Thursday, July 9, 2020

McGirt and Indigenous Peoples' Rights

On the last day of its 2019-2020 term, the U.S. Supreme Court issued what many consider to be an astonishing ruling: the eastern half of Oklahoma, including city of Tulsa, remains a reservation of the Creek Nation fully 180 years after it was established at the end of the  "trail of tears."

Why astonishing? Because it is a rare instance of the U.S. legal system upholding the rights of Native Americans to a measure of sovereignty, and holding the U.S. government to its own treaty language.

The case arose when Jimcy McGirt, a member of the Seminole tribe, was charged and convicted in state court of a heinous child rape. On appeal, McGirt argued that the state court had no jurisdiction because he was a Native American committing a major crime on Native land, and that his crime was subject to exclusive federal jurisdiction per federal statute. The dispute that made its way to the Supreme Court did not concern the particulars of McGirt's crime, but whether the land on which it was committed was truly "indian country," as required by the statute.  Justice Gorsuch, the only sitting justice who hails from West of the Mississippi, wrote the opinion, holding the federal government to the terms of its long ago agreement with the Creek Nation.     

This ruling, which directly affects only Native Americans defendants, certainly does not signal a free-for-all in eastern Oklahoma, but elevates the tribes as sovereign partners of the state. The Cherokee Nation Principal Chief Chuck Hoskin, Jr., issued this statement: "I agree with Justice Gorsuch’s opinion today that the United States government should be held to its treaty obligations, and its word. The Cherokee Nation is glad the U.S. Supreme Court has finally resolved this case and rendered a decision which recognizes that the reservation of the Creek Nation, and by extension the reservations of the Cherokee Nation, Chickasaw Nation, Choctaw Nation and Seminole Nation,  were never diminished and that our respective governments were never dissolved. This ruling does not mean that those who commit crimes on reservation lands will not face justice, no tribe would ever welcome that, and now we will continue to work with the state of Oklahoma and our federal and tribal partners on legal parameters under the decision today.” 

The Five Tribes also issued a joint statement, pledging that "The Nations and the State [Oklahoma] 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. We will continue our work, confident that we can accomplish more together than any of us could alone.” 

Native American individuals and groups have long been active before the United Nations and other international forums, challenging U.S. government actions that impinge on sacred lands, government refusals to honor tribal property claims, and other violations. Native Americans have often turned to these international forums because they so seldom received a fair hearing and satisfaction in domestic courts or other centers of domestic power. However, the McGirt ruling vindicates indigenous peoples' human rights in the face of longstanding land-grabbing by the states. And it opens the door to greater possibilities for domestic enforcement of those rights.

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