Two black members of indigenous tribes were arrested. The law sees only one as an Indian.
Early one morning in September 2020, Michael J. Hill called police after hearing banging on the doors and windows of his home in Okmulgee, Okla — part of a portion of the state the Supreme Court had recently designated as tribal land.
He eventually realized it was a group of his friends, Mr. Hill later recalled in an interview, but the police had arrived and arrested one of them, Aaron R. Wilson, on an outstanding warrant. Mr Hill, 40, then got into a fight with police and was himself arrested after a struggle.
Mr. Hill and Mr. Wilson are both black and citizens of Oklahoma Native American tribes. They both wanted their cases dismissed, arguing that as tribal members they were outside the state’s criminal jurisdiction. Mr. Wilson’s case was dismissed, but Mr. Hill’s request was denied.
The main difference in the fates of the two men was race – specifically a small fraction of what is known in the courts as ‘Indian blood’. Mr. Wilson is a sixty-fourth Creek Indian. mr. Hill is a citizen of the Cherokee Nation through ancestors called Freedmen – black people enslaved by native tribes. Since Mr. Hill’s ancestors had no Indian blood, he was found in court not to be Indian.
“He is a member of the Cherokee Nation,” said Phillip Peak, Mr. Hill, in lawsuits. “But when he steps into this courtroom, suddenly he’s not that anymore.”
mr. Hill is one of the Freedmen, as they are known for their heritage, caught in the middle of a feud between the state of Oklahoma and tribal nations after the Supreme Court ruled in 2020 that much of eastern Oklahoma was within an Indian reservation. Their dilemma stems from federal court rulings defining what it means to be considered Indian in the eyes of the criminal justice system.
Following the Supreme Court’s decision in the case, McGirt v. Oklahoma, hundreds of people successfully had their criminal cases dismissed in state courts, as the ruling prevents state authorities from prosecuting crimes committed by Native Americans on tribal lands. Instead, those crimes can now only be prosecuted by tribal and federal authorities.
But prosecutors have fought to continue prosecuting some criminal cases involving freedmen in tribal territory. In several cases reviewed by The New York Times, judges rejected arguments by Freedmen that they were outside the state’s criminal jurisdiction, ruling that the defendants did not meet the legal definition to be considered Indian.
Oklahoma’s highest criminal court sided with the state in one such case paved the way for prosecutors to bring lawsuits against freedmen who are native citizens but of no Indian blood.
The state’s continued persecution of freedmen marks a new chapter in their long struggle to gain full tribal citizenship rights. Some Freedmen are not even allowed to become tribal citizens, as a handful of tribes bar them from membership.
“They are treated differently from other members of the tribe based solely on their race,” said Matthew J. Ballard, a prosecutor in northeastern Oklahoma and the chairman of the state’s District Attorneys Council, of the prosecution of Freedmen in State Court. Freedmen who want to be considered Indian in court face “an almost impossible burden,” he said.
Tribal nations have said state officials have sometimes refused to cooperate with their courts and police officers, and have working relationships with government agencies have soured after the McGirt ruling.
Tribal nations in Oklahoma have criminal justice systems that are generally less punitive than the state’s. Federal law limits sentencing in tribal courts for any criminal charge to three years and a $15,000 fine, and major crimes that occur on tribal land are prosecuted in federal court. Many tribal courts also promote sentencing that emphasizes treatment programs for drug and alcohol abuse and mental illness.
“People ask, ‘Well, what’s the difference between prosecuting this and the state?'” said Kara Bacon, the chief prosecutor for the Choctaw Nation. “From a cultural perspective and from a member’s perspective, we understand that rehabilitation is important.”
Entangled in the dispute are the Freedmen, the descendants of black people enslaved by native tribes. Many tribes joined the Confederacy and fought to preserve slavery. After the Civil War, treaties between the federal government and the tribes abolished slavery and granted the Freedmen “all rights” of citizens in the tribal nations.
But courts have typically used a two-part test to determine who is legally considered an Indian: whether the person is recognized as an Indian by a tribe or the federal government, and whether the individual has Indian blood. Most Freedmen, even if enrolled in a tribe, do not meet the blood requirement, meaning they will not be recognized as legally Indian in court.
“Sometimes the state courts will say, ‘Well, even if you pass part A, you can’t pass part B of this test. That’s why we’re not going to dismiss your case in the state courts,” said Sara Hill, the attorney general of the Cherokee Nation.
It’s unclear how many Freedmen who are tribal citizens have been prosecuted in state court since the McGirt decision because state officials have not specifically followed those cases.
Mr. Ballard, the district attorney, said prosecutors in Oklahoma were frustrated with having to navigate sensitive issues of race and identity.
“We need to investigate the racial identity of the people we’re prosecuting,” Ballard said, adding, “That’s new territory for us.”
“Honestly, it’s a little insulting,” he said. “And we don’t like having to do that. But that’s the case law.”
Long before the legal wrangling over criminal charges, rules surrounding Native American blood were used by tribes to separate and even expel the descendants of Freedmen. The Muscogee (Creek), Choctaw, and Chickasaw Nations still exclude Freedmen from membership, making it more difficult for them to seek tribal jurisdiction.
Marilyn Vann, a citizen of the Cherokee Nation and the president of the Descendants of Freedmen of the Five Civilized Tribes Association, said the tribes’ discriminatory practices are now being used by the state of Oklahoma in criminal cases.
“Overturning this policy would require an act of Congress or another ruling from the high courts,” Ms. Vann said of the state’s prosecution of freedmen, adding: “If no one is in a position to take this higher on up the ladder, I doubt it’s going to change.”
Mr. Wilson’s journey through the court system—he managed to get his case dismissed in state court, unlike Mr. Hill, because of his Creek Indian blood—illustrates the tensions between state and tribal authorities.
Mr Wilson, 44, had been arrested on an outstanding warrant for breaching his probation after pleading guilty to driving under the influence of alcohol.
After his case was dismissed by state court in 2021, he was not immediately sued by the Muscogee (Creek) Nation. But Muscogee Tribe officials said the Okmulgee County District Attorney’s office, which had heard the case in state court, never notified them of the dismissal and only found out when The Times contacted them. recorded with them.
“The fact that we didn’t learn about this case until we received a third-party notice points to the lack of a cooperative, functional relationship with the Okmulgee County DA following the McGirt ruling,” said Jason Salsman, a spokesman for the Muscogee Nation. .
An arrest warrant was issued for Mr. Wilson days later and remains active, according to the Muscogee Nation. The Okmulgee County District Attorney’s Office did not respond to requests for comment and attempts to charge Mr. Wilson were unsuccessful.
Mr. Hill, the Cherokee Freedman caught up in the altercation with police, is facing several charges over the incident, including assaulting a police officer, and his case has yet to go to trial. Mr Hill, a disabled army veteran serving in Afghanistan, said he had struggled to continue paying for his legal defense and the event had compounded the trauma of his military service.
“It just makes things 10 times worse,” Mr Hill said. “I am more isolated. I don’t want to do anything. I am staying at home. If I’m outside somewhere and see the police, I get very nervous.”
Mr Peak, Mr Hill’s lawyer, said seeking tribal jurisdiction in the case was a matter of principle for his client.
“He enjoys every other benefit, every other responsibility, every other right to be a Cherokee citizen,” Mr. Peak said. “It’s done now. I do not understand.”