs today, but for the first time in over a century, they will exercise jurisdiction over all of their citizens who commit crimes within their nation. It’s not a radical notion. It’s a basic right of governance exercised all over the globe.