Oklahoma Can’t Break Congress’s Promise That Native American Reservation Would Be ‘Secure Forever,’ Rules Supreme Court

“If Congress wishes to withdraw its promises, it must say so.” Per treaties signed in the 1830s, nearly half of Oklahoma, including most of the city of Tulsa, belongs to the Muscogee (Creek) Nation, the U.S. Supreme Court affirmed on Thursday in a 5-4 decision. The ruling could have huge implications for criminal convictions in Oklahoma and other states, Chief Justice John Roberts warned in a dissent.

“In this case, the Muscogee (Creek) Nation had to fight long and hard to protect their homelands,” said John Echohawk, the executive director of the Native American Rights Fund, in a statement. “In holding the federal government to its treaty obligations, the U.S. Supreme Court put to rest what never should have been at question.”

At the micro level, the case—McGirt v. Oklahoma—concerns the state’s prosecution of alleged crimes that took place in this territory.

“Petitioner Jimcy McGirt was convicted by an Oklahoma state court of three serious sexual offenses” and “unsuccessfully argued in state post conviction proceedings that the State lacked jurisdiction to prosecute him because he is an enrolled member of the Seminole Nation and his crimes took place on the Creek Reservation,” explains a Supreme Court synopsis. “He seeks a new trial, which, he contends, must take place in federal court.”

But the case goes way beyond McGirt’s particular situation—as quickly becomes clear in the opening of the Court’s decision, penned by Justice Neil Gorsuch and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan:

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 “the Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.”

Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. 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.”

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.

For the purposes of this case, the key question is “Did he [McGirt] commit his crimes in Indian country?” the opinion states. Answer:

No one disputes that Mr. McGirt’s crimes were committed on lands described as the Creek Reservation in an 1866 treaty and federal statute. But, in seeking to defend the state-court judgment below, Oklahoma has put aside whatever procedural defenses it might have and asked us to confirm that the land once given to the Creeks is no longer a reservation today.

At another level, then, Mr. McGirt’s case winds up as a contest between State and Tribe.

Gorsuch points out that “the scope of their dispute is limited; nothing we might say today could unsettle Oklahoma’s authority to try non-Indians for crimes against non-Indians on the lands in question.” However:

If Mr. McGirt and the Tribe are right, the State has no right to prosecute Indians for crimes committed in a portion of Northeastern Oklahoma that includes most of the city of Tulsa. Responsibility to try these matters would fall instead to the federal government and Tribe. Recently, the question has taken on more salience too. While Oklahoma state courts have rejected any suggestion that the lands in question remain a reservation, the Tenth Circuit has reached the opposite conclusion.

The Supreme Court majority sided with the 10th Circuit, McGirt, and the Creek Tribe, concluding:

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.

So…what does it all mean?

“The decision puts in doubt hundreds of state convictions of Native Americans and could change the handling of prosecutions across a vast swath of the state,” says The New York Times. “Lawyers were also examining whether it had broader implications for taxing, zoning and other government functions. But many of the specific impacts will be determined by negotiations between state and federal authorities and five Native American tribes in Oklahoma.”

In his dissent, Chief Justice John Roberts predicted dire results:

The state’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the court has profoundly destabilized the governance of eastern Oklahoma.

But “the decision is a stunning reaffirmance of the nation’s obligations to Native Americans,” notes Ronald Mann at SCOTUSblog. “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.”

“The Supreme Court has affirmed that a promise is a promise: that treaties between the United States and Tribes are the law of the land—no matter how many times the federal government has violated those treaties in the past—and that lands reserved for Tribes remain Indian Country, now and in the future,” said U.S. Sen. Tom Udall (D–N.M.), vice chairman of the Senate Committee on Indian Affairs. “While no court decision can correct centuries of injustice committed against Indigenous people, today’s ruling is a historic step forward to safeguard Tribal sovereignty for decades to come.”

Will (white) women vote for Donald Trump again? “Over the last three years I conducted dozens of focus groups with both college-educated and non-college-educated female Trump voters,” writes Sarah Longwell at The Bulwark.

And the answer given most commonly for why they voted for Donald Trump is “I didn’t vote for Donald Trump. I voted against Hillary Clinton.”

In 2016, Democrats understood that Hillary Clinton was a deeply polarizing candidate. But even they didn’t grasp the full magnitude of it. Right-leaning and Republican female voters had spent more than a decade hating both Clintons, and they didn’t stop just because Hillary’s opponent was an unrepentant misogynist.

In fact, Bill Clinton’s legacy of similarly disgusting behavior with women—and Hillary Clinton’s defense of her husband—had the effect of blunting Trump’s own execrable track record. These women voters decided that either way, there’d be a guy with a long history of sexual malfeasance living in the White House.”

But that was then. Since Trump took office, even women who had voted for him in 2016 “began shifting away from the president,” Longwell writes.

A recent New York Times Upshot/Siena College Poll showed Trump trailing Joe Biden by 22 points with women. That’s 9 points bigger than the gender gap was in 2016.

And while much has been made of college-educated women in the suburbs ditching Trump, a recent ABC/Washington Post survey shows that Trump’s support with white non-college-educated women has fallen by 11 points.

NEW 66% of public says civilians should have the power to sue police officers to hold them accountable for misconduct, excessive use of force.https://t.co/feCDghdlq9

— Carroll Doherty (@CarrollDoherty) July 9, 2020

• Florida saw its highest single-day death toll from COVID-19 on July 8. The state department of health reported yesterday that 120 people had been killed by COVID-19 in the past 24 hours. South Carolina is also starting to see disturbing coronavirus trends.

• Kazakhstan says it isn’t plagued with a new form of super-deadly pneumonia, contrary to a warning put out by the Chinese Embassy in Kazakhstan that this pneumonia strain had already killed 1,700 people.

• “Unanimity is neither possible nor necessary to fight racism,” writes Conor Friedersdorf in some musings on our cultural moment. “On the contrary, attempts to secure unanimity can undermine the fight: They needlessly divide anti-racists and weaken everyone’s ability to grasp reality.”