A surprisingly progressive Supreme Court decision found that over one-third of Oklahoma still falls into “Indian Country” under federal law for the Muscogee Creek Tribe and other Oklahoma tribes.
The court ruled July 9 in McGirt v. Oklahoma that under treaties dating back two centuries, much of eastern Oklahoma is Indian Country. That means tribal law and federal law apply there in criminal cases involving Native citizens, not Oklahoma state law. Treaties are recognized in the U.S. Constitution as “the law of the land.”
Until the Supreme Court ruling, most felonies in eastern Oklahoma, including cases involving tribal citizens, had been prosecuted in state courts by district attorneys. The court’s decision hinged on the question of whether the Muscogee / Creek reservation continued to exist after Oklahoma became a state in 1907.
This ruling applies to the five nations in eastern Oklahoma — the Muscogee or Creek, the Cherokee, the Choctaw, the Chickasaw and the Seminole nations. These Five Tribes were forced from their ancestral homelands in the southeast on the Trail of Tears in the 1830s by the U.S. government. Today, half a million tribal citizens live in dozens of Oklahoma counties covering more land than the state of South Carolina.
Two hundred years ago, all of Oklahoma, except the panhandle, was Indian Territory. This territory included the existing homelands of several Indigenous nations, including the Apache, Arapaho, Comanche, Kiowa, Osage and Wichita.
The New York Times wrote July 9: “The 5-to-4 decision, potentially one of the most consequential legal victories for Native Americans in decades, could have far-reaching implications for the people who live across what the court affirmed was Indian Country. The lands include much of Tulsa, Oklahoma’s second-biggest city.”
Justice Neil M. Gorsuch, who had previously sided with Native tribes in other cases, joined the court’s more liberal justices in this ruling. He wrote in the majority’s opinion that “Congress had granted the Creek a reservation, and that the United States needed to abide by its promises.
“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Gorsuch wrote. “Because Congress has not said otherwise, we hold the government to its word.”
Chief Justice John G. Roberts Jr. warned in a dissenting opinion that the court’s decision would wreak havoc and confusion on Oklahoma’s criminal justice system. And in alarmist language, Sen. Ted Cruz of neighboring Texas tweeted that the Supreme Court “just gave away half of Oklahoma, literally. Manhattan is next.”
Wreaking havoc and genocide in Indigenous nations has resulted in racist decisions from education to housing to use of Indian land — this is what the U.S. government and individual states have done to Native peoples since the first colonies were settled by England.
Madonna Thunder Hawk, an organizer with the Lakota People’s Law Project, said the court’s decision and a recent federal ruling that ordered the shutdown of the Dakota Access Pipeline in North Dakota had been cause for celebration. Just not too much. “It’s a war for us,” she said. “There are some victories, but the war continues.” (New York Times, July 6)
‘We’re still here’
The Commission for the Protection of Cherokee Nation Sovereignty issued a press release with several points of concern following McGirt. One is that the Principal Chief engage with members of Congress, who may be contemplating legislation, and oppose any legislation that would disestablish tribal reservations.
The Cherokee Nation, with more than 380,000 citizens, is the federally recognized government of the Cherokee people. Tahlequah, Oklahoma, is the capital of the Cherokee Nation. With 11,000 employees and a variety of tribal enterprises ranging from aerospace and defense contracts to entertainment venues, the Cherokee Nation is one of the largest employers in northeastern Oklahoma, according to Indian Country Today.
Mary Kathryn Nagle (Cherokee) spoke on a ICT radio broadcast to explain why the current effort to disestablish tribal nations is going to fail. As a Cherokee citizen and an attorney, Nagle and Sarah Deer (Mvskoke) filed an amicus brief on behalf of the National Indigenous Women’s Resource Center, the American Civil Liberties Union and other organizations to analyze the gendered implications of the decision. She spoke on air to challenge concerns that a conservative think tank, the Oklahoma Council on Public Affairs, have brought to the entire Oklahoma congressional delegation. (tinyurl.com/y5oofhvk)
“You can’t sign a treaty with a tribal nation, have it signed by the president, ratified by the U.S. Senate saying this is your reservation, and then take it away because in 2020 the state of Oklahoma thinks it’s an inconvenient reality for them,” Nagle said.
“Non-Native private profiteering interests have been trying to remove, disestablish, exterminate tribal nations. Corporate interests have been trying to remove us since the United States came into existence. Now they’ve all failed. We’re still here. And this effort is going to fail as well. . . . Oil and gas see the Supreme Court’s decision in McGirt as a huge threat. They want to characterize it as a public safety threat, when actually it is not. And so you’ll notice if you read that letter, they say, well, there are all these problems created by the Supreme Court’s decision in McGirt. The Supreme Court’s decision in McGirt doesn’t create a single problem.
“In fact, a giant problem made clear is that Oklahoma was unlawfully exercising jurisdiction it never had, for over a hundred years . . . That Oklahoma didn’t have that authority, and yet they were exercising it. A lot of folks like these oil and gas folks have been referring to these public safety jurisdictional gaps. That’s also a red herring. There are no jurisdictional gaps.
“The simple fact of the matter is Oklahoma maintains the majority of its jurisdiction. It still has jurisdiction over crimes committed by non-Indians. The only crimes that it does not have jurisdiction over are crimes committed by Indians, against Indians, on tribal lands, on the reservation.”
In a year when racist names and logos of sports teams have been changed, when the Supreme Court ruled against the Dakota Access Pipeline, when racist statues have been taken down or defaced, the McGirt ruling in July is one more step of progress for peoples who have been fighting the colonial invaders since Columbus was discovered in 1492.