By Mason Quah
THE Supreme Court has taken the side of Native Americans against the State, granting Tribal citizens immunity to prosecution by the state of Oklahoma.
On July 9 the Supreme Court ruled five-to-four to uphold an existing 1866 treaty between the United States and the Five Tribes that ceded large amounts of what is today Oklahoma to “Indian Country” as a reservation.
To understand how the Tribes from Florida, Georgia, Carolina, and other Eastern US territories came to collectively inhabit the State of Oklahoma we must investigate 200 years of diplomatic history.
The Five Tribes of Oklahoma were each forced into the territory from their traditional lands in the South-Eastern US.
Much like today, some tried to fight legal battles against the United States. The Supreme Court ruled twice in favour of the Cherokee nation’s claim to lands in Georgia but was overruled by President Andrew Jackson.
Under President Jackson, the Cherokee people were forcibly removed by the military and forced to march westward in a series of relocations.
Others sought financial compensation for the lands seized from them. The Chickasaw fought for decades to earn compensation for their lands ceded in Mississippi.
Despite being awarded more than $500,000 the forced emigration of the Chickasaw people across 5,000 miles killed many of them.
With the five tribes collectively pushed into Oklahoma, they would be allowed to remain here but their governance and power would be continually undermined.
The Major Crimes Act of 1885 extends federal Jurisdiction to Include reservation land. For this reason, cases such as McGirt will still face criminal punishment but must be tried under federal law instead of state law.
Other previous convictions may similarly be overturned.
Concern has been raised that retrials may produce different results due to statutes of Limitations, lost witnesses and bureaucratic costs weakening the ability to prosecute these criminals.
As yet no significant change will be felt by other citizens, as the ruling only pertains to the Major Crimes Act and the criminal justice system.
Jonodev Chaudhuri, representative of the Creek Nation wrote in an opinion piece for the Washington Post: “Contrary to hyperbolic statements made in the media and at oral argument, the court’s decision will not affect the status of individual land ownership within our borders.
“Not one inch of land has changed hands, nor will it — unless an owner elects to sell his or her land.”
This is an important distinction to make as very little of the reservation land is still in the ownership of the Five Tribes. The Curtis Act of 1898 had continued the forced removal of tribes from their land in different ways to the Indian Removal Act.
Where the Tribes had been awarded land collectively, the Curtis Act required that land be subdivided into allotments owned and traded by individuals.
Land not allotted to natives was held for public auction, a sum of 90 million acres awarded to settlers in the region. More has since fallen out of native ownership.
The Curtis Act also extended US governance over the Tribes in near totality, calling for the abolition of tribal government.
It also implemented blood quantum as the legal criteria by which tribal members were defined. Tribal members of mixed heritage were forced to accept US citizenship, many of them becoming detribalised and forced to integrate into settler culture.
Legal pressure and forced schooling were used to erase traditional cultural practises. This practise continued into the 20th century.
There are a limited number of areas where tribal heritage still holds some legal power, and these may become the focal point of future court battles.
Federally recognised reservations are exempted from state taxes unless Congress creates an exception. Should the Supreme Court ruling be extended to this context it could impact state funding and public services.
The McGirt Ruling took more than 20 years to reach the highest Court. Other cases might already be partway through a similar journey, or might be ignited by these events.
It is difficult to pin future legal challenges to a timeline.
Redaction cannot survive without your help. Support us for as little as $1 a month on Patreon: https://www.patreon.com/RedactionPolitics.