‘The Far End of the Trail of Tears’ -SCOTUS ruling on Native land

Published on 3 August 2020 at 17:02

A decision of the US Supreme Court on July 9th has been hailed as one of the most consequential legal victories for Native Americans in decades. Trump appointee Gorsuch joined the liberal justices to rule that Oklahoma has no legal authority over Native Americans in the east of the state. The honouring of treaties signed in the early 19th century, the decision could drastically change the position of Natives in the US.

The story of this case began in 1832 with the “Trail of Tears” when the US government moved a confederacy of Native tribes in modern day Alabama and Georgia, west of the Mississippi to designated Indian territory in modern day Oklahoma. The Seminole, Choctaw, Cherokee, Muscogee and Chockasaw tribes are often treated as single entity by government as the “Five Civilised Tribes” despite their independence from one another. The Seminole fought a desperate guerrilla war against the US army’s forced evictions while the Cherokee nation won two Supreme Court challenges to the move, which were summarily ignored. President Jackson is said to have quipped that the Chief Justice “has made his decision, now let him enforce it.” After their displacement to Oklahoma, the Creek (Muscogee) Indians adopted a constitution in their new land that provided for tribal leaders, a judiciary and representation in a bicameral legislature. However, the government’s interference was not over. The 1885 Major Crimes Act reserved jurisdiction to try certain major crimes by Tribe members on tribal territory at federal level. Further acts sought to dismantle the Creek governments and settle the tribe members onto other land. These efforts were never totally successful however and a tribe leader survived. In the 1970s the Creeks reinstated their independent election of a chief, adopted a new constitution and revitalised their congress. Their right to independent legal proceedings and taxes was affirmed in the 1980s.


The recent McGirt case centred on the original promises the US government made to the Natives moved to Oklahoma;On the far end of the Trail of Tears was a promise.From 1832 to 1866 the US government agreed many treaties with the Natives, all affirming that the area was the Native’s home “forever”. They also explicitly guaranteed the tribe “unrestricted right of self-government” and “full jurisdictions” over tribe members. The plaintiff McGirt, who had been convicted of serious sexual offences challenged the state court’s authority to sentence him as a member of the Seminole tribe who committed his crimes on tribal land. Oklahoma state denied that Indian territory has survived from the original treaties through to today and that McGirt has a right to re-trial in a federal court.

Oklahoma firstly argued that western Oklahoma was never an Indian ‘reservation’ which the Court rejected as “wilful blindness”. Equivalent terms were used in the original documents and subsequent legislation has referred to the area as a “reservation”. Oklahoma then claimed that the Oklahoma Enabling Act of 1906 (which made Oklahoman a state essentially) transferred authority to the state courts, where cases involving Natives have been judged ever since. However, Gorsuch J noted that this was contrary to the Major Crimes Act and pointed out that merely because something has been done over a long period does not make it legal: “unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”


Oklahoma then turned to its main argument -that the gradual disintegration of the reservation effectively made it state territory. This argument rested mainly on the Allotment Era when the government dissolved the tribes’ authority and sold their lands to non-Indians. Despite this, reservations have strong legal protection and they can only be disestablished by clear intention of Congress. The Court could not see an explicit stripping of tribal authority on the land by Congress. They agreed with Oklahoma that Congress may have wished to weaken the reservations and have the court do their dirty work and rule disestablishment, but this is not the courts’ role. Furthermore, opinion eventually shifted and attitudes softened to Natives in the 1920s. It is irrelevant how many promises the government has broken to the tribes in the past, to break this promise it must explicitly state it. Or as Gorsuch J put it “if Congress wishes to withdraw its promises, it must say so”.


In the absence of an actual order of cession, Oklahoma relies on contextual arguments such as historical practice and demographics. However, these did not impress Gorsuch J who deemed them useful in interpreting unclear points of law but not persuasive nor sufficient arguments in of themselves. Gorsuch J accuses Oklahoma of encouraging the court to overlook the written law in favour of “practical advantages”. But Gorsuch J rejects the argument to allow past wrongs to lie and an unjust status quo to continue: “That would be the rule of the strong, not the rule of law”


Gorsuch’s strict, literal approach to the law conflicted with the harmonious approach of Chief Justice Roberts who dissented in this case. Whilst he agreed that Congress never explicitly ceased the reservation, he argued that an intention to disestablish it can be imputed by the “cumulative” actions of the Congress and from full context. This is the approach the Court has taken in the past to ascertain disestablishment in previous cases, he contended. He also pointed out that per Gorsuch’s view, one must believe that the government at every level violated the law for years and that the Natives, staunch litigants during this period, simply accepted it. He ultimately argued in favour of precedent and that the working of the law for the past centuries suggested that the court took “a wrong turn in its analysis.”

Reaction to the decision has understandably, been mixed. Principal Chief David Hill called it a “historic day” and said “it’s never too late to make things right.” Critics have claimed it divides Oklahoma and rolls us back to pre-statehood/territorial days”. The local petroleum industry is dismayed at the decision’s effects and Oklahoma’s governor Kevin Stitt has called on Congress to address his fears for the legal system: “Does it stop on the prosecution of crimes, or does it move into taxation? All those questions are things nobody really knows at this point”.

Stitt’s fears have been echoed by conservatives around the country, who fear the judgment will have the effect of allowing criminals to walk free in a slew of appeals on the legitimacy of convictions. Gorsuch J dismissed this point in his judgment by pointing out that only 10-15% of Oklahoma citizens are Natives and the decision only applies to particular crimes committed by Natives on Indian Territory. He also suggested that many convicts will not attempt to appeal for fear of losing progress already served on their sentences. However, as critics have pointed out, in this case McGirt faces 1000 years imprisonment, so to him and anyone else facing such a sentence, challenging the conviction is an obvious choice. The judgement will also no doubt lead to many challenges of the legitimacy of state’s authority on traditionally Indian land in areas such as taxes, traffic tickets, etc. The decision may also disincentives local law enforcement from policing Native areas, in fear they may be punished for overstepping authority. The reality is that nobody can be sure of the ramifications that this ground-breaking decision will have, but Gorsuch J is adamant that the magnitude of a legal wrong is no reason to perpetuate it.”

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