On July 9, the U.S. Supreme Court ruled 5 to 4 in a case that indigenous people and their advocates are calling the most important in at least half a century. The decision held that the eastern half of Oklahoma is part of the Muskogee Creek reservation, with major implications for indigenous tribes’ legal jurisdiction. However, the ruling does not mean property owners in that part of the state will lose their land.
The case – McGirt v Oklahoma – was brought by a native man convicted of sexually abusing a 4-year-old girl on reservation land. He was convicted in state court and sentenced to 1,000 years in state prison. The Supreme Court ruling will not likely result in the freeing of the convicted man, but rather would transfer his case to a federal court for retrial.
The decision has important implications for four other tribes in Oklahoma – the Cherokee, the Seminoles, the Choctaws and Chickasaws. Between The Lines’ Melinda Tuhus spoke with Sarah Deer, a member of the Muskogee nation, a lawyer and professor of women, gender, and sexuality studies at the University of Kansas. Here, she reflects on the importance of the case for indigenous nations’ judicial rights and federal law.
SARAH DEER: There is no change in land ownership. In other words, this idea that, you know, the tribe is going to be able to take land away from white people or somehow upend, you know, the role of the state in every day, day-to-day business. And none of that, none of that changes. It is a change in the conception of a reservation – it’s different and distinct from actually Indian land. And I think that’s why it’s so confusing for a lot of folks.
MELINDA TUHUS: You and others have said the Supreme Court decision is the most important for Indian rights in many decades. Why?
SARAH DEER: Absolutely, because in this decision, the court was very clear that in order for a reservation to go away or be disestablished, it has to be done by Congress and it has to be done explicitly. Now, the Supreme Court has upheld all kinds of treaty abrogations over the years. But when they’ve done that they’ve said, “Here Congress specifically articulated the end of that treaty.” Because the United States has not opted out of our treaty, it still exists. And so that has implications for any treaty tribes that are trying to assert their authority on the reservation or on the Indian land they’ve been promised. It has potential impact for many, many different tribes, not just those in Oklahoma.
MELINDA TUHUS: Neil Gorsuch, a conservative member of the court appointed by Donald Trump joined the four liberal justices in this ruling. And he actually wrote the decision.
SARAH DEER: And, you know, it’s interesting because the whole issue of sort of liberal versus conservative justices actually doesn’t play out when it comes to Indian country, interestingly enough. So Ruth Bader Ginsburg has authored some really problematic decisions that affected tribal nations. And then we have someone like Gorsuch and even Clarence Thomas about four years ago wrote a unanimous decision supporting tribal interests. So it’s not easy to predict how the justices will vote on these cases.
MELINDA TUHUS: I’ve spoken to professors at the Yale Law School who are experts in Indian law. Since Native Americans are citizens of their own 500-plus federally recognized tribes, but also citizens of the U.S., jurisdictional issues are very complicated, aren’t they?
SARAH DEER: It’s very, very complicated. It takes at least a semester in law school to fully get your head wrapped around it. And the reason it’s so confusing is because the United States has changed its perspective on tribal sovereignty over time. So starting in the 1930s, the United States had a policy of helping tribes develop their own governments with constitutions. Then in the 1950s, the goal was to terminate tribal nations and actually, do away with the separate identity. And then again, in the late 1960s and early ’70s, the United States returned to a policy of self-determination.
So when you have those different policies over time and laws are passed and not repealed, you end up with a very confusing spectrum of jurisdiction. It also differs from state to state. So it’s very difficult to sort of know exactly what the ramifications of something are going to be because it plays out so differently, sort of depending on where you are, depending on the treaties and depending on how the federal government has interpreted those treaties.
MELINDA TUHUS: Professor Sarah Deer, you have said that tribal sovereignty is the key to protecting indigenous people from violence. How so?
SARAH DEER: Yeah, I think that tribal nations are in the best position to make decisions about how to keep their citizens safe. Now that doesn’t mean that every tribe does that, right? We have problematic states that don’t protect their citizens very well. And don’t protect people from police brutality very well, right? So (inaudible) that tribal nations are going to be the, you know, the experts on how to do this, but we can work as tribal citizens within our tribal governments to make changes, that will better protect our community where we don’t really have the ability to do that, you know, through the state or through the federal government. But we can do that as a sovereign nation.
MELINDA TUHUS: Well, federal, as well as the state’s approach to criminal justice leaves a lot to be desired in terms of human rights violations and high recidivism rates. Are there other models out there in Indian country?
SARAH DEER: I think it’s going to depend on the tribal nation, but yes, there is a lot of discussion among tribal attorneys that replicating Western law and order is certainly fraught. And there are many tribes that do operate sort of a Western law and order. A tribal court sort of looks like a state court, sounds like a state court, but they’re applying tribal law. But there are other tribes that still maintain their traditional methods of dispute resolution. And so in cases, you know, maybe not in a child sex abuse case, but in cases where you’ve got drug abuse or you have juveniles that are not going to school, you know, some of those things, you know, we don’t need to be punitive about some of those things and the tribal nation might have a better approach to people’s struggles, than the state court system.
MELINDA TUHUS: Is there anything else you think people should know about this very important decision?
SARAH DEER: People might want to know a little bit more about how the decision affects civil jurisdiction. It was about criminal law, but recognizing or reaffirming, rather, a reservation boundary also has implications potentially for Indian child welfare cases and for some civil jurisdiction questions. The implications aren’t entirely clear since the case focused on criminal law, but there’s going to be a lot of effort to address the question of civil jurisdiction.
For more information, visit Sarah Deer’s website at sarahdeer.com.