According to a New York Times article by By Jack Healy and Adam Liptak, the Supreme Court on Thursday of last week ruled that much of eastern Oklahoma falls within an Indian reservation.
The 5-to-4 decision, potentially one of the most consequential legal victories for Native Americans in decades, could have far-reaching implications for the people who live in what the court affirmed was Indian Country.
The lands include much of Tulsa, Oklahoma’s second-biggest city.
The case was steeped in the United States government’s long history of brutal removals and broken treaties with Indian tribes, and struggled with whether lands of the Creek Nation had remained a reservation after Oklahoma became a state.
The Supreme Court on Thursday ruled that much of eastern Oklahoma falls within an Indian reservation. The Supreme Court decided that some eastern Oklahoma land controlled by state and local governments since 1907 — including Tulsa — should still be under the jurisdiction of the Creeks because Congress never disestablished the tribe’s 1866 reservation.
The state of Oklahoma contends Congress took several steps intended to dissolve the reservation even though there was never any explicit statute.
The decision puts in doubt hundreds of state convictions of Native Americans and could change the handling of prosecutions across a vast swath of the state.
Lawyers were also examining whether it had broader implications for taxing, zoning and other government functions.
However, many of the specific impacts will now be determined by negotiations between state and federal authorities and five Native American tribes in Oklahoma.
Justice Neil M. Gorsuch, a Westerner who has sided with tribes in previous cases and joined the court’s more liberal members to form the majority, said that Congress had granted the Creek a reservation, and that the United States needed to abide by its promises.
In McGirt v. Oklahoma, the court ruled, 5 to 4, that much of eastern Oklahoma is an Indian reservation.
McGirt was convicted of first-degree rape of a 4-year-old girl in 1996 in Wagoner County.
He contends he should have been tried in federal district court because he is a tribal member, the crimes occurred on the historical Creek reservation, and the reservation was never disestablished.
Creek leaders hailed the decision as a hard-fought victory that clarified the status of their lands. The tribe said it would work with state and federal law enforcement authorities to coordinate public safety within the reservation.
“This is a historic day,” Principal Chief David Hill said in an interview. “This is amazing. It’s never too late to make things right.”
The ruling comes at an extraordinary time for Native Americans.
They are being ravaged by the coronavirus both in the soaring numbers of cases and deaths and the economic distress caused by closed casinos.
But at the same moment, the nationwide movement to confront systemic racism has brought new energy and attention to generations-long fights by tribal nations and Indigenous activists over land, treaty rights and discrimination.
In the past few weeks, tribal activists garnered international attention after they blocked the roads outside Mount Rushmore to condemn President Trump’s visit to what they called stolen lands. They won a fight to shut down an oil pipeline that crossed sacred ground in North Dakota.
In the face of growing pressure from corporate sponsors, the Washington Redskins of the N.F.L. recently promised to re-evaluate their team name, which activists have denounced for years as racist.
On social media, people celebrated Thursday’s decision with the declaration Native Lives Matter.
The court’s decision means that Indigenous people who commit crimes on the eastern Oklahoma reservation, which includes much of Tulsa, cannot be prosecuted by state or local law enforcement, and must instead face justice in tribal or federal courts.
Chief Justice John G. Roberts Jr. warned in a dissenting opinion that the court’s decision would wreak havoc and confusion on Oklahoma’s criminal justice system.
“The state’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out,” Chief Justice Roberts wrote. “On top of that, the court has profoundly destabilized the governance of eastern Oklahoma.”
But experts in Indian law said the decision’s effects would be more muted, and would change little for non-Natives who live in the three-million-acre swath of Oklahoma that the court declared to be a reservation of the Creek Nation.
“Not one inch of land changed hands today,” said the ambassador for the Creek Nation. “All that happened was clarity was brought to potential prosecutions within the Creek Nation.”
In a statement, Mike Hunter, Oklahoma’s attorney general, said the state and the Creek, Cherokee, Chickasaw, Choctaw and Seminole Nations were working on an agreement to present to Congress and the U.S. Department of Justice addressing jurisdictional issues raised by the decision.
Still, the decision could have far-reaching implications on tribes beyond the reservation boundaries in eastern Oklahoma.
The case sprang from the state-level criminal conviction of Jimcy McGirt, a Seminole man who was found guilty of sex crimes that occurred within the Creek Nation’s historical boundaries. He said that only federal authorities were entitled to prosecute him.
Mr. McGirt argued that Congress had created the reservation and had never clearly destroyed the sovereignty of the Creek Nation over the area, even as much of the land was parceled off to private ownership.
Justice Gorsuch’s opinion, tracing that history, began: “On the far end of the Trail of Tears was a promise.” The reference is to the forced relocation of some 100,000 Native Americans from their home in the Southeast in the 1800s.
The opinion said that the promise was that Congress had guaranteed the Creek land for a permanent home in what became Oklahoma in exchange for forcing them from their ancestral lands in Georgia and Alabama during the 1830s.
The court was faced with the question of whether lands of the Creek Nation had remained a reservation after Oklahoma became a state and the tribe’s lands were fractured and sold off and its powers of self-governance were attacked by Congress.
Well obviously, we need a little history here, so here goes.
Americans came to the west with the idea that they did so peacefully and that they were inhabiting an empty land.
The Indians did not see it as peaceful and the Indians did not give up their lands without a fight
Europeans had been in contact with Indians for several centuries before the great migration west. In many cases the early Europeans worked alongside and traded with the Indians.
When Meriwether Lewis and William Clark set forth on their great expedition in 1804, they lived among the Indians the encountered along the way.
This gave the explorers a working knowledge of the Indian’s cultures and politics
Lewis and Clark came west seeking Indian allies against rival European powers and to establish trade relations with the Indians.
Americans treated Indian tribes as small nations existing within the boundaries of the US.
The US took the position that since these nations were within our nation, we had a right to control over Indian affairs and sole authority to purchase Indian lands.
However, Indian nations were sovereign nations and as such felt they had full control over their people.
In other words, they were a third form of government in the US.
The federal government, the state government, and the Indian government.
All of the early 19th century presidents had tried to get the Indians to leave the east and move to lands west of the Mississippi.
The Indians refused to do so.
So, in order to end the resistance, President Andrew Jackson allowed Georgia and neighboring states to extend their laws over the Indian nations living in their states.
This new arrangement affected the Choctaws, Chickasaws, Creeks, Seminoles, and the Cherokees. (known as the five civilized tribes).
Naturally the Indians resisted state rule and eventually the issue came before the supreme court.
The supreme court ruled that Indian tribes are domestic dependent nations and are exempt from state laws.
By domestic dependent nations they meant that Indians gave up their ability to establish independent dealings with foreign nations when they came under the “protection of the US.
The court did say however that the Indians retained their internal powers and that Georgia laws did not apply to them
So, the supreme court was saying that Indian tribes were independent nations.
Andrew Jackson chose to simply ignore the Supreme Court ruling and twist it to his advantage.
He and his followers stated that because the Indians depended on the U.S. to protect their rights they had surrendered certain aspects of their sovereignty.
In other words, Indian nations were wards of the federal government just like parents and their children.
So Jackson and his followers took the stand that removal of the Indians from the east and shipping them west was in the Indians’ best interest.
There, they could continue their independence without white interference (a real crock).
This led to the Trail of Tears which forced the removal of the Five Civilized Tribes from the east to Oklahoma.
Along the trail, one out of every eight Indians died.
Andrew Jackson stated that Indians had “neither the intelligence, industry, moral habits, or desire for improvement, to live among whites”
In 1832 Congress authorized the creation of the office of Commissioner of Indian affairs and Jackson named Thomas McKinney, a supporter of removal, as commissioner.
In 1834 congress went on to create the Bureau of Indian affairs.
Indians soon found they had no choice but to give up their lands and by 1870 only the Indian territory given to the 5 civilized tribes remained within total Indian control.
Reservations were developed as needed and separated the races.
In effect they were small concentration camps supervised by troops where Indians were subjected to a system of discipline and instruction.
Indians were now treated as powerless wards of the state.
Those in favor of the reservation system argued that reservations would teach Indians our way of life so they could be acclimated back into society.
Indians would be made into Christian farmers, in nuclear families living a “proper life”.
Above all else, Indians were to be individualized and de-tribalized.
The reservation system was based on treaties signed by the chiefs but in many cases the U.S. simply appointed a chief from the tribe who was willing to negotiate.
The 1850’sand 1860’s saw tremendous violence between the Indians and the U.S. govt.
During the 1850’s and 1860’s the eastern protestant churches pushed for an end to the atrocities being committed on the Indian people.
Bishop Henry Whipple of the Episcopal church was one of the first reformers to dominate American Indian policy after the civil war.
He was convinced that the only way the Indians could survive would be their rapid adoption of Christianity and anglo-american culture
Whipple’s followers called themselves friends of the indians and argued that Indians were inferior to whites not because of their capacity to learn, but because they were like children-they were still advancing up the ladder of civilization.
Therefore, reformers believed that for Indians to survive, they had to shed everything that made them Indian.
If the Indians refused, reformers would have to force them to do so for their own good
Indian culture was to be destroyed in order to save the indian people
Reformers sincerely believed this was a policy of kindness, honesty, and justice
In opposition to this reform movement were those who wanted to give the army total control over Indian affairs.
Reformers staved off army control but the army continued to kill Indians.
Indians were now seen as incompetent children for whom the government was responsible.
Most Indians on reservations now depended on government payments and rations for their survival
This dependency gave the government absolute control over the Indians
Between 1881 and 1897 the bureau of Indian affairs doubled in size with nearly 4000 employees.
The bureau now became centralized under the leadership of Carl Schurz, Secretary of the interior under President Rutherford B. Hayes.
The Indian bureau now launched a direct assault on Indian culture by withholding rations, imprisonment, forcibly cutting men’s hair, seizing children for schools, physically breaking up religious ceremonies, and seizing religious objects.
Reformers believed that until they eliminated existing indian beliefs, they could not assimilate Indians into society
Reformers stated that “the goal is to kill the Indian and save the man”
The reformers now also pushed for a program which would take Indian lands and convert them to private property.
The reformers believed that as long as Indian lands were held as common property, Indians would continue with their tribal customs
Also, as Indian populations declined, the reformers felt that the Indians held too much land for them to function efficiently.
Therefore, the reformers now pushed through programs which would take this “excess land” and sell it to white settlers.
This brings us full circle back to the recent Supreme Court decision we started this show with.
This process the government used was known as “severalty” (ie severe the land from the reservation)
The main severalty measure was the Dawes Act, submitted by Senator Henry Dawes of Mass. in 1887.
Under the Dawes Act, Indian lands would be divided up and each Indian head of family was to get 160 acres which would be held in a trust by the government for 25 years.
The decision to divide up Indian lands rested with the President of the US, not the Indians.
If the President decided to divide up a reservation and sell off the excess, there was nothing the Indians could do about it
In 1881 Indians held 155,623,312 acres of land.
In just 9 years, 1890, they held 104,314,349 (51 million acres lost)
By 1900 the figure was 77,865,373 (half of all Indian lands)
Fraud had allowed most of this land to fall into white hands
Between 1887 and 1934, the Indians lost another 66 percent of their allotted lands.
The only exception to the Dawes Act was that of the 5 civilized tribes of Oklahoma who obtained an exemption from the act.
Settlers now wanted the Oklahoma territory and pushed for severalty of the 5 civilized tribe’s land holdings.
In 1893, the Dawes Commission ruled in favor of severalty of the civilized tribe’s lands.
When the Indians resisted, congress passed the Curtis Act of 1898 which unilaterally terminated all tribal governments in the United States.
In 1903 the Supreme Court ruled that Congress had absolute power to regulate Indian affairs even when congressional actions violated existing treaty provisions.
Do you now see the significance of last Thursday’s decision by the Supreme Court?
The problem was, these Indians had successfully set up a community in which every Indian had a home of his own, and there were no paupers in the nation.
These Indians owed no one, had built a capitol, schools, and hospitals.
With no problems to point to, reformers now used the Indians’ success against them.
Reformers contended that the Indians, while successful, had gone as far as they could go because they owned land in common.
There was no reason to make your home better than that of your neighbor.
There was no selfishness (competition) in the Indian society which reformers felt was the root of advanced civilization.
Bottom line, reformers felt that civilization was based on selfishness and that progress comes only through uninhibited pursuit of self interest.
Indians were not inferior, they were simply living in a society which inhibited the greed and selfishness necessary for progress!
I don’t know. Callers, what do you think. Maybe the Indians had a better model for society and we should just put them in control. They can’t do any worse than the mess we have now created in our country.