Supreme Court takes up sovereignty case amid coronavirus crisis in Indian Country

Monday, May 11, 2020  

Despite recent improvements in government-to-government relations, Indian nations are still finding themselves at odds with states and even their own trustee amid the worst public health crisis to hit their communities in decades.

As debate over coronavirus checkpoints in Republican-led South Dakota drew huge headlines in the national media, the Muscogee (Creek) Nation once again found itself in a familiar place on Monday morning. The tribe's sovereignty was under attack at the highest court in the land.

During a lengthy hearing before the U.S. Supreme Court, the state of Oklahoma asserted that the tribe's homelands, which were promised by treaty in the late 1800s, no longed existed as Indian Country. The argument deprives the Creek people of the ability to exercise their inherent rights over their own territory.

“Now, assuming the land was a reservation, Congress stripped away all semblance of reservation status," Mithun Mansinghani, the Solicitor General for Oklahoma, told the justices at what was supposed to be an hour of arguments that went well beyond that.

The assault didn't just come from the state. Though the U.S. government has taken on moral obligations of the highest responsibility and trust to Indian nations and their people, the Trump administration is walking away from those duties now that the sovereign status of millions of acres are at stake in another Republican-friendly place.

"In preparing the Indian territory for statehood, Congress eliminated all the hallmarks of a reservation," said Edwin Kneedler, the Deputy Solicitor General at the Department of Justice. "Congress broke up the tribe's national domain and extinguished the tribe's interest in it."

The clash was a repeat of one that took place some 18 months ago, long before the coronavirus shut down operations across Indian Country and forced the Supreme Court first to postpone the hearing and then to find another way to hear the case without doing it in person. Tribal interests were advanced by the two same attorneys from the previous proceeding, and the arguments were no less forceful amid the pandemic that has threatened the well-being of the first Americans.

“Congress never terminated the Creek Reservation," said attorney Ian Gershengorn, highlighting one of the factors the justices are supposed to consider in cases of this nature, the last of which arose only four years ago and was decided by a unanimous vote in favor of Indian interests.

“Congress did not transfer criminal jurisdiction to Oklahoma," added Gershengorn, responding to another line of attack that arose when the Supreme Court was unable to come to a conclusion about the status of millions of acres in the eastern part of the state.

A historic morning here at tribal headquarters as Muscogee (Creek) Nation Principal Chief David Hill and Second Chief Del Beaver listen live to oral arguments before the Supreme Court in McGirt v. Oklahoma. @indianz @IndianCountry @tulsaworld @TheOklahoman_ pic.twitter.com/yJktsi9rF3

— Jason Salsman (@RealJSals) May 11, 2020

Riyaz Kanji, who argued on behalf of the Muscogee (Creek) Nation, also pushed back against the nation that the tribe's reservation has been diminished. But he too had to react to questions about the potentially significant outcomes the case might have on the ground in Oklahoma -- in other words, how non-Indians would be affected.

"If we prevail, state law does not evaporate in the reservation," Kanzji said. "Under this court's doctrines, state law applies in many situations with respect to -- especially with respect to the non-Indians in the area."

Disruptions in Oklahoma were in fact brought up by Mansinghani. He claimed that more than 3,000 Indian inmates whose crimes were prosecuted in the state system might seek to have their convictions overturned even though some members of the court pointed out that federal punishments are often harsher.

In the words of Justice Sonia Sotomayor, the "risk would be too high" for some of the Indian inmates.

“[...] it was very disturbing to see Oklahoma misrepresent the numbers on how many criminals will be ‘released’ if the #SCOTUS maintains the status quo & concludes the Muscogee (Creek) Nation's reservation still exists." -@MKNAGLE, NIWRC Counsel.

More at https://t.co/4IBx1dzHvq pic.twitter.com/B1jO1Oz3Gu

— National Indigenous Women's Resource Center (@niwrc) May 11, 2020

But some of Mansinghani figures were not based on actual data but on mathematical assumptions. Since the population in the eastern Oklahoma is about 12 percent Native American, he reasoned that they will commit an equally proportionate number of felonies in the region.

"So only including crimes committed by Native Americans, that would be 4,000 new felonies a year that the federal government would have to prosecute," Mansinghani said of these so-called "future" crimes.

That number apparently wasn't high enough so Mansinghani decided to double it. "Including crimes where the Native American is the victim, you can take that to about 8,000," he told the court.

Notably, the hearing was Mansinghani's debut before the Supreme Court.

The purported statistics elicited a strong objection from Gershengorn, who is representing Jimcy McGirt, an Indian inmate who is among the 178 -- a far smaller number -- who have actually filed petitions questioning the state's jurisdiction. He noted that Oklahoma raised the figures up for the first time at the hearing.

"The numbers today are mind-boggling and back of the envelope," Gershengorn said. "They don't appear in any of the briefs."

Leaders of the Muscogee (Creek) Nation listened to the hearing from tribal headquarters in Oklahoma. Though they had been in Washington, D.C., on the day their brief was filed with the Supreme Court, the coronavirus made it impossible for them to stand up for their sovereignty in person.

"Important day for our people and for Indian Country," Creek leaders said in a message to Indianz.Com shortly before the hearing began.

Amid #COVID19 pandemic, the U.S. Supreme Court on May 11, 2020, will hear arguments in one of the most important Indian Country cases in decades. Cherokee journalist Rebecca Nagle @rebeccanagle has more in The Atlantic @TheAtlantic. #ThisLand #Sovereigntyhttps://t.co/Pp5IKrs3io

— indianz.com (@indianz) May 8, 2020

The National Indigenous Women’s Resource was among the scores of tribes, advocates and organizations that supported the continued existence of the Creek Reservation. The group accused the state of Oklahoma of spreading "misinformation" about crime, whose actual statistics show that American Indians and Alaska Natives, women and men alike, are more likely to be victimized than any other racial or ethnic group. The data also shows that the majority of the offenders are non-Indians.

"It is disappointing that Oklahoma is spreading misinformation to insight fear about the consequences that a Creek Nation victory will bring,” said Cherrah Giles, a Creek citizen who serves as chair of NIWRC's board. “Affirming the tribe’s reservation will not result in the release of thousands of criminals as suggested, but instead will help to protect and safeguard Oklahoma’s most vulnerable population – Native women and children.

"During this morning’s argument, it was clear that several of the Justices understand the importance of maintaining the Court’s current governing precedent that Congress, and Congress alone, can disestablish a reservation created by treaty,” added attorney Mary Kathryn Nagle, a citizen of the Cherokee Nation who helped submit NIWRC's brief. “However, it was very disturbing to see Oklahoma misrepresent the numbers on how many criminals will be ‘released’ if the Supreme Court maintains the status quo and concludes the MCN’s reservation still exists."

The case argued on Monday is McGirt v. Oklahoma. It is the second to come before the Supreme Court regarding the status of the Muscogee (Creek) Nation.

The first was Sharp v. Murphy, which was heard during the court's October 2018 term. But the justices were unable to reach a decision for unexplained reasons, though some have speculated that the absence of Justice Neil Gorsuch from the case prevented the remaining 8 members from coming to a consensus on the dispute.

Gorsuch, whose record in Indian law in unprecedented in Supreme Court history, participated in McGirt. Tribal advocates believe his background, which includes resolving reservation status issues, will help convince his colleagues to arrive at a decision.

With its building closed to the public due to the coronavirus, the Supreme Court is about to wrap up its current term. McGirt is the only Indian law case on the docket.

The October 2019 runs through the end of June so a decision in McGirt should come before then.

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