The McGirt v. Oklahoma decision that came down from the Supreme Court last week was a landmark decision in treaty law and for the rights of Indigenous people of the Muscogee (Creek) Nation in Oklahoma. In the most basic of terms, Justice Gorsuch made it clear that the United States made treaties with Indian nations that were still the law of the land no matter how state or local governments acted, or still treat those Indigenous communities.
Very briefly, the only reason you have a place to live in the United States is due to individual tribal nations either being wiped out through genocide by American’s westward expansion and/or through treaties signed that allowed the United States to take over land in exchange for assured reservations along with funding for education, health, security, and food on those reservations “for as long as the grass grows and the water runs.”
Over the course of the last two centuries, those treaties — literal laws that only Congress can terminate — have been eroded by bad actors from the White House on down to local governors or mayors with greed and no sense of humanity. One of the biggest examples of this atrophy of land and rights was the Indian Territory the Five Civilized Tribes were promised at the end of the Trail of Tears. Over the almost 200 years since that horrific event, federal, state, and local governments have done everything they can to take as much of that land (and rights) away from the people who were forced on that walk. Now, the Supreme Court has stepped in and put a stop to it.
This is all a lot for the average person to get a handle on, we know. Treaty rights with Indigenous nations are barely mentioned in U.S. schools much less what they mean today. So, to help us better understand what’s happening, we reached out to Rebecca Nagle, writer, activist, and podcaster of the hit show This Land, to talk us through the broader implications and what this means for Indian Country.
How did Oklahoma get to this point where so much treaty ceded Indigenous land was taken away, and why was it necessary for the Supreme Court to step in?
Yeah, so it seems kind of odd that tribes and states would have really different legal interpretations of the status of land. A lot of times states don’t follow federal laws when it comes to respecting tribal lands. It’s actually not that unusual. And so, what the Supreme Court said is — and I think Gorsuch did a really good job of being really clear in the way he worded the decision — that we as a court can’t say, “okay, well, the state of Oklahoma has been violating federal law for so long at this point we should just say that that law is moot” you know? Gorsuch has this really great line in the decision where he said, “We don’t do that in any other area of the law, why would we do it for tribes?” which is what courts often do with tribes.
So, I think the real significance of this case — not groundbreaking in a sense, it doesn’t create a new area of law — is that the justices of the Supreme Court are being very clear that when it comes to Indians, its job is to interpret the law and treaties to mean what they say. And, in the past, that was more often not what the courts did.
Right. I think for people outside of Indian Country, there’s so little purchase on the levels of legalities when it comes to tribal nations where you kind of got to start by explaining what a treaty is and then you’ve got to explain what the Allotment Act or Dawes was then Termination, and etc., etc. It’s exhausting. So, what does this then mean for people in Oklahoma right now?
I think the irony of what we’ll see in the coming months on the ground is that it’ll become evident very quickly that Oklahoma’s warnings about how this is going to cleave the state in two and all these like the sky is falling down arguments, are pretty overblown. We’re just not going to see those things happen. I think that the people’s lives who will be most directly impacted by this shift in criminal and some civil jurisdictions are tribal citizens ourselves.
Where I live right now is not restricted Indian land. Until yesterday, if I, say, broke the law in my house, the federal government didn’t recognize my tribe’s authority over me and now it does. So if there’s a state-level change anywhere, I think it’s going to be internal for tribes. And I think it’s going to mostly be a good thing.
So, it’s not this “the land is going to be transferred back” narrative that some people are trying to push?
You know, we have had this century of a slow bleed land loss since Allotment. But it didn’t stop there. I mean, land loss is still real. We’ll have to see how this process changes with this decision. But when people have restricted land and it’s sold to a non-Indian or even just passed down to their children where it then goes into the probate process, it can be lost to Indian Country because of misfiling.
This is what’s happening in 2020. Tribes were still losing their land in the eyes of the state government and in the eyes of the federal government. So, I think really what this court decision does is it shores up the sovereignty that we have fought all this time to protect so that we can increase the foundation on which we can really build a better future for our tribes. That looks like healthcare for our citizens. That looks like preserving our languages. And, yes, it’s a lot of the stuff our tribes have already been doing, but with recognized reservations, we have more power to do that.
Absolutely. And I have personal experience with this. When my father passed in 2009, the BIA sent me a letter saying that his will was not executed correctly according to BIA rules and so they took away all the land I was meant to inherit on two reservations. And now, I have none.
Yes. The Allotment system is kind of my soapbox. I think we talk about these moments, like the Trail of Tears or about the Indian Wars and the massacres, and the violence of those moments cannot be overstated. But then the United States figured out how to do the exact same thing without guns and arrows but with paper. And, if you look at the legacy of allotment, I would argue that it’s just as devastating if not more. We’ve never recovered from that history. I mean, it’s ridiculous that the laws that were set up to separate Indians from their land are still functioning in a lot of places.
Looking out at the broader world of Indian Country, you have similar situations when you look at the Fort Laramie Treaty which enshrined basically half of what is now South Dakota to the Lakota. Of course, like Indian Country in Oklahoma, that land was slowly chiseled away. Do you think the Lakota now has a better case for getting their federally promised land and rights back now?
I would imagine that there are tribes that woke up today who have treaty rights that have not been recognized by state and local governments that are having that very conversation. I’m not privy to those conversations. But I think that Gorsuch’s opinion left no space for ambiguity. He said explicitly that this decision was just about the Muscogee Creek nation and that’s what it applies to. So, he was very narrow in the way that he wrote it, but he was also very, very clear about his rejection of some of these long-standing assumptions or arguments that come up all the time in federal Indian law.
There’s this one powerful quote that he says towards the end of the opinion, he uses this kind of language where what’s presented in this case is this familiar argument that local governments make about tribal land where it’s like, “Yes, that’s what the treaty says. But you can’t really expect us to follow a treaty that was executed so long ago” and Gorsuch very plainly writes, “no, the role of the federal court is to interpret the language of the treaty, to take it at its face value that actually it does what it says, just like we do with any other text that Congress writes, and we interpret it based on that text.”
He even points out in another section that in any other area of statutory interpretation we assume that the statute means what it says, but somehow we make this sort of weird acceptance for federal Indian law. He has this really great line where he says, “that would create the rule of the strong, not the rule of the law.”
Basically, at a time often when Native people were recovering from genocide and death and just trying to survive the States were able to pull one over on us for a long period of time, and that would be enough to erode the meaning of the treaties. Gorsuch just completely rejects that idea. He uses very strong language in several places to call that argument to task for not really following the letter of the law.
It feels like a landmark decision.
I think that this decision will be quoted a lot. I saw somebody joking on Facebook that they want to get a tattoo of the decision. I think people in Indian Country are super excited about it. I think as we see court cases moving forward, this decision is going to be in briefs. I won’t be surprised if it’s quoted in other decisions. I think that Gorsuch wrote some strong language for tribal advocates to use, but at the same time, he was very, very clear about what this decision applied to and it just applies to Muscogee.
It’s an interesting time as we’re seeing Columbus statues fall, protests at Rushmore, and, seemingly, the end of the R*dsk*ns. And now this massive win from the highest court. How does it feel experiencing these social movements that are going in such a positive direction for Indian Country?
I think, one, we absolutely have to credit the moment of awareness about race in the United States that the leaders of the Black Lives Matter movement have created. We have to acknowledge that labor and that work to kind of create this moment that a lot of people are waking up to the idea that a lot of the long-held racist policies and cultural symbols in the United States are wrong and need to change. If it wasn’t for the conversation that black activists forced around the police killing of George Floyd, I don’t think Dan Snyder would be talking about changing the name of the Washington football team, you know? So, I think it’s really important for that credit to be given because I think that that credit is due.
I also think that the past week has been really interesting for Indian Country being on the national radar. We got the news of the Washington football team, and then it was Trump at Mount Rushmore, and then we got the really incredible news about the Dakota Access Pipeline, and then it was this Supreme Court case. It’s sort of like, I think, the biggest news week for Native people that I can think of in a long time.
You know, we break through the news cycle a few times a calendar year. If you look back at 2019, it was when the Covington high school students mocked the Native elder Nate Phillips and it was when Warren tested her DNA. That was kind of it. We had Standing Rock, which was one of the first times that mainstream media paid attention to a modern movement for Indigenous rights since Wounded Knee and the American Indian Movement. So this is a once in a generation moment where non-native people are like, “Oh, wow.! Yeah, Indigenous people are still here. They’re still fighting for this stuff.”
It’s really important for people to realize that even when these things aren’t making headlines, all of the work that Indigenous people are doing in the court, in their communities, on the frontline, is still happening and it’s still worthy of people’s attention and concern.
This case is actually a really good example of how that works. I have been writing about this since 2015. I can’t tell you how many people told me while making this podcast, “Oh my gosh, the implications for this case are so big. I can’t believe I hadn’t heard about it. I can’t believe nobody’s talking about it. I can’t believe it’s not getting more media attention.” And I think what’s undeniably true about yesterday is that if the tribe had lost, it wouldn’t have made the national headlines that it made because it would have only impacted Indians, and it would have just been tribes losing at the Supreme Court again and that would be it. But because it impacts a bunch of non-native people — or at least that’s the perception — it’s now worthy of national news.
That’s a really good way to put it. So, let’s talk a little bit about the This Land podcast. The show was sort of built around talking about the court cases and legal issues that lead to McGirt v. Oklahoma. Now, there’s a conclusion. So, what’s next for the show?
So, we are working on the update episode. I actually just spent most of yesterday and this morning doing interviews and collecting tape for that. It’s going to come out at the end of next week, probably next Thursday or Friday. It’ll be a full update because there’s so much that’s happened in the case. It’s a wild ride from the Supreme Court granting hearings to oral arguments postponed because of the Coronavirus, and then they happened online for the first time in the court’s history. Then we got this landmark decision. And so, it’s not even just the about decision, but just everything that’s happened on the way to that decision.
Awesome. So, I guess my last question is how are you going to celebrate?
I know, it was funny, I was just texting with some of my friends about that. It’s been such an emotional 36 hours. You know, I’ve talked to people who aren’t even a member of one of the Five Tribes, and they just sort of read it and wept. It is really emotional. We’re so used to … We know that the law’s on our side. We know that we are in the right. But so much of the time, that doesn’t matter.
I think Dakota Access Pipeline is a great example. That pipeline was illegal. It wasn’t only that there’s no way that the pipeline won’t poison the Standing Rock tribe’s water. There’s actually a legal way route for them to do that. That company had to follow a process. They have to do an environmental impact study. They have to consult the tribe. But even if the tribe says no after all of that, Congress is still given the power over tribes, over our treaty territories, over our reservation, over things like water rights. We have so little and then even that is not respected. Even those laws are not enough. And even the laws that are not enough are still not followed.
I think there’s an irony to the victory in that I think we have to frame it as basic. All Gorsuch said was, “this is what the law says, and guess what guys? Our job is to follow it and to make people follow it as a court.” But I think we’re so used to that not happening that it’s really emotional for it to actually happen, and to happen in this way that is sort of uncompromising and unflinching, which is the way that Gorsuch wrote that opinion.