“On The Far Side Of The Trail Of Tears Was A promise”: Supreme Court Upholds 1866 Muscogee Nation Boundaries

On June 9, in a 5-4 ruling on McGirt v. Oklahoma, the U.S. Supreme Court found that the 1866 treaty delineating Muscogee Nation’s reservation remains legally binding. Further, the case establishes that the reservation boundaries demarcate criminal jurisdiction over tribal citizens.

In 1997, Jimcy McGirt was convicted by an Oklahoma jury of crimes that occurred on the Muscogee Nation’s historically tribal lands. Because of the location, and the fact that McGirt and the victim (a four-year-old girl) were both Seminole Nation citizens, McGirt argued that Oklahoma did not have jurisdiction over his case. Notably, Gorsuch opens the majority opinion by recalling the historical context of the case. “On the far end of the Trail of Tears was a promise,” Gorsuch writes, “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.” 

Such a principle—that the United States must uphold its treatiessounds straightforward and uncontroversial. Yet, throughout history, the U.S. government has repeatedly ignored its commitments to indigenous communities. Moreover, as of 2017, the Supreme Court has ruled against tribal interests in 72 percent of cases over the last decade. Per High Country News (HCN), the Supreme Court’s track record has discouraged tribal litigates from bringing cases to the Supreme Court. 

The Court’s ruling in favor of McGirt, then, is highly significant for Indigenous peoples in the United States. Jason Salsman, Muscogee Nation press secretary, explained the ruling’s importance to the New York Times: “It was a powerful moment, one I wasn’t ready for…It was just a promise kept. We know the history of promises that have been broken. I still get chills thinking about it.” 

Sarah Dear, a Muscogee citizen, lawyer, and domestic violence advocate explained the significance in an interview with Democracy Now. “It’s a landmark case and probably the most important Indian law case in half a century.” Notably, Dear added, the “Five Tribes” of Oklahoma (the Cherokee, Chickasaw, Muscogee, Choctaw, and Seminole; all of which were forcibly relocated west of the Mississippi) have “very similar treaties.” The Court’s ruling, then, would prevent Oklahoma from successfully retaining control over the other tribes’ reservations. 

The ruling is not just significant for Indigenous communities in Oklahoma, however. Dear argues that the “language of the decision goes far beyond Oklahoma,” as it addresses “foundational principles of tribal sovereignty.” Riyaz Kanji, the lawyer representing the Muscogee Nation in the case, told The Atlantic that tribal lawyers “will be quoting that decision for the rest of our lives. The Court is not going to be in the business of taking away tribal rights without congressional intent anymore.”

Notably, the Court’s ruling will likely improve the safety of Indigenous women and children.  According to the National Congress of American Indians (NCAI) Research Center, “61 percent of American Indian and Alaska Native women (or 3 out of 5) have been assaulted in their lifetimes,” while 34 percent have been raped. Significantly, the NCAI Research Center found that, on average, 67 percent of Indigenous women described the offender as non-Native. Because Indigenous women so frequently experience sexual and domestic abuse from non-Natives, a new provision was added to the Violence Against Women Reauthorization Act of 2013 (VAWA).

The provision, according to the National Indigenous Women’s Resource Center (NIWRC),  “recognized and affirmed the inherent sovereign authority of Indian tribal governments to exercise criminal jurisdiction over certain non-Indians” who commit domestic violence against Indigenous women on tribal lands. The NIWRC praises the law for endowing tribes “with the much-needed authority to combat the high rates of domestic violence against Native women, while at the same time protecting non-Indians’ rights in impartial, tribal forums.”

However, the VAWA is only applicable to “Indian Country.” Thus, the Court’s affirmation of the Muscogee’s reservation land has also enabled them to exercise criminal jurisdiction over non-Natives in domestic violence cases against tribe members. Cherrah Giles, Board Chair to the (NIWRC), emphasized that “affirming the Tribe’s reservation will not result in the release of thousands of criminals as [the state of Oklahoma] suggested, but instead will help to protect and safeguard Oklahoma’s most vulnerable population—Native women and children.”  

Sarah Dear, the lawyer, and advocate against domestic violence quoted above, also argues that the Court’s ruling will help the Muscogee Nation protect Indigenous women and girls. “…In this case,” Dear argues, “I see a larger issue about safety for Native women and girls, and two-spirit people who are victims of violence… I believe tribal sovereignty is going to be key to protecting people from violence.”

The Supreme Court’s ruling on the McGirt v. Oklahoma case is a step forward in the recognition of Indigenous nations’ land rights, treaty rights, and sovereignty. Moreover, the case demonstrates the importance of familiarity with federal Indian law, along with consideration of historical context. As the majority opinion stated, “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”

Alexa Grunow