The nine members of the U.S. Supreme Court. Front row, from left: Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Jr., Associate Justice Clarence Thomas, Associate Justice Stephen G. Breyer. Back row: Associate Justice Elena Kagan, Associate Justice Samuel A. Alito, Jr., Associate Justice Sonia Sotomayor, Associate Justice Neil M. Gorsuch. Photo: Franz Jantzen / Collection of the Supreme Court of the United States

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'On the far end of the Trail of Tears': Nation's highest court holds U.S. to promise in tribal treaty

Thursday, July 9, 2020

By Acee Agoyo

The Trump administration suffered yet another rebuke of its Indian Country policy with a narrow but clear victory in a closely-watched tribal sovereignty case.

By a vote of 5 to 4, the U.S. Supreme Court on Thursday held that the federal government must indeed live up to its word by honoring a treaty that promised a "forever" homeland to the Muscogee (Creek) Nation. The landmark yet straightforward decision, coming on the last day of a tumultuous term that had been upended by the COVID-19 pandemic, was written by one of the president's own nominees to the federal bench.

"On the far end of the Trail of Tears was a promise," Justice Neil Gorsuch wrote in the opening of the high court's highly anticipated opinion, evoking the genocidal removal instigated by Donald Trump's presidential idol. "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."

From left: Second Chief Del Beaver, Creek National Council Second Speaker Darrell Proctor, Creek National Council Speaker Randall Hicks, Principal Chief David Hill, Secretary of Education Greg Anderson and Creek Nation Ambassador Jonodev Chaudhuri at the U.S. Supreme Court in Washington, D.C., on February 11, 2020. Photo courtesy Jason Salsman / Muscogee (Creek) Nation

Gorsuch, whose experience in Indian law is unprecedented in Supreme Court history, easily explained over 42 pages why treaty rights still matter, despite the dark history. Even though Congress has treated the tribe in an inconsistent manner since the government-to-government document was signed 154 years ago, he confirmed the Creek Reservation in eastern Oklahoma still exists.

"Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law," Gorsuch wrote in a decision that was joined by four of the more liberal-leaning member of the court. "Because Congress has not said otherwise, we hold the government to its word."

The outcome represents a strong blow to the Trump administration and to the state of Oklahoma, whose arguments in the case were reminiscent of bygone eras in federal policy, during which upholding tribal sovereignty was deemed inconvenient. Gorsuch said those lines of defense fell into a "sadly familiar pattern" of ignoring the rights of the first Americans.

"Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye," Grosuch observed of those kinds of arguments,

"We reject that thinking," the decision stated.

With President Donald Trump looking on, Supreme Court Justice Anthony M. Kennedy, swears-in Neil M. Gorsuch to be the Supreme Court's 113th Justice during a ceremony in the Rose Garden of the White House in Washington, D.C. , on April 10, 2017. Justice Gorsuch’s wife, Louise, holds a family Bible. Photo: Shealah Craighead / White House

But if Trump, whose nomination of Gorsuch to the Supreme Court was one the first major actions of his presidency, was unhappy with the defeat, he sure didn't express it. He instead spent the morning decrying a different ruling that subjects his personal finances to public scrutiny for the first time since he declared his candidacy five years ago.

"PRESIDENTIAL HARASSMENT!" Trump wrote on social media after losing a case in which his access to his financial records remains in dispute.

The lack of a reaction from the White House left Indian Country reveling in the long-overdue victory. The case, known as McGirt v. Oklahoma, is connected to an even older matter, Sharp v. Murphy, finally confirmed what the Muscogee (Creek) Nation knew all along -- that the treaty obligation had never been withdrawn.

"The Supreme Court today kept the United States’ sacred promise to the Muscogee (Creek) Nation of a protected reservation," the tribe said in a statement. "Today’s decision will allow the Nation to honor our ancestors by maintaining our established sovereignty and territorial boundaries."

Further, the outcome confirms that Jimcy McGirt, a citizen of the Seminole Nation, should have been tried in the federal system for a crime committed within the Creek Reservation. He had been prosecuted by the state of Oklahoma but that action, as Gorsuch pointed out, was "unlawful" and can't be rewarded by the highest court in the land.

“The Supreme Court reaffirmed today that when the United States makes promises, the courts will keep those promises. Congress persuaded the Creek Nation to walk the Trail of Tears with promises of a reservation — and the Court today correctly recognized that that this reservation endures," McGirt's attorney, Ian Heath Gershengorn, said in a statement on Monday.

Gershengorn also represented Patrick Dwayne Murphy, a Creek citizen whose unlawful prosecution by the state of Oklahoma was the subject of the earlier matter that had never been resolved by the high court. His criminal case, as well as those of of four other Indian defendants, must now be handled by federal prosecutors, possibly in cooperation with tribal authorities.

“As Oklahoma’s United States Attorneys, we are confident tribal, state, local, and federal law enforcement will work together to continue providing exceptional public safety under this new ruling by the United States Supreme Court," the three top federal prosecutors -- all of whom were nominated to their positions by Trump -- said in a rare joint statement, acknowledging the lay of the land

McGirt v. Oklahoma | U.S. Supreme Court
Watch a replay of the historic U.S. Supreme Court oral argument in McGirt v. Oklahoma! With the nation's highest court closed due to the #COVID19 pandemic, case was heard via teleconference on May 11, 2020. The outcome will impact the sovereign status of millions of acres of land promised to Indian Nations in eastern #Oklahoma. Audio and Transcript: Oyez, www.oyez.org/cases/2019/18-9526 (CC BY-NC 4.0)
Posted by Indianz.Com on Sunday, May 17, 2020

Indianz.Com Replay: U.S. Supreme Court - McGirt v. Oklahoma

Also voicing conciliatory tones was the state of Oklahoma. Rather than criticize the decision, the office of Republican Attorney General Mike Hunter joined the Muscogee (Creek) Nation, the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation in promising an era of respect going forward.

"The Nations and the State 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," the statment read. "We will continue our work, confident that we can accomplish more together than any of us could alone."

Collectively, the Creek, Cherokee, Chickasaw, Choctaw and Seminole nations are sometimes referred to as the Five Civilized Tribes. Each signed treaties with the U.S. that also guaranteed them reservations in eastern Oklahoma, and while their histories were not at issue in McGirt, their leadership welcomed the ruling as an affirmation of their treaty rights.

"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 Nations, were never diminished and that our respective governments were never dissolved," Cherokee Chief Chuck Hoskin, Jr., who also serves as president of the Intertribal Council of the Five Civilized Tribes, said in a statement.

"I agree with Justice Gorsuch’s opinion today that the United States government should be held to its treaty obligations, & its word": Cherokee Nation Chief Chuck Hoskin Jr. on #SupremeCourt win in #McGirt. #HonorTheTreaties @ChuckHoskin_Jr @CherokeeNation https://t.co/F2B9u3r1MF pic.twitter.com/qwVyqh67nt
— indianz.com (@indianz) July 9, 2020

The Chickasaw Nation also applauded the decision. A statement shared by Governor Bill Anoatubby, the tribe's long-time leader, highlighted a passage in Gorsuch's opinion that commended tribes and the state of Oklahoma for proving "they can work success fully together as partners."

"Regardless of any court ruling, far more unites us than ever separates us, and the Chickasaw Nation looks forward to continuing its cooperation and collaborative partnerships with state and local law enforcement to ensure public safety and well-being throughout Oklahoma," the statement read.

But where tribes and at least the state government saw opportunities, other politicians from Oklahoma found problems. None of them outright congratulated the Muscogee (Creek) Nation on the treaty rights victory, with lawmakers choosing to focus on different and even unrelated aspects of the case.

In wake of #McGirt, Oklahoma politicians are avoiding the obvious: Admitting that reservation promised to Muscogee (Creek) Nation by treaty still exists. Sen. Jim Inhofe (R): "We have a duty to all American citizens to uphold the Constitution and stand up for victim’s rights." pic.twitter.com/1mqVZ4bNIw
— indianz.com (@indianz) July 9, 2020

"I have no doubt we can work together with state officials, tribal organizations and the delegation to find a workable solution for everyone that ensures criminals are prosecuted and brought to justice in the most appropriate manner," said Sen. Jim Inhofe (R-Oklahoma), without saying what "solution" he was looking to fix.

“The work will continue in the days ahead to clarify a framework for criminal and civil regulatory jurisdiction that provides consistency and predictability for all people living and doing business within the state," added Sen. James Lankford (R), who serves on the Senate Committee on Indian Affairs. But he did not explain why civil issues need to be addressed in what had been solely a case of which authorities -- tribal, federal and state -- can prosecute criminal offenses committed by Indians within the boundaries of the Creek Reservation.

A joint statement from the five members of Oklahoma's delegation in the U.S. House of Representatives came across just as muddy. Even though two tribal citizens -- Rep. Tom Cole (R), who is Chickasaw, and Rep. Markwayne Mullin (R), who is Cherokee -- signed onto it, all they could muster was a need to "both affirm tribal sovereignty and ensure safety and justice for all Oklahomans.”

"We are reviewing the decision carefully and stand ready to work with both tribal and state officials to ensure stability and consistency in applying law that brings all criminals to justice," Cole and Mullin wrote, along with Rep. Kevin Hern (R), Rep. Frank Lucas (R) and Rep. Kendra Horn (D).

"On the far end of the Trail of Tears was a promise. We are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word." Justice Gorsuch
— The Seminole Nation of Oklahoma (@SeminoleNation_) July 9, 2020

Later in the day, the sole Democratic member Horn said on social media that she was still reviewing the decision. But she added: "We must keep promises made to Tribal Nations."

Lawmakers from a neighboring state were far more pronounced in embracing the significance of McGirt. Rep. Deb Haaland (D-New Mexico), who is one of the first two Native women to serve in the House, called the decision a benchmark for the unique legal and political relationship between tribal nations and the United States government.

“This country was founded on indigenous land and the United States government signed binding treaties with Tribes, but the federal government’s actions demonstrate a lack of respect and breach of those agreements made with Native Nations," Haaland, who is a citizen of the Pueblo of Laguna, said in her statement. "Today’s Supreme Court decision affirms the obligation to honor treaties and sets an important precedent to affirm the rights Tribes have to lands that belong to them.

“As we move forward addressing longstanding broken promises, this decision will serve as a marker to ensure the federal government honors its promises to Native Nations," Haaland added.

Sen. Tom Udall (D-New Mexico): "This decision is a landmark victory for Indian Country, upholding the United States’ treaty obligations to the Creek Nation of Oklahoma and treaty Tribes across the country." #McGirt #HonorTheTreaties @SenatorTomUdall https://t.co/VsyLd40ZAv pic.twitter.com/ohbnANoCom
— indianz.com (@indianz) July 9, 2020

Sen. Tom Udall (D-New Mexico), the vice chairman of the Senate Committee of Indian Affairs, hailed the "landmark victory for Indian Country."

"The Supreme Court has affirmed that a promise is a promise: that treaties between the United States and tribes are the law of the land – no matter how many times the federal government has violated those treaties in the past – and that lands reserved for tribes remain Indian Country, now and in the future," said Udall. "While no court decision can correct centuries of injustice committed against Indigenous people, today’s ruling is a historic step forward to safeguard tribal sovereignty for decades to come.”

Indian law experts also embraced the victory. Gavin Clarkson, a citizen of the Choctaw Nation, credited Gorsuch's presence with finally bringing resolution to the dispute, which has been on the Supreme Court's radar for more than two years.

"Fortunately for Indian Country, Gorsuch’s opinion clearly demonstrated adherence to the notion that judges should always start with the law as actually written, not as they wish it had been," said Clarkson, who formerly served in the Donald Trump administration but did have a role in the handling of the case. "His opinion also reminds us of the history of government actions -- including Supreme Court decisions -- that have done otherwise."

"His description of what would, and often does, happen when governments don’t follow the law shows that he fully understands his role as a Supreme Court Justice," added Clarkson, who recently sought the Republican nomination for an open U.S. Senate seat in New Mexico.

Forrest Tahdooahnippah, another Indian law expert, highlighted Gorsuch as well. Since joining the Supreme Court three years ago, the justice has already written an opinion affirming treaty rights in one case and provided a crucial vote for upholding treaty rights in another.

"The long term implications of McGirt are a solidification and entrenchment of the law regarding interpretation of treaties between the United States and Indian tribes," said Tahdooahnippah, who is a citizen of the Comanche Nation, also based in Oklahoma. "McGirt confirms that Congressional intent, and clear Congressional action in particular, is required to alter Indian treaties."

"From this perspective, Justice Gorsuch’s opinion is a continuation of a trend seen during his tenure toward affirmation of treaty rights by the Supreme Court," said Tahdooahnippah.

The U.S. Supreme Court in Washington, D.C., is seen during a KnowHerToo sit-in on July 4, 2020, held to call attention to the police shooting of Breonna Taylor, a 27-year-old African-American woman who was killed in Louisville, Kentucky, March 13, 2020. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Despite Gorsuch's clear statements about honoring tribal treaties, the dissenting members of the high court were firmly in the Trump administration's camp in McGirt. Chief Justice John G. Roberts, Jr., who was nominated by Republican president George W. Bush, opened his missive by outlining the heinous crimes McGirt has been accused of committing.

He also appeared eager to place the Five Civilized Tribes on the wrong side of the Civil War, implying that their past meant that the U.S. government was not required to keep its promises to them.

"A century of practice confirms that the Five Tribes’ prior domains were extinguished," Roberts wrote in the 37-page dissent. "The state has maintained unquestioned jurisdiction for more than 100 years. Tribe members make up less than 10%–15% of the population of their former domain, and until a few years ago the Creek Nation itself acknowledged that it no longer possessed the reservation the court discovers today."

Justice Clarence Thomas, who almost always goes against tribal interests in Indian law cases, joined Roberts and his conservative leaning colleagues in the dissent. But he also wrote separately to argue that that the court shouldn't have taken on McGirt in the first place.

"The state of Oklahoma deserves more respect under our Constitution’s federal system," Thomas wrote in his four-page dissent. He said nothing of the respect that should be afforded to tribal nations, whose sovereignty is also recognized in America's governing document.