Posted by Tierra Marks.
On July 9, 2020, the United States Supreme Court awarded a significant win for Indian Nations and the protection of their lands in McGirt v. Oklahoma, 591 U.S. ___ (2020). In McGirt, the Supreme Court held that the land promised to and reserved for the Muscogee (Creek) Nation remains Indian Country, stating that because “Congress has not said otherwise, we hold the government to its word.”
The Court’s 5-4 decision, written by Justice Neil Gorsuch, states that Congress’s promises to the Muscogee (Creek) Nation were not “made gratuitously” nor “meant to be delusory,” and if Congress wishes to break its promise of a reservation, “it must say so.”
In McGirt, the Court confirms that the “most authoritative evidence” of an Indian tribe’s relationship to the land “lies in the treaties and statutes that promised the land to the [t]ribe in the first place.” The Court rejected the argument that a state’s historical practices, demographics, intrusions on promised rights to self-governance, statements made by a tribe, “a piece of congressional testimony there, and the scattered opinions of agency officials everywhere in between” are enough to disestablish an Indian reservation. Instead, the Court said that when statutory meaning is clear, these factors act as a “meaningless guide.”
The Court similarly rejected Oklahoma’s arguments that a finding against disestablishment would increase burdens on federal and tribal courts, create potential consequences for civil and regulatory law, and would surprise Oklahoma residents. The Court instead recognized that warnings, predictions, and notes of caution are not “a license for us to disregard the law.” These arguments should not, and according to the Court’s decision, are not enough to undo promises made by the federal government to Indian nations regarding their lands.
The Court acknowledged that some people and States may be thinking: “How much easier would it be, after all, to let the State proceed as it has always assumed it might.” But as the Court explained, neither this question nor any of the arguments by Oklahoma “would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here.” It continues, “That would be the rule of the strong, not the rule of law.”
The opinion concludes as follows:
Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. … [t]o hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding the wrong and failing those in the right.
Our firm is thrilled with the Court’s decision. We are excited and passionately committed to the future of Indian Nations and the re-affirmation of their status, rights and ability to enforce the promises Congress made to them as to protections of their lands. We continue our commitment to work with our clients to protect and, where necessary, pursue litigation to recover lands and resources taken from our Native Nation clients.
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