By Cathy Johnson, Product Manager Lead, ProQuest
The Supreme Court’s recent 5-4 decision in McGirt v. Oklahoma could potentially reshape criminal justice in eastern Oklahoma by preventing state authorities from prosecuting Native Americans. This landmark case affirms the significance of historical treaties made with the Creek Nation and holds the U.S. government accountable to them – even if many of the treaties have previously been broken.
In order to better understand the background and profound implications of the case, we asked product manager Cathy Johnson to take us through nearly two centuries of historic government documents leading up this landmark decision.
On July 9, 2020, the Supreme Court of the U.S. ruled in McGirt v. Oklahoma that for the purposes of the Major Crimes Act, land reserved for the Creek Nation since the 19th century remains “Indian country” where tribal governments retain considerable sovereign authority. The petitioner in the case was Jimcy McGirt, an enrolled member of the Seminole Nation. He fought to have a conviction against him overturned, arguing the State of Oklahoma did not have the right to prosecute because his crimes were committed on the Creek reservation.
According to the Major Crimes Act, enacted in 1885 as part of the Indian Appropriations Act and amended by P.L. 99-654 in 1986, federal courts (not the states) have jurisdiction over certain crimes committed on Indian reservations. In deciding the McGirt case, the Court held that the lands promised to the Creek Nation by treaty remain an Indian reservation because the Congress has never said otherwise – and confirmed that the State of Oklahoma did not have the right to prosecute crimes committed there.
The Treaty of March 24, 1832 provided that in exchange for ceding Creek Lands east of the Mississippi, the U.S. government solemnly guaranteed to the Creeks lands west of the Mississippi located in what is now Oklahoma. The boundaries of the country were established for the whole Creek Nation, including the Seminole Nation, in the Agreement of Feb. 14, 1833.
Also bearing on the McGirt case was the treaty of June 14, 1866, in which the Creeks, who had sided with the Confederacy during the Civil War, ceded the western part of their territory to the U.S. government, with the government affirming that the eastern portion of their lands shall be forever set apart as a home for the Creek Nation.
In response to U.S. policy supporting the allotment of lands previously held in common, the Creek Nation submitted a memorial to Congress in 1883 arguing that experiments in allotment resulted in destitution and a diminished number of Indians. In 1887, when the Dawes Act authorized the President to break up and distribute reservation lands held in common to individual Indians if they were deemed suitable for farming or grazing, the Creeks were among a small group of nations exempted from the provisions.
Subsequent acts allotted shares of commonly held tribal property to individual members of the tribe, but Creek leaders continued to govern and battle fraudulent land transactions, and Congress never withdrew its recognition of the tribal government.
The Creek Nation submitted an amicus curiae brief in McGirt v. Oklahoma to vindicate its core sovereign interests, asserting in part that the Supreme Court decision in Solem v. Bartlett (1983) held that “once a block of land is set aside for an Indian reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.”
The brief argues that when Oklahoma became a U.S. state in 1906 it did not abrogate the reservation status of Creek lands. In fact, the Oklahoma Enabling Act of 1906 specifically stated that nothing in the act should limit or impair the rights of the Indians or the authority of the Federal government to make laws and regulations regarding the Indians.
In the 1920s, Congress began to adopt policies that were less focused on assimilation and more focused on tolerance and respect for traditional aspects of tribal culture. In 1936, an act to promote the general welfare of the Indians of the State of Oklahoma allowed the Creeks to adopt a constitution and resume government functions that had been effectively suspended. The Creek Nation developed a robust, tripartite system of government.
Although many promises made by the U.S. government to the Creek Nation were broken, the decision of the Supreme Court in McGirt v. Oklahoma rests on the treaties and statutes that define the relationship between the Federal, State, and tribal authorities, as well as the refusal of the Court to treat Native American claims of statutory right as less valuable than others.
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