This article was part of the University of Tulsa's symposium on the United States Supreme Court's 1903 decision in Lonewolf v. Hitchcock. The article highlights how racists stereotyping in judicial opinions continues in Indian law cases 100 years beyond the Lonewolf decision.
The United States government’s rejection of the State of Sequoyah proved to be an unexpected boon to tribal sovereignty, rather than a further diminution of tribal autonomy. When Congress rejected the bill to grant statehood to the the proposed State of Sequoyah, the opportunity for continued Tribal sovereignty and Tribal autonomy was prolonged. Shortly after the rejection of the State of Sequoyah, Congress passed a bill creating the State of Oklahoma, which encompassed all the lands that would have been included in the State of Sequoyah. The Oklahoma Constitution preserved the rights of individual Indians and tribal nations.Tribal leaders have exerted greater influence on the affairs of society because of the preservation of tribal sovereignty. In the State of Sequoyah, American Indians would have been greatly outnumbered, and in a very weak political position.Tribal members were granted dual citizenship with the creation of the State of Oklahoma, which allowed them to participate in state and federal elections, in addition to tribal participation. The continued influence of tribal leaders has allowed the Five Federally recognized Tribes in Oklahoma to exert more influence than a typical minority voting block. The termination of the State of Sequoyah movement has proved to be a victory for the members of the Five Tribes, instead of a defeat.
The United States government’s rejection of the State of Sequoyah proved to be an unexpected boon to tribal sovereignty, rather than a further diminution of tribal autonomy. When Congress rejected the bill to grant statehood to the the proposed State of Sequoyah, the opportunity for continued Tribal sovereignty and Tribal autonomy was prolonged. Shortly after the rejection of the State of Sequoyah, Congress passed a bill creating the State of Oklahoma, which encompassed all the lands that would have been included in the State of Sequoyah. The Oklahoma Constitution preserved the rights of individual Indians and tribal nations.Tribal leaders have exerted greater influence on the affairs of society because of the preservation of tribal sovereignty. In the State of Sequoyah, American Indians would have been greatly outnumbered, and in a very weak political position.Tribal members were granted dual citizenship with the creation of the State of Oklahoma, which allowed them to participate in state and federal elections, in addition to tribal participation. The continued influence of tribal leaders has allowed the Five Federally recognized Tribes in Oklahoma to exert more influence than a typical minority voting block. The termination of the State of Sequoyah movement has proved to be a victory for the members of the Five Tribes, instead of a defeat.
The practice of eminent domain in the United States hasn’t changed much, only the people groups affected. Mainstream Americans are now realizing what American Indians have known for generations. For centuries, American Indians have seen their lands taken by federal and state governments without consent, and at times, without compensation. Eminent domain laws allow governments to seize land from private individuals and then redistribute the land to other individuals, private or public, who will make better use of the land. Current rhetoric claims governments taking private property from one person so it can be redistributed to another is un-American. However, this practice is nothing new. In Johnson v. M’Intosh, 21 U.S. 543 (1823), Justice Marshall claimed, To leave [the tribes] in possession of their country, was to leave the country a wilderness.While American Indians have watched governments use similar rationales to take their land for centuries, this has only been a recent experience for mainstream Americans. In Kelo v. City of New London, 545 U.S. 469 (2005), the Court upheld that taking of private property that was neither crime-ridden nor run-down. The American public displayed outrage after the Kelo decision. Identifying with the homeowners, the public believed the Court’s ruling meant the government could now seize anyone's home. Instead of diverging from precedent, as some have alleged, Kelo affirms a long history that American Indians know all too well. Mainstream Americans are starting to become more familiar with what American Indians have experienced for centuries, and the Kelo decision has brought both Indians and non-Indians closer together in understanding that fee simple title is not absolute.
This article offers solutions to American Indian land tenure issues. By suggesting that tribes consider employing future interests laws as a way of acquiring property interests that would not otherwise be available on the market, this article offers creative options for restoring tribal land bases.
This article examines the problems encountered when tribal court decisions are presented to state and federal courts for recognition and enforcement. The history of tribal courts is discussed, along with a state-by-state examination of laws pertaining to foreign judgments. The article concludes, based on empirical data from tribal judges, that there recognition and enforcement problems continue despite federal legislation in this area of law.
Rare in the field of American Indian Law is the opportunity for celebration, particularly when it comes to legal and political victories for Native American women.' Indians lose the majority of the cases that advance far enough to make it into published court decisions.2 Tribal communities are inundated with injustices for which remedies are never pursued in any forum whatsoever.3 Many academic leaders in the field of American Indian law are tribal court judges and with regard to legal credentials, are equally or overly qualified in comparison to the state court judges who preside in the adjacent county. However, tribal judges are not looked upon as real judges presiding over real courts.These realities can be discouraging, but there is truly remarkable energy of growth and optimism in tribal communities and within the field of Indian law. Much of that energy comes from the key roles Native American women play in both advancing legal arguments and in evolving the law. The number of Native American women law professors exploded in the decades after I began law school in the mid-1990's.4 Furthermore, the majority of Native American professional degree graduates are women.5 This translates into more Native American women who hold mainstream positions of power, such as advising the President of the United States,6 serving key roles in the Department of Justice7 and the Department of the Interior,8 sitting as tribal and state judges9 and as attorneys for tribes,10 playing leadership roles in our national professional associations,11 and serving as super-delegates12 and political appointees13 within mainstream political parties.It appears as if there is an influx of Native American women finally reaching positions of power where they have the ability to influence the law. However, Native American women have always played an integral role advancing the law in their own ways, often in stories known to few. This essay highlights a few of the Native women who have impacted and shaped the law over time, and whose stories need to be told more often.A STRUGGLE FOR RECOGNITION. SALLY LADIGANative American women are strong, forceful actors in Indian law. They are perseverant, take-charge citizens who refuse to let their individual or tribal rights be trampled. An early example of such a determined woman is that of Sally Ladiga.Sally Ladiga, a Creek woman, brought suit to quiet title to her family's land that had been purchased by a white man.14 Federally appointed Indian commissioners, Alabama courts, and the United State Supreme Court tried to settle the question of whether she, a husbandless mother and grandmother, could be considered the head of family for the purposes of land distribution.15 The question of whether Ladiga was the head of family for purposes of land allocation was an important one. considering Ladiga had a cabin and cultivated field on her land before the Treaty of New Echota was enacted.16 The treaty intended to allot 320 acres to each head of family for residence and cultivation.17 When Ladiga's living situation was assessed by a locating agent, influenced by white settlers in the region,18 she was not found to be the head of the family for the purpose of allocation, despite having raised several children and two grandchildren.19 A white man entered Ladiga's land and took over her cabin and field, displacing Ladiga and forcing her to leave her home to reside elsewhere with family.20Despite repeated applications to locating agents to be recognized as the head of family and return to her land, Ladiga was time after time denied head of family status.21 Armed troops eventually forced Ladiga to emigrate to Arkansas,22 though she never made it there.23 It is most likely she died along the Trail of Tears.24Ladiga's heirs continued to fight for their land, pushing the United States Supreme Court to ultimately declare it would shock the common sense of all mankind to doubt a grandmother and grandchildren compose a family. …
Justice Neil Gorsuch’s now famous opening line in McGirt v. Oklahoma will long be remembered by Indigenous Nations as one of the most powerful judicial statements in the history of federal Indian law: “On the far end of the Trail of Tears was a promise.” McGirt is a landmark United States Supreme Court decision that rejects Oklahoma’s century-long presumption that no Indian reservations remained in present-day Oklahoma. Acting on that presumption, Oklahoma had long exercised civil and criminal jurisdiction over most of the State, including Indians and non-Indians alike.In reaffirming the reservation boundaries of the Muscogee (Creek) Nation, the Court rejected Oklahoma’s exercise of criminal jurisdiction over a major crime committed by an Indian within Indian country. The implications of the McGirt decision are potentially far-reaching and will likely extend to both criminal and civil jurisdiction of federal, state, local, and tribal governments. The reaffirmed reservations of the similarly situated “Five Tribes” collectively span half of the state of Oklahoma. This article explores one aspect of the potential civil jurisdictional implications of McGirt: the sovereign power of taxation. We include a detailed analysis of what has changed, and what remains the same for purposes of federal, tribal, state, and local taxing authority.McGirt is heralded as ushering in substantial changes for the eastern half of Oklahoma. However, in order for the Five Tribes to fully realize all treaty-based promises, the McGirt decision must lead to more than just increased criminal justice system responsibilities for the federal and tribal governments. The “promise” Justice Gorsuch highlights was not simply an empty promise of geographic boundaries, it also included a permanent homeland with fully functioning tribal governments, including the power of taxation. With the reaffirmation of reservation boundaries and the reassumption of many governmental responsibilities, the Five Tribes must necessarily have the power to raise meaningful revenue to govern. If the Five Tribes and Oklahoma play their collective economic cards right, big change could come in the form of positive economic outcomes. Economists predict, or at least hope for, a post-COVID economic revival for rural communities in America’s heartland. To assist in this economic revival, the Five Tribes’ reservations could serve as laboratories for the formulation of economic development strategies that could serve as blueprints for other parts of rural America. For that to happen in eastern Oklahoma, McGirt will need to live up to its full potential, becoming much more than an overturned criminal conviction from inside Indian country. This article suggests several law and policy choices available to the Five Tribes, including how to maximize tax incentives to grow the reservation population base and support a diverse economy through small business and enterprise scale development. The article includes a call to action for tribal governments to formulate long-term economic strategies that will take advantage of tax attributes that attach to the various reaffirmed reservations. In conclusion, the article suggests possible compact arrangements with other Indigenous nations and with Oklahoma’s state and local governments. If the challenge of sovereignty is accepted, the Five Tribes have an opportunity to reconfirm and expand government powers that have been denied them for over a century, including the power to make the same sovereign tax choices afforded other sovereigns worldwide.
