{"id":2341,"date":"2020-10-08T08:27:53","date_gmt":"2020-10-08T13:27:53","guid":{"rendered":"https:\/\/www.indianz.com\/News\/?p=2341"},"modified":"2020-10-08T08:57:21","modified_gmt":"2020-10-08T13:57:21","slug":"peter-derrico-racist-indian-law-doctrine-springs-into-action","status":"publish","type":"post","link":"https:\/\/indianz.com\/News\/2020\/10\/08\/peter-derrico-racist-indian-law-doctrine-springs-into-action\/","title":{"rendered":"Peter d’Errico: Racist Indian law doctrine springs into action"},"content":{"rendered":"\"kevinstitt\"\r\n
Oklahoma Gov. Kevin Stitt (R), a citizen of the Cherokee Nation, is seen at the White House on June 18, 2020. A month later, he was asking the Trump administration for regulatory authority over Indian Country in Oklahoma. Photo: Shealah Craighead \/ White House<\/a>\r\n<\/figcaption>\r\n
McGirt, Oklahoma, and the EPA<\/div>\r\n
Federal anti-Indian Law in Action<\/div>\r\n
Thursday, October 8, 2020<\/div>\r\n
By Peter d’Errico<\/div>\r\n
umass.edu\/derrico<\/a><\/div>\r\n

<\/p>\r\nSo much hoopla surrounded the McGirt v. Oklahoma<\/em> <\/a>decision that few people could see what the case really decided.\r\n

<\/p>\r\nThe decision said the Creek Nation was \u201cIndian country\u201d as defined in federal law and that Oklahoma had no jurisdiction over crimes committed by Native persons in Creek territory. Lots of people were thrilled to read Justice Neil Gorsuch\u2019s opening line, \u201cOn the far end of the Trail of Tears was a promise.\u201d\r\n

<\/p>\r\nThe temptation was great to think McGirt<\/em> closed the door on the genocidal era of \u201cIndian Removal.\u201d But McGirt<\/em> didn\u2019t close that door. In the language of federal Indian law, when it said Creek lands are part of \u201cIndian country\u201d it meant they are subject to the US Major Crimes Act<\/em>. That was the legal question in the case.\r\n

<\/p>\r\nDespite the hoopla about a \u201clandmark decision,\u201d McGirt<\/strong><\/em> did<\/strong> not transform federal Indian law<\/strong>. In fact, McGirt<\/em> upheld the key federal Indian law doctrine of U.S. domination over Native nations and peoples \u2014 the doctrine called \u201ccongressional plenary power.\u201d It said the Creek Nation existed because Congress had not (yet) \u201cdisestablished\u201d it.\r\n

<\/p>\r\n

\r\n\"andrewwheeler\"\r\n
Andrew Wheeler serves as Administrator of the Environmental Protection Agency. Photo: Andrea Hanks \/ White House<\/a>\r\n<\/figcaption>\r\n<\/figure>\r\n

<\/p>\r\nAs the majority opinion itself pointed out, it was reaffirming the \u201cplenary power\u201d claim of US domination asserted by the Supreme Court \u201clong ago\u201d:\r\n

<\/p>\r\n

This Court long ago held that the Legislature [Congress] wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties. <\/em><\/div>\r\n

<\/p>\r\nThe majority and dissent in McGirt<\/em> were in agreement about this fundamental point of law. They both said the US Congress can do as it wishes with Native nations, peoples, and lands. The only difference between the majority and dissent was whether Congress had or had not \u201cdisestablished\u201d the Creek nation. The dissent said yes. The majority said no.\r\n

<\/p>\r\nTo make the fundamental point clear, the majority said Congress could do the dirty deed whenever it wished:\r\n

<\/p>\r\n

\u2026of course, \u2026Congress remains free to [take action]\u2026 about the lands in question at any time. It has no shortage of tools at its disposal.<\/em><\/div>\r\n

<\/p>\r\nAnyone who reads the decision can see this, even with rose-colored glasses.\r\n

<\/p>\r\n

Muscogee (Creek) Nation statement on Trump administration's decision to cede regulatory authority in Indian Country to state of #Oklahoma<\/a>.@GovStitt<\/a> Kevin Stitt (R) asked @EPA<\/a> for power after historic #SupremeCourt<\/a> ruling confirming @MvskokeRez<\/a>.@EPAallnations<\/a> #HonorTheTreaties<\/a> pic.twitter.com\/1Cm62o5roO<\/a><\/p>— indianz.com (@indianz) October 5, 2020<\/a><\/blockquote>