That being said, I graduated 20 years ago, I have not done much legal history research since then, and there are many people out there much better qualified than myself to explain the ins and outs of today’s historic United States Supreme Court decision in McGirt v. Oklahoma. Rather, just hours after the decision I would like to offer some context.
The Supreme Court is no stranger of Indian law cases. It hears them regularly. However, McGirt is probably the most important federal case since Cobell v. Salazar, which was filed in 1996, never reached he Supreme Court, and was settled with the Obama administration in 2009. And McGirt is probably the most important Native lands case in at least half a century.
But first things first. The real importance of this case has nothing to do with the plaintiff Jimcy McGirt, who was sentenced to 1000 (yes, a thousand) years for raping a four year old. The case was not about his guilt, which was not disputed. He has already served twenty years and this decision won’t free him, although he might get a new trial in federal court, for all the good that will do him.
Rather, the impetus for McGirt’s case was that Oklahoma could not try him for his crimes. Why? On the grounds that he is a member of the Seminole nation and his crime took place within the treaty-acknowledged boundaries of the Creek nation meaning (their reservation). Federal law is clear. In such circumstances, states have no jurisdiction. Rather, he would need to be tried in federal court.
To settle this case then, courts were not reconsidering his guilt, which they accepted. Rather, they were determining whether or not his crimes took place in Indian Country, the U.S. legal for lands under tribal authority. And the quest to answer that question opened up the long history of what is sometimes politely termed “Native dispossession.” A more accurate description is a centuries-long process of European and U.S. colonial land theft.
Most Americans have only a hazy understanding of the process. But in what is currently the United States, it began in the early 17th century and continued in earnest until the mid-20th century. In some ways it has not ended, but the bulk of it occured during those roughly 350 years.
One of the more infamous incidents of such theft is commonly called The Trail of Tears, or Nunna daul isunyi in the Cherokee language. This refers to the ethnic cleansing of five large Native nations (Cherokees, Chickasaws, Choctaws, Seminoles, and Muscogees [or Creeks in English]) from the South during the 1830s and 40s. It was just one of many such actions, but it’s the one that’s likeliest to pop up in a HS textbook. It’s also at the heart of McGirt.
These five nations (and eventually many others) were forced to move to present day Oklahoma, which back then was called Indian Territory. Upon moving there, the United States acknowledged their governments and new state boundaries. Here’s a map from 1855.
So how did this place stop being Indian national lands and start being Oklahoma Territory and eventually a state? That’s a long story of perfidy and theft I’m not going to go into here. Suffice it to say that Native nations never wanted or intended to cede their lands and sovereignty. The United States muscled them out of it, often illegally, through violations of U.S. law and international treaties the United States had signed with Native nations. Which is where our story begins to come together.
Today, by a narrow majority, the Supreme Court reaffirmed that the United States did indeed establish a reservation for the Muscogee (Creek) nation in an 1833 treaty between the two nations, and that the treaty stipulated those lands would remain theirs “so long as they exist as a nation.”
And yes, they very much still exist as a nation.
Furthermore, the court stated, the creation of Oklahoma Territory and then state did not eliminate the Creek reservation because “once a reservation is established, only Congress can diminish or disestablish it.”
Thus, a big ole chunk of modern Oklahoma is actually the Creek Reservation, including Tulsa. And, presumably, though more cases would need to be filed, a lot of the rest of the state is also composed of Indian reservations. Although don’t use that above map as an accurate guide; many more tribes were forced into Oklahoma after 1855 and Native national boundaries shifted a lot before Oklahoma became a territory and state.
Let me close with two points.
First, this isn’t about land transfers. Because the United States is a colonial empire that established itself at the expense of Native nations over which it continues to rule, it flexes its imperial power in many ways. For example, according to U.S. law, native nations do not even own their own reservation lands. The United States holds it in trust for them. So this ruling does not transfer land to the Muscogee tribe, but rather puts those lands within the boundaries of its reservation.
What does that mean? Today’s decision is a victory for Native nations in many ways, but it does not fundamentally alter U.S. colonial rule. Federal courts have a long history off occasionally acknowledging Native nations and their sovereignty, only to have Congress respond by then attacking those nations and their sovereignty.
A fairly recent example is federal courts’ acknowledgement of tribes’ rights to run gambling casinos. States could not stop them, the courts said, because states do not have jursdiction over tribes (Seeing a theme here?). But Congress quickly responded by passing the Indian Gaming Regulatory Act (1988), which required tribes to sign a “compact” with the state they were located in before they could open certain kinds of casinos. And even though states, the courts have said over and over again, cannot tax Native tribes, IGRA allowed states to get a cut of Indian casino profits. They don’t call it a tax, but it’s a de facto tax.
With that in mind, keep an eye out as Congress may pass legislation to nullify various aspects of this decision, whether it be about reservation boundaries or jurisdiction.
But wait, what if the Democrats control Congress? Good question. The answer is, it probably doesn’t matter, which brings me to my second point.
The press will paint this decision as having been made possible by the swing vote of Conservative justice Neil Gorsuch. But that is not really the truth of it. Why? Because Indian affairs often does not follow party lines or standard liberal/conservative divisions.
Gorsuch actually has a history of siding with tribes. That can fit with his conservative views about limiting federal powers. His vote here with the majority was not a surprise. Many court-watchers expected it.
Meanwhile. Ruth Bader Ginsburg, the justice so idolized by American liberals that they’ve playfully nicknamed her The Notorious RGB after a dead hip hop star, has been no friend of Native peoples or nations. She has a history of siding against tribes in brutish ways. Which can fit with liberal ideology as liberals are often quick to recognize federal power, even at the expense of Indian nations.
Quite frankly, colonialism just doesn’t give a shit what party you vote for.
But Ginsburg came around. Given their histories, it was she, not Gorsuch, who swung the the 5-4 decision (here’s a link to the decision if you’re interested).
This case will no doubt end up in Native history and U.S. legal textbooks. But whether it ends up in more general U.S. history textbooks will depend on how Congress responds. Stay tuned.