Starting Points Journal: “Holding the Government to its Word: McGirt v. Oklahoma and Tribal Sovereignty”
By Aaron Kushner
“Justice Neil Gorsuch, writing for the majority in McGirt v. Oklahoma, answers the question ‘whether the land [previous] treaties promised [the Muscogee (Creek) Nation] remains an Indian reservation for purposes of federal criminal law’ with a resounding ‘yes.’ The 5-4 decision reaffirms the Creek Nation’s sovereignty over lands long practically-administrated by the State of Oklahoma, including most of the City of Tulsa. Taken on its own, this decision goes far in halting the retreat of tribal sovereignty against the march of United States’ jurisdictional dominion in a war of attrition. Viewed in the context of 2020, McGirt v. Oklahoma is part of a larger struggle to, as Gorsuch writes, ‘hold the government to its word.’ This effort involves not only keeping old promises, but also dismantling paternalistic systems designed to gradually replace tribal authority with state or federal authority.
By Treaty, in 1832, the Creek Nation ceded all lands east of the Mississippi. In exchange:
The Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians, nor shall any State or Territory ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves, so far as may be compatible with the general jurisdiction which Congress may think proper to exercise over them.
Congress, Gorsuch argues, never said otherwise—this despite nearly two centuries of policies designed to restrict, coerce, allot, and terminate the peoples living there. That 1832 Treaty—amended by the Treaty of 1866—and land guarantee, remains legally binding on all parties…”
Aaron Kushner is the Associate Editor of Starting Points: A Journal of American Principles & American Practices and a Postdoctoral Fellow at Arizona State University’s School of Civic and Economic Thought and Leadership. He is a project manager for the Living Repository of the Arizona Constitution Project and his research focuses on citizenship, the tension between liberal and non-liberal thought, and political development. More specifically, he studies how indigenous political communities formed constitutional governments while in conflict with liberal republics. His dissertation focused on the development of citizenship in the Cherokee Nation.
Kushner is a JMC fellow.
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