Indianz.Com > News > Trump administration deals with fallout from tribal victory at Supreme Court
U.S. Attorney General William Barr, left, speaks with President Donald Trump at Joint Base Andrews, Maryland, on September 1, 2020. Photo: Shealah Craighead / White House
Trump administration deals with fallout from tribal victory at Supreme Court
Wednesday, September 30, 2020

The Trump administration’s top legal official is in Oklahoma to learn more about the impacts of the historic U.S. Supreme Court decision that affirmed the treaty rights of the Muscogee (Creek) Nation.

But Attorney General William Barr, the head of the Department of Justice, is prepared to snub the tribe whose victory in the closely-watched McGirt case is still being celebrated across Indian Country. As of late Tuesday night, he hadn’t yet confirmed whether he would meet with leaders of the Creek Nation, whose reservation boundaries were confirmed by the high court’s landmark ruling.

“This is a huge faux pas,” one Oklahoma Indian insider said of the Trump administration’s failure to reach out to the Creeks.

And it’s not just Creek leaders who have been kept in the dark. According to officials from two tribes, the state’s Congressional delegation — all are Republicans, except for one — didn’t find out about Barr’s roundtable until Wednesday morning, much like the rest of the public.

As a result, at least one Republican lawmaker is also pushing for Barr to meet with the Creek Nation, according to a person briefed on the discussions that emerged once word got out about the high-profile visit from a member of Donald Trump’s Cabinet, less than 40 days from the presidential election.

The breaches of tribal and political protocol come as Barr makes his first to Indian Country in nearly a year. Last November, he traveled to the Flathead Reservation in Montana, where he met with leaders of the Confederated Salish and Kootenai Tribes and discussed efforts to address the crisis of missing and murdered Native Americans, especially women and girls, who are disappearing and being victimized at alarming rates.

The crisis has been the focus of Operation Lady Justice, a task force that was established by President Trump later that month. The group is co-chaired by Barr, though he has not participated in any of the listening sessions or tribal consultations that have taken place since the start of 2020.

Barr likewise has been silent about McGirt, even though the Trump administration participated in the case and argued against the continued existence of the Creek Reservation, a position rejected by the Supreme Court’s ruling of July 9. That changes with the roundtable that he is tasked with leading on Wednesday, an event being hosted by the Cherokee Nation.

Cherokee Chief Chuck Hoskin, Jr. agreed to host Barr at the tribe’s headquarters after being asked to do so by U.S. Attorney Trent Shores, the only Native American federal prosecutor in the Trump administration. A person familiar with the planning said the date for the event was finalized only within the past week or so.

Mindful of the COVID-19 health crisis that continues to impact communities across Indian Country, the Cherokee Nation insisted Barr and other attendees follow the tribe’s pandemic protocols, including social distancing and mask wearing. Following some opening remarks that are open to the media, the roundtable will take place behind closed doors at the W.W. Keeler Complex in Tahlequah.

Shores, who is a citizen of the Choctaw Nation, is among the participants. Since McGirt, his office has been prosecuting a growing number of cases that normally would have been handled by state authorities in Oklahoma.

But as Justice Neil Gorsuch pointed out in the Supreme Court’s 42-page ruling, the state’s repeated exercise of criminal jurisdiction within the Creek Nation has been “unlawful.” McGirt put an end to the abuses once and for all.

“Under our Constitution, states have no authority to re­duce federal reservations lying within their borders. Just imagine if they did,” Gorsuch observed in the decision. “A state could encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States.”

With the U.S. government now being held to its word, Shores has made no secret of the increased workload being taken on by the U.S. Attorney’s Office for the Northern District of Oklahoma. In August, he announced 50 grand jury indictments, a record amount that he tied directly to McGirt. This month, he revealed another first, of more than 60 indictments.

“Our attorneys, support staff, and administrative staff have worked tirelessly to pursue our mission of justice,” Shores said on September 14. “This month we were also lucky to have the help of federal prosecutors and support staff from other U.S. Attorney’s Offices who volunteered to work in Tulsa for the next six months. They were essential to our efforts this month and will continue to be so for the foreseeable future.”

According to Shores, who also chairs the Attorney General’s Advisory Subcommittee on Native American Issues, which advises Barr on a wide range of Indian Country justice matters, government employees from as far away as New York have come to Oklahoma to help address McGirt. And with more tribes eager for their reservation boundaries to be confirmed in the same manner as the Creek Nation, the impacts of the decision are only expected to grow.

“It’s a historic time for the Muscogee (Creek) Nation,” Joseph Byrd, the newly installed chairman of the Quapaw Nation, said in an interview, sharing a sentiment of solidarity widely held throughout Indian Country. “It is a Muscogee (Creek) Nation win, first and foremost.”

As he mounted his election campaign in Oklahoma, Byrd graduated from the University of New Mexico School of Law — virtually, of course, due to the pandemic. Describing himself as a “staunch proponent of Indian tribal sovereignty,” he said McGirt confirms what his people have known all along.

“Absolutely, the Quapaw Nation reservation exists, and even the signs that go into our jurisdictional boundaries say so,” asserted Byrd, who took office in early August following the defeat of John Berrey, the tribe’s longtime former chairman.

“The majority of tribes in the eastern part of Oklahoma feel like the Muscogee (Creek) Nation win is a win for all of Indian Country,” added Byrd, who is the son of Joe Byrd, a former chief and current council member for the Cherokee Nation.

Byrd isn’t the only one touting the seemingly inevitable outcome of McGirt. Even Google Maps, the mapping service run by one of the biggest companies in the world, recognizes the boundaries of the Muscogee (Creek) Nation, the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation. Together, the Five Tribes account for about 40 percent of Oklahoma’s land base.

“After the monumental US Supreme Court ruling in McGirt v Oklahoma, we’ve had many questions about our reservation boundaries, which always existed on paper maps. Cherokee Chief Hoskin said last week. “Now that our reservation is labeled on Google Maps, it’s easy for people around the world to search and see our reservation boundaries.”

“It is an exciting step forward to be included on the map,” Cherokee citizen and scholar Joseph Erb said. “This is a visual reminder that our nation is still here and a contemporary Indigenous nation of [this] Continent.”

U.S. Supreme Court – McGirt v. Oklahoma – July 9, 2020

U.S. Supreme Court – Sharp v. Murphy – July 9, 2020

Indianz.Com Audio: U.S. Supreme Court – McGirt v. Oklahoma – May 11, 2020