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 McGirt 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.”

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Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60.