First there was Carpenter v Murphy (now Sharp v Murphy) and now the McGirt v Oklahoma case will be heard in front of the United States Supreme Court. Both, or more likely either, have big implications for Indian County, the state of Oklahoma, and any person who believes treaties should be respected. But here’s what you need to know going into today’s oral argument.
Many folks incorrectly summarize this case as the court making a decision on tribal sovereignty. Tribes are sovereign nations. In Oklahoma, 39 self-governing tribes exist, in the difficult balance of having non-tribal citizens within the bounds of their reservations, despite centuries of genocide, removal, and attempts to remove access to native language, culture, and government. Among the many dangerous attempts at forced assimilation and destruction of tribes in Oklahoma was the shift to land allotment, which broke up reservations into plots of land, and further confined tribes of people, many whom had already been removed from their homes to Oklahoma, to less communal spaces, while also allowing land to be stolen again and redistributed to white settlers.
The issue is whether the Muscogee (Creek) Nation retained the right to prosecute persons for crimes committed by or against tribal citizens on tribal lands. The Muscogee (Creek) Nation retained the right to prosecute such persons because Congress never disestablished the Muscogee (Creek) Nation Reservation. Consequently, under its treaty with the United States, the Muscogee (Creek) Nation -- and not the State of Oklahoma -- has jurisdiction over its land. The state of Oklahoma is asking the court to do what only Congress can do, but has not done -- disestablish the Muscogee (Creek) Nation Reservation. In effect, the State is asking the Supreme Court to rule that forcible shift to land allotments ended reservations--they’re asking the court’s permission to further ignore treaties between the federal government and sovereign tribes. This case doesn’t determine sovereignty or treaty rights, because that’s not how sovereignty works. However, the decision will determine if in 2020 the court chooses to break a long-standing American tradition, and uphold the promises made to tribes, including recognizing the bounds of reservations.
Honoring treaty rights could make a large amount of work for the state, because it makes jurisdiction, especially in criminal cases, much less clear. For a state with one of the highest rates of incarceration in the world, that could mean decades of cases called into question, though recent reporting has challenged the validity of that claim. The difficult implications of many years of trampling on tribal rights is not a good enough reason to allow the continued violation of treaty rights and reservation boundaries. Rather, it’s an opportunity for the court to begin to set right the egregious wrongs still committed against tribal nations today.
So the court will hear arguments today by phone. And hopefully, at the end of this term, tribes are not left waiting for an answer, as they were last year. As we go into today’s oral arguments, the ACLU of Oklahoma is proud to have submitted a brief to the Supreme Court in support of the Muscogee (Creek) Nation, the 38 other federally recognized tribes of Oklahoma, all of Indian Country, and those who join us in the fight for liberty and justice for all.