The Supreme Court majority continued in relevant part: Congress has since broken more than a few promises to the Tribe. Nevertheless, the Creek Reservation persists today. Once a federal reservation is established, only Congress can diminish or disestablish it. Doing so requires a clear expression of congressional intent.
Oklahoma claims that Congress ended the Creek Reservation during the so-called “allotment era”—a period when Congress sought to pressure many tribes to abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribal members. Missing from the allotment-era agreement with the Creek, however, is any statute evincing anything like the “present and total surrender of all tribal interests” in the affected lands. And this Court has already rejected the argument that allotments automatically ended reservations.
Oklahoma points to other ways Congress intruded on the Creeks’ promised right to self-governance during the allotment era, including abolishing the Creeks’ tribal courts, and requiring Presidential approval for certain tribal ordinances. But these laws fall short of eliminating all tribal interest in the contested lands.
Oklahoma ultimately claims that historical practice and demographics are enough by themselves to prove disestablishment. This Court has consulted contemporaneous usages, customs, and practices to the extent they shed light on the meaning of ambiguous statutory terms, but Oklahoma points to no ambiguous language in any of the relevant statutes that could plausibly be read as an act of cession. Such extratextual considerations are of ‘limited interpretive value,’ and the “least compelling” form of evidence. In the end, Oklahoma resorts to the State’s long historical practice of prosecuting Indians in state court for serious crimes on the contested lands, various statements made during the allotment era, and the speedy and persistent movement of white settlers into the area. But these supply little help with the law’s meaning and much potential for mischief.
There is an interesting dynamic here between Oklahoma State law enforcement, federal law enforcement, and the defendant. The defendant pointing to misdeeds by the state and federal governments against him and other Native Americans. The State Government is using the federal government’s mis-deeds to strengthen their basis for state jurisdiction over the criminal case. It is easy to lose sight of what is at the heart of the case: the defendant’s sex offenses.
