The Supreme Court today solidified the sovereign privileges of Native Americans across the country by vacating the state-law conviction of an Oklahoma man who contended that his alleged crime had occurred on tribal territory.
To better understand this case’s importance, allow me to share the story of Louisiana’s Rick Tonry, who was elected to Congress in November 1976 but became a convicted felon (for vote fraud) by the summer of 1977.
Tonry served time in federal prison, but he didn’t learn his lesson. Nine years later, he was convicted again, this time of bribing a Native American chief for a lucrative Louisiana bingo license.
He challenged that conviction before the U.S. 5th Circuit Court of Appeals, making an ingenious argument. The Louisiana laws under which he had been convicted defined “bribery” as an illicit payment either to a Louisiana public official or to a private citizen acting as agent or fiduciary — i.e., a private businessman. Tonry argued that the chief (or “chairman,” in this case) of a Native American tribe was indeed a public official (and hence not a private citizen), but that he also was not a Louisiana public official because he was of a (partially) sovereign nation. Therefore, he said, his $25,000 payment to the chief was not a bribe and not illegal.
Tonry, a lawyer, argued his own case before the 5th Circuit’s three-judge panel. The judges initially were skeptical of his argument, but as the hearing continued, they began questioning the government’s lawyers more critically while apparently warming to Tonry’s contention. Right at the end, one of the judges turned to Tonry and said something like: “OK, Mr. Tonry, you admit you illicitly gave the chief $25,000, but you say it wasn’t a bribe. If you weren’t making a bribe, what would you call it?”
Tonry shrugged his shoulders. “I guess,” he told the judges, “you could just say I’m an Indian giver.”
Ba-da-boom!
The courtroom erupted in laughter, and the judges swiveled in their chairs, putting their backs to the audience, trying to hide their own chuckles.
In today’s politically correct culture, Tonry’s offensive quip might have lost him the case. Still, technically speaking, the Native American’s sovereignty was important. In a 2-1 decision, the 5th Circuit threw out Tonry’s conviction. He never returned to prison.
Well, what the 5th Circuit decided more than three decades ago is quite similar to what the Supreme Court decided today in McGirt v. Oklahoma. Here, the court ruled that the “three serious sexual offenses” charged to McGirt should have been tried under federal law, not state law, because only federal law applies to major crimes on official reservation land.
The larger issues here weren’t about the conviction itself, but about the extent of autonomy on reservations. One big issue involved the actual extent of official Creek land in Oklahoma. The 5-4 court majority recognized wider borders for the reservation than the state government argued for. “Congress has since broken more than a few promises to the Tribe,” says the decision’s syllabus. “Nevertheless, the Creek Reservation persists today.”
Throughout the country, court disputes arise concerning the interplay between partial sovereignty for Native Americans and the reach of state or U.S. laws within their territory. Today’s decision should have the effect of bolstering Native American privileges nationwide. Good. Native Americans were horribly treated, and they merit respect and fairness.
