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What If All Native Treaties Were Upheld?


Source: The Intercept

The U.S. Supreme Court issued a decision last week that altered the map of Oklahoma. The eastern half of the state, including much of Tulsa, is now, for legal purposes, Indian country. The Supreme Court decision was uncommon — Indigenous people have seen few victories so sweeping in the high court — but treaty violations like those that occurred in Oklahoma are not.

“The rule of thumb is every treaty’s been broken,” said Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University.

Going back to the original treaty texts would make broad swaths of the nation Native territory. That means Indigenous people would have a stronger voice on environmental enforcement, more of a say on fossil fuel infrastructure construction, be able to better control the fate of Native children removed from their parents’ home, and less likely to be tried in local courts where district attorneys are elected using racist, tough-on-crime politics. Beyond control over the land itself, the treaties lay the groundwork for obligations requiring the federal government to provide adequate resources to support health care, safety, and education — which have never been fulfilled.

“There are these treaty promises and treaty rights, but tribes have to litigate to make them real, especially in the modern era.”

Powerful Native movements in the U.S. — from the American Indian Movement in the 1970s to the Standing Rock movement in 2016 — have centered around fulfilling treaty obligations. The McGirt v. Oklahoma decision last week provides a window into what treaty fulfillment would mean — and an invitation for action by Congress, courts, and the executive branch, especially if a Democratic president is elected in November.

“As important and right on as this decision is, it does not give tribes anything new,” Sarah Krakoff, a law professor at the University of Colorado, told The Intercept. “There are these treaty promises and treaty rights, but tribes have to litigate to make them real, especially in the modern era, because from the time the treaties were negotiated until now, federal Indian policies abandoned commitment to treaties.”

Rulings like the one in Oklahoma, she added, affirm a reality that has been routinely ignored: “Treaties are the law of the land.”

The McGirt Effect in Oklahoma

McGirt v. Oklahoma centered on whether or not Jimcy McGirt, a Seminole man convicted of sex offenses by an Oklahoma court, committed his crimes on reservation land. When felonies like murder, kidnapping, burglary, and sexual abuse are carried out in “Indian country,” and involve defendants or victims who are Native American, they must be tried in federal court, rather than state court. In order to get McGirt a new trial, his lawyers argued that the Creek Reservation, established by an 1833 treaty, never ceased to exist and their client was tried in the wrong court.

The majority opinion, written by Justice Neil Gorsuch, who was appointed by President Donald Trump, lays out the sordid history of the United States’s repeated violations of its treaties with the Muscogee people, dubbed the Creek by settlers. The U.S. government typically obtained treaties coercively, through threatening violence or starvation. In the 1830s, the Muscogee, Cherokee, Seminole, Chickasaw, and Choctaw people were forcibly removed from their homelands in the Southeast to what is now eastern Oklahoma. Among the Muscogee (Creek) alone, an estimated 3,500 of 15,000 people died en route to their new territory, a journey known as the Trail of Tears. As Gorsuch noted, “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.”

According to Gorsuch, treaties can be legally broken, as long as it’s Congress that does it. Indeed, Congress has repeatedly voted to break the Muscogee (Creek)’s treaty. But it’s not legal for the executive branch, the courts, or the state of Oklahoma to break a treaty. “Whatever the confluence of reasons, in all this history there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation,” says the opinion.

The decision’s most immediate impacts are that McGirt will get a new trial, future cases like his will be tried in federal court, and a number of people currently incarcerated will have an opportunity to have their case retried, if they want.

1 comment

  1. avatar
    Michael July 18, 2020 10:16 am 

    I am a white man and I say “Bring on native rights!”

    The unjust, uncivilized, monstrous attacks on indigenous people was how this US empire began. Hopefully, the recognition of native rights can lead to a more just world, not only in the US, but in the world.

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