July 15, 2020
Half of Oklahoma is a Reservation-now what?
I never even dreamed of waking up one morning living on an Indian Reservation, but I did. In fact, I guess I've lived on one my entire life and just didn't know it. The U.S. Supreme Court last week ruled that half the State of Oklahoma is Native American Reservation land because the Indian Reservations of the Five Civilized tribes were never properly abolished by Congress.
The court ruled 5-4 in favor of the Creek Indian Nation and the defendant overturning the rape case of a man convicted in Oklahoma state court of raping a four-year-old girl. The four liberal members of the court were joined by Justice Gorsuch in forming the majority. The four other Conservative Judges dissented. Congressman Tom Cole and former Governor Brad Henry presented an Amicus Brief in favor of the defendant and the Creek Nation.
While the majority opinion asserts that it is a Criminal case applying only to Criminal prosecutions, the minority opinion lays out its likely use in civil matters. The Declaration that the Reservations of five Indian nations (Creek, Seminole, Cherokee, Choctaw, and Chickasaw) were never properly abolished by Congress will have far-reaching ramifications for business and especially for the oil and gas industry.
For 113 years in the eastern half of Oklahoma, we have been operating under the rule of law, both criminal and civil, of the State of Oklahoma.
The questions this decision presents are simply mind-boggling:
-Will the title of a property be affected?
-Will there be double taxation between the State and the Indian Nations?
-Will the Indian Nations assert regulatory Authority over business and industry?
-What will this mean to economic development?
The Oklahoma Attorney General, and others, have been working for some time with the Tribes on Federal legislation to deal with this ruling. Undoubtedly the “Criminal law” piece of this puzzle will be agreed upon and solved. But it is doubtful that anything can be passed through Congress without the agreement of the Indian Nations involved. So, civil ramifications will be much more difficult to resolve.
The number one, fall on your sword, issue of all Native American Nations is the assertion of their Sovereignty, and rightfully so. Their historical experience tells them that The sovereignty of individual Native American Nations is paramount to their survival. This heretofore limited Sovereignty has just been transformed to almost unlimited Sovereignty in the Eastern half of Oklahoma. Put yourself in their shoes. Would any of us give up such a significant gain?
Seventeen years ago, I opposed several Native American issues, both legislative and Regulatory. At the time these same Nations tried to assert control over their “former Indian lands in Oklahoma”. These initiatives threatened both ownership of land and minerals and the regulation over industry. While these issues were eventually resolved I must admit my ignorance and insensitivity in my opposition. I believed that all Americans are equal and that no one group should have advantages that others don't enjoy. I still hold that principle, for the most part. What I learned, painfully, is that Oklahoma is different.
The State of Oklahoma was created by a “marriage” of tribal nations and the non -Native American population. It was in effect, in words at least, an equal partnership. In reality it has never been that. The Indian nations in Oklahoma have been much fairer to Oklahoma than Oklahoma has been to them.
We should all remain calm and thoughtful. The sky is not falling yet. If I've learned anything it’s that it takes time before a decision like this is fully processed and it will take specific cases to find their way through the courts before anything changes dramatically.
This decision punctuates the need for all of us living in the eastern half of Oklahoma to work in closer concert with the Indian Nations. We must engage. We should work to find an agreement when possible. At the same time, we should fight to preserve our property when we must. There is a possibility that looking back on this decision, in years to come, it will have proven to be advantageous to all concerned. #Oklahoma#Reservation# Supreme Court decision