Montana Public Radio

An Historic U.S. Supreme Court Ruling And Its Implications for Montana Tribes

Aug 5, 2020
Originally published on August 5, 2020 9:50 am

The Supreme Court recently decided McGirt v. Oklahoma, a case many are calling one of the most important decisions for Native Americans in US History. The ruling signifies a shift in how the federal legal system recognizes tribal nations at a time when tribes are pushing for similar consideration in Montana courts.

On July 9, the Supreme Court ruled 5-4 in a decision that effectively determined the majority of eastern Oklahoma is rightfully Indian Country.

The case centered on Jimcy McGirt, a member of Seminole Nation who was convicted of sexual assault in an Oklahoma State Court and sentenced to death. The question before the Supreme Court was not whether McGirt had committed the crime, but who owned the land where the crime was committed.

The Major Crimes Act dictates, crimes committed by Native Americans on reservations must be tried in tribal or federal courts. The State of Oklahoma argued that the treaties of 1866, guaranteeing the land belonged to several Indigenous tribes, were no longer valid.

"It really does seem like the Supreme Court is paying attention and interested in learning about and applying foundational concepts of Indian Law. And that's a big departure," says Monte Mills, director of the Marjorie Hunter Brown Indian Law Clinic at the University of Montana.

While the McGirt case is specific to the sovereignty of tribes in Oklahoma, Mills says this new ruling implies the federal judicial system is serious about honoring treaties. This could revitalize ongoing legal arguments in Montana over tribal treaty rights involving natural resources.

"Whether it's the water rights of CSKT [Confederated Salish and Kootenai Tribes] and settling those through the compact, or tribes coming down to outside of Yellowstone to hunt bison, tribal efforts around public lands or Badger Two Medicine, all of those, while not directly identical to the claims that Muskogee Creek were making, are still rooted in that same treaty and trust relationship between the federal government and tribes," Mills said.

He says the Supreme Court case is an exceptional moment in history but is not necessarily exceptional from a legal perspective.

"I agree, it is a landmark decision. It has profound potential and potential impact and change on the ground in Oklahoma. But really, it's just the Supreme Court doing what it should have done," Mills said.

The court’s ruling opinion echoes the argument attorney Ian Gershengorn made in the Supreme Court when the case was heard this May.

"These boundaries were set up by Congress. And so if you are going to undo that, Congress needs to speak and Congress needs to speak clearly. We're talking about transfers of sovereign rights and that has to be done clearly in the text," Gershengorn said.

Justice Neil Gorsuch wrote in the opinion, “On the far end of the Trail of Tears was a promise,” referencing when the U.S. government forced thousands of members from the Muscogee Creek, Cherokee, Seminole, Choctaw and Chickasaw nations to leave their homeland in Georgia and march over a thousand miles to Oklahoma in 1838. More than four thousand Indigenous people died on this forced march, which is why the route is historically called, “The Trail of Tears.”

At the time, treaties written and signed by the U.S. government guaranteed the survivors would own the land they were sent to.

"I think it says quite a bit about what the Supreme Court has done in the last few decades that where it does simply follow the law in a case involving tribal rights, it's such a big deal. You know what I mean," Mills said.

Mills says this ruling comes in the middle of a series of events that suggest tribes are more likely to be working with courts that will treat their complaints with respect and fairness.

"This month in particular, with the court ruling about shutting down the Dakota Access Pipeline, with court rulings about Keystone [XL] legislation moving forward, particularly here in Montana, about the bison range and the water compact, you're seeing all of these things sort of come together in a really remarkable way that's really helping put these things on the front page," Mills said.

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