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Red Lines Matter: Supreme Court Rules Indians Run Eastern Half of Oklahoma

The United States Supreme Court yesterday ruled that the law is the law and that eastern Oklahoma is all still Indian reservation:

The court held today that land in northeastern Oklahoma reserved for the Creek Nation since the 19th century remains a reservation for the purpose of a federal statute that gives the federal government exclusive jurisdiction to commit certain major crimes committed by “[a]ny Indian” in “the Indian country.” The court’s holding means that state courts in Oklahoma had no jurisdiction to convict petitioner Jimcy McGirt, who is an enrolled member of the Seminole Nation of Oklahoma, of three serious sexual offenses that took place on the reservation.

The decision is a stunning reaffirmance of the nation’s obligations to Native Americans. It confirms the existence of the largest tract of reservation land in the country, about 19 million acres encompassing the entire eastern half of Oklahoma [Ronald Mann, “Opinion Analysis: Justices Toe Hard Line in Affirming Reservation Status for Eastern Oklahoma,” SCOTUSBlog, 2020.07.09].

The state claimed that “allotment”—the longstanding practice of pressuring Indians to sell their land—showed that Congress meant all along to dissolve the reservation and that the practical consequences of ceding that land back to Indians were too great. But, as I concluded in 2018 a connected Oklahoma case that the Court finally resolved yesterday, consequences, schmonsequences: Justice Neil Gorsuch rejected “substituting stories for statute” and read the promises we wrote into treaty and law:

Under our Constitution, States have no authority to reduce federal reservations lying within their borders. Just imagine if they did. A State could encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States. That would be at odds with the Constitution, which entrusts Congress with the authority to regulate commerce with Native Americans, and directs that federal treaties and statutes are the “supreme Law of the Land.” Art. I, §8; Art. VI, cl. 2. It would also leave tribal rights in the hands of the very neighbors who might be least inclined to respect them.

Likewise, courts have no proper role in the adjustment of reservation borders. Mustering the broad social consensus required to pass new legislation is a deliberately hard business under our Constitution. Faced with this daunting task, Congress sometimes might wish an inconvenient reservation would simply disappear. Short of that, legislators might seek to pass laws that tiptoe to the edge of disestablishment and hope that judges—facing no possibility of electoral consequences themselves—will deliver the final push.But wishes don’t make for laws, and saving the political branches the embarrassment of disestablishing a reservation is not one of our constitutionally assigned prerogatives. “[O]nly Congress can divest a reservation of its land and diminish its boundaries.”… So it’s no matter how many other promises to a tribe the federal government has already broken. If Congress wishes to break the promise of a reservation, it must say so.

…There is no need to consult extratextual sources when the meaning of a statute’s terms is clear. Nor may extratextual sources overcome those terms. The only role such materials can properly play is to help “clear up . . . not create” ambiguity about a statute’s original meaning…. And, as we have said time and again, once a reservation is established, it retains that status “until Congress explicitly indicates otherwise.”

…In the end, only one message rings true. Even the carefully selected history Oklahoma and the dissent recite is not nearly as tidy as they suggest. It supplies us with little help in discerning the law’s meaning and much potential for mischief. If anything, the persistent if unspoken message here seems to be that we should be taken by the “practical advantages” of ignoring the written law. How much easier it would be, after all, to let the State proceed as it has always assumed it might. But just imagine what it would mean to indulge that path. A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched. Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished. None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law [Justice Neil Gorsuch, Opinion of the Court, McGirt v. Oklahoma, 2020.07.09].

The rule of law supersedes the rule of the strong: that should be music to the ears of tribal leaders everywhere who are simply trying to exercise the sovereignty that powerful White invaders promised them but which the forked-tongued Great White Fathers and Mothers keep trying to take away.

So, if any of you other tribal leaders have a treaty argument you’d like to make, highlight the text and take it to court now—Justice Gorsuch may be your guy!

18 Comments

  1. Wayne 2020-07-10 07:56

    Cory,

    Your final paragraph is rather wishful thinking; the Supreme Court already ruled on the fate of the unlawful taking of 7 million acres of Sioux reservation territory. The issue of law is settled and SCOTUS upheld the original Court of Claims ruling for financial compensation that the Sioux Nation sought for the taking of said property.

    Since that matter has been settled through the courts, it’s unlikely to see traction. You don’t typically get to take two bites at the same legal apple.

  2. mike from iowa 2020-07-10 11:10

    federal government exclusive jurisdiction to commit certain major crimes committed by “[a]ny Indian” in “the Indian country.”

    Needs clarification or correction, methinks.

  3. jerry 2020-07-10 12:16

    Who wants two bites of the same legal apple when the whole legal apple pie is applicable. There is a Lakota gent that is charged with two felonies for actions taken during trump’s visit to the Black Hills. As these charges happened in Indian Country on Indian land, why was he even arrested and charged for defending his land? What right did GNOem have to endanger property that doesn’t belong to her with the fireworks and general trespassing?

  4. Mr Sol 2020-07-10 17:42

    To anyone – any repercussions regarding The Fort Laramie Treaty of 1868?

  5. jerry 2020-07-10 17:55

    Don’t know what you mean by “repercussions”

  6. Mr Sol 2020-07-10 18:05

    Just wondering if the court could reassert the Lakota’s tribal authority in the Black Hills?

  7. jerry 2020-07-10 18:33

    After seeing this decision for Oklahoma, I think the court could do exactly that. I have never understood why the treaty writers would not agree to turn over the very lands they control in the the Black Hills to the holders of the treaty rights to include Custer State Park and Bear Butte.

  8. bearcreekbat 2020-07-10 18:46

    Wayne is correct that the SCOTUS has ruled on whether to return the land that it found to have been unlawfully taken by the U.S. contrary to promises made in the Fort Laramie Treaty of 1868. That said, however, there is nothing stopping the Court from revisiting that issue and reversing itself, sort of like they did in Brown v. Board of Education when they reconsidered and then reversed the Plessy v. Ferguson ruling on the separate but equal doctrine.

    In addition, there are several other treaty provisions that have been ignored or violated by the U.S. but have not yet been reviewed by the SCOTUS. The treaty is chock full of “promises” to Native American Tribes and individuals, many of which were ignored or addressed only in bad faith.

    https://www.ourdocuments.gov/doc.php?flash=false&doc=42&page=transcript

  9. Buckobear 2020-07-10 20:19

    Maybe Tribal Police in Eastern OK can start pulling over white drivers for broken taillights, late signaling, etc.

  10. Debbo 2020-07-10 20:44

    Many natives in the SD pen may be considering appeals at this very moment. Bwahahahahaha!

  11. Debbo 2020-07-10 23:07

    “You know, as Indigenous people in the United States, we’re really, really used to people in power not upholding the law and not siding with us, and that’s not what happened today.”
    Rebecca Nagle, Cherokee tribe, journalist, writer, podcast host

    Thanks for the link Jerry.

    Historically for POC in the USA it has most often not been enough to have the law on their side.

  12. leslie 2020-07-11 02:03

    Gorsuch, except for the ACA, babbles: “None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here.” Eye roll

    Trump wants Indian voters and DACA voters.

  13. Cory Allen Heidelberger Post author | 2020-07-11 10:02

    Wayne, maybe we don’t get to restore the Black Hills to Lakota jurisdiction (but imagine tribal cops writing all the tickets for the Sturgis Rally), but might there be other standing issues relating to the Fort Laramie Treaty of 1868 and other treaties relevant to tribes in South Dakota where smart lawyers could find that South Dakota has been operating out of compliance with provisions that have never formally been rescinded or superseded by acts of Congress?

  14. Cory Allen Heidelberger Post author | 2020-07-11 10:05

    At the federal level, could tribes sue for violations of the various treaty promises of health care? Could tribes have more standing now to sue the way some groups have sued states for adequate public education funding, but here to say to the courts, “Look, treaties require the federal government to provide for Native health care, but Congress has consistently failed to appropriate adequate and necessary funding to fulfill that promise” and thus get a judge to order Congress to, say, triple funding and staffing for IHS?

  15. bearcreekbat 2020-07-11 10:59

    Cory, I’ll try to address your question:

    At the federal level, could tribes sue for violations of the various treaty promises of health care?

    In my view, unequivocally yes. Article VI Section 2 of the Constitution explicitly provides that “. . . all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, . . . . ”

    Just as any person harmed by a governmental unit that violates any other Constitutional or statutory right can sue for a remedy, including injunctive relief and/or compensatory damages, a Tribe that is the intended beneficiary of a Treaty has the right to sue for violations of that Treaty if and when damaged or threatened with damage by the government violation.

    Standing in federal court is often questionable and is a complex consideration for the courts but in the end it isn’t really a concept that can be measure in terms of more or less standing. It is like pregnancy – you either are or aren’t, i.e., you either have standing or you don’t.

    As for obtaining a particular remedy for violations, however, that is an even more complex and ambiguous matter. I doubt that such a remedy could include a requirement for Congress to provide specific funding (beyond a damage award), but injunctive relief seems a possible remedy, which perhaps could necessitate increased staffing.

  16. jerry 2020-07-11 12:17

    Looks like the Blackfeet Tribe rules Glacier Park with road blocks to protect the tribe… with support from locals and the National Park Service. How about that, nation to nation cooperation.

    “The Blackfeet’s fears are well-founded. Covid-19, the disease caused by the novel coronavirus, has ravaged some Native American communities. In Montana, state data show that more than a third of the people to have died so far identified as Native American, though natives make up less than 7 percent of the population. In the Southwest, the Navajo Nation has been one of the country’s worst hot spots.

    The National Park Service and local tourist companies are backing the Blackfeet.” Washington Post 7.11.20

    It’s long past time for these lands to be bought under tribal control as that is what the treaty rights declared. Everyone can work together to make it work without animosity or fear.

  17. mike from iowa 2021-01-15 14:20

    Thanks to Sinator John McCShame, the US gubmint was able to end run treaty giving Apaches permanent control of most sacred area of their tribe so a foreign mining operation could undermine the sacred site for copper and eventually that area would fall into a 1000 foot deep trench. drumpf is trying hard to complete the land swap before Biden takes office.

    https://www.huffpost.com/entry/oak-flat-land-swap-apache-trump-administration_n_5fff7cd2c5b65671988b8d75

    Wasicu wasteys speak with forked treaties. Always have, always will.

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