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Inland Northwest tribal leaders, lawyers praise key Supreme Court decision on tribal sovereignty

Associate Justice Neil Gorsuch, shown Sept. 4, 2019, wrote the majority opinion for a Supreme Court decision that ruled a large part of eastern Oklahoma is an Indian reservation.  (J. Scott Applewhite)

WASHINGTON – In a decision hailed by Native American leaders in the Inland Northwest as a victory for tribal sovereignty, the Supreme Court on Thursday ruled that a large part of eastern Oklahoma is an Indian reservation, affirming that Congress never officially “disestablished” the Muscogee (Creek) Nation when it divided tribal land into private property at the end of the 19th century.

In the 5-4 decision, Justice Neil Gorsuch joined the court’s four liberal justices and wrote the majority opinion, solidifying his record as one of the court’s strongest defenders of treaty rights. The Trump appointee previously sided with the Yakama Nation over the state of Washington in a 2019 ruling.

Thursday’s decision applies to an area that includes much of Tulsa, Oklahoma’s second-largest city, and means the federal government – and not the state – will have jurisdiction over crimes committed by or against a tribal member in the area.

“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.”

Robert Anderson, director of the Native American Law Center at the University of Washington, said while the ruling does not have any immediate implications for tribes in the Northwest, it signals that a majority of the current justices will uphold treaties, something the court has not always done.

“This case bolsters any tribe in the Northwest’s claim that its boundaries have not been disestablished,” said Anderson, a member of the Bois Forte Band of Ojibwe, “because in most of these situations, Congress may have had an expectation like they did in Oklahoma with the Creek reservation that eventually the Indians would go away and the reservation would disappear, but they didn’t do so explicitly. And so what Gorsuch’s opinion does today is makes it clear that if Congress does not explicitly terminate a reservation’s boundaries, they continue to exist, with all the jurisdictional implications that go along with that.”

Rodney Cawston, chairman of the Confederated Tribes of the Colville Reservation, said the ruling gave him “some confidence and some hope.”

“Leading up to that decision I was very skeptical,” Cawston said, “because tribes, we have a long history of having to fight for our rights – for our own people in our own country – with laws that are not our laws, and so to look at those rights and to have the rights or the sovereignty upheld by the Supreme Court, that is very encouraging, especially at a time when we have many in the present administration that are really looking to remove a lot of the laws and regulations that have been developed over many decades with our tribal and federal relationships.”

The case made its way to the court after Jimcy McGirt, a Seminole Nation member, was convicted in state court of child molestation. Because the crime took place on Muscogee (Creek) territory, McGirt argued the state court had no jurisdiction and the federal government would have to prosecute him.

It was not the first time the court had considered whether “allotment,” a federal policy starting in the 1880s to split tribal land into private plots and open it to settlement by non-Indians, gave states jurisdiction over the area. In the opinion, Gorsuch cited a 1962 decision in which the Supreme Court ruled that the state of Washington did not have jurisdiction to try a member of the Colville Tribes for a burglary on the Colville Reservation, even though he committed the crime on land owned by a non-Indian.

“In saying this we say nothing new,” Gorsuch wrote. “For years, States have sought to suggest that allotments automatically ended reservations, and for years courts have rejected the argument.”

“Essentially since Justice Thurgood Marshall retired in the early ’90s, the Supreme Court has been very antagonistic to tribal rights,” said Dylan Hedden-Nicely, director of the Native American Law Program at the University of Idaho and a member of the Cherokee Nation. “But since (Justice Gorsuch) has joined the bench, it seems as though we have at least five justices that are fairly pro-tribal and they’re applying rules – what I would consider to be pretty much foundational bedrock principles of federal Indian law – that have been kind of ignored by the Supreme Court for the last 30 to 40 years.”

In his opinion, Gorsuch made clear that federal lawmakers have the authority to break promises made to tribes, but asserted that the court must uphold existing law.

“If Congress wishes to withdraw its promises, it must say so,” he wrote. “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

In a statement, the Coeur d’Alene Tribe said it was “very relieved to see the Supreme Court’s decision.”

“This decision should put to bed the tired arguments from anti-Indian groups that somehow reservations have been diminished or eliminated simply because Congress chose to break other promises to the tribes by allowing non-Indian settlement within their borders,” the tribe said. “It is incredibly refreshing to see the Court use such blunt and honest language about what really happened during the reservation period, and then offer the simple and candid promise that the Court will now hold the government to its word. This truly is a game changer.”

The Kalispel Tribe decried the federal government’s “lengthy history of broken agreements, brutal removals, and genocide with Native American tribes.”

“The Court found that the United States needs to honor its promises made to the Creek Nation,” the tribe’s statement read. “While this case focuses on criminal jurisdiction, it is an important reminder that tribes entered into agreements with the U.S. Government. Despite many attempts to eliminate tribes, their people, their lands, and their governments, the U.S. Supreme Court today acknowledged that legally binding is just that – legally binding.”

Much of eastern Oklahoma is home to the “Five Nations,” of which the Creek is just one, and critics of the decision characterized it as ceding the entire area once known as Indian Territory, with Sen. Ted Cruz, R-Texas, tweeting, “Neil Gorsuch & the four liberal Justices just gave away half of Oklahoma, literally.”

The New York Times’ original headline, later changed, read: “Supreme Court Rules Nearly Half of Oklahoma Is Indian Reservation.” But Robert T. Coulter, executive director of the Indian Law Resource Center in Montana, said the court was careful to say this ruling applied only to the Creek Nation.

“The good thing about this decision is that the court was willing to apply the law as they found it – at least five justices were,” said Coulter, a Potawatomi Nation member. “It’s frightening that the other four were not willing to do that.”

Scott Wheat, an attorney for the Spokane Tribe and member of the Oklahoma Choctaw Nation, said he was “poring over the decision and thinking about how it would affect our jurisprudence.

“For the tribes in southeast Oklahoma, this is a path-marking decision,” Wheat said. “Certainly all of Indian country, I would expect, is celebrating today.”