Supreme Court rejects Oklahoma’s effort to ‘nullify promises made in the name of the U.S.’ to tribes

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In a massive win for the United States’ first people, the Supreme Court has ruled that the Muscogee (Creek) Nation’s reservation was not officially terminated at Oklahoma statehood, and that for certain purposes, essentially half of the state is Native American land. The 5-4 decision, authored by Justice Neil Gorsuch, sided with a Creek member, Jimmy McGirt, who challenged a rape conviction by the state on tribal territory.

“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Gorsuch wrote. “Because Congress has not said otherwise, we hold the government to its word,” he wrote. The decision means that only federal authorities can bring charges against tribal members for serious alleged crimes on tribal land under the Major Crimes Act. It gives federal authorities the jurisdiction over state authorities in serious crimes on tribal lands. “For MCA purposes, land reserved for the Creek Nation since the 19th century remains “Indian country,'” Gorsuch wrote for the majority, which included Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

“The federal government promised the Creek a reservation in perpetuity,” Gorsuch said in the decision. “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 But Congress has never withdrawn the promised reservation.” The state argued before the Court that the Creek Nation’s former territory was not a reservation and that agreeing with McGirt would “cause the largest judicial abrogation of state sovereignty in American history, cleaving Oklahoma in half.” Gorsuch rejected the idea that the Creek Nation territory was not Indian land. “Under our Constitution, States have no authority to reduce federal reservations lying within their borders. Just imagine if they did,” he wrote.

“A State could encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States. That would be at odds with the Constitution, which entrusts Congress with the authority to regulate commerce with Native Americans, and directs that federal treaties and statutes are the ‘supreme Law of the Land,'” he wrote, adding that if that happened, “It would also leave tribal rights in the hands of the very neighbors who might be least inclined to respect them.”

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