UPDATED
US Supreme Court rules half of Oklahoma is Native American land
TO BLACK AMERICANS.
SHUTTERSTOCK
The US Supreme Court has ruled about half of Oklahoma belongs to Native Americans, in a landmark case that also quashed a child rape conviction.
The justices decided 5-4 that an eastern chunk of the state, including its second-biggest city, Tulsa, should be recognised as part of a reservation.
Jimcy McGirt, who was convicted in 1997 of raping a girl, brought the case.
He cited the historical claim of the Muscogee (Creek) Nation to the land where the assault occurred.
What does the ruling mean?
Thursday's decision in McGirt v Oklahoma is seen as one of the most far-reaching cases for Native Americans before the highest US court in decades.
The ruling means some tribe members found guilty in state courts for offences committed on the land at issue can now challenge their convictions.
Only federal prosecutors will have the power to criminally prosecute Native Americans accused of crimes in the area.
Tribe members who live within the boundaries may also be exempt from state taxes, according to Reuters news agency.
Some 1.8 million people - of whom about 15% are Native American - live on the land, which spans three million acres.
What did the justices say?
Justice Neil Gorsuch, a conservative appointed by US President Donald Trump, sided with the court's four liberals and also wrote the opinion.
He referred to the Trail of Tears, the forcible 19th Century relocation of Native Americans, including the Creek Nation, to Oklahoma.
The US government said at the time that the new land would belong to the tribes in perpetuity.
Justice Gorsuch wrote: "Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law.
"Because Congress has not said otherwise, we hold the government to its word."
What about the rape case?
The ruling overturned McGirt's prison sentence. He could still, however, be tried in federal court.
McGirt, now 71, was convicted in 1997 in Wagoner County of raping a four-year-old girl.
He did not dispute his guilt before the Supreme Court, but argued that only federal authorities should have been entitled to prosecute him.
McGirt is a member of the Seminole Nation.
His lawyer, Ian Heath Gershengorn, told CNBC: "The Supreme Court reaffirmed today that when the United States makes promises, the courts will keep those promises."
How might Oklahoma's criminal justice system be affected?
In a dissenting opinion, Chief Justice John Roberts said the decision would destabilise the state's courts.
He wrote: "The State's ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.
"The decision today creates significant uncertainty for the State's continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law."
An analysis by The Atlantic magazine of Oklahoma Department of Corrections records found that 1,887 Native Americans were in prison as of the end of last year for offences committed within the boundaries of the tribal territory.
But fewer than one in 10 of those cases would qualify for a new federal trial, according to the research.
Jonodev Chaudhuri, a former chief justice of the Muscogee Nation's Supreme Court, dismissed talk of legal mayhem.
He told the Tulsa World newspaper: "All the sky-is-falling narratives were dubious at best.
"This would only apply to a small subset of Native Americans committing crimes within the boundaries."
How did other tribal leaders react?
In a joint statement, the Five Tribes of Oklahoma - Cherokee, Chickasaw, Choctaw and Seminole and Muscogee Nation - welcomed the ruling.
They pledged to work with federal and state authorities to agree shared jurisdiction over the land.
"The Nations and the state are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws and regulations that support public safety, our economy and private property rights," the statement said.
SCOTUS Refuses to Sanction the Robbery of Tribal Lands
In a new ruling, the high court affirmed tribal sovereignty.
The big news on Thursday was the Supreme Court’s decision regarding the release of Trump’s financial records, which Martin Longman has already covered. But the court also released a ruling in the case of McGirt v. Oklahoma, which has major implications for Native American tribal sovereignty.
McGirt, a member of the Muscogee (Creek) Nation, was convicted of sex crimes against a child by state authorities in the Nation’s historical boundaries. He wasn’t asking the court to revisit the case made by the state of Oklahoma, but was instead challenging their jurisdiction. The case is similar to one I wrote about over a year ago, Carpenter v, Murphy, in which Patrick Murphy was convicted of murder. That case ended in a deadlocked tie at the Supreme Court when Justice Gorsuch recused himself. So this ruling covers both cases.
The challenge to the state’s jurisdiction stems from the Major Crimes Act, which placed certain crimes under federal jurisdiction if they are committed by a Native American in Native territory. The issue at stake for McGirk and Murphy came down to whether or not the crimes were committed on land that is still part of the Creek reservation. If so, the state of Oklahoma had no jurisdiction to prosecute them.
To understand the importance of that question, it is helpful to know some of the history.
The backdrop of the case is one of the central incidents of the process by which Native Americans were removed from the Southeastern states in the early decades of the 19th century. The Creek Nation was one of the so-called “Five Civilized Tribes” forcibly relocated in the 1830s from Georgia, Alabama and Florida to a large Indian Territory that included what is now the eastern half of Oklahoma. At the time, Congress promised that the tribes would own their land “in fee simple,” meaning permanently and absolutely, that they never would be subjected to the laws of a state, and that their lands never would be made part of any state. But that of course is not how things turned out. In a series of statutes passed in the late 19th and early 20th centuries, Congress disestablished the tribal governments, transferred much of the land to federal control (for distribution to settlers — perhaps you recall learning about the Sooner land rush), and finally in 1907 incorporated all of the Indian Territory into the state of Oklahoma.
The case made by McGirk and Murphy was that, even though the land that was promised in return for resettlement in Oklahoma was illegally grabbed and eventually distributed to “settlers,” an act of Congress is required to disestablish a reservation, something that never happened. In response, the state of Oklahoma made a rather twisted argument.
Oklahoma’s position is that no such statement [by Congress to dissolve the reservations] is needed because the sheer and devastating totality of “everything [that] was taken away from tribes,” as the state’s lawyer argued, is indication enough that Congress intended to leave them with nothing, much less a reservation, and “not one single absolute smidgen” of sovereignty over their land.
In other words, they argued that the federal government made their “intentions” known when they ignored the treaty signed in 1939 and proceeded to steal land from the tribes via allotment. Justice Gorsuch, who wrote the majority opinion in the McGirk case, was having none of that (emphasis mine).
The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.
The report in the New York Times on this ruling is headlined, “Supreme Court Rules Nearly Half of Oklahoma Is Indian Reservation,” while the one at CNN reads: “Supreme Court rules broad swath of Oklahoma is Native American land for purposes of federal criminal law.” Those are terribly misleading because what the Supreme Court actually did on Thursday was to affirm that a “broad swath of Oklahoma is Native American land.” That is based on a treaty the U.S. signed with the Creek Nation back in 1839. As Nick Martin wrote, “Neil Gorsuch, nor any of the justices, ‘gave’ or ‘granted’ the Muscogee (Creek) Nation their land. They just did their jobs.”
Related Posts Nancy LeTourneau
Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60.
The Supreme Court’s landmark new Native American rights decision, explained
No, they didn’t give away half of Oklahoma — but it is a big deal.
By Ian Millhiser Jul 10, 2020, VOX
/cdn.vox-cdn.com/uploads/chorus_image/image/67040981/1051514332.jpg.0.jpg)
Supreme Court Associate Justices (L-R) Sonia Sotomayor, Elena Kagan, and Neil Gorsuch attend the swearing in ceremony for newly confirmed Associate Justice Brett Kavanaugh in the East Room of the White House on October 8, 2018, in Washington, DC. Chip Somodevilla/Getty Images
The Supreme Court’s 5-4 decision in McGirt v. Oklahoma received less attention than two other decisions handed down the same day, which concerned whether President Trump is immune from congressional or state criminal investigation. But McGirt is a tremendously significant decision, especially for Native Americans and, ultimately, for anyone concerned with whether the United States must honor its past obligations.
McGirt asks whether a significant swath of land covering the eastern half of the state of Oklahoma is part of what federal law anachronistically refers to as “Indian country” — that is, Native American reservations where tribal governments retain considerable sovereign authority. The holding of McGirt is that this land, which has 1.8 million residents, most of whom are not Native American, is reserved land. Oklahoma must honor a treaty from nearly two centuries ago setting aside this land for Native peoples.
(Many federal statutes and other legal documents refer to Native Americans as “Indians,” and the opinions in McGirt are peppered with references to “Indians” and “Indian country.” Accordingly, many quotes in this article will also use those terms.)
The Court’s decision in McGirt, which was written by conservative Justice Neil Gorsuch and joined by his four liberal colleagues, has already produced its share of hyperbolic conclusions — some of them suggesting that the Supreme Court just ceded control of a good-size chunk of the United States.
Neil Gorsuch & the four liberal Justices just gave away half of Oklahoma, literally.
Manhattan is next. https://t.co/Ic9gqqznJp— Ted Cruz (@tedcruz) July 9, 2020
The reality is much more nuanced. The primary impact of McGirt is that Oklahoma loses much of its power to enforce certain laws against members of Native American tribes within the borders of tribal lands. But the decision will have far less impact on non-Native Americans.
The case concerns Jimcy McGirt, a member of the Seminole Nation of Oklahoma who was convicted of rape in state court. McGirt’s crime took place within land that, according to Gorsuch’s majority opinion, is part of the Creek Reservation.
The fact that McGirt is a member of a tribe, and that his crime took place on a reservation, matter because of the federal Major Crimes Act (MCA). That law provides that “any Indian who commits” certain offenses “against the person or property of another Indian or any other person” is subject to “the exclusive jurisdiction of the United States” if that crime was committed “within the Indian country.”
Thus, Oklahoma lacks authority to try McGirt for raping someone on a Native American reservation. Only the federal courts may try such a crime.
On the surface, in other words, McGirt seems to involve a fairly minor issue. No one questions that McGirt may be convicted of rape. And no one questions that he can face a stiff penalty for such a conviction. The question is which court may try the case against him.
But in order to answer this question, the Supreme Court must determine whether McGirt’s crime did, indeed, occur on a reservation. And the answer to that question turns out to have significant implications.
The Muscogee (Creek) Nation had a great deal at stake in this case. As the Creek Nation noted in a brief to the Supreme Court, it “had no role in the genesis of this litigation, but now finds its Reservation under direct attack.” It elects its own government and operates its own court system. As Gorsuch’s opinion notes, it “operates a police force and three hospitals; commands an annual budget of more than $350 million; and employs over 2,000 people.”
McGirt, according to Riyaz Kanji, one of the authors of the Creek Nation’s brief, “will if anything enhance the Nation’s ability to offer robust governmental programs and services throughout the Reservation (both for Nation citizens and non-citizens).” By contrast, if McGirt had gone the other way, much of these services could have potentially been endangered.
McGirt is a case about whether the federal government must honor its obligations to Native Americans — but only up to a point
Gorsuch begins his opinion by referencing the Trail of Tears, an atrocity in 1838 during which the US government forced thousands of Native Americans out of their homes and ordered them to march more than 1,000 miles to relocate to Oklahoma. More than 4,000 victims of this act of barbarism died along the way.
Yet the federal government also sought to give this forced march a patina of legitimacy by entering into treaties with the displaced people. Under the terms of the United States’ treaty with the Creek Nation, that nation ceded, in an 1832 treaty’s words, “all their land, East of the Mississippi river” in return for a promise that “the Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.”
A subsequent 1833 treaty established the borders of Creek country, which it described as a “permanent home to the whole Creek nation.” The borders of Creek country were later reduced by a 1866 treaty.
As it turns out, the federal government’s promise to respect these new lands wasn’t worth very much. Congress made several incursions on the Creek people’s sovereign rights, many of which are detailed in Gorsuch’s opinion. Beginning in 1893, for example, the federal government started pressuring tribes to divide their land up into small, privately owned portions. Due to this pressure, the Creek people eventually agreed to allot the land into “160-acre parcels to individual Tribe members who could not sell, transfer, or otherwise encumber their allotments for a number of years.”
Much of this land has since been sold to people who are not Native American.
Moreover, in Lone Wolf v. Hitchcock (1903), the Supreme Court held that, in Gorsuch’s words, Congress “wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties.” The upshot of Lone Wolf is that Congress may wipe away its treaties with Indigenous peoples at any time, and it may dissolve a Native American reservation on a whim.
But despite its many incursions on the Creek people’s tribal sovereignty, McGirt concludes that Congress has never taken the ultimate step of dissolving its original treaty with the Creek people. That means that Creek lands remain a reservation — including the place where McGirt committed his crime.
And that means that McGirt must be tried in federal court.
So what does this mean for Oklahoma?
Kanji, the lawyer for the Creek Nation, told me that McGirt is unlikely to disrupt the lives of non-Native Americans. “Given the constraints that exist on the exercise of tribal jurisdiction over non-Indians on non-Indian land (even within Reservations),” Kanji predicted, McGirt “will not lead to a sea change in taxing or regulatory authority on the Reservation.”
Nevertheless, in its own brief, Oklahoma claimed that the state could face terrible consequences if the Supreme Court determines that half of its land is part of a reservation. “The State generally lacks the authority to tax Indians in Indian country,” that brief claims, “so turning half the State into Indian country would decimate state and local budgets.” Additionally, “all adoptions and custody disputes involving Indian children residing or domiciled within the 1866 boundaries would fall within the exclusive jurisdiction of tribal courts, even over both parents’ objections.”
In response to these fears, Gorsuch effectively replies that it doesn’t matter, because the law says what it says. “Dire warnings are just that,” he writes, “and not a license for us to disregard the law.”
In this sense, McGirt also resembles Gorsuch’s recent decision in Bostock v. Clayton County, which held that an existing ban on “sex” discrimination in employment extends to discrimination against LGBTQ workers.
At oral argument in Bostock, the conservative Gorsuch expressed concerns that, while he was sympathetic to the argument that the text of federal civil rights law points in a pro-LGBTQ direction, a federal ban on such discrimination could lead to “massive social upheaval.” Ultimately, however, Gorsuch ruled that the text of the law must control in Bostock. And so he ruled as well in McGirt.
It’s also far from clear that the state won’t be able to work out a deal with the Creek people and the other tribes that will benefit from the McGirt decision. In a joint statement released shortly after the decision was handed down, Oklahoma and the Native American nations said that they “are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights.”
So, while McGirt gives these tribes far more bargaining power in their effort to reach an agreement with the state, it is unlikely to throw half of Oklahoma in chaos. And it certainly does not mean that the Supreme Court “just gave away” half of a state, as Sen. Ted Cruz (R-TX) suggested.
But it does reveal a great deal about Gorsuch, who has made very clear that he cares little about the consequences of his decisions once he’s decided what the text of the law requires. On occasion, that leads him to form alliances with the Court’s liberal wing, as he did in Bostock and McGirt, even though his voting record remains quite conservative.
The Supreme Court’s landmark new Native American rights decision, explained
No, they didn’t give away half of Oklahoma — but it is a big deal.
By Ian Millhiser Jul 10, 2020, VOX
Supreme Court Associate Justices (L-R) Sonia Sotomayor, Elena Kagan, and Neil Gorsuch attend the swearing in ceremony for newly confirmed Associate Justice Brett Kavanaugh in the East Room of the White House on October 8, 2018, in Washington, DC. Chip Somodevilla/Getty Images
The Supreme Court’s 5-4 decision in McGirt v. Oklahoma received less attention than two other decisions handed down the same day, which concerned whether President Trump is immune from congressional or state criminal investigation. But McGirt is a tremendously significant decision, especially for Native Americans and, ultimately, for anyone concerned with whether the United States must honor its past obligations.
McGirt asks whether a significant swath of land covering the eastern half of the state of Oklahoma is part of what federal law anachronistically refers to as “Indian country” — that is, Native American reservations where tribal governments retain considerable sovereign authority. The holding of McGirt is that this land, which has 1.8 million residents, most of whom are not Native American, is reserved land. Oklahoma must honor a treaty from nearly two centuries ago setting aside this land for Native peoples.
(Many federal statutes and other legal documents refer to Native Americans as “Indians,” and the opinions in McGirt are peppered with references to “Indians” and “Indian country.” Accordingly, many quotes in this article will also use those terms.)
The Court’s decision in McGirt, which was written by conservative Justice Neil Gorsuch and joined by his four liberal colleagues, has already produced its share of hyperbolic conclusions — some of them suggesting that the Supreme Court just ceded control of a good-size chunk of the United States.
Neil Gorsuch & the four liberal Justices just gave away half of Oklahoma, literally.
Manhattan is next. https://t.co/Ic9gqqznJp— Ted Cruz (@tedcruz) July 9, 2020
The reality is much more nuanced. The primary impact of McGirt is that Oklahoma loses much of its power to enforce certain laws against members of Native American tribes within the borders of tribal lands. But the decision will have far less impact on non-Native Americans.
The case concerns Jimcy McGirt, a member of the Seminole Nation of Oklahoma who was convicted of rape in state court. McGirt’s crime took place within land that, according to Gorsuch’s majority opinion, is part of the Creek Reservation.
The fact that McGirt is a member of a tribe, and that his crime took place on a reservation, matter because of the federal Major Crimes Act (MCA). That law provides that “any Indian who commits” certain offenses “against the person or property of another Indian or any other person” is subject to “the exclusive jurisdiction of the United States” if that crime was committed “within the Indian country.”
Thus, Oklahoma lacks authority to try McGirt for raping someone on a Native American reservation. Only the federal courts may try such a crime.
On the surface, in other words, McGirt seems to involve a fairly minor issue. No one questions that McGirt may be convicted of rape. And no one questions that he can face a stiff penalty for such a conviction. The question is which court may try the case against him.
But in order to answer this question, the Supreme Court must determine whether McGirt’s crime did, indeed, occur on a reservation. And the answer to that question turns out to have significant implications.
The Muscogee (Creek) Nation had a great deal at stake in this case. As the Creek Nation noted in a brief to the Supreme Court, it “had no role in the genesis of this litigation, but now finds its Reservation under direct attack.” It elects its own government and operates its own court system. As Gorsuch’s opinion notes, it “operates a police force and three hospitals; commands an annual budget of more than $350 million; and employs over 2,000 people.”
McGirt, according to Riyaz Kanji, one of the authors of the Creek Nation’s brief, “will if anything enhance the Nation’s ability to offer robust governmental programs and services throughout the Reservation (both for Nation citizens and non-citizens).” By contrast, if McGirt had gone the other way, much of these services could have potentially been endangered.
McGirt is a case about whether the federal government must honor its obligations to Native Americans — but only up to a point
Gorsuch begins his opinion by referencing the Trail of Tears, an atrocity in 1838 during which the US government forced thousands of Native Americans out of their homes and ordered them to march more than 1,000 miles to relocate to Oklahoma. More than 4,000 victims of this act of barbarism died along the way.
Yet the federal government also sought to give this forced march a patina of legitimacy by entering into treaties with the displaced people. Under the terms of the United States’ treaty with the Creek Nation, that nation ceded, in an 1832 treaty’s words, “all their land, East of the Mississippi river” in return for a promise that “the Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.”
A subsequent 1833 treaty established the borders of Creek country, which it described as a “permanent home to the whole Creek nation.” The borders of Creek country were later reduced by a 1866 treaty.
As it turns out, the federal government’s promise to respect these new lands wasn’t worth very much. Congress made several incursions on the Creek people’s sovereign rights, many of which are detailed in Gorsuch’s opinion. Beginning in 1893, for example, the federal government started pressuring tribes to divide their land up into small, privately owned portions. Due to this pressure, the Creek people eventually agreed to allot the land into “160-acre parcels to individual Tribe members who could not sell, transfer, or otherwise encumber their allotments for a number of years.”
Much of this land has since been sold to people who are not Native American.
Moreover, in Lone Wolf v. Hitchcock (1903), the Supreme Court held that, in Gorsuch’s words, Congress “wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties.” The upshot of Lone Wolf is that Congress may wipe away its treaties with Indigenous peoples at any time, and it may dissolve a Native American reservation on a whim.
But despite its many incursions on the Creek people’s tribal sovereignty, McGirt concludes that Congress has never taken the ultimate step of dissolving its original treaty with the Creek people. That means that Creek lands remain a reservation — including the place where McGirt committed his crime.
And that means that McGirt must be tried in federal court.
So what does this mean for Oklahoma?
Kanji, the lawyer for the Creek Nation, told me that McGirt is unlikely to disrupt the lives of non-Native Americans. “Given the constraints that exist on the exercise of tribal jurisdiction over non-Indians on non-Indian land (even within Reservations),” Kanji predicted, McGirt “will not lead to a sea change in taxing or regulatory authority on the Reservation.”
Nevertheless, in its own brief, Oklahoma claimed that the state could face terrible consequences if the Supreme Court determines that half of its land is part of a reservation. “The State generally lacks the authority to tax Indians in Indian country,” that brief claims, “so turning half the State into Indian country would decimate state and local budgets.” Additionally, “all adoptions and custody disputes involving Indian children residing or domiciled within the 1866 boundaries would fall within the exclusive jurisdiction of tribal courts, even over both parents’ objections.”
In response to these fears, Gorsuch effectively replies that it doesn’t matter, because the law says what it says. “Dire warnings are just that,” he writes, “and not a license for us to disregard the law.”
In this sense, McGirt also resembles Gorsuch’s recent decision in Bostock v. Clayton County, which held that an existing ban on “sex” discrimination in employment extends to discrimination against LGBTQ workers.
At oral argument in Bostock, the conservative Gorsuch expressed concerns that, while he was sympathetic to the argument that the text of federal civil rights law points in a pro-LGBTQ direction, a federal ban on such discrimination could lead to “massive social upheaval.” Ultimately, however, Gorsuch ruled that the text of the law must control in Bostock. And so he ruled as well in McGirt.
It’s also far from clear that the state won’t be able to work out a deal with the Creek people and the other tribes that will benefit from the McGirt decision. In a joint statement released shortly after the decision was handed down, Oklahoma and the Native American nations said that they “are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights.”
So, while McGirt gives these tribes far more bargaining power in their effort to reach an agreement with the state, it is unlikely to throw half of Oklahoma in chaos. And it certainly does not mean that the Supreme Court “just gave away” half of a state, as Sen. Ted Cruz (R-TX) suggested.
But it does reveal a great deal about Gorsuch, who has made very clear that he cares little about the consequences of his decisions once he’s decided what the text of the law requires. On occasion, that leads him to form alliances with the Court’s liberal wing, as he did in Bostock and McGirt, even though his voting record remains quite conservative.
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