A recent Supreme court ruling has given Native Americans in Oklahoma renewed sovereignty over their tribal lands — an area of roughly 19 million acres.
The land in question marked the end of the Trail of Tears for the five tribes that underwent forced relocation in the mid-1800s: the Cherokee, Chickasaw, Choctaw, Seminole, and Muscogee Creek. They built a new life in eastern Oklahoma, only to have their land stripped away, bit by bit, over the next century and a half.
But this past summer, in a historic 5-4 decision for which Justice Neil Gorsuch wrote the majority opinion, the Supreme Court reaffirmed in McGirt v. Oklahoma that the boundaries of Muscogee (Creek) Nation still exist — meaning the tribe, not the state of Oklahoma, holds some key jurisdictional powers.
“The simplest way to say what happened is that prior to this ruling, Oklahoma was exerting criminal jurisdiction over us, and Oklahoma no longer has that criminal jurisdiction,” explains Rebecca Nagle, a member of Cherokee Nation and host of the podcast “This Land,” which tracks the pair of cases that led to the Supreme Court ruling.
“It never actually had it in the first place; it was exercising it illegally,” she says. “Now, the Supreme Court has basically told them that they have to stop. So now, crimes committed against Native Americans or by Native Americans will have to be prosecuted either by the tribe or by the federal government.”
Gorsuch's decision wasn't new law, Nagle notes. “He didn't set a new precedent at all. All he did was follow the law. But he followed it in a way that was very plain.”
Nagle says there is one “amazing paragraph” in Gorsuch’s opinion in which he declares that there is no other area of American life in which courts would say that a law passed by Congress but not followed by a state should no longer be enforced simply because the state failed to apply the law properly for so long.
“He basically [said], ‘We would do that nowhere else, but we do it within federal Indian law all the time,’” Nagle explains. “So, he kind of drew this line in the sand in the way he wrote the decision, [saying], ‘We reject this thinking — that because treaty rights have been violated for so long they're no longer valid.’ And that is actually is a big deal. Even though it shouldn't be, it's a big deal.”
Practically speaking, the decision asserts that the boundaries established by the 1866 Treaty between the Native American people and the US government have been intact since then, even though Oklahoma has not recognized them.
For a lot of Oklahomans, not much will change, Nagle says. Tribal jurisdiction over non-American Indians and non-American Indians on what's called fee land — that is, reservation land owned by non-Indians — is limited. “The people directly affected by the ruling are tribal citizens living on the reservations,” she says.
Much of Native American land in Oklahoma was originally lost through a process called an allotment — a federal act based on the misguided notion that Native American people would be better off if their lands were privatized and held by individuals rather than communally. “So, the federal government came in and basically divided up Indian territory in eastern Oklahoma, and assigned individual plots of land to individual tribal citizens — and the net impact was devastating for tribal citizens,” Nagle says.
“Most of the land quickly passed to white ownership through sale, through swindle, and often through outright theft and even violence,” she explains. “The Indian landowners were really preyed upon by white settlers and grafters. It’s a really dark chapter in history for our tribe. … We have still been losing restricted land and land that's considered tribal land in the century since. This decision…sort of puts a pause on that process and lets us strengthen our sovereignty.”
The Supreme Court decision does not mean that land currently held by non-tribal, non-Native owners in the boundaries of the Muscogee Creek Reservation will be taken away from them and transferred to the tribes. But it does raise the question of how laws and regulations, such as environmental statutes, will now be applied within tribal jurisdictions. Native tribes have struggled to exert authority over polluting industries, for example, and Nagle is concerned that will remain a problem.
Some environmental protection laws, like the Clean Water Act and the Clean Air Act, give tribes the same regulatory authority as states. But the oil and gas industry has a lot of power in Oklahoma, and about 15 years ago, one of the state’s senators, James Inhofe, snuck a rider into a transportation bill that “blocks the EPA from recognizing the sovereignty of Oklahoma tribes without the state’s approval,” according to the website indianz.com. “No other tribe in the nation has to meet this requirement.”
Now, in the wake of the recent Supreme Court decision, Oklahoma’s governor Kevin Stitt formed a “commission” to “chart a path forward,” Nagle says.
“It’s basically a bunch of cronies from the oil industry and [has], I think, one seat to represent tribes,” Nagle says. “So there's still this effort afoot in Oklahoma to limit tribal jurisdiction and to sort of tip the [scales] in the favor of the oil industry.”
Nevertheless, Nagle believes Gorsuch’s opinion will be a powerful legal tool for tribes in cases in which states claim that the consequences of following the terms of an old treaty are too great and that 100 years of neglecting a treaty entitles them to continue to neglect it.
“The Supreme Court, in their opinion, rejected that thinking,” she says. “It's a huge victory, obviously, for Muscogee Creek Nation. It has very powerful implications for all five tribes here in Oklahoma. But I think overall, it's a huge victory for all of Indian country.”
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