Early one morning in September 2020, Michael J. Hill called the police after hearing knocks on the doors and windows of his home in Okmulgee, Okla, part of an area of the state that the Supreme Court had recently ruled to be tribal land.
Eventually he realized it was a group of his friends, Mr. Hill later recalled in an interview, but the police had arrived and proceeded to arrest one of them, Aaron R. Wilson, for an outstanding mandate. Mr Hill, 40, then got into an altercation with police and was himself arrested after a scuffle.
Mr. Hill and Mr. Wilson are both black and citizens of Native American tribes in Oklahoma. Both moved to have their cases dismissed, arguing that as tribal members in tribal territory, they were outside the state’s criminal jurisdiction. Mr. Wilson’s case was dismissed, but Mr. Hill’s request was denied.
The key difference in the fates of the two men was race, specifically, a small degree 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 ancestry called Freedmen – people of color who were enslaved by native tribes. Since Mr. Hill’s ancestors had no Indian blood, he was found in court don’t be Indian.
« He is a member of the Cherokee Nation, » Mr. Hill’s attorney Phillip Peak said in court arguing. « And yet when he walks into this courtroom, suddenly he’s not anymore. »
Mr. Hill is one of several Freedmen, as they are known for their ancestry, who were caught in the middle of a feud between Oklahoma State and tribal nations after the Supreme Court ruled in 2020 that much of the Eastern Oklahoma falls on an Indian reservation. Their dilemma stems from federal court rulings that define what it means to be considered an Indian in the eyes of the criminal justice system.
After the Supreme Court decision in McGirt v. Oklahoma, hundreds of people with success they filed their criminal cases in state courts, as the ruling prevents state authorities from prosecuting crimes committed by Native Americans on tribal lands. Instead, those offenses can now only be prosecuted by tribal and federal authorities.
But prosecutors have fought to continue pursuing some criminal cases involving Freedmen in tribal territory. In several cases reviewed by The New York Times, judges rejected Freedmen’s arguments that they were outside the state’s criminal jurisdiction, ruling that the defendants did not meet the legal definition for being considered Indian.
Oklahoma’s highest criminal court sided with the state in one such case, paving the way for prosecutors to continue bringing suits against Freedmen who are tribal citizens but have no Indian blood.
The state’s ongoing trial against the Freedmen is a new chapter in their long struggle to receive full tribal citizenship rights. Some Freedmen are not even allowed to become tribal citizens, because a handful of tribes exclude them from membership.
« They are treated differently than other members of the tribe based solely on their race, » said Matthew J. Ballard, district attorney in northeast Oklahoma and chairman of the state’s Board of District Attorneys, about the Freedmen prosecution in state court . Freedmen who want to be held Indian in court have « an almost impossible burden » to deal with, he said.
Oklahoma State says the McGirt decision created an unequal legal system in which tribal citizens have special privileges. State officials said the crimes fall under tribal jurisdiction go without address and have highlighted cases of convicted criminals are released as a result of the sentence.
In 2021, Oklahoma went so far as to ask the Supreme Court to reverse its decision. Last year, however, the court narrowed the sentence, allowing state authorities to prosecute non-Indians who commit crimes against Indians on tribal lands.
Tribal nations said state officials sometimes refused to cooperate with their courts and police officers, and that working relationships with state agencies they tightened after the McGirt ruling.
The tribal nations of Oklahoma have criminal justice systems that are generally less punitive than state ones. Federal law limits sentences in tribal courts for any criminal charge to three years and a $15,000 fine, and more serious crimes occurring in tribal territory are prosecuted in federal court. Many tribal courts also hand down sentences emphasizing treatment programs for drug and alcohol use and mental illness.
« People ask, ‘Well, what’s the difference between your process and the state?' » said Choctaw Nation chief tribal attorney Kara Bacon. « From a cultural perspective and from a member perspective, we understand that rehabilitation is important. »
Embroiled in the dispute are the Freedmen, the descendants of blacks who were enslaved by native tribes. Many tribes allied with the Confederacy and fought to preserve the institution of slavery. After the Civil War, treaties between the federal government and the tribes abolished slavery and granted freedmen « all the rights » of citizens in tribal nations.
But courts have generally used a two-part test to determine who is legally considered Indian: whether the person is recognized as 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 are not legally recognized as Indians in court.
“Sometimes state courts will say, ‘Well, even though you could satisfy Part A, you can’t satisfy Part B of this test. Therefore, we will not be throwing your case out of state courts,” said Sara Hill, Cherokee Nation Attorney General.
It’s not clear how many Freedmen who are tribal citizens have been prosecuted in state court since the McGirt decision, because state officials haven’t specifically monitored those cases.
Mr. Ballard, the district attorney, said Oklahoma prosecutors were frustrated with having to deal with sensitive issues of race and identity.
« We need to investigate the racial identity of the people we’re prosecuting, » Ballard said, adding, « This is new territory for us. »
« Frankly, it’s a little offensive, » she said. “And we don’t like having to do that. But that’s the law. »
Long before the legal disputes over the prosecutions, Indian blood rules had been used by tribes to segregate and even expel the descendants of the Freedmen. Muscogee (Creek), Choctaw, and Chickasaw nations still exclude Freedmen from membership, making it more difficult for them to seek tribal jurisdiction.
Marilyn Vann, a Cherokee citizen and president of the Descendants of the Freedmen of the Five Civilized Tribes Association, said the discriminatory practices of the tribes are now exercised by the state of Oklahoma in criminal cases.
« To overturn this policy would require an act of Congress or other high court ruling, » Ms. Vann said of the state trial of the Freedmen, adding, « If no one is able to take this further up the scale, I doubt that it’s going to change. »
Mr. Wilson’s journey through the legal system—he was able to get his case dismissed in state court, unlike Mr. Hill, due to his Creek Indian blood—illustrates the tensions between state and tribal authorities.
Mr. Wilson, 44, had been arrested with an outstanding warrant for violating his probation after pleading guilty to driving under the influence.
After his case was dismissed in state court in 2021, he was not immediately charged by the Muscogee (Creek) Nation. But Muscogee tribal officials said the Okmulgee County district attorney’s office, which had handled the case in state court, never notified them of the firing and that they only learned of it when they were contacted by the times.
« The fact that we did not learn about this case until we received third-party notice indicates the absence of a cooperative and functional relationship with the Okmulgee County District Attorney following the McGirt ruling, » he said. 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 efforts to reach Mr. Wilson were unsuccessful.
Mr. Hill, the Cherokee Freedman who got into the altercation with the police, faces several charges stemming from the incident, including assaulting a police officer, and his case has not yet gone to trial. A disabled army veteran who served in Afghanistan, Mr Hill said he struggled to continue paying for his legal defense and that the episode compounded the trauma of his military service.
« It just makes things 10 times worse, » Mr. Hill said. “I’m more isolated. I do not want to do anything. I stay at home. If I’m out somewhere and I see the police, I get extremely nervous.
Mr. Peak, Mr. Hill’s attorney, 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, » Peak said. “It’s the other way around. I do not understand.