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

July 9, 2020


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: “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 But Congress has never withdrawn the promised reservation.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 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, 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 with Oklahoma’s tribes regarding Tribal Gaming Compacts.

Jordan Harmon, 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 Landpodcast, 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.
Learn more here: ienearth.org
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