[WSMDiscuss] Fwd: US Supreme Court Upholds Tribal Sovereignty in McGirt v. Oklahoma / Supreme Court Rules Large Swath of Oklahoma Is Indian Reservation

[Jai Sen]

Thursday, July 9, 2020

Viruses in movement…, Turtle Island in movement…, Indigenous Peoples in movement…, The US in movement…, Justice in movement…, Sovereignty in movement…

[The US is afire, the fire is lit across Turtle Island, and is spreading far and deep… This is the moment !

[Here, another landmark, restorative, decision in favour of Native Americans – and this from a conservative-dominated court.  Something is happening.

[But interestingly, though I know very little about the US, the New York Times article I’ve also added in here speaks only of the implications of the judgement for the criminal justice system, and not of the justice system as a whole, and also only passingly refers – and in one para alone - to the surely fundamental question of sovereignty, which the IEN post specifically refers to and celebrates, and in detail.  (And even if, given the issue of systemic racism that – during these very days – seems to be beginning to fundamentally challenge the country, a ruling giving sovereignty to the Native Americans over criminal justice is a huge victory just in itself.)  Is this just another reflection of how Settler society prefers to look at the issue – by not mentioning it ?! :

Indigenous Environmental Network :

Today the US Supreme Court effectively ruled a portion of Oklahoma is indeed Indian Territory. It is a great day to be indigenous. 

In a monumental, historic win for tribal sovereignty and Indian Country more broadly, the Supreme Court ruled in favor of the Muscogee (Creek) nation today 5-4, with Justice Gorsuch - a conservative judge and Trump pick - delivering the opinion and being joined by Justices Breyer, Ginsburg, Kagan, & Sotomayor. 

New York Times :

The 5-to-4 decision, potentially one of the most consequential legal victories for Native Americans in decades, could have far-reaching implications for the people who live across what is now deemed “Indian Country” by the high court. The lands include much of Tulsa, Oklahoma’s second-biggest city.

“On the Far End of the Trail of Tears was a Promise” : US Supreme Court Upholds Tribal Sovereignty in McGirt v. Oklahoma

Indigenous Environmental Network

Supreme Court Rules Large Swath of Oklahoma Is Indian Reservation

Adam Liptak <https://www.nytimes.com/by/adam-liptak> and Jack Healy <https://www.nytimes.com/by/jack-healy>, New York Times

            In celebration and solidarity !

            JS

fwd

> Begin forwarded message:
> 
> From: Indigenous Environmental Network <jennifer at ienearth.org>
> Subject: US Supreme Court Upholds Tribal Sovereignty in McGirt v. Oklahoma
> Date: July 9, 2020 at 5:12:11 PM EDT
> To: Jai Sen <jai.sen at cacim.net>
> Reply-To: Indigenous Environmental Network <Jennifer at ienearth.org>

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“On the Far End of the Trail of Tears was a Promise:” US Supreme Court Upholds Tribal Sovereignty in McGirt v. Oklahoma
Relatives, 
 
In a monumental, historic win for tribal sovereignty and Indian Country more broadly, the Supreme Court ruled in favor of the Muscogee (Creek) nation today 5-4, with Justice Gorsuch - a conservative judge and Trump pick - delivering the opinion and being joined by Justices Breyer, Ginsburg, Kagan, & Sotomayor. 
 
Gorsuch wrote <http://report.mnb.email/t.js?s=5f07882434d1f71f357943e6&u=43168746&v=3&key=9321&skey=45371ef91b&url=https%3A%2F%2Fwww.supremecourt.gov%2Fopinions%2F19pdf%2F18-9526_9okb.pdf%3Ffbclid%3DIwAR2V1ZUqrCKFoL8UbixV4LNvLBWMQxrNQdj9Isw3OxYeTqcQxLr7Ki0mtpU>: “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.”
 
With this, the Supreme Court reaffirmed tribal sovereignty and made clear that promises and treaties cannot be broken just because they are inconvenient for settler-colonialism. Additionally, this decision affirms the reality that tribal reservations cannot be disestablished unless expressly done so by Congress. Muscogee (Creek) Nation citizen, professor, advocate, and attorney Sarah Deer <http://report.mnb.email/t.js?s=5f07882434d1f71f357943e6&u=43168748&v=3&key=881b&skey=45371ef91b&url=https%3A%2F%2Fwgss.ku.edu%2Fsarah-deer> tells us Gorsuch’s opinion is “logical, straightforward, and easy to understand. Beyond that, though, the opinion is infused with empathy for tribal nations and the myriad broken promises we have experienced. This case will be cited heavily in future Indian law cases - it is a legacy case.” Indeed, this Supreme Court decision already has implications for the Osage Nation, who put forth a similar case in 2010 with Osage Nation v. Irby <http://report.mnb.email/t.js?s=5f07882434d1f71f357943e6&u=43168750&v=3&key=67b3&skey=45371ef91b&url=https%3A%2F%2Fdigitalcommons.law.ou.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1110%26context%3Dailr>, which was subsequently disregarded by the Tenth Circuit. As of today, that decision by the Tenth Circuit no longer stands.
 
This long-awaited decision in favor of Creek nation comes as surprisingly good news, especially after the Supreme Court chose not to consider the case when they first had the opportunity in 2019. This decision that effectively says Eastern Oklahoma is an Indian Reservation for federal criminal law purposes may have wide-reaching impact on Oklahoma, which is home to 38 other federally-recognized tribes who may also have compelling arguments for reclaiming their tribal jurisdictions. It may also have further impact on the Oklahoma Governor, Kevin Stitt’s, losing battle <http://report.mnb.email/t.js?s=5f07882434d1f71f357943e6&u=43168752&v=3&key=6ff3&skey=45371ef91b&url=https%3A%2F%2Fwww.casino.org%2Fnews%2Fjudge-rejects-oklahoma-gov-stitts-request-to-clarify-gaming-compacts%2F> with Oklahoma’s tribes regarding Tribal Gaming Compacts.  
 
Jordan Harmon <http://report.mnb.email/t.js?s=5f07882434d1f71f357943e6&u=43168754&v=3&key=bba0&skey=45371ef91b&url=https%3A%2F%2Fwww.linkedin.com%2Fin%2Fjordan-harmon-6a0a25a1>, a Muscogee (Creek) Nation citizen, advocate, and attorney explains, “The McGirt decision is a historical win for the Muscogee Creek Nation, and time will tell how it affects other Oklahoma tribes in their jurisdictional claims. Throughout the opinion Gorsuch recounts the decades of abuse and illegal activity at the hands of the state of Oklahoma encroaching into Indian Territory. The Court created strong pro-tribe language in rejecting the state’s argument that because it had been illegally prosecuting tribal members for so long, it should be allowed to continue doing so. In this historic moment, the Supreme Court decided to uphold the United States’ promise to the Creek Nation in the 1866 Treaty, creating our current reservation boundaries.”
We know 2020 is a peculiar moment in history when a conservative, Trump pick stands firmly on the side of tribal sovereignty and tribal nations, while at the same time strongly decrying the endless wrongs and injustices committed against the original inhabitants of this land by Oklahoma settlers. Moreso, this decision led by Gorsuch reminds our occupying government they have a legal obligation and duty to uphold treaty promises made with each of the tribal nations inhabiting the so-called United States.
 
Cherokee Nation citizen Rebecca Nagle, creator of the This Land <http://report.mnb.email/t.js?s=5f07882434d1f71f357943e6&u=43168756&v=3&key=62dc&skey=45371ef91b&url=https%3A%2F%2Fcrooked.com%2Fpodcast-series%2Fthis-land%2F>podcast, which contextualizes McGirt v Oklahoma, leaves us with these words: “When our tribes were removed west of the Mississippi, to what is now Oklahoma, we were promised that this land would be ours for as long as the grass grew and the waters ran. That commitment from the United States was more than just a promise—it was the law. For more than a century, Oklahoma ignored the law and stepped on our treaty rights. Today, the Supreme Court said no more.” 
 
Today the US Supreme Court effectively ruled a portion of Oklahoma is indeed Indian Territory. It is a great day to be indigenous. 
###
 
Established in 1990, The Indigenous Environmental Network is an international environmental justice nonprofit that works with tribal grassroots organizations to build the capacity of Indigenous communities. I EN’s activities include empowering Indigenous communities and tribal governments to develop mechanisms to protect our sacred sites, land, water, air, natural resources, the health of both our people and all living things, and to build economically sustainable communities.
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Supreme Court Rules Large Swath of Oklahoma Is Indian Reservation

The 5-4 decision could reshape criminal justice in eastern Oklahoma by preventing state authorities from prosecuting Native Americans 

Adam Liptak <https://www.nytimes.com/by/adam-liptak> and Jack Healy <https://www.nytimes.com/by/jack-healy>, New York Times

https://www.nytimes.com/2020/07/09/us/supreme-court-oklahoma-mcgirt-creek-nation.html?referringSource=articleShare <https://www.nytimes.com/2020/07/09/us/supreme-court-oklahoma-mcgirt-creek-nation.html?referringSource=articleShare>


The Supreme Court ruled on a case Thursday that asked if much of eastern Oklahoma is an Indian reservation.  (Credit...Anna Moneymaker for The New York Times)

WASHINGTON — The Supreme Court on Thursday ruled that much of eastern Oklahoma falls within an Indian reservation, a decision that could reshape the criminal-justice system by preventing state authorities from prosecuting offenses there that involve Native Americans.

The 5-to-4 decision, potentially one of the most consequential legal victories for Native Americans in decades, could have far-reaching implications for the  people who live across what is now deemed “Indian Country” by the high court. The lands include much of Tulsa, Oklahoma’s second-biggest city. 

The case was steeped in the United States government’s long history of brutal removals and broken treaties with Indigenous tribes, and grappled with whether lands of the Muscogee (Creek) Nation had remained a reservation after Oklahoma became a state.

Justice Neil M. Gorsuch, a Westerner who has sided with tribes in previous cases and joined the court’s more liberal members, said that Congress had granted the Creek a reservation, and that the United States needed to abide by its promises. 

“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Justice Gorsuch wrote. “Because Congress has not said otherwise, we hold the government to its word.”

Muscogee leaders hailed the decision as a hard-fought victory that clarified the status of their lands. The tribe said it would work with state and federal law enforcement authorities to coordinate public safety within the reservation.

“This is a historic day,” Principal Chief David Hill said in an interview. “This is amazing. It’s never too late to make things right.”

But Chief Justice John G. Roberts warned in a dissenting opinion that the Court had sown confusion in the state’s criminal justice system and “profoundly destabilized” the state’s powers in eastern Oklahoma.

“The State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out,” Justice Roberts wrote.  “The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”

In a statement, Mike Hunter, Oklahoma’s attorney general, said the state and the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations were working on an agreement to present to Congress and the U.S. Department of Justice addressing jurisdictional issues raised by the decision. 

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

The case concerned Jimcy McGirt, a member of the Muscogee (Creek) Nation who was convicted of sex crimes against a child by state authorities in the Nation’s historical boundaries. He said that only federal authorities were entitled to prosecute him.

Mr. McGirt argued that Congress had never clearly destroyed the sovereignty of the Creek Nation over the area. The solicitor general of Oklahoma took the opposite view, saying the area had never been reservation land.

McGirt v. Oklahoma, No. 18-9526, an appeal from a state court’s decision, was the Supreme Court’s second attempt to resolve the status of eastern Oklahoma.

In November 2018, the justices heard arguments in Sharp v. Murphy, <https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-1107.html> No. 17-1107, which arose from the prosecution in state court of Patrick Murphy, a Creek Indian, for murdering George Jacobs in rural McIntosh County, east of Oklahoma City.

After he was sentenced to death <https://www.nytimes.com/2007/02/05/us/05bar.html>, it emerged that the murder had taken place on what had once been Indian land. Mr. Murphy argued that only the federal government could prosecute him and that a federal law barred the imposition of the death penalty because he was an Indian.

Mr. Murphy convinced <https://casetext.com/case/murphy-v-royal-1> the United States Court of Appeals for the 10th Circuit, in Denver. But when the case was argued <https://www.nytimes.com/2018/11/27/us/politics/oklahoma-indian-territory-supreme-court.html> before an eight-member Supreme Court, the justices seemed divided and troubled. (Justice Neil M. Gorsuch, who had served on the 10th Circuit when it ruled on the case, recused himself.)

Instead of issuing a decision before the term ended in June 2019, the court announced it would hear another set of arguments in its current term, which started in October. That was a sign the court had deadlocked, 4 to 4.

But there was no new argument in the Murphy case, probably because it was not clear another hearing would break the deadlock. Instead, the court heard Mr. McGirt’s case, allowing the overarching issue to be settled by a nine-member court.


Adam Liptak covers the Supreme Court and writes Sidebar, <https://www.nytimes.com/column/sidebar> a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. @adamliptak <https://twitter.com/adamliptak> • Facebook <https://www.facebook.com/liptaka>
Jack Healy is a Colorado-based national correspondent who focuses on rural places and life outside America's “City Limits” signs. He has worked in Iraq and Afghanistan and is a graduate of the University of Missouri’s journalism school. @jackhealynyt <https://twitter.com/jackhealynyt> • Facebook <https://www.facebook.com/https:/www.facebook.com/patrick.healy.904>



____________________________
Jai Sen

Independent researcher, editor; Senior Fellow at the School of International Development and Globalisation Studies at the University of Ottawa

jai.sen at cacim.net <mailto:jai.sen at cacim.net>
Now based in New Delhi, India (+91-98189 11325) and in Ottawa, Canada, on unceded and unsurrendered Anishinaabe territory (+1-613-282 2900) 

CURRENT / RECENT publications :

Jai Sen, ed, 2018a – The Movements of Movements, Part 2 : Rethinking Our Dance. Ebook and hard copy available at PM Press <http://www.pmpress.org/>
Jai Sen, ed, 2018b – The Movements of Movements, Part 1 : What Makes Us Move ? (Indian edition). New Delhi : AuthorsUpfront, in collaboration with OpenWord and PM Press.  Hard copy available at MOM1AmazonIN <https://www.amazon.in/dp/9387280101/ref=sr_1_2?ie=UTF8&qid=1522884070&sr=8-2&keywords=movements+of+movements+jai+sen>, MOM1Flipkart <https://www.flipkart.com/the-movements-of-movements/p/itmf3zg7h79ecpgj?pid=9789387280106&lid=LSTBOK9789387280106NBA1CH&marketplace=FLIPKART&srno=s_1_1&otracker=search&fm=SEARCH&iid=ff35b702-e6a8-4423-b014-16c84f6f0092.9789387280106.SEARCH&ppt=Search%20Page>, and MOM1AUpFront <http://www.authorsupfront.com/movements.htm>
Jai Sen, ed, 2017 – The Movements of Movements, Part 1 : What Makes Us Move ?.  New Delhi : OpenWord and Oakland, CA : PM Press.  Ebook and hard copy available at PM Press <http://www.pmpress.org/>
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