The Supreme Court recently ruled that land encompassing a large swathe of eastern Oklahoma and the city of Tulsa is still an Indian reservation belonging to the Creek Nation. The Creek Nation and other tribes such as the Cherokees were forcibly removed in the nineteenth century by the U.S. government from their homelands in the southeastern United States, and were given land in what is now Oklahoma in an episode known in history as the “Trail of Tears.”

The factual background of the case involved a particularly heinous crime committed by a member of the Creek Tribe who was convicted decades earlier in an Oklahoma state court and sentenced to 1,000 years plus life in jail. (I find that interesting, as no human being that I know of, including ancient biblical figures, has ever lived to the ripe old age of 1,000).

He appealed decades later on the grounds that the state court did not have jurisdiction because the Major Crimes Act (MCA) provided that certain crimes committed on Indian lands must be tried in federal court.

Indian law is complicated, but basically the Court found that Congress had never disestablished the Creek Nation reservation, despite the state of Oklahoma’s historically lengthy practice of prosecuting all such crimes in state courts. In many other ways, historical practices had tended to treat the land as if it were no longer an Indian reservation.

But the Court held that such historical practices in and of themselves are not enough to disestablish a reservation and that Congress must manifest a clear intent through legislation in order to disestablish an Indian reservation.

The Court found the dissent’s dire predictions of the consequences of its decision to be unlikely given what it characterized as a history of amity and cooperation between the state and the Indian tribes.

The dissent argued that Congress had in fact manifested such an intent through a series of laws increasingly diminishing tribal authority and diluting communal land rights, making Indian lands alienable to both Indians and non-Indians alike. The dissent opined that, by the time of the enabling act establishing Oklahoma as the 46th state in the Union, the Creek Nation reservation had been effectively extinguished.

The dissent contended that Indian law requires looking at evidence such as subsequent historical practices, demographics, and the parties’ understanding of whether or not a reservation still existed. Taking all these factors into consideration, the dissent opined that a reservation no longer existed and that the Court’s decision would create chaos by potentially invalidating thousands of criminal convictions and disordering decades of jurisdictional, legal and political practices that have proceeded on the assumption a reservation no longer exists.

Despite the sordid factual background of the case, it may likely be seen as a vindication for the Creek Nation. It will be interesting to follow subsequent developments.