The history of the US is that of its government making promises to Native Americans and then breaking them whenever they felt like it, usually because they wanted to grab land and resources. Given this long history of betrayals, yesterday’s US Supreme Court 5-4 decision that the US government had to honor its treaty commitments to Native Americans came as a big surprise. In this case, the court ruled that as far as federal criminal law is concerned, about half of the state of Oklahoma had to be considered as part of the Creek Nation reservation. (You can read the opinion here.)
Indigenous leaders on Thursday hailed the U.S. Supreme Court’s decision in McGirt vs. Oklahoma as a victory for tribal sovereignty for affirming that the U.S. government’s treaty with the Muscogee (Creek) Nation must still be recognized by Congress and that nearly half of what is known as the U.S. state of Oklahoma is actually Native American land.
In the 5-4 decision, Justice Neil Gorsuch sided with the liberal-leaning justices and wrote the majority opinion, ruling that since Congress has not stated otherwise, the land promised to tribes in the 19th century remains a reservation for the purposes of federal criminal law.
“On the far end of the Trail of Tears was a promise,” Gorsuch wrote. “Forced to leave their ancestral homes in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever… Because Congress has not said otherwise, we hold the government to its word.”
“Many folks are in tears,” Jonodev Chaudhuri, ambassador for the Muscogee (Creek) Nation told Indian Country Today. “Despite a history of many broken promises, as is true with many tribal nations, the citizens feel uplifted that for once the United States is being held to its promises.”
In the majority opinion, Gorsuch strongly disagreed with the other conservatives on the court, who said in their dissent that the ruling “profoundly destabilized the governance of eastern Oklahoma” and created “significant uncertainty for the State’s continuing authority over any area that touches Indian affairs.”
“Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law,” Gorsuch wrote in the opinion. “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.”
That last paragraph is significant, since there is a tendency to shrug one’s shoulders at deep injustices committed from long ago in violation of the law and say that it is too late, too expensive, or too complicated to do anything about it now and the injured parties just have to learn to live with it.
The immediate impact of this case is that Native Americans in those areas cannot be charged and prosecuted by state authorities but only by federal authorities. There will be other ramifications but those will have to be seen later.