While most of the news coverage of Thursday’s decisions focused on Donald Trump’s financial records, the  other case on Thursday may be just as big.  In that case — McGirt vs. Oklahoma — the Supreme Court had to decide who had the authority to try Native Americans for criminal offenses.  And the story behind that case is 200+ years of the troubled relations between Native Americans and the descendants of the immigrants who gradually took over all of the land that used to belong to the original settlers.

While the story predates the founding of the United States, for lawyers, the story begins in 1787.  At that time — and for most of the next 100 years — there were two United States.  First, there was the nominal United States with borders set by treaties with European nations (which at that time were the only ones that counted to the Framers other than a handful of countries bordering the Mediterranean).  Then there was the real United States defined by the current extent of settlements.  Just over that border were the native tribes. And, the early conflicts involving the colonies revealed that the tribes were potential enemies that could ally with foreign powers or potential allies in those struggles.   Thus the Constitution treated the tribes as being somewhat similar to foreign countries or the individual states with the federal government having exclusive authority over dealings with the tribes.

The rest of the story from that point on is one of treaties made and treaties broken as the various tribes were compelled to surrender parts (or all) of their original lands in exchange for guarantees of title to specific lands.  One of these tragic stories was the Trail of Tears with many of the tribes (the Five Nations) in the southeastern U.S. moved to what is modern day Oklahoma.  In the latter part of the nineteenth century, a series of acts opened up first the rest of Oklahoma and then part of the lands set aside to the native tribes for settlement by non-tribe members.  Around the same time, there were several key developments.  First, there were “allotment acts” which converted much of tribal land into private property owned by tribe members which could then be sold to non-members.  Second, the various territories into which the tribes had been moved became states.  Third, Congress passed laws dealing with crimes committed by natives.

It is the combination of these three that led to McGirt.  As a result of the allotment acts, much of the tribal land started to look just like non-tribal land.  While nobody ever formally adjusted the borders of the reservations (a key legal fact), non-natives actually owned the land and established local government for those area.   And the new state, county, and city governments assumed that they had full jurisdiction over all of this land.  But the federal government — still treating the tribes as something other than regular citizens — had enacted laws stating that within the boundaries of their own reservations, members of the tribe were only subject to tribal authority for minor offenses and could only be charged in federal court for major offenses.  And, under the relevant statutes, land was still part of the reservation even if it had been sold to non-tribe members.

There were several issues that had to be decided in McGirt.  And the Supreme Court (by a 5-4  majority with the deciding vote belonging to Justice Gorsuch — in one of the two cases this term in which the Chief Justice was in the minority).  First, did the treaties establish a reservation?  While the treaties did not specifically use the word reservation, the majority felt that the treaty used language similar to other treaties which had been held to establish a reservation.  Second, did Congress ever disestablish those reservations (specifically those of the Muskogee (Creek) — the tribe that McGirt belongs to which covered the area near Tulsa where McGirt committed several major sexual offenses)?  The majority held that none of the statutes dealing with the tribes in Oklahoma ever formally disestablished the reservation.  Finally, did the practices in Oklahoma (100 years of ignoring tribal and federal jurisdiction) trump the actual law?  To the majority, the concept that repeated violations of the law justify further violations was a non-starter.

McGirt, however, creates a major problem.  For over 100 years, outside of areas still part of an intact reservation, states have acted as if they had full jurisdiction.  For attorneys practicing in state courts, we just got a massive reading assignment of going through treaties in which land was given to and then taken from the various tribes to figure out the “final” boundaries of the reservations.

Aside from the individual cases, however, the next steps is a major political issue.  The states and local government can reach agreements by which the tribes waive exclusive federal jurisdiction.  And, in many cases, this solution will happen.  Nobody wants tribe members killing and raping non-tribe members.  And the federal government — especially the U.S. Attorneys in the handful of states with large informal reservations — does not want to have to try all of these cases.  (While my home state does not have any apparent reservations, some of the states in my federal circuit  do and a significant number of appeals involve crimes charged under the relevant federal statutes governing crimes on reservations.)  But in some cases, the states and the tribes may not be able to reach an agreement.  And that leaves the question on whether to change federal law.

And that is a difficult issue.   The question is ultimately the status of the tribes versus the rest of the United States.  The distinct status of the tribes is both a benefit and a disadvantage for tribe members.  On the one hand, under current law, the legal status of the tribe gives some protection to members given the history of the mistreatment of Native Americans by federal and state authorities.  On the other hand, that legal status allows the treatment of Native Americans as something other than regular citizens of this country.

I don’t know where we go from here.  I do know that things just got very complicated.  And this issue just became part of a long overdue conversation about the treatment of Native Americans.