On Thursday, July 9, 2020, the United States Supreme Court in McGirt v. Oklahoma upheld the sovereignty of Tribal and Indian Country reservations under previous U.S. Treaties. The Court 5 to 4 decision was written by Justice Neil Gorsuch with Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Sonia Sotomayor, and Justice Jill Kagan joining in the majority. The minority opinion was written by chief Justice John Roberts, with Justice Sam Alito, Justice Brett Kavanaugh in the minority with Justice Clarence Thomas wrote his own dissenting opinion.
The case revolved an Oklahoma prosecution and conviction of Jimcy McGirt for three sex offense crimes but the defendant argued as a member of the Seminole Tribe on the Creek reservation, the state could not prosecute him and instead jurisdiction falls under federal law enforcement (as in Tribal reservations). His appeal was support by tribal organizations because it went to the very heart of the government to government treaties the United States signed years ago. Gorsuch wrote:
“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833 Treaty). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368.”
The state of Oklahoma offered several rationalizations rejecting the appeal of the McGirt conviction. In arguments submitted to the Court earlier, attorneys for the Creek Nation and McGirt described how in the 1830s, members of the Creek Nation and four other tribal groups were forcibly marched by the U.S. Army from Alabama and Georgia to the land in eastern Oklahoma which they were promised in exchange for leaving.
The extensive opinion by Gorsuch took down Oklahoma’s arguments concluding with:
“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 judgment of the Court of Criminal Appeals of Oklahoma is Reversed”
A joint statement from parties in Oklahoma after the ruling the state, Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations Release Joint Statement in Response on the Court decision saying:
“The State, the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations have made substantial progress toward an agreement to present to Congress and the U.S. Department of Justice addressing and resolving any significant jurisdictional issues raised by the U.S. Supreme Court’s decision in McGirt v. Oklahoma…We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma.”
The Supreme Court decision has significance in that Judge Gorsuch replaced conservative Justice Antonin Scalia who had been more sympathetic toward Indian sovereignty issues. This case could also be a signal to opponents of the Indian Child Welfare Act (ICWA). On August 9, 2019, a US Court of Appeals for the 5th Circuit rejected a lower court ruling that sought to strike down ICWA. That ruling was a result of a October 4, 2018 ruling by the U.S. District Court for the Northern District of Texas, (Brackeen V Zinke), with Judge Reed O’Connor (known for his controversial rulings on the ACA and immigration) ruled that the Indian Child Welfare Act (ICWA) is unconstitutional in its entirety based on the Equal Protection Clause and the 14th Amendment.