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. Continue Reading...