McGirt v. Oklahoma (2020), the Trail of Tears, and Creek Nation sovereignty

Along with a couple of important rulings on Presidential accountability to Congress and the law, the Supreme Court (SCOTUS) handed down a ruling in McGirt v. Oklahoma that is based on one of the most controversial policies in American history, the Indian Removal Act of 1830 during Andrew Jackson's Administration. (Chris Casteel, US Supreme Court rules against Oklahoma in Creek Nation case The Oklahoman 07/09/2020)

The case had to do with a dispute between the Creek Nation and the State of Oklahoma involving tribal sovereignty in criminal law. It ruled resoundingly in the Creeks' favor based on their treaty rights. Gorsuch wrote the majority opinion joined by Ginsburg, Breyer, Sotomayor, and Kagan. The ruling is based on legislation, treaties, and court decisions going back 190 years, including:

• Indian Removal Act (1930)
• Treaty With the Creeks (1832)
• Treaty With the Creeks (1833)
• Treaty with Creeks and Seminoles (1856)
• Treaty Between the United States and the Creek Nation of Indians (1866)
• Five Civilized Tribes Act (1906)

In the case before the court, SCOTUS ruled that a person convicted of a felony offense committed in Creek Territory but prosecuted by the State of Oklahoma was invalid because the state did not have legal jurisdiction in the case. Instead, the federal Indian court had jurisdiction. Gorsuch responded to claims by Oklahoma that this could set off a wave of dangerous criminals going scot free:

... Oklahoma and the dissent fear, “[t]housands” of Native Americans like Mr. McGirt “wait in the wings” to challenge the jurisdictional basis of their state-court convictions. Brief for Respondent 3. But this number is admittedly speculative, because many defendants may choose to finish their state sentences rather than risk reprosecution in federal court where sentences can be graver. Other defendants who do try to challenge their state convictions may face significant procedural obstacles, thanks to well-known state and federal limitations on post-conviction review in criminal proceedings.

In any event, the magnitude of a legal wrong is no reason to perpetuate it. [my emphasis]

One sentence in the majority opinion could also serve for the larger history of the US relations to Indian tribes, "One thing everyone can agree on is this history is long and messy."

There's usually lots of legalese in SCOTUS opinions, of course. But it has a lot historical detail describing subsequent land grabs, oil discoveries, and State of Oklahoma chicanery. The decision doesn't directly address land ownership issues as such. But it does say, "And for a time Oklahoma’s courts appear to have entertained sham competency and guardianship proceedings that divested Tribe members of oil rich allotments."

It also directly involves the legal and historical question (not just the rhetorical one) of whether the Indian expulsions involved in the 1930 Act constitute genocide (though it doesn't directly deal with that). Because like criminal law, the UN definition of genocide involves intent. If the 1830 laws and 1832 and 1833 treaties are still substantively protecting the Creek Nation here 190 years later, then the government's stated purpose to preserve the tribes involved may have been serious. (For an extended treatment of this question with the 1830 Act, see: Jeffrey Ostler, Surviving Genocide: native Nations and the United States from the American Revolution to Bleeding Kansas, 2019)

The two opening paragraphs of the opinion emphasize that the legal assurances given are still in effect, whatever the hidden intent may have been:

On the far end of the Trail of Tears was a promise. 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. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks ... (1832 Treaty). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, ... (1833 Treaty). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty....

Today 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. [my emphasis]