In Oklahoma tribal decision, 鈥榬ule of the strong鈥 falls to rule of law
In McGirt v. Oklahoma, the U.S Supreme Court held that as much as half of the state of Oklahoma may now, legally, be Indian Country.
In McGirt v. Oklahoma, the U.S Supreme Court held that as much as half of the state of Oklahoma may now, legally, be Indian Country.
When he started to read the latest landmark American Indian law ruling from the U.S. Supreme Court, Joel Williams needed a few minutes just to get past the first sentence.
鈥淥n the far end of the Trail of Tears was a promise,鈥 opened Justice Neil Gorsuch for the majority opinion in McGirt v. Oklahoma, referencing the forced removal, beginning in the 1830s, of Native American tribes from their historical lands in today鈥檚 U.S. Southeast to west of the Mississippi River. Estimates vary, but thousands are believed to have died on the roughly 5,000-mile journey, including as many as one-fourth of the Cherokee Nation.
Mr. Williams, a senior staff attorney at the Native American Rights Fund (NARF), is a member of the Cherokee Nation and a descendant of the Cherokees who negotiated treaties with the federal government. Seeing those treaties, promising them a 鈥減ermanent home鈥 in the West, referenced throughout the opinion was 鈥渜uite striking.鈥
鈥淚t鈥檚 not often that you read a Supreme Court opinion that is so compelling,鈥 he says.
鈥淥ur communities were being torn apart,鈥 he adds. 鈥淭here was a hope and promise that we would have these homelands in perpetuity, and that鈥檚 what Justice Gorsuch is saying in the very first sentence.鈥
The decision is a momentous one, first, because of the practical consequence that as much as half of the state of Oklahoma may now, legally, be Indian Country. But in a moment of national reckoning over racial injustice, the decision has added significance, some say, as both an acknowledgment of that injustice and a concrete step toward addressing it.
One might expect such a dramatic change to prompt chaos and confusion, but in Oklahoma the tribal nations and state and local officials have responded with calm cooperation, pledging to work together 鈥 as they have for decades 鈥 to adapt to the new reality.
鈥淥klahoma has a pretty solid tradition of state-tribal compacts,鈥 says Lindsay Robertson, director of the Center for the Study of American Indian Law and Policy at the University of Oklahoma in Norman.
The court鈥檚 ruling, he adds, 鈥渋s like an apology-plus. We鈥檙e sorry. There was a wrong done here, and we鈥檙e going to make it right to the fullest extent we can.鈥
The decision was met with jubilation by Native Americans in Oklahoma, including Joy Harjo, the U.S. poet laureate who lives in Tulsa. 鈥淛ustice is sometimes seven generations away, or even more. And it is inevitable,鈥 Ms. Harjo, a member of the Muscogee (Creek) Nation, wrote in a New York Times Op-Ed, referencing her ancestor Monahwee, who fought to keep their homeland at the Battle of Horsehoe Bend.
鈥淚t is important to stop here, in the moment, and to recognize all that it has taken to arrive at this act of justice,鈥 she added. 鈥淎t last, on the far end of the Trail of Tears, a promise has been kept.鈥
鈥淓verybody wants public safety鈥
Specifically, the high court鈥檚 5-4 ruling on July 9 held that the historical boundaries of the Muscogee (Creek) Nation鈥檚 reservation in eastern Oklahoma remained in effect because Congress hadn鈥檛 formally ended them.
As a result, the criminal convictions by the state of two Native men 鈥 Jimcy McGirt and Patrick Murphy, who is on death row for murder 鈥 are voided, and they must be retried in federal court. An unknown number of other tribal members convicted in state court may also ask for federal retrials.
While the ruling concerned the jurisdiction of the Creek Nation, four other tribes in eastern Oklahoma have similar treaties with Congress. Their combined reservations span roughly 11 million acres, including portions of the city of Tulsa, whose Muscogee name, Tulasi, means Old Town. As many as 1.8 million people live in the area, only 10% to 15% of whom are Native.
The court should have considered these realities in its decision, said Chief Justice John Roberts in dissent.
鈥淭he Court has profoundly destabilized the governance of eastern Oklahoma,鈥 he wrote, hobbled the state鈥檚 ability to prosecute serious crimes, and created 鈥渟ignificant uncertainty for the State鈥檚 continuing authority over any area that touches Indian affairs.鈥
Oklahoma has more Native residents than any other state besides California, and tribes have developed a strong and cooperative relationship with the state.
They have negotiated compacts around gambling, taxation, hunting, and fishing, among other things, that resolve jurisdictional issues between the two governments. Tribes also have 鈥渃ross-deputization鈥 agreements that allow state and tribal law enforcement agencies to operate on and off reservation land.
Last week the five tribal nations and the state government were quick to announce that they are already working together on these new changes. Hours after the McGirt decision came out, a joint statement said they 鈥渉ave made substantial progress toward an agreement to present to Congress and the U.S. Department of Justice.鈥
The statement is a sign that the six governments were likely already planning for that possible outcome, says Kevin Washburn, former assistant secretary of Indian affairs at the U.S. Department of the Interior and a member of the Chickasaw Nation in Oklahoma.
鈥淭hat鈥檚 what you expect governments to do, to plan properly,鈥 he adds. 鈥淚t shows cooperation. Everybody wants public safety.鈥
With certain major crimes now subject to federal, not state, prosecution, U.S. attorney offices may have to expand to manage the heavier caseload.
The tribal nations themselves are facing similar issues, having only the law enforcement capacity for a pre-McGirt workload. Chuck Hoskin Jr., principal chief of the Cherokee Nation 鈥 the largest tribe in the U.S. 鈥 says that while he is 鈥渆lated鈥 with the decision, he isn鈥檛 sure if the tribe should expand its law enforcement and justice system to handle the changes.
鈥淚 have to seriously consider if it鈥檚 in our best interests,鈥 he says, to in coming decades 鈥渂e building prisons, creating a criminal justice system, and sapping resources from our elders and children and our economic prosperity.鈥
Treaties and textualism
Professor Washburn, now dean at the University of Iowa College of Law, never enjoyed teaching his federal Indian law course. The entire semester,聽he says,聽was 鈥渂asically a history of how the law has failed my people, that the rule of law applies elsewhere in the United States but less so in Indian Country.鈥
And between 1990 and 2015 the court ruled against tribal interests in 76.5% of cases, according to Bethany Berger at the University of Connecticut School of Law. But that has changed in recent years, particularly since Justice Gorsuch joined the court. Last term, he hired the court鈥檚 first-ever Native American clerk.
He鈥檚 considered a reliable member of the court鈥檚 conservative wing, but on Native issues, 鈥渢here鈥檚 just a sense that Justice Gorsuch gets it,鈥 says Professor Washburn.
His opinion in McGirt combines these two features of his jurisprudence, using textualism 鈥 a method, popular with conservatives, of interpreting laws by focusing strictly on their text 鈥 to analyze the history of the Creek Nation鈥檚 treaties with the U.S. While Congress has the power to unilaterally break treaties with tribes, he explained, the legislature has never explicitly done that with the Creek.
鈥淚f Congress wishes to break the promise of a reservation, it must say so,鈥 he wrote.
This analysis trumped the argument from Oklahoma 鈥 and, in an amicus brief, the federal government 鈥 that a series of hostile federal policies over a century amounted to an effective 鈥渄isestablishment鈥 of the Creek reservation. Congress 鈥渂roke up the Creek Nation鈥檚 lands, abolished its courts, circumscribed its governmental authority, applied federal and state law to Indians and non-Indians alike in its territory ... and set a timetable for the dissolution of the tribe,鈥 the federal government wrote in its brief.
But 鈥渦nlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law,鈥 wrote Justice Gorsuch. 鈥淭hat would be the rule of the strong, not the rule of law.鈥
As to the argument that declaring a vast swath of eastern Oklahoma tribal land would create far more problems than it solves, he concluded that 鈥渄ire warnings are just that, and not a license for us to disregard the law.鈥
Many of Oklahoma鈥檚 arguments 鈥渇ollow 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,鈥 he wrote. 鈥淲e reject that thinking.鈥
The court鈥檚 most recent case in this area of American Indian law reached a similar holding, in a unanimous decision, that 鈥渙nly the clear intent of Congress can determine when tribal land is diminished.鈥
If anything, the new ruling brings Oklahoma鈥檚 tribal nations more in line with the status of most other tribes around the country, says Mr. Williams at NARF. In most states, if a tribal member commits a serious crime on tribal land, they are prosecuted in federal court.
What made this case unusual, says Professor Washburn, is how significant the potential ramifications are. But that is also what makes the case 鈥渢he high-water mark for the court鈥檚 respect for the rule of law in Indian Country,鈥 he says.
鈥淭he bottom line is this decision applies the rule of law even when it鈥檚 difficult to do so because of the ramifications,鈥 he adds.
鈥淭hat鈥檚 the America we all want to live in,鈥 he continues. 鈥淭hat鈥檚 what we say is great about the United States, but we often fail to live up to that.鈥
And at a time when the U.S. is wrestling with racial injustices past and present, Chief Hoskin thinks the decision is 鈥済ood for the country.鈥
鈥淚t doesn鈥檛 just identify an issue; it does something about it,鈥 he says. 鈥淢aybe it creates more space in communities, in Congress, and in state legislatures to look at these issues and do more than talk about them.鈥
It鈥檚 unclear if that will be the case, but as one of the leaders now tasked with adapting to this dramatic legal change, Chief Hoskin admits he feels some pressure to show that such a dramatic change can happen without dramatic negative consequences. And he鈥檚 feeling confident.
鈥淭he pressure I feel is to communicate to the public that we know what we鈥檙e doing,鈥 he says. 鈥淲e鈥檝e done it for a long time.鈥
Staff writer Simon Montlake contributed to this report.