Thread by @yunpovi

Thread: Federal Indian Law context for what the #McGirt #SCOTUS decision and does not mean about which government now had power to do what in Oklahoma. This is how criminal jurisdiction works between the sovereigns on the land that federal law defines as “Indian Country.”

“Indian Country” is defined to include “reservations.”
Several different laws and cases have made the rules about which government prosecutes who. One of them is the Major Crimes Act, it governs serious crimes committed by Indians. McGirt challenged only the Major Crimes Act.

The Supreme Court just held that the Muscogee Creek Nation reservation was not disestablished, and so for purposes of the Major Crimes Act (the only law whose application was explicitly challenged), Indian Country, includes this land.

This means the federal government now prosecutes serious Indian crimes on this land.

That is technically all for now.

The Court’s reasoning sure implies the land is Indian Country for the rest of criminal jurisdiction purposes (so that whole chart applies as opposed to just the highlighted bit) but by explicitly limiting the holding to the MCA, the the state/tribe/feds have time to work it out.

For Civil Jurisdiction, this likewise doesn’t mean the Muscogee Creek Nation immediately includes this land for those purposes because, again, the Court limited its holding with an awareness of the likely ripple effects.

Even if/when this land is all in the reservation for civil purposes, it would change little about life for most of the people on this land since it’s predominately non-Indian owned and a non-Indian population.

Tribes can only regulate non-Indian conduct if:
1:Non-Indians consent
or
2: The conduct “threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe.” <—interpreted narrowly

So...in conclusion, this is not an overnight tribal takeover of Oklahoma.

It is a change in a lot of rules that the three implicated state actors are equipped to figure out, and that most non Indian people won’t notice; but that matter a lot to the tribes and it’s members.

Edit to this—because typos can be substantive—in this civil regime “non-tribal member” rather than “non-Indian” status matters. Criminal law treats all “Indians” the same, but civil law differwnfiates between the tribe’s own members and everyone else.