"we hold the government to its word"
July 11, 2020 1:53 AM Subscribe
In a momentous decision, the Supreme Court has ruled 5-4 that about half of the state of Oklahoma is "Indian country", jurisdictionally within a Native American reservation, and thus that the state must honor the treaties which set aside this land for Native peoples, last establishing Creek Nation boundaries in 1866.
The ruling in McGirt vs. Oklahoma subsumes issues brought by another similar case (previously), and, despite the expected rhetoric in reaction, will move history forward in what sounds like the right direction, with the parties jointly announcing their future work together. (Rebecca Nagle's compelling This Land podcast (previously) has promised an update on the story.)
The ruling in McGirt vs. Oklahoma subsumes issues brought by another similar case (previously), and, despite the expected rhetoric in reaction, will move history forward in what sounds like the right direction, with the parties jointly announcing their future work together. (Rebecca Nagle's compelling This Land podcast (previously) has promised an update on the story.)
seems unlikely in the near term, from the npr story
“It's important to note that the case concerned jurisdiction, not land ownership.
Ruling that these lands are in fact reservations "doesn't mean the tribe owns all the land within the reservation, just like the county doesn't own all the land within the county. In fact, it probably doesn't own very much of that land," Washburn explained. "That's not what a reservation is these days."
Washburn compares a reservation to a county — terms that describe jurisdictional boundaries.”
posted by inire at 2:36 AM on July 11, 2020 [5 favorites]
“It's important to note that the case concerned jurisdiction, not land ownership.
Ruling that these lands are in fact reservations "doesn't mean the tribe owns all the land within the reservation, just like the county doesn't own all the land within the county. In fact, it probably doesn't own very much of that land," Washburn explained. "That's not what a reservation is these days."
Washburn compares a reservation to a county — terms that describe jurisdictional boundaries.”
posted by inire at 2:36 AM on July 11, 2020 [5 favorites]
My thoughts were less around land ownership than around taxes and control of resources.
posted by GenjiandProust at 2:43 AM on July 11, 2020 [10 favorites]
posted by GenjiandProust at 2:43 AM on July 11, 2020 [10 favorites]
Any thoughts about how this is likely to work out in practice?
posted by Nancy Lebovitz at 3:02 AM on July 11, 2020 [6 favorites]
posted by Nancy Lebovitz at 3:02 AM on July 11, 2020 [6 favorites]
Reading a bit further, the tax question seems to be around whether the state can collect taxes from tribe members living on tribal lands. It would seem reasonable for the state and/or federal government to pay restitution for 150 years of illegal administration....
posted by GenjiandProust at 3:06 AM on July 11, 2020 [9 favorites]
posted by GenjiandProust at 3:06 AM on July 11, 2020 [9 favorites]
With the proviso that I am absolutely in favor of this decision, I think it's interesting that the Court essentially said Congress had never eliminated the reservation land in Oklahoma despite Congress seeming to have done just that in the act that granted statehood to Oklahoma. Forced allotment was a precondition of statehood. Moreover, several tribes had their reservations eliminated after the Civil War because they were seen to have sided with the confederacy.
I feel like this is one of those decisions that are becoming more common of late where we get the right outcome, but with completely broken legal reasoning.
Given that the reservations were established by treaty and that the Constitution specifically states that treaties are more authoritative than other acts of Congress, it seems to me that Congress shouldn't have the option to unilaterally modify them, but that isn't at all what the Court held. I would have much preferred a ruling that gave teeth to treaty rights as agreed, not the half measure we got.
posted by wierdo at 5:04 AM on July 11, 2020 [20 favorites]
I feel like this is one of those decisions that are becoming more common of late where we get the right outcome, but with completely broken legal reasoning.
Given that the reservations were established by treaty and that the Constitution specifically states that treaties are more authoritative than other acts of Congress, it seems to me that Congress shouldn't have the option to unilaterally modify them, but that isn't at all what the Court held. I would have much preferred a ruling that gave teeth to treaty rights as agreed, not the half measure we got.
posted by wierdo at 5:04 AM on July 11, 2020 [20 favorites]
So, did every other state with remnants of stolen tribal lands just mess their collective pants over this ruling?
posted by Thorzdad at 5:17 AM on July 11, 2020 [3 favorites]
posted by Thorzdad at 5:17 AM on July 11, 2020 [3 favorites]
What I want to know if if the tribe can levy taxes on these white people, so-called ‘oklahomans’, living in tribal jurisdiction.
posted by SaltySalticid at 5:27 AM on July 11, 2020 [11 favorites]
posted by SaltySalticid at 5:27 AM on July 11, 2020 [11 favorites]
As I discovered, reading the linked articles answers many questions.
posted by GenjiandProust at 5:30 AM on July 11, 2020 [61 favorites]
posted by GenjiandProust at 5:30 AM on July 11, 2020 [61 favorites]
Forced allotment was a precondition of statehood
The entire point of Gorsuch's opinion is that forced allotment ≠ deestablishing the reservation. And we know this because the people who worked to make forced allotment happen did so in the hope that one day it would enable the reservations deestablished, which means that the white people doing the dispossessing themselves understood those to be different things.
posted by PMdixon at 5:53 AM on July 11, 2020 [9 favorites]
The entire point of Gorsuch's opinion is that forced allotment ≠ deestablishing the reservation. And we know this because the people who worked to make forced allotment happen did so in the hope that one day it would enable the reservations deestablished, which means that the white people doing the dispossessing themselves understood those to be different things.
posted by PMdixon at 5:53 AM on July 11, 2020 [9 favorites]
Well the tax info I want doesn’t seem to be in the first three links or the tribal response or the slate article or what I read last night. I’ve checked a bunch of material on this but searches for ‘tax’ come up empty. If anyone could tell me about tribal levies of taxes on non-tribal members in tribal jurisdiction, or even just point us to the right article among dozen some links, that would be nice.
posted by SaltySalticid at 6:11 AM on July 11, 2020 [1 favorite]
posted by SaltySalticid at 6:11 AM on July 11, 2020 [1 favorite]
Yeah, the tribal boundaries and governments have all still been there this whole time. You see “Welcome to the Cherokee Nation” signs, you see tribal license plates and government offices. They’re very much a going concern.
This case covers the Major Crimes Act of 1885, which puts certain crimes committed by enrolled tribe members in “Indian Country” in Federal (or tribal) jurisdiction rather than state courts.
Taxes are covered by compacts between the tribal and state governments; the Cherokee get sales taxes from tribal-owned businesses and get their own vehicle licensing fees.
They are never ever ever reversing the allocation of tribal land to individual members, or the sales of the “leftover” land, so don’t get excited.
posted by Huffy Puffy at 6:41 AM on July 11, 2020 [9 favorites]
This case covers the Major Crimes Act of 1885, which puts certain crimes committed by enrolled tribe members in “Indian Country” in Federal (or tribal) jurisdiction rather than state courts.
Taxes are covered by compacts between the tribal and state governments; the Cherokee get sales taxes from tribal-owned businesses and get their own vehicle licensing fees.
They are never ever ever reversing the allocation of tribal land to individual members, or the sales of the “leftover” land, so don’t get excited.
posted by Huffy Puffy at 6:41 AM on July 11, 2020 [9 favorites]
I feel like this is one of those decisions that are becoming more common of late where we get the right outcome, but with completely broken legal reasoning.
I don't know Indian (or indeed US) law from jack, but isn't it primarily an application of the reasoning in Parker? It seems like the only way for the court to adopt the approach you suggest would be to say that Lone Wolf was wrongly decided.
I don't say the decision is necessarily based on a fundamentally fair interpretation of constitutional principles, but looking at the ruling and dissent, it seems to make legal sense given the precedents.
posted by howfar at 7:07 AM on July 11, 2020
I don't know Indian (or indeed US) law from jack, but isn't it primarily an application of the reasoning in Parker? It seems like the only way for the court to adopt the approach you suggest would be to say that Lone Wolf was wrongly decided.
I don't say the decision is necessarily based on a fundamentally fair interpretation of constitutional principles, but looking at the ruling and dissent, it seems to make legal sense given the precedents.
posted by howfar at 7:07 AM on July 11, 2020
Oh wow. I had followed the podcast. Thank you for the update.
posted by biggreenplant at 7:15 AM on July 11, 2020
posted by biggreenplant at 7:15 AM on July 11, 2020
'Good day to be Indigenous': High court ruling cheered (Indian Country Today link).
posted by spamandkimchi at 9:24 AM on July 11, 2020
posted by spamandkimchi at 9:24 AM on July 11, 2020
Washburn compares a reservation to a county — terms that describe jurisdictional boundaries.”
Oh my God, thank you. I have been trying to find commentary to explain why what seems like a very narrow ruling to my (not overly con-law educated) eyes is being hailed as something huge, and what the implications of it are.
(I'm thrilled about the ruling, I just want to understand it is all...)
posted by kalimac at 9:39 AM on July 11, 2020 [1 favorite]
Oh my God, thank you. I have been trying to find commentary to explain why what seems like a very narrow ruling to my (not overly con-law educated) eyes is being hailed as something huge, and what the implications of it are.
(I'm thrilled about the ruling, I just want to understand it is all...)
posted by kalimac at 9:39 AM on July 11, 2020 [1 favorite]
The entire point of Gorsuch's opinion is that forced allotment ≠ deestablishing the reservation.
Given how it was discussed in Congress, I don't think it is accurate to say that at the time people considered a completed allotment to do anything but disestablish a reservation. Reservations were property of the tribe as a whole, therefore if there were no more communal land, there was no reservation.
That said, the people doing the job were lazy grifters and ended up leaving a bunch of loose ends such that it wouldn't be hard to argue that, whatever Congress' intent, allotment was never in fact completed. Moreover, even if it had, there is an argument to be made that later Congressional action reestablished at least some reservations in Oklahoma by necessary implication.
Part of my issue is that the record does not appear well developed on this and many other aspects of the history, largely because Oklahoma couldn't be bothered to bring their legal "A" game. The Republicans in power there seem to have assumed that their being Republican would be all they needed to get the ruling they wanted.
posted by wierdo at 10:15 AM on July 11, 2020 [2 favorites]
Given how it was discussed in Congress, I don't think it is accurate to say that at the time people considered a completed allotment to do anything but disestablish a reservation. Reservations were property of the tribe as a whole, therefore if there were no more communal land, there was no reservation.
That said, the people doing the job were lazy grifters and ended up leaving a bunch of loose ends such that it wouldn't be hard to argue that, whatever Congress' intent, allotment was never in fact completed. Moreover, even if it had, there is an argument to be made that later Congressional action reestablished at least some reservations in Oklahoma by necessary implication.
Part of my issue is that the record does not appear well developed on this and many other aspects of the history, largely because Oklahoma couldn't be bothered to bring their legal "A" game. The Republicans in power there seem to have assumed that their being Republican would be all they needed to get the ruling they wanted.
posted by wierdo at 10:15 AM on July 11, 2020 [2 favorites]
The podcast Amicus has just yesterday released it's End of SCOUTS term special covering, in part, the Oklahoma decision. Looking forward to listening, once I get through the backlog I've built up from not commuting to work daily.
posted by pwnguin at 10:32 AM on July 11, 2020 [1 favorite]
posted by pwnguin at 10:32 AM on July 11, 2020 [1 favorite]
“ So, did every other state with remnants of stolen tribal lands just mess their collective pants over this ruling?”
Uh... isn’t that pretty much ALL of the states? (Except maybe Hawai'i, which was a monarchy. But still stolen in a conspiracy.)
posted by caution live frogs at 11:15 AM on July 11, 2020 [2 favorites]
Uh... isn’t that pretty much ALL of the states? (Except maybe Hawai'i, which was a monarchy. But still stolen in a conspiracy.)
posted by caution live frogs at 11:15 AM on July 11, 2020 [2 favorites]
To be fair, there are some states where the US government bought land that somebody else had stolen.
posted by box at 11:22 AM on July 11, 2020
posted by box at 11:22 AM on July 11, 2020
Is there any chance that that this decision will lead to the voiding of land transfers to white colonists?
While it has a snowballs' chance in hell of happening, it'd probably apply to land owners regardless of race. Unfortunately history does not admit such first-post snarky simplifications as 'colonists are white'; Oklahoma is home to the most all-black settlements of any state in the union.
And just to further muddy the waters, slavery was not abolished in the Indian territories until a treaty was signed freeing all slaves held by the Five Tribes. Only a fraction of those historically black settlements are freedmen, many others were part of the Land Rush of 1889.
posted by pwnguin at 11:24 AM on July 11, 2020 [8 favorites]
While it has a snowballs' chance in hell of happening, it'd probably apply to land owners regardless of race. Unfortunately history does not admit such first-post snarky simplifications as 'colonists are white'; Oklahoma is home to the most all-black settlements of any state in the union.
And just to further muddy the waters, slavery was not abolished in the Indian territories until a treaty was signed freeing all slaves held by the Five Tribes. Only a fraction of those historically black settlements are freedmen, many others were part of the Land Rush of 1889.
posted by pwnguin at 11:24 AM on July 11, 2020 [8 favorites]
I only read part of the decision but what struck me is that he didn't say Congress couldn't break its promise, but rather that Congress had not done so explicitly:
posted by jzb at 11:44 AM on July 11, 2020 [11 favorites]
The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today 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. We reject that thinking. If Congress wishes to withdraw its promises, it must say so.Like other unexpected "wins" this term, they seem to come with clear instructions from the conservative justice penning the opinion on how Congress can route around the decision in the future. I suppose it's too much to expect the court to simply and loudly say that Congress must honor its treaties.
posted by jzb at 11:44 AM on July 11, 2020 [11 favorites]
Well the tax info I want doesn’t seem to be in the first three links or the tribal response or the slate article or what I read last night.
You have an interesting question, and, barring the fortunate arrival of an expert in tribal tax law (this is MetaFilter), I’m not sure we’ll get a clear answer. I did find this on a real estate law website, for what it’s worth. Tribes seem to have a very limited ability to directly tax non-tribe members even on their own lands. Which seems confusing and messed up to me, but then what isn’t when it comes to US-indigenous people legal relations?
posted by GenjiandProust at 12:02 PM on July 11, 2020 [1 favorite]
You have an interesting question, and, barring the fortunate arrival of an expert in tribal tax law (this is MetaFilter), I’m not sure we’ll get a clear answer. I did find this on a real estate law website, for what it’s worth. Tribes seem to have a very limited ability to directly tax non-tribe members even on their own lands. Which seems confusing and messed up to me, but then what isn’t when it comes to US-indigenous people legal relations?
posted by GenjiandProust at 12:02 PM on July 11, 2020 [1 favorite]
Great now do the Black Hills
posted by achrise at 12:26 PM on July 11, 2020 [7 favorites]
posted by achrise at 12:26 PM on July 11, 2020 [7 favorites]
Does this imply that local law enforcement within the newly expanded native land will switch from county/state to Bureau of Indian Affairs or native constituted law enforcement?
posted by hwestiii at 12:29 PM on July 11, 2020
posted by hwestiii at 12:29 PM on July 11, 2020
While it has a snowballs' chance in hell of happening, it'd probably apply to land owners regardless of race. Unfortunately history does not admit such first-post snarky simplifications as 'colonists are white'; Oklahoma is home to the most all-black settlements of any state in the union.
I guess it is because Oklahoma, but this story has had me flashing back to Toni Morrison’s “Paradise”, which tells the multigenerational histories of one of these all black communities. I should reread that.
posted by hwestiii at 12:36 PM on July 11, 2020 [2 favorites]
I guess it is because Oklahoma, but this story has had me flashing back to Toni Morrison’s “Paradise”, which tells the multigenerational histories of one of these all black communities. I should reread that.
posted by hwestiii at 12:36 PM on July 11, 2020 [2 favorites]
Does this imply that local law enforcement within the newly expanded native land will switch from county/state to Bureau of Indian Affairs or native constituted law enforcement?
Partly! It means there will be two or three concurrent local law enforcement organizations: state/local (for non-tribe members and for non-major crimes), and tribal or federal (for tribe members accused of major crimes).
And the land isn’t expanded. The boundaries are the same.
posted by Huffy Puffy at 12:38 PM on July 11, 2020 [2 favorites]
Partly! It means there will be two or three concurrent local law enforcement organizations: state/local (for non-tribe members and for non-major crimes), and tribal or federal (for tribe members accused of major crimes).
And the land isn’t expanded. The boundaries are the same.
posted by Huffy Puffy at 12:38 PM on July 11, 2020 [2 favorites]
And the land isn’t expanded. The boundaries are the same.
Yes, however I’ll bet the folks there who Last week didn’t realize their homes stood on native land will feel that way.
posted by hwestiii at 12:48 PM on July 11, 2020 [1 favorite]
Yes, however I’ll bet the folks there who Last week didn’t realize their homes stood on native land will feel that way.
posted by hwestiii at 12:48 PM on July 11, 2020 [1 favorite]
If they didn’t go to high school in Oklahoma, and didn’t notice that the license plates used to say “Native America”, and never noticed any road signs denoting tribal boundaries, and didn’t notice any local news coverage whatsoever; in short, if they just moved to town from somewhere else and were wholly ignorant of the place where they moved to, then they might not know about the Five Tribes.
(The land parcels themselves have been individually-owned since 1907, not owned by the tribes; but the county comparison above is a good one: there is still some jurisdiction, particularly over the tribe members.)
*standard disclaimer that Osage County/the Osage Nation is unique in all this
posted by Huffy Puffy at 12:55 PM on July 11, 2020 [5 favorites]
(The land parcels themselves have been individually-owned since 1907, not owned by the tribes; but the county comparison above is a good one: there is still some jurisdiction, particularly over the tribe members.)
*standard disclaimer that Osage County/the Osage Nation is unique in all this
posted by Huffy Puffy at 12:55 PM on July 11, 2020 [5 favorites]
Metafilter: Reading the linked articles answers many questions.
posted by elwoodwiles at 2:19 PM on July 11, 2020 [20 favorites]
posted by elwoodwiles at 2:19 PM on July 11, 2020 [20 favorites]
jzb: "Like other unexpected "wins" this term, they seem to come with clear instructions from the conservative justice penning the opinion on how Congress can route around the decision in the future."
wierdo: "Part of my issue is that the record does not appear well developed on this and many other aspects of the history, largely because Oklahoma couldn't be bothered to bring their legal "A" game. The Republicans in power there seem to have assumed that their being Republican would be all they needed to get the ruling they wanted."
I think this is the theme of most of the SC decisions this round. The current administration's lawyers have written some swiss cheese laws and trial arguments. Gorsuch's opinions (very strict on text) seem kind of frustrated with the lack of effort. Conservative attorneys know how to write challenge-proof laws; they are either taking this court for granted or tanking on purpose (not sure I believe the latter).
posted by bluefly at 2:20 PM on July 11, 2020 [2 favorites]
wierdo: "Part of my issue is that the record does not appear well developed on this and many other aspects of the history, largely because Oklahoma couldn't be bothered to bring their legal "A" game. The Republicans in power there seem to have assumed that their being Republican would be all they needed to get the ruling they wanted."
I think this is the theme of most of the SC decisions this round. The current administration's lawyers have written some swiss cheese laws and trial arguments. Gorsuch's opinions (very strict on text) seem kind of frustrated with the lack of effort. Conservative attorneys know how to write challenge-proof laws; they are either taking this court for granted or tanking on purpose (not sure I believe the latter).
posted by bluefly at 2:20 PM on July 11, 2020 [2 favorites]
I only read part of the decision but what struck me is that he didn't say Congress couldn't break its promise, but rather that Congress had not done so explicitly:
The problem is that, in Lone Wolf v. Hitchcock,
there is already a (clearly profoundly racist) Supreme Court precedent explicitly stating that Congress does have the right to break its treaties. There's accordingly little to no pressure on judges who aren't interested in changing the structures of power (otherwise known as "judges") to take steps to do so.
Audre Lorde's observation that the master's tools will never dismantle the master's house seems particularly applicable here. The legal system and its precedents are fundamentally shaped by racism, which results in a situation where making decision that is inherently racist is procedural and easily justified as vires, while an antiracist decision is easily ruled out as political and beyond the role of the court. Courts are necessary sometimes, and occasionally even useful, but they are very bad tools for overturning structural and systemic oppression.
posted by howfar at 4:16 PM on July 11, 2020 [7 favorites]
The problem is that, in Lone Wolf v. Hitchcock,
there is already a (clearly profoundly racist) Supreme Court precedent explicitly stating that Congress does have the right to break its treaties. There's accordingly little to no pressure on judges who aren't interested in changing the structures of power (otherwise known as "judges") to take steps to do so.
Audre Lorde's observation that the master's tools will never dismantle the master's house seems particularly applicable here. The legal system and its precedents are fundamentally shaped by racism, which results in a situation where making decision that is inherently racist is procedural and easily justified as vires, while an antiracist decision is easily ruled out as political and beyond the role of the court. Courts are necessary sometimes, and occasionally even useful, but they are very bad tools for overturning structural and systemic oppression.
posted by howfar at 4:16 PM on July 11, 2020 [7 favorites]
I don't pretend to understand the intricacies and complexities of the shafting of the indigenous peoples of the US. I barely understand them in relationship to the shafting of my own people (Kāi Tahu), and that has been one of the less twisty? dispossessions. I hope that this decision brings joy and pride to the effected peoples, that the acknowledgement of their mana whenua is healing, and that there is continued success in regaining their taoka.
posted by fido~depravo at 7:12 PM on July 11, 2020 [4 favorites]
posted by fido~depravo at 7:12 PM on July 11, 2020 [4 favorites]
Just so as to clarify something which might have gotten lost, given that I discovered the story via Rebecca Nagle's work, in which, given her family connection, she focuses a fair amount on the Cherokee perspective: McGirt vs. Oklahoma and also Carpenter/Royal/Sharp vs. Murphy are both Muscogee (Creek) cases, whose outcome affects all Nations among the Five Tribes. Here are some Muscogee sources/voices telling the story of these cases:
- Mvskoke Vision (Dec 2017): Muscogee (Creek) AG, Police Chief discuss Murphy case implications
- Jessica McBride & Mvskoke Media, KOSU.org (Feb 2018): Court Case Could Define Indian Country, Oklahoma
- Mvskoke Vision (June 2018): Royal vs Murphy on The Table
- Morning Edition (feat. James Floyd), NPR (Nov 2018): Supreme Court Hears Murder Case Involving Muscogee Creek Nation Land
- Jack Healy, NYT (July 2020): For Muscogee (Creek) Tribe in Oklahoma, at Long Last Vindication
- Julian Brave NoiseCat (feat. Mari Hulbutta), Atlantic (July 2020): The McGirt Case Is a Historic Win for Tribes
posted by progosk at 2:29 AM on July 13, 2020
- Mvskoke Vision (Dec 2017): Muscogee (Creek) AG, Police Chief discuss Murphy case implications
- Jessica McBride & Mvskoke Media, KOSU.org (Feb 2018): Court Case Could Define Indian Country, Oklahoma
- Mvskoke Vision (June 2018): Royal vs Murphy on The Table
- Morning Edition (feat. James Floyd), NPR (Nov 2018): Supreme Court Hears Murder Case Involving Muscogee Creek Nation Land
- Jack Healy, NYT (July 2020): For Muscogee (Creek) Tribe in Oklahoma, at Long Last Vindication
- Julian Brave NoiseCat (feat. Mari Hulbutta), Atlantic (July 2020): The McGirt Case Is a Historic Win for Tribes
posted by progosk at 2:29 AM on July 13, 2020
Oh and:
- prof. Sarah Deer, Democracy Now (July 2020): “Most Important Indian Law Case in Half a Century”: Supreme Court Upholds Tribal Sovereignty in OK
posted by progosk at 2:36 AM on July 13, 2020 [1 favorite]
- prof. Sarah Deer, Democracy Now (July 2020): “Most Important Indian Law Case in Half a Century”: Supreme Court Upholds Tribal Sovereignty in OK
posted by progosk at 2:36 AM on July 13, 2020 [1 favorite]
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