Landmark Supreme Court ruling Confirms Muscogee treaty rights

WASHINGTON – The U.S. Supreme Court ruled in favor of the exercise of Native American rights in a long awaited July 9 landmark decision that holds the Muskogee (Creek) Nation retains jurisdiction over the treaty lands it negotiated at the end of the 19^th Century Trail of Tears.

“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,” Supreme Court Justice Neil Gorsuch wrote for the narrow 5-4 majority of the judicial panel.

“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word,” the opinion in McGirt v. Oklahoma states.

The Treaty with the Creeks in 1832, another by the same name in 1833, and yet another in 1866 established 3 million acres in the eastern part of present-day Oklahoma state, including a large chunk of Tulsa (population 400,000), as Muscogee territory.

The far-reaching implications of the finding stirred reactions from many quarters.

“The Supreme Court today kept the United States’ sacred promise to the Muscogee (Creek) Nation of a protected reservation,” the tribal government said in written statement. “Today’s decision will allow the nation to honor our ancestors by maintaining our established sovereignty and territorial boundaries.”

The Muscogee were quick to point out that the victory for treaty rights does not put private or state land status in jeopardy; instead, it allows the native nation government to take part in criminal prosecutions of American Indians in cases within reservation borders.

“We will continue to work with federal and state law enforcement agencies to ensure that public safety will be maintained throughout the territorial boundaries of the Muscogee (Creek) Nation,” it said.

Four other forcibly relocated tribes that had obtained recognition as landlords of the lion’s share of the rest of the Oklahoma, chimed in with the State Attorney General’s Office, showing they had anticipated the decision and a smooth transition to shared law enforcement as well as prosecution activities.

“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,” they said.

“The nations and the state are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights,” they said.

“We will continue our work, confident that we can accomplish more together than any of us could alone.”

The Oklahoma Congressional delegation, long accustomed to conciliatory relations with the tribal nations, noted that the decision impacts “the Five Tribes of Oklahoma and all Oklahomans.”

In a written statement, it added, “We are reviewing the decision carefully and stand ready to work with both tribal and state officials to ensure stability and consistency in applying law that brings all criminals to justice.

“Indeed, no criminal is ever exempt or immune from facing justice, and we remain committed to working together to both affirm tribal sovereignty and ensure safety and justice for all Oklahomans,” said the delegation in the U.S. House of Representatives, which consists of Kevin Hern (Republican) , Markwayne Mullin (Republican), Frank Lucas (Republican), Tom Cole (Republican) and Kendra Horn (Democrat).

New Mexico U.S. Rep. Deb Haaland remarked, “As we move forward addressing longstanding broken promises, this decision will serve as a marker to ensure the federal government honors its promises to native nations.”

The National Congress of American Indians called the decision an “historic win.” NCAI President Fawn Sharp noted, “Through two terms of the United States Supreme Court, and as many cases and fact patterns, this question has loomed over federal Indian law.

“NCAI joins the rest of Indian country in congratulating the Muscogee (Creek) Nation and proudly asserting that its lands remain, and will forever be considered, Indian country – as guaranteed in their treaty relationship with the United States,” she said in a written statement.

Native American Rights Fund Executive Director John Echohawk responded to the decision, saying, “In this case, the Muscogee (Creek) Nation had to fight long and hard to protect their homelands, which were promised in their treaty agreements with the United States. In holding the federal government to its treaty obligations, the U.S. Supreme Court put to rest what never should have been at question. We congratulate the nation on its success.”

The Center for Native American Youth at the Aspen Institute “praises the United States Supreme Court in upholding the treaty with the Muscogee Creek Nation,” it said. “This decision gives hope to surrounding Oklahoma tribes” with similar treaty language, foreshadowing criminal, civil, regulatory and tax jurisdiction, it said.

Sarah Deer, a citizen of the Muscogee (Creek) Nation of Oklahoma and a professor at the University of Kansas, argues that the decision is key to protecting indigenous women from crime and bringing perpetrators of the violence to task.

In a friend-of-the-court brief during proceedings in a separate Supreme Court case in 2018, she wrote, “Today, native women and children face the highest rates of domestic violence, murder, and sexual assault in the United States.”

Numerous federal laws limit the charges that federal prosecutors can bring against both Indian and non-Indian offenders who commit crimes in Indian country located within certain states, while tribal courts have sentencing limitations. she noted.

This became evident in a similar case appealed to the Supreme Court. Called Sharp v. Murphy, it was resolved at the same time as McGirt v. Oklahoma, via a writ of certiorari, applying a like ruling.

Successful multijurisdictional investigations and prosecutions “require a collaborative working relationship,” Deer said.

According to the American Bar Association, Seminole Nation citizen Jimcy McGirt brought the landmark suit, challenging the jurisdiction of the Oklahoma state court in his 1977 conviction of rape and other sex crimes on what is, as of now, considered the Creek reservation.

McGirt, at more than 70 years old, is serving life in prison with what adds up to a sentence of at least two 500-year terms.

As he faces retrial, the Five Oklahoma Nations and the state pledged they “are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused, they said in their statement.

Lower Brule Sioux Tribal citizen Nick Estes, an assistant professor of American Studies at the University of New Mexico, observed that the decision and other recent court rulings favoring Indian country are “welcome legal victories.”

However, he warned, the 1980 Supreme Court ruling that the Black Hills had been stolen from the Lakota in 1876 in violation of the 1868 Ft. Laramie Treaty failed to result in a return of jurisdiction to the seven Council Fires of the Great Sioux Nation or Oceti Sakowin.

“Indigenous people cannot merely rely on the courts of the conqueror. Much more is needed,” he wrote in a nationally broadcast opinion.

“To realize a complete vision of indigenous sovereignty and environmental justice takes people power — the kind that energized the 2016 Standing Rock protests against the Dakota Access Pipeline.

Estes is the author of Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance.

 

(Contact Talli Nauman at talli.nauman@gmail.com)

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