To understand the effects of a recent Supreme Court ruling, consider some history and policy on tribal lands and sovereignty.
Last Thursday, the Supreme Court ruling for the Jimcy McGirt v. Oklahoma case concluded that nearly half of the state was in fact an Indian reservation despite portions of it being sold off to private citizens for years.
There are a lot of takes on what this means for tribal members and non-tribal members living in that part of Oklahoma and elsewhere. It helps to know some of the basics about tribal land and sovereignty before exploring the case’s implications.
Note: I use “U.S.” and “federal government” interchangeably; “American Indian” and “Native American” interchangeably; “tribes,” “tribal nations,” and “nations” interchangeably.
A very brief overview of U.S. policy regarding Indian country
To grasp the complicated policies surrounding Indian country, start with their history. There are great resources out there to learn more (I’ve included some under related reading), but here’s the gist:
- From colonial times to the post-Revolutionary War era, European-American relations with tribes involved treaties, recognizing each as individual sovereign nations. These established “government-to-government” relationships between nations and states or the U.S. Some treaties are still valid to this day, though the U.S. has all but reneged many of them.
- In 1830, Congress passed the Indian Removal Act, which allowed the U.S. to strike treaties with tribes that exchanged their current land for lands out west. In reality, this formalized the forced relocation of Native Americans from their homes; tribal nations were pressured by the growing U.S. presence around their communities to agree to the terms. The process took place over several years, during which thousands died along the way to designated Indian territory—we know this as the Trail of Tears.
- In 1851, the U.S. set up reservations in Oklahoma for Indian use. That designated area would shrink over time as more settlers made their way out west. Other reservations would be established elsewhere in the following years.
- In addition to having shrinking boundaries, reservation lands were also carved up following the Dawes Act of 1871. Whereas the lands were communally used by inhabiting tribes, this act promoted allotment, which converted parts of reservations into parcels for individual tribal members. A person could then sell this land, but they would forfeit their status as a tribal citizen in the process. Some “surplus” allotments were sold to non-tribal members. In other words, chunks of land within reservation boundaries were now owned by private, non-tribal member U.S. citizens.
- The U.S. stopped the allotment program with the Indian Reorganization Act (1934) in order to re-establish tribal and reservation legitimacy. Existing allotments held by the U.S in trust were not to be sold to private citizens, but instead held “to benefit” tribal nations and individuals. While this did prevent some further fracturing of reservations, it didn’t restore reservations to their original state.
There have been other developments since 1934 (some of them harmful), and the summary above doesn’t account for much of the racism and mistreatment perpetrated by the U.S. government and individuals. In any case, here’s the key takeaway: There’s a long history of systemic and societal racism toward American Indians conducted by the federal and state governments.
Defining ‘Indian country’
Indian country encompasses all land reserved for nations and individuals, per U.S. statute. There are a few types of land included in this definition, with key differences involving ownership and governmental jurisdiction.
The most commonly known type of Indian country is the reservation. In a nutshell, Indian reservations are lands managed by federally recognized tribes. Because of past policies like allotment, there are many “checkerboard” examples of reservations where pieces of private land are next to tribal ones. Some, like the Navajo Nation, have large gaps within their boundaries because of this.
While being managed by tribal governments, reservations are legally owned by the federal government. Some other types of Indian country differ in this regard:
- Trust lands are held by the U.S. for the benefit of a tribe. They’re often land within a reservation that was previously allotted and then reacquired by the federal government for tribal use. Legally, these frequently are treated the same way as reservation land; depending on the source of information, they’re even categorized as the same.
- Allotments are trust lands, except they’re held for the benefit of an individual or family.
- Fee lands are legally owned and held by tribes or individuals. The transfer of the title from the U.S. to a person or tribe requires approval from the federal gov.
Collectively, reservations and trust land areas account for 56 million acres in the contiguous states. When including the 44 million acres of Alaska Native land, Indian country would be the 4th largest state in the U.S. in terms of land mass.
Right now, the single largest reservation is the Navajo Nation, which holds over 17.4 million acres (27,000 square miles) in Arizona, New Mexico, and Utah and is home to about 173,000 people.
Tribal governments and their relationship with outside entities
Tribes can form their own governments to manage Indian country they hold or use. To do so with federally held land, a tribal nation has to be formally recognized by the U.S. At this time, there are 345 federally recognized American Indian tribes and 229 Alaska Native tribes, a total of 574 recognized tribal nations. Not all nations have a reservation, some have more than one, and some share Indian country land with other tribes.
(This does not account for the hundreds of state-recognized tribes, by the way.)
In some but not all ways, a tribal government acts like a state. It needs to abide by many federal laws, but it otherwise “possess[es] a nationhood status and retain[s] inherent powers of self-government” as SCOTUS Chief Justice John Marshall found in Worcester v. Georgia. Those powers include the ability to create its structure of government, determine and enforce civil and criminal laws, and offer human services. How these powers are used varies among the tribes; there’s no “right way” for nations to govern themselves.
These powers are not absolute. Some are restricted by Congress or relinquished in treaties, while others are also ones the states lack. Tribal governments also face unique hurdles in maintaining their structure and well-being, like onerous federal regulations, groups interested in acquiring tribal lands or places of great significance, and a lack of enfranchised representation in Congress.
The relationships between tribal, state, and federal civil and criminal jurisdictions are sometimes (but not always) straightforward. There are broad rules over who has jurisdiction, yet there are also frequently exceptions.
Generally, a tribal government’s jurisdiction applies within the boundaries of its reservation and to its tribal members, while the state in which the reservation exists does not have jurisdiction here (though there are some exceptions). Federal criminal jurisdiction in tribal lands is applicable for particular crimes. In some cases, tribal criminal jurisdiction is shared with the federal government, yet there are few instances like this involving civil cases.
In any case, there usually needs to be some coordination among the different governments, as many reservations remain “checkerboarded” thanks to allotment.
Centuries of the U.S. taking advantage of and mistreating American Indians has led to an oftentimes confusing system of land rights and civil and criminal law. Properly understanding McGirt v. Oklahoma‘s impact requires an acknowledgment of this history and tangled web.
Here are some sources on the history of reservations and Indian country:
I read maybe a dozen different explanations on the different types of Indian country. These two were the most helpful:
- The U.S. Dept. of the Interior’s page on Native American Ownership; and
- This page on the different types from 1st Tribal Lending.
- The National Congress of American Indians has a comprehensive report on the state of tribes and tribal lands and gives detail to the American Indian and Alaska Native populations in the U.S.
- The Department of the Interior’s Bureau of Indian Affairs answers FAQs on tribes, tribal citizenship, etc.
- The National Conference of State Legislatures lists federally and state-recognized tribes.
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