The U.S. Supreme Court issued a decision last week that altered the map of Oklahoma. The eastern half of the state, including much of Tulsa, is now, for legal purposes, Indian country. The Supreme Court decision was uncommon — Indigenous people have seen few victories so sweeping in the high court — but treaty violations like those that occurred in Oklahoma are not.
“The rule of thumb is every treaty’s been broken,” said Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University.
Going back to the original treaty texts would make broad swaths of the nation Native territory. That means Indigenous people would have a stronger voice on environmental enforcement, more of a say on fossil fuel infrastructure construction, be able to better control the fate of Native children removed from their parents’ home, and less likely to be tried in local courts where district attorneys are elected using racist, tough-on-crime politics. Beyond control over the land itself, the treaties lay the groundwork for obligations requiring the federal government to provide adequate resources to support health care, safety, and education — which have never been fulfilled.
“There are these treaty promises and treaty rights, but tribes have to litigate to make them real, especially in the modern era.”
Powerful Native movements in the U.S. — from the American Indian Movement in the 1970s to the Standing Rock movement in 2016 — have centered around fulfilling treaty obligations. The McGirt v. Oklahoma decision last week provides a window into what treaty fulfillment would mean — and an invitation for action by Congress, courts, and the executive branch, especially if a Democratic president is elected in November.
“As important and right on as this decision is, it does not give tribes anything new,” Sarah Krakoff, a law professor at the University of Colorado, told The Intercept. “There are these treaty promises and treaty rights, but tribes have to litigate to make them real, especially in the modern era, because from the time the treaties were negotiated until now, federal Indian policies abandoned commitment to treaties.”
Rulings like the one in Oklahoma, she added, affirm a reality that has been routinely ignored: “Treaties are the law of the land.”
McGirt v. Oklahoma centered on whether or not Jimcy McGirt, a Seminole man convicted of sex offenses by an Oklahoma court, committed his crimes on reservation land. When felonies like murder, kidnapping, burglary, and sexual abuse are carried out in “Indian country,” and involve defendants or victims who are Native American, they must be tried in federal court, rather than state court. In order to get McGirt a new trial, his lawyers argued that the Creek Reservation, established by an 1833 treaty, never ceased to exist and their client was tried in the wrong court.
The majority opinion, written by Justice Neil Gorsuch, who was appointed by President Donald Trump, lays out the sordid history of the United States’s repeated violations of its treaties with the Muscogee people, dubbed the Creek by settlers. The U.S. government typically obtained treaties coercively, through threatening violence or starvation. In the 1830s, the Muscogee, Cherokee, Seminole, Chickasaw, and Choctaw people were forcibly removed from their homelands in the Southeast to what is now eastern Oklahoma. Among the Muscogee (Creek) alone, an estimated 3,500 of 15,000 people died en route to their new territory, a journey known as the Trail of Tears. As Gorsuch noted, “On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.”
According to Gorsuch, treaties can be legally broken, as long as it’s Congress that does it. Indeed, Congress has repeatedly voted to break the Muscogee (Creek)’s treaty. But it’s not legal for the executive branch, the courts, or the state of Oklahoma to break a treaty. “Whatever the confluence of reasons, in all this history there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation,” says the opinion.
The decision’s most immediate impacts are that McGirt will get a new trial, future cases like his will be tried in federal court, and a number of people currently incarcerated will have an opportunity to have their case retried, if they want.
Fletcher, the Indigenous Law and Policy Center director, told The Intercept that having cases tried in a federal court doesn’t necessarily mean better justice than a local court. But local district attorneys in majority-white areas are often elected through racist tough-on-crime politics, setting the stage for discrimination in the justice system. There will be less opportunity for that in Oklahoma now. Furthermore, it’s possible that, going forward, fewer Native people would risk the death penalty in federal court. While Oklahoma is a death penalty state, Democrat Joe Biden pledged to end federal death sentences if elected president. For instance, at least one Muscogee (Creek) man on death row in Oklahoma was sentenced to death by a state court; thanks to the Supreme Court ruling, he will get a new, federal trial.
The decision has environmental implications too. The Clean Water Act, the Clean Air Act, and the Safe Drinking Water Act say that in “Indian country,” the federal government, rather than the state, implements the laws. Infrastructure projects should now also be subject to federal permitting processes with input from the tribe. Under Trump’s Environmental Protection Agency, which sparingly enforces environmental rules, that doesn’t matter much. But Oklahoma is an oil and gas state, where industry heavily influences environmental enforcement. If the next president is a Democrat, federal environmental regulation is likely to be stronger than Oklahoma’s. The tribe could also apply to take over environmental regulation for their newly affirmed reservation territory.
The Muscogee (Creek) will now, too, have more control over what happens to Native children removed from their parents’ homes. Historically, the U.S. government has used forced removals of Native children by child protection agencies, followed by adoptions into white families, as a means to systematically diminish Indigenous cultures. To counter this, the Indian Child Welfare Act says that tribes have jurisdiction over child custody proceedings for any “Indian child” living on a reservation. More reservation land means more control in assuring a Native child is placed within the tribe.
Fletcher said the decision will apply to the other four tribes forcibly removed to Oklahoma too. If the state or federal government attempts to fight that, they will lose, he added. As for the rest of the U.S., the decision will serve as a legal precedent in some reservation boundary cases, but it also opens up a space to imagine a different kind of United States, where all treaties are upheld.
Courts have repeatedly responded to cases of illegally broken treaties with offers of cash, sums that often fell short of the land’s value. Judges have ruled this way even when the Indigenous nations demanded the land back, rather than money. If all treaties were enforced, those lands, already recognized as illegally taken, would go back to the tribes.
The most notorious example is that of the Great Sioux Reservation, signed into existence in 1868 with the Fort Laramie Treaty. It said that the Black Hills, an area that includes what is now Mount Rushmore, would be “set apart for the absolute and undisturbed use and occupation” of the Sioux Nation — the government’s name for the Lakota, Nakota, and Dakota, or Oceti Sakowin people — unless three-quarters of adult male tribal members agreed to withdraw from the treaty.
A 1980 Supreme Court decision describes what happened next. When gold was discovered in the area, the U.S. military was obligated to defend the border of the reservation from prospectors. But in 1875, President Ulysses S. Grant quietly ordered the military to let the miners invade. Amid negotiations with the tribe to make the invasion legal, the U.S. military attacked tribal members hunting in an area approved for such purposes under the treaty. A military conflict ensued, and, after notable wins but ultimately defeat, the Oceti Sakowin people were confined to the reservation, where they could no longer access important hunting grounds. Faced with starvation when the U.S. government threatened to cut off all rations, 10 percent of adult male tribal members — not 75 percent — signed a new treaty relinquishing the Black Hills.
“A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history.”
As a U.S. Court of Claims judge put it, “A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history.” The Supreme Court agreed and offered the Great Sioux Nation $106 million as compensation for land many consider sacred. They turned it down; they wanted, and still want, the land back.
There are many examples like this. Krakoff, the University of Colorado law professor, pointed also to the Southern Paiute people, whose territory once included the northern rim of the Grand Canyon. The U.S. Court of Claims acknowledged that vast portions of the land had been taken illegally but approved a settlement that only included money damages. Krakoff said that returning the Grand Canyon’s northern rim to Paiute control or Mount Rushmore to Oceti Sakowin control would require an act of Congress, especially since the courts already ruled. But granting the Paiute more decision-making power over the land’s management is something the federal government could do relatively easily.
Other tribal nations’ border disputes are more immediately winnable. According to Bethany Berger, a law professor at the University of Connecticut, the McGirt decision helps guarantee, for example, that an appeals court will affirm that the Oneida reservation in Wisconsin remains intact.
Non-Hispanic American Indian and Alaska Native people have the highest rates of Covid-19 hospitalization of any racial or ethnic group counted by the Centers for Disease Control and Prevention. Indigenous people are five times more likely to be hospitalized for coronavirus-related illnesses than non-Hispanic white people in the U.S.
Perhaps the most frequently cited reason for how hard the virus hit Indian country is that so many Indigenous people who contract the virus have preexisting health conditions that make its impact more severe. The Indian Health Service, the federal health care provider for tribal members, has always been underfunded, as multiple government reports have affirmed. The service would need $32 billion to meet the needs of the people it serves — about six times the $5.4 billion the agency requested for 2019 funding — according to a 2018 report by the U.S. Commission on Civil Rights, a federal agency. The average IHS clinic is understaffed by 25 percent, according to the Government Accountability Office.
The Civil Rights Commission report noted explicitly that the underfunding of IHS represents another broken treaty promise: A right to adequate health care comes from what is known as the government’s “trust responsibility” to the nations with which it signed treaties. While numerous treaties promised the care of a doctor, said Krakoff, “even if the word ‘doctor’ or ‘school’ aren’t entries in a treaty, they’re still interpreted as a general obligation because of the long history of tribes giving up land and resources in exchange for this trust relationship, this promise of protection and support.” Treaties, she added, aren’t just about one-time promises: “They establish a way for two sovereigns to relate from then on.”
The coronavirus pandemic among Indigenous people was exacerbated by lack of access to running water in some of the hardest-hit areas, such as the Navajo Nation, where at least 15 percent of homes lack running water, making basic preventative measures like frequent hand-washing exceedingly difficult. The Indian Health Service estimated in 2018 that it has a backlog of $450 million in unfunded requests for water and sanitation systems from the Navajo Nation.
“The court said no tribe would have negotiated in this arid landscape, no tribe would have agreed to limit itself to this smaller land base, without understanding they would get enough water to support the livelihood of the reservation.”
The largest portion of the nation overlaps with Arizona, where the Navajo’s rights to water have never been recognized. Although treaties don’t typically note a right to access to water explicitly, a Supreme Court decision in 1908 affirmed that the right is implied. “The court said no tribe would have negotiated in this arid landscape, no tribe would have agreed to limit itself to this smaller land base, without understanding they would get enough water to support the livelihood of the reservation,” Krakoff explained.
A legal doctrine doesn’t do much unless it’s enforced. For water rights to translate into access to scarce water, Congress or a court needs to affirm a tribe’s right and quantify how much they should be allowed to access. For numerous tribes, that has never happened. The result is that people who already lack access to adequate health care are also forced to live with no running water.
A new presidential administration could urge Congress to pass laws recognizing tribes’ water rights, Krakoff noted. She had suggestions for what the executive could tell Congress: “Come up with a list of tribes with water rights that are still up in the air. Ask them, ‘Tell us what you can about quantification and cost.’ Go settle — go do it,” she said. “That’s something that a strong executive branch, working together with a willing Congress, could do and make a lot of headway for Native nations.” Of course, it would require support and collaboration from the nations themselves, which have rejected bad deals in the past.
The movement to halt construction of the Dakota Access oil pipeline near the Standing Rock Reservation centered on the fact that the project passes through territory granted to the Oceti Sakowin people through another broken treaty. Last week, a judge unexpectedly ordered that project’s parent company, Energy Transfer, to cease pumping oil through the pipeline, since the federal government never completed a full environmental impact study. Such a report will, among other things, examine the threat of a pipeline spill to tribes’ treaty-guaranteed hunting and fishing rights. (The pipeline company is appealing and was granted a temporary stay on Tuesday allowing it to continue operating while both sides file new legal briefs.)
Although the legal efforts to stop the pipeline have certainly drawn on treaty rights, it was the protest movement on the ground that brought the United States’s pattern of treaty-breaking into a spotlight not seen since the heyday of the American Indian Movement in the 1970s, when the federal government was pressured into a new era of treaty enforcement.
A similar outcome is beginning to take shape today. As a result of treaty-centered organizing at Standing Rock and beyond, Indigenous rights have become a centerpiece of climate policy on the left. Last week a task force representing allies of both Biden and Sen. Bernie Sanders, I-Vt., released a set of climate policy recommendations that included a section on treaty rights and Indigenous lands, committing, among other things, to “early and ongoing consultation with tribes to identify and work to appropriately mitigate or address concerns regarding major infrastructure projects.”
However, Biden’s official clean energy and infrastructure plan, released Tuesday, doesn’t include a comparable commitment. And both sets of policy priorities fall short of New York Democratic Rep. Alexandria Ocasio-Cortez’s vision of a Green New Deal, which would require “obtaining the free, prior, and informed consent of indigenous peoples for all decisions that affect indigenous peoples and their traditional territories.” Consent, rather than consultation, goes beyond historic federal policy, to meet the standard of the United Nations’ Declaration on the Rights of Indigenous Peoples. Plenty of tribes support fossil fuel infrastructure development, but such a policy would effectively veto or reroute many projects.
Ocasio-Cortez has said she decided to enter politics after spending time at Standing Rock and entered office in the same year as the first two Native American women ever elected to Congress, Reps. Deb Haaland and Sharice Davids, Democrats from New Mexico and Kansas, respectively.
“The McGirt decision would not have been possible in a world in which treaty rights were enforced,” said Berger. “The court acknowledged that the treaty with the Creek nation had been broken in huge ways and that was legal.”
If elected officials can break treaties, however, they also hold the power to enshrine new ways for the U.S. to relate to the sovereign nations within its borders.