In Oklahoma tribal decision, ‘rule of the strong’ falls to rule of law

Why We Wrote This

What would it look like to repair a long-standing racial injustice? It’s a question roiling the U.S., and Native American tribes in Oklahoma say they got a clear example last week from the Supreme Court.

Kevin Wolf/Smithsonian's National Museum of the American Indian/AP/File
A detail of the 1790 Treaty of the Muscogee (Creek) Nation and the United States on display at the Smithsonian's National Museum of the American Indian in Washington in 2015. The Supreme Court ruled July 9 that state prosecutors lack the authority to pursue criminal cases in a large chunk of eastern Oklahoma that remains reservation land.

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Kevin Washburn never enjoyed teaching his federal Indian law course. It was “basically a history of how the law has failed my people, that the rule of law applies elsewhere in the United States but less so in Indian Country,” says the former assistant secretary of Indian affairs and member of the Chickasaw Nation.

Last week’s 5-4 Supreme Court ruling that said half the state of Oklahoma is still tribal land stands in marked contrast.

“Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law,” wrote Justice Neil Gorsuch. “That would be the rule of the strong, not the rule of law.”

In a moment of national reckoning over racial injustice, the decision has added significance, some say, as both an acknowledgment of that injustice and a concrete step toward addressing it.

One might expect such a dramatic change to prompt chaos and confusion, but in Oklahoma the tribal nations and state and local officials have responded with calm cooperation, pledging to work together – as they have for decades – to adapt to the new reality.

“The pressure I feel is to communicate to the public that we know what we’re doing,” says Chuck Hoskin Jr., principal chief of the Cherokee Nation. “We’ve done it for a long time.”

When he started to read the latest landmark American Indian law ruling from the U.S. Supreme Court, Joel Williams needed a few minutes just to get past the first sentence.

“On the far end of the Trail of Tears was a promise,” opened Justice Neil Gorsuch for the majority opinion in McGirt v. Oklahoma, referencing the forced removal, beginning in the 1830s, of Native American tribes from their historical lands in today’s U.S. Southeast to west of the Mississippi River. Estimates vary, but thousands are believed to have died on the roughly 5,000-mile journey, including as many as one-fourth of the Cherokee Nation.

Mr. Williams, a senior staff attorney at the Native American Rights Fund (NARF), is a member of the Cherokee Nation and a descendant of the Cherokees who negotiated treaties with the federal government. Seeing those treaties, promising them a “permanent home” in the West, referenced throughout the opinion was “quite striking.”

“It’s not often that you read a Supreme Court opinion that is so compelling,” he says.

“Our communities were being torn apart,” he adds. “There was a hope and promise that we would have these homelands in perpetuity, and that’s what Justice Gorsuch is saying in the very first sentence.”

The decision is a momentous one, first, because of the practical consequence that as much as half of the state of Oklahoma may now, legally, be Indian Country. But in a moment of national reckoning over racial injustice, the decision has added significance, some say, as both an acknowledgment of that injustice and a concrete step toward addressing it.

One might expect such a dramatic change to prompt chaos and confusion, but in Oklahoma the tribal nations and state and local officials have responded with calm cooperation, pledging to work together – as they have for decades – to adapt to the new reality.

“Oklahoma has a pretty solid tradition of state-tribal compacts,” says Lindsay Robertson, director of the Center for the Study of American Indian Law and Policy at the University of Oklahoma in Norman.

The court’s ruling, he adds, “is like an apology-plus. We’re sorry. There was a wrong done here, and we’re going to make it right to the fullest extent we can.”

The decision was met with jubilation by Native Americans in Oklahoma, including Joy Harjo, the U.S. poet laureate who lives in Tulsa. “Justice is sometimes seven generations away, or even more. And it is inevitable,” Ms. Harjo, a member of the Muscogee (Creek) Nation, wrote in a New York Times Op-Ed, referencing her ancestor Monahwee, who fought to keep their homeland at the Battle of Horsehoe Bend.

“It is important to stop here, in the moment, and to recognize all that it has taken to arrive at this act of justice,” she added. “At last, on the far end of the Trail of Tears, a promise has been kept.”

“Everybody wants public safety”

Specifically, the high court’s 5-4 ruling on July 9 held that the historical boundaries of the Muscogee (Creek) Nation’s reservation in eastern Oklahoma remained in effect because Congress hadn’t formally ended them.

As a result, the criminal convictions by the state of two Native men – Jimcy McGirt and Patrick Murphy, who is on death row for murder – are voided, and they must be retried in federal court. An unknown number of other tribal members convicted in state court may also ask for federal retrials.

While the ruling concerned the jurisdiction of the Creek Nation, four other tribes in eastern Oklahoma have similar treaties with Congress. Their combined reservations span roughly 11 million acres, including portions of the city of Tulsa, whose Muscogee name, Tulasi, means Old Town. As many as 1.8 million people live in the area, only 10% to 15% of whom are Native.

The court should have considered these realities in its decision, said Chief Justice John Roberts in dissent.

“The Court has profoundly destabilized the governance of eastern Oklahoma,” he wrote, hobbled the state’s ability to prosecute serious crimes, and created “significant uncertainty for the State’s continuing authority over any area that touches Indian affairs.”

Oklahoma has more Native residents than any other state besides California, and tribes have developed a strong and cooperative relationship with the state.

They have negotiated compacts around gambling, taxation, hunting, and fishing, among other things, that resolve jurisdictional issues between the two governments. Tribes also have “cross-deputization” agreements that allow state and tribal law enforcement agencies to operate on and off reservation land.

Last week the five tribal nations and the state government were quick to announce that they are already working together on these new changes. Hours after the McGirt decision came out, a joint statement said they “have made substantial progress toward an agreement to present to Congress and the U.S. Department of Justice.”

The statement is a sign that the six governments were likely already planning for that possible outcome, says Kevin Washburn, former assistant secretary of Indian affairs at the U.S. Department of the Interior and a member of the Chickasaw Nation in Oklahoma.

“That’s what you expect governments to do, to plan properly,” he adds. “It shows cooperation. Everybody wants public safety.”

With certain major crimes now subject to federal, not state, prosecution, U.S. attorney offices may have to expand to manage the heavier caseload.

The tribal nations themselves are facing similar issues, having only the law enforcement capacity for a pre-McGirt workload. Chuck Hoskin Jr., principal chief of the Cherokee Nation – the largest tribe in the U.S. – says that while he is “elated” with the decision, he isn’t sure if the tribe should expand its law enforcement and justice system to handle the changes.

“I have to seriously consider if it’s in our best interests,” he says, to in coming decades “be building prisons, creating a criminal justice system, and sapping resources from our elders and children and our economic prosperity.”

Ann Hermes/Staff/File
A flag with the seal of the Muscogee (Creek) Nation flies outside the MCN Supreme Court on June 18, 2018, in Okmulgee, Oklahoma.

Treaties and textualism

Professor Washburn, now dean at the University of Iowa College of Law, never enjoyed teaching his federal Indian law course. The entire semester, he says, was “basically a history of how the law has failed my people, that the rule of law applies elsewhere in the United States but less so in Indian Country.”

And between 1990 and 2015 the court ruled against tribal interests in 76.5% of cases, according to Bethany Berger at the University of Connecticut School of Law. But that has changed in recent years, particularly since Justice Gorsuch joined the court. Last term, he hired the court’s first-ever Native American clerk.

He’s considered a reliable member of the court’s conservative wing, but on Native issues, “there’s just a sense that Justice Gorsuch gets it,” says Professor Washburn.

His opinion in McGirt combines these two features of his jurisprudence, using textualism – a method, popular with conservatives, of interpreting laws by focusing strictly on their text – to analyze the history of the Creek Nation’s treaties with the U.S. While Congress has the power to unilaterally break treaties with tribes, he explained, the legislature has never explicitly done that with the Creek.

“If Congress wishes to break the promise of a reservation, it must say so,” he wrote.

This analysis trumped the argument from Oklahoma – and, in an amicus brief, the federal government – that a series of hostile federal policies over a century amounted to an effective “disestablishment” of the Creek reservation. Congress “broke up the Creek Nation’s lands, abolished its courts, circumscribed its governmental authority, applied federal and state law to Indians and non-Indians alike in its territory ... and set a timetable for the dissolution of the tribe,” the federal government wrote in its brief.

But “unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law,” wrote Justice Gorsuch. “That would be the rule of the strong, not the rule of law.”

As to the argument that declaring a vast swath of eastern Oklahoma tribal land would create far more problems than it solves, he concluded that “dire warnings are just that, and not a license for us to disregard the law.”

Many of Oklahoma’s arguments “follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye,” he wrote. “We reject that thinking.”

The court’s most recent case in this area of American Indian law reached a similar holding, in a unanimous decision, that “only the clear intent of Congress can determine when tribal land is diminished.”

If anything, the new ruling brings Oklahoma’s tribal nations more in line with the status of most other tribes around the country, says Mr. Williams at NARF. In most states, if a tribal member commits a serious crime on tribal land, they are prosecuted in federal court.

What made this case unusual, says Professor Washburn, is how significant the potential ramifications are. But that is also what makes the case “the high-water mark for the court’s respect for the rule of law in Indian Country,” he says.

“The bottom line is this decision applies the rule of law even when it’s difficult to do so because of the ramifications,” he adds.

“That’s the America we all want to live in,” he continues. “That’s what we say is great about the United States, but we often fail to live up to that.”

And at a time when the U.S. is wrestling with racial injustices past and present, Chief Hoskin thinks the decision is “good for the country.”

“It doesn’t just identify an issue; it does something about it,” he says. “Maybe it creates more space in communities, in Congress, and in state legislatures to look at these issues and do more than talk about them.”

It’s unclear if that will be the case, but as one of the leaders now tasked with adapting to this dramatic legal change, Chief Hoskin admits he feels some pressure to show that such a dramatic change can happen without dramatic negative consequences. And he’s feeling confident.

“The pressure I feel is to communicate to the public that we know what we’re doing,” he says. “We’ve done it for a long time.”

Staff writer Simon Montlake contributed to this report.

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