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The Legal Challenge: Disparities in Tribal Membership and Prosecution of Black Native Americans

the complex legal issues surrounding the prosecution of Black Native Americans in tribal territory. Discover how "Indian blood" influences their treatment within the criminal justice system and the ongoing pursuit for equal rights and tribal citizenship amidst the discrepancies in tribal membership.

A recent Supreme Court ruling prevented Oklahoma from prosecuting crimes committed by Native Americans on tribal land. However, some Black tribal members still face prosecution due to a lack of “Indian blood.” This article examines the cases of Michael J. Hill and Aaron R. Wilson, two Black citizens of Native American tribes who were arrested under different circumstances. While Wilson, with a small fraction of Creek Indian blood, had his case dismissed, Hill, a Cherokee Nation citizen through Freedmen ancestry, was denied the same privilege.

The different treatment of these individuals is based on their race and the degree of “Indian blood” they possess. Since Hill lacks Indian ancestry, the court concluded that he was not recognized as an Indian. Hill and other Freedmen face this predicament due to federal court rulings that determine the criteria for being recognized as an Indian within the criminal justice system.

After the 2020 McGirt v. Oklahoma ruling, many individuals had their criminal cases dismissed because state authorities were no longer allowed to prosecute offenses committed by Native Americans on tribal land. However, state prosecutors have persistently pursued the prosecution of some cases involving Freedmen in tribal territory. Several judges rejected the claims of Freedmen who argued that they were beyond the state’s criminal jurisdiction, stating that they did not meet the legal definition of being Indian.

In one such case, Oklahoma’s highest criminal court sided with the state, granting state prosecutors the authority to bring charges against Freedmen who are tribal citizens but lack Indian blood. This ongoing prosecution highlights the ongoing struggle for equal rights among Freedmen, who face differential treatment solely based on their race.

The state argues that the McGirt decision has created an unequal legal system with special privileges for tribal citizens. They claim that crimes falling under tribal jurisdiction are not being addressed, leading to the release of convicted criminals. In 2021, Oklahoma even requested the Supreme Court to overturn its own decision. However, the court instead narrowed the ruling, allowing state authorities to prosecute non-Indians who commit crimes against Indians on tribal land.

The strained relationship between tribal nations and state officials has further complicated the situation. Tribal nations in Oklahoma have criminal justice systems that prioritize rehabilitation over punishment. However, state agencies have sometimes refused to cooperate with tribal courts and police officers, straining their working relationships following the McGirt ruling.

The struggle faced by Freedmen, who are descendants of Black individuals enslaved by Native tribes, predates the legal battles surrounding criminal prosecutions. Many tribes, including the Muscogee (Creek), Choctaw, and Chickasaw Nations, continue to exclude Freedmen from membership, making it difficult for them to seek tribal jurisdiction.

Marilyn Vann, the president of the Descendants of Freedmen of the Five Civilized Tribes Association, highlights that tribal discriminatory practices are now being used by the State of Oklahoma in criminal cases. Changing these policies would require intervention from Congress or higher courts. Without further legal action, it is unlikely that the current situation will change.

The case of Aaron R. Wilson, who had his case dismissed in state court due to his Creek Indian blood, exemplifies the ongoing tensions between state and tribal authorities. On the other hand, Michael J. Hill, a Cherokee Freedman involved in a police altercation, still faces multiple charges awaiting trial.

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