Two black Native Americans were arrested. The law considers only one Indian.

Early one morning in September 2020, Michael J. Hill called the police after hearing knocking on the doors and windows of his home in Okmulgee, Okla. – part of a strip of the state that the Supreme Court had recently ruled to be tribal land.

He eventually realized it was a group of friends, Mr Hill later recalled in an interview, but the police had arrived and arrested one of them. them, Aaron R. Wilson, for a current term. Mr Hill, 40, then got into a run-in with police and was himself arrested after a fight.

Mr. Hill and Mr. Wilson are both black and citizens of Oklahoma Native American tribes. They both asked that their cases be dismissed, arguing that as tribesmen on tribal land, they did not fall under the criminal jurisdiction of the state. Mr. Wilson’s case was dismissed, but Mr. Hill’s claim was dismissed.

The main difference in the fates of the two men was race – specifically, a small degree of what the courts call “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. Because Mr. Hill’s ancestors had no Indian blood, it was ruled by the court that he was not Indian.

“He is a member of the Cherokee Nation,” Phillip Peak, Mr. Hill’s attorney, said during closing arguments. “Yet when he walks into that courtroom, all of a sudden he’s not.”

Mr. Hill is one of many modern freedmen, as they are known for their ancestry, who were 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 falls under an Indian reservation. Their dilemma stems from federal court decisions that define what it means to be considered an Indian in the eyes of the criminal justice system.

After the Supreme Court’s ruling in McGirt v. Oklahoma, hundreds of people have successfully had their criminal cases thrown out in state courts, as the ruling prevents state authorities from prosecuting the offenses committed. by Native Americans on tribal lands. Instead, these offenses can now only be prosecuted by tribal and federal authorities.

But state prosecutors have fought to continue to prosecute 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 to be considered Indians. .

Oklahoma’s highest criminal court sided with the state in one such case, clearing the way for state prosecutors to continue to prosecute freedmen who are tribal citizens. but who have no Indian blood.

The state’s continued prosecution of freedmen represents 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 exclude them from membership.

“They are treated differently than other members of the tribe solely because of their race,” said Matthew J. Ballard, district attorney in northeastern Oklahoma and chairman of the state’s Board of District Attorneys. , about the prosecution of freedmen in state court. . Freedmen who want to be considered Indians in court have “an almost impossible burden” to shoulder, he said.

Tribal nations said state officials have at times refused to cooperate with their courts and police, and working relationships with state agencies soured after the McGirt ruling.

Oklahoma’s tribal nations have criminal justice systems that are generally less punitive than those of the state. Federal law limits sentencing in tribal court for any criminal charge to three years and a $15,000 fine, and major crimes that occur in tribal territory are prosecuted in federal court. Many tribal courts also encourage sentencing that emphasizes treatment programs for drug and alcohol use and mental illness.

“People ask, ‘Well, what’s the difference between you suing this and the state?'” said Kara Bacon, the Choctaw Nation’s chief tribal prosecutor. “From a cultural perspective and from a member’s perspective, we understand that rehabilitation is important.”

Freedmen, descendants of blacks enslaved by native tribes, are caught up in the dispute. 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 of the tribal nations.

But courts have generally 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 person has Indian blood. Most freedmen, even if enrolled in a tribe, did not meet the blood requirement, meaning they were not legally recognized as Indians in court.

“Sometimes state courts will say, ‘Well, even if you pass part A, you can’t pass part B of this test. Therefore, we are not going to dismiss your case in state court,” said Sara Hill, Attorney General for the Cherokee Nation.

It is unclear how many freedmen who are tribal citizens have been prosecuted in state court since the McGirt decision, as state officials have not specifically tracked these cases.

Mr. Ballard, the district attorney, said Oklahoma prosecutors had been frustrated with having to deal with sensitive questions about race and identity.

“We have to investigate the racial identity of the people we are prosecuting,” Mr Ballard said, adding, “This is new territory for us.”

“Honestly, it’s a bit offensive,” he said. “And we don’t like having to do that. But that’s case law. »

Long before legal wrangling over criminal prosecution, rules surrounding Indian blood had been 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 president of the Association of Freed Descendants of the Association of Five Civilized Tribes, said the discriminatory practices of the tribes are now used by the state of Oklahoma in business. criminal.

“Undoing this policy would require an act of Congress or another decision of the high courts,” Ms. Vann said of the state’s prosecution of the Freedmen, adding, “If no one is able to ride this higher on the scale, I doubt that’s going to change.”

Mr. Wilson’s journey through the justice system – he managed to have his case dismissed in state court, unlike Mr. Hill, because of his Creek Indian blood – illustrates the tensions between state authorities and tribal.

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 thrown out of 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 handled the case in state court, never informed them of the dismissal and they only learned of it when they had been contacted by The Times.

“The fact that we did not learn of this matter until we received notice from a third party speaks to the lack of a cooperative and functional relationship with the Okmulgee County District Attorney following the McGirt decision,” Muscogee Nation spokesman Jason Salsman said. .

A warrant for Mr. Wilson’s arrest was issued 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 took part in the altercation with police, faces several charges related to the incident, including assaulting a police officer, and his case has yet to be heard. a trial. A disabled army veteran who served in Afghanistan, Mr Hill said he struggled to keep paying for his legal defense and the episode added to the trauma of his military service.

“It just makes it 10 times worse,” Mr Hill said. “I am more isolated. I do not want to do anything. I’m staying at home. If I’m somewhere and I see the police, I get extremely nervous.

Mr Peak, Mr Hill’s lawyer, said seeking tribal jurisdiction in the case was a matter of principle for his client.

“He enjoys all the other benefits, all the other responsibilities, all the other rights of being a Cherokee citizen,” Mr Peak said. “It’s upside down. I don’t understand it.