10 July 2020

The OTHER major Supreme Court decision yesterday, a surprise and unusually progressive opinion by Goruch

The two Trump related SC decisions yesterday sucked all the oxygen, but a third major decision is extremely important and shows the way towards recognition of the enforcement of treaties with native peoples in the future. This summary by historian Heather Cox Richardson is informative. 

.....major victory for indigenous peoples. In a 5-4 decision in McGirt v. Oklahoma, the court upheld the claim of the Creek Nation that a large chunk of Oklahoma, including much of Tulsa, remains a reservation for the purposes of criminal prosecutions. This means that natives on the land cannot be tried by state court; they must be tried in tribal or federal courts. While this will affect state convictions of Creeks, tribal leaders say it will have little impact on non-natives.
Oklahoma had argued that while Congress had initially established a reservation for the Creeks, it had ended that reservation when it pushed Creek individuals onto their own farms in the late nineteenth and early twentieth centuries. But Congress had never explicitly gotten rid of the reservation. Neil Gorsuch joined the majority and wrote the decision, saying "Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word."
The decision details the history of U.S. and Creek interactions, and notes that the federal government often went back on the promises it made to the Native Americans. The decision holds the federal government to the treaties it negotiated with the Creeks, and as such, the decision has the potential to affect a number of other conflicts in which federal agreements were overruled by other state or federal actions, but were never explicitly ended. The decision certainly has the potential to apply to four other reservations in eastern Oklahoma whose histories mirror that of the Creek lands.

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