The novel aspect of McGirt was the studied examination of the legislation that brought about allotment. The wording in the statutes that provided for allotment of tribal lands did not disestablish the Muscogee (Creek) Nation Reservation. See Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017) for a review of the allotment legislation and the general reference work F. Cohen, Handbook of Federal Indian Law (2012).
The term “Indian Country” traces its heritage back to the Royal Proclamation of 1763 issued by the British Crown after the French and Indian War (1754–1763). The Royal Proclamation defined Indian Country (essentially everything but the 13 colonies) and put tribal relations and land purchases in the hands of the central government, the Crown. The United States of America adopted this central control policy by placing Indian affairs in the hands of the federal government under Article I, Section 3 of the U.S. Constitution.
Two years after the Declaration of Independence, the young United States government needed to prove its legitimacy as a government. They chose to do this by seeking acknowledgment from two venerable and long-established governments. This was accomplished by two treaties in 1778—one with France and the other with the Delaware Nation.
American growth and expansion resulted in 400 treaties and agreements with tribal governments, largely moving tribes from their original homelands or reducing the size of the lands the tribes reserved for their own use, thus the term “reservation” or Indian Country. These treaties and the federal statutes to carry out the treaties are based on the political status, not racial status, of Indian nations under the U.S. Constitution.
Under federal law, Indian Country is defined as an Indian reservation, trust, or restricted allotments of individual Indians and dependent Indian communities, 18 U.S.C. § 1151. Generally speaking, only tribal governments and/or the federal government have jurisdiction in Indian Country to the exclusion of the states. The federal Major Crimes Act provides that only the federal government can prosecute certain named Major Crimes in Indian Country when committed by or against an Indian. The legal title of Indian Country is with the federal government, which holds the land in trust for the tribes or tribal members.
In the 1880s, the new policy goal of non-Indians to “benefit” Indians was to do away with tribal governments, break up the reservations into homestead allotments, and turn the Indians into farmers. The lands not divided into allotments among tribal members were declared open to white settlement. Two federal territories, Oklahoma Territory and Indian Territory, were to be merged, not into an Indian state as the tribes proposed, but into a new state of the Union controlled by non-Indians and called Oklahoma. The tribes objected and actively opposed these goals.
Oklahoma statehood came in 1907, and with it came the presumption that the dismantling of tribal governments and tribal reservations had succeeded. All the tribal objections were smothered by the “bureaucratic imperialism” of the Department of the Interior and the Bureau of Indian Affairs, a phrase coined in Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976).
In the seven decades following statehood, the treaty lands of Oklahoma tribes were described as “former reservations,” and the popular notion was that any trust lands the tribes owned or trust allotments tribal members owned were not subject to federal or tribal jurisdiction but to state jurisdiction, despite multiple treaties and federal legislation confirming tribal jurisdiction or precluding state jurisdiction. Overlooked was the Oklahoma Constitution provision which declared that lands held by any Indian tribe or nation, “shall be and remain subject to the jurisdiction, disposal and control of the United States.” Article 1, Section 3, Oklahoma Constitution.
A massive 1952 Congressional Report of 1,594 pages from the House Committee on Indian Affairs characterized the tribal properties in Oklahoma as reservations and cautioned that although the state exercised jurisdiction over Indian Country, the practice was subject to court attack “due to absence of congressional authority. . . .” H.R. Rep. No. 2503, 82d Cong., 2 Sess. 834 at 109 (1952).
The presumption that the Curtis Act of 1898 disestablished the governments of the Five Tribes (Creek, Cherokee, Choctaw, Chickasaw, and Seminole) began to crumble with the 1976 decision in Harjo v. Kleppe. Tribal member Alan Harjo had filed suit to enforce the Muscogee (Creek) Nation treaty guarantee of self-government, which Department of the Interior bureaucrats opposed. The Circuit Court noted that a later act, the Five Tribes Act of 1906, had “continued the tribal existence and tribal governments of the Five Tribes in full force and effect for all purposes authorized by law.” Harjo won. The popular wisdom interpreting the Curtis Act and related legislation affecting the Five Tribes began to be interpreted according to statutory language. It was a novel concept in Oklahoma.
In 1979, two Oklahoma cases, Oklahoma v. Littlechief, 573 P.2d 263, and C.M.G. v. Oklahoma, 594 P.2d, determined that a trust allotment was Indian Country and that the Chilocco Indian school property was a dependent Indian community. A decade later in 1987 in a tax dispute by the Oklahoma Tax Commission, the 10th Circuit made a determination that the Muscogee (Creek) Nation lands on which the gaming facility was operated were Indian Country and retained “reservation status.” Indian Country, U.S.A. v. Okla. Tax Comm., 829 F.2d 967, 976 (10th Cir. 1987).
Six years later, another jurisdictional dispute was generated by the Oklahoma Tax Commission, which said Oklahoma could tax an Indian trust allotment because it wasn’t called a reservation. The U.S. Supreme Court with Justice Sandra O’Connor writing for the court stated, “we presume against a state’s having the jurisdiction to tax within the Indian country, whether the particular territory consists of a formal and informal reservation, allotted lands, or dependent Indian communities.” Oklahoma Tax Comm’n v. Sac and Fox Nation, 113 S. Ct. 1985, 1991 (1993).
