Making Land Back Real

In broad swathes of the United States, government policy towards Indian land has been to try to take as much of it away as possible. It could now be easier for tribes to reclaim and protect their land. We have to fight for every single inch.

Transcribed from the 20 July 2020 episode of This is Hell! Radio (Chicago) and printed with permission. Edited for space and readability. Listen to the whole interview:

In maybe the most important supreme court case concerning treaty rights and tribes in the twenty-first century, the court ruled in a 5-4 decision that it was in fact still Muskogee Creek treaty land, that that there was no act of congress extinguishing the tribe’s treaty rights to those lands.

Chuck Mertz: In an historic decision, the supreme court of the United States finally agreed to a treaty agreement made over a hundred and fifty years ago that takes control of eastern Oklahoma away from the state and gives it to the Muscogee, Creek, and Seminole peoples. Here to tell us what this means for all Native Americans and the entire United States, writer Julian Brave NoiseCat is the author of the Atlantic article “The McGirt Case Is a Historic Win for Tribes: For federal Indian law, this might be the Gorsuch court.”

This is Julian’s second appearance here on This is Hell!; he was on three years ago, back in July of 2017, when we talked about an article he wrote for the Marshall Project, “Law Enforcement Is Still Used as a Colonial Tool in Indian Country,” which I definitely want to get back to for a couple minutes at some point. Your Guardian piece at the time was “Indigenous Sovereignty Is on the Rise, Can It Shape the Course of History?

Welcome back to This is Hell!, Julian.

Julian Brave NoiseCat: Thanks so much for having me back on.

CM: You write how a friend of yours, a suitemate from college where you were both members of the Native American student group, could not sleep the night before the supreme court decision on the Native treaty rights case McGirt v. Oklahoma. As SCOTUSblog described the decision: “The court held that land in northeastern Oklahoma reserved for the Creek nation since the nineteenth century remains a reservation for the purpose of a federal statute that gives the federal government exclusive jurisdiction to try certain major crimes committed by any Indian in Indian Country. The court’s holding means that state courts in Oklahoma had no jurisdiction to convict petitioner Jimcy McGirt, who is an enrolled member of the Seminole nation of Oklahoma, of three serious sexual offenses that took place on the reservation.”

Your friend was awaiting this decision; meanwhile it seems to have caught white mainstream media by surprise. Why is it so important to Native Americans to reaffirm their reservation rights? What do they get out of reaffirming reservation rights that they do not have otherwise?

JN: There’s a lot there, and I’m sure it was probably hard for the media to wrap their heads around the McGirt case, so I’ll try to break it down a little bit more. Truthfully, even though I cover and write about these issues, it wasn’t the simplest court decision for me to write about.

The way that jurisdiction works in Indian Country is that tribes have criminal jurisdiction in their own courts and legal systems over almost all minor offenses involving Native people. But major crimes, as defined under the Major Crimes Act—things like homicide, manslaughter, kidnapping, and so on—fall to the federal government, federal law enforcement like the FBI. This leads to a complicated set of jurisdictional questions when a Native or non-Native person commits an alleged crime on an Indian reservation or on Indian land—land that was promised to tribes in one of the 370 treaties or other agreements that were signed by congress about which law enforcement agency and prosecutor has authority over that case.

So the Jimcy McGirt case originated with a Seminole man, as you said, who committed quite horrible sexual offenses. He was contending in court that the state of Oklahoma did not have jurisdiction to prosecute his case: that because he committed his crimes on land that was considered part of the historic Muscogee Creek nation, lands that were promised to that tribe in an 1866 treaty that was negotiated after they were sent on the Trail of Tears from their historic homelands in what is now Alabama, that it was actually tribal land and therefore it was the federal government who was supposed to prosecute this case.

Because it involved the Muskogee Creek nation’s treaty rights, and the treaty rights of all five tribes that were relocated on the Trail of Tears to what is now eastern Oklahoma—the Cherokee, the Choctaw, the Chickasaw, the Seminole, and the Creek—the tribe got involved in the case because it had major implications for their treaty lands and their treaty rights.

The reason this case was so important was that it was getting at this question of whether a large swathe of eastern Oklahoma—forty-seven percent of the state, an area of millions of acres that is home to 1.8 million people, including a large portion of the city of Tulsa—was still Indian land, still treaty land, still reservation land, and whether therefore it was the tribe and the federal government that held jurisdiction. In a very important, maybe the most important supreme court case concerning treaty rights and tribes in the twenty-first century, the court ruled in a 5-4 decision that it was in fact still Muskogee Creek treaty land, that that there was no act of congress extinguishing the tribe’s treaty rights to those lands, and therefore the state did not have jurisdiction to prosecute Jimcy McGirk’s case and it needs to be retried in federal court.

I am Indigenous, but I am not from one of the five tribes whose jurisdiction and treaty rights and sovereignty were most implicated by this case. I thought of my friend Mari Hulbutta, who you brought up in your introduction, who happens to have just graduated from Columbia law school. She’s a descendant of the Muskogee Creek, a member of the Chicasaw and also a descendant of the Seminole nations, so all of her tribes are impacted by this decision. I called her to get her thoughts. She’s someone who, because of the history of injustice—because of the history of over 370 treaties signed with Native nations, every single one of which has been broken by congress and the United States—she decided, like so many other Native people do, to become a lawyer. She’s about to take the bar to pursue that career, to become part of the the community and vanguard of Native people who are fighting for our treaty rights and justice in the United States.

I called her because I wanted to know what it was like for someone who is going into the legal profession, about to become a lawyer, and actually did some of the amicus briefs for a very similar treaty rights case that was seen before the supreme court last term, and whose people were part of the folks who were sent on the Trail of Tears to Oklahoma—what it would mean for someone like that to see this decision happen. She told me that she was having trouble sleeping the night before, but that the decision to uphold her tribes’ and her peoples’ treaty rights was incredibly affirming. It would allow her to tell people now where she actually comes from, because up until this point she had a really hard time explaining to people being from Indian land but it’s not really Indian land anymore and it’s unclear. Now she can full-throatedly say, “I come from Indian territory in Oklahoma,” and that is what the law says as well.

There is a new generation of Native attorneys, activists, leaders, who are essentially the Standing Rock generation. We have been raised in community in a time where we are proud of who we are. We’re learning our languages, we’re maintaining our culture, and we’re participating in movements for justice and rights for our people and often for all people.

CM: This was a decision, again, about jurisdiction. It isn’t about the heinous crime that Jimcy McGirt committed. But I can see how that crime could have been a distraction by those who did not want the court to decide positively on McGirt v. Oklahoma. So I don’t want to get into a distraction about whatever his particular crime was, but are Native courts any more just or fair for Native Americans than the state’s courts would be?

From a white perspective, do they think that Native courts are too easy on Native Americans?

JB: This gets to a really key point that was contended by the state. Ted Cruz tweeted out after the decision that the ‘supreme court just gave away half of Oklahoma to tribes.’ There is an attitude here, particularly among folks on the American right, that the state of Oklahoma attempted to weaponize in their arguments before the supreme court. It goes: “How could we possibly recognize the rights of tribes? How could we possibly affirm that they have jurisdiction here? If we do that, the sky is going to fall. They are going to unjustly uproot us from land. They are going to subject us to their courts, and they’re not going to pay taxes to the state government. And all of these people who were convicted by the state of Oklahoma, who are Native people whose cases were heard on what is now considered Indian land, are going to be set free!”

Honestly the argument sounds like the plot of a Jordan Peele film. “Oh my god, the Indians are going to rise up against us and they’re going to do exactly what we did to them! They’re going to send us on our own little White Trail of Tears out of Oklahoma!” This was, to a large extent, the argument leveraged by the state of Oklahoma, which is quite ironic: the conservative argument in front of the supreme court is almost always that the text of the law—the text of treaties, and of statutes and acts made by congress—need to be read and interpreted the way they were originally written. But in this case the state of Oklahoma and the opposition to the Muscogee Creek’s petition and claim on treaty rights was one of policy consequences, essentially.

I think we can attach onto this some sort of racial bias. Tribes who (according to this line of thinking) probably don’t have as much sophistication in their courts, who don’t have the same standards of civil procedure as non-Native governments do—how can they possibly still retain the right to this land and their jurisdiction?

Ironically enough, the reading of the treaty law and the acts of congress and statutes that actually get to the McGirt decision is a textualist reading of the law. The majority of the court’s opinion is written by a Donald Trump appointee, Neil Gorsuch, who says that we need to read the treaties as they are written. We need to read the acts of congress as they are written. So it doesn’t matter if, for decades, congress and the state of Oklahoma have acted like this treaty is a dead letter. If they have never actually extinguished the treaty rights, the treaty rights are still in effect. Therefore, a reading of the law (that is often marshaled against abortion and gay marriage) in this case gets to one of the most impactful and enduring Indian law cases in history.

In a line that opened the majority opinion, Gorsuch wrote something that I think is probably going to be cited now (and Indian attorneys have told me it will) for years and maybe decades to come. He said, “On the far end of the Trail of Tears was a promise.” And essentially what he went on to write, in a long and quite eloquent opinion, is that that promise is still the supreme law of the land, as treaties are described in the constitution.

It’s an interesting irony of readings and arguments against what actually gets to a historic Native rights decision. We’re in a moment of historic national reckoning on race; who could have predicted that it would be a Trump appointee who would uphold treaties as they’re written.

CM: As you quote Gorsuch writing, he continues, “Today we are asked whether the land those treaties promised remains an Indian reservation for purposes of federal criminal law. Because congress has not said otherwise, we hold the government to its word.”

Why now? Do you think something has changed? Legally, structurally, culturally, politically? Why do you think this is happening now? This treaty was signed in 1866, we’ve had over 154 years to address this situation.

JB: That’s a hard question. I’m not completely sure why this strange alchemy of history has aligned in the way that it has—except to say that it has. Gorsuch is an interesting character here. He and I probably differ on almost every single political position that there is to be taken in United States politics. But it just so happens that we agree on what Native people have been saying since the treaties were signed: that the original text and intent of these treaties needs to be upheld today. If we did that, things would be quite different in this country, particularly with respect to its First Peoples.

I don’t think that a textualist reading is favorable to civil rights and human rights in most instances, but when it comes to treaty rights, strangely enough, it is a favorable way to read the law for tribes—for everybody, actually, because these treaties are everyone’s treaties. They aren’t just tribes’ treaties. They are signed by the United States government and tribal peoples.

That’s one part of the story. There are different elements of Gorsuch’s biography that people highlight here. He happened to have worked in the American west, and compared to the average supreme court justice he’s more aware of Native rights and federal Indian law, which I think is notable. There are a lot of people who ascend to the highest court in all the land—including liberals—without knowing the first thing about federal Indian law. This has happened with some of the big liberal stalwarts like RBG, who have sometimes ruled against tribes.

There’s a second part to it, a little more ephemeral and more related to the zeitgeist: there is a new generation of Native attorneys, activists, leaders, who are essentially the Standing Rock generation. There is a generation of Native people who have been raised in community in a time where we are proud of who we are, after generations of being gaslit and having our land taken away and our children sent off to assimilationist Christian boarding schools. We are now full-throatedly proud of who we are, of who our people are: we’re learning our languages, we’re maintaining our cultures despite the fact that they were outlawed in many instances, and we’re participating in movements for justice and rights for our people and often for all people.

The Standing Rock movement was not just about the treaty rights and concerns of the Standing Rock tribe, but also about the concerns of everybody living downstream of that pipeline and everybody who would be impacted by its harm done to the climate. In the broadest sense, the emergence of this very vocal, politically and legally savvy activist generation of Native people is also a huge part of this story.

People like Mari, honestly.

Because they don’t have jurisdiction over major crimes, often tribes need the federal government to be an active partner in law enforcement and prosecution—and the federal government has not really done that. The result is a phenomenon that has not been quantified well but is quite widespread: Indigenous women, queer and two-spirit people going missing and getting murdered in Indian country.

CM: I’m going to quote her right now. You were mentioning how there were fears of this turning into some sort of Jordan Peele flick. But why no vengeance? Will there be some kind of reckoning? Because you quote Mari Hulbutta saying of the fear mongering: “It helped remind me that Native people and advocates on behalf of tribes and other Native interests have a lot of work to do in educating others.”

What do others not understand about Native rights when they fear they can be or will be wielded as weapons of vengeance against them or their property? What does it say to you about those who see Native rights’ movements as nothing more than vengeance for colonialism?

JB: We don’t have great public opinion research on attitudes towards Native people. That’s partially because we don’t have very many polling operations that are good at measuring the opinions of Native people or opinions about Native people. But based upon what I’ve seen, thankfully the number of people who have strong opinions about Native people that are negative are a small minority of the electorate. Firstly, Native people are largely invisible. There are large drawbacks to that, obviously, like that most people don’t even know about treaties. Many people don’t know that we still exist! Most people couldn’t tell you the first thing about the contemporary lives of Native people. Most people probably don’t know any Native people themselves. That is a huge problem, but there is another side to it, which is that lot of people just don’t have strong opinions about Native people.

The argument that was espoused by the state of Oklahoma is a fairly marginal minority view in the broader United States. It might be shared by many people in Oklahoma and other states with significant Native populations, where these issues are more politicized. But overall there’s still a lot of opportunity to educate people about treaty rights. And there’s a way to do this that doesn’t polarize views too much. I think if Native advocates play their cards right, there’s a way we could see treaty rights being embraced on both sides of the aisle. This is a very similar play that was used by folks in the women’s movement who were pushing the Equal Rights Amendment back in the seventies and eighties.

Mari is right: there is a lot of ignorance, and a dire need to educate people about these issues. But there is another side to that, which is that there isn’t the polarized widespread public opinion against Native people in the same way we see against, say, Muslims and immigrants from south of the border. There are definitely parts of the country where there is widespread anti-Indian racism. I don’t want to downplay that. Particularly in large parts of the west. I have experienced that racism personally. But overall, if we got more media focused on these issues, more people would know about them and might pay more attention.

I think that the opinion overall would probably, hopefully, break in favor of tribes. But people just don’t know.

CM: Why would Native people rather have the federal government and not the state of Oklahoma oversee their justice system? I want to make sure people understand the injustice they get from the state.

JB: It’s not like the tribes are begging the feds to come to Indian country and police us. Many tribes would love to have full jurisdiction over all things regarding our land, rights, and sovereignty. That is the definition of what self-determined sovereignty would look like. That is still the aspiration for many people.

There are tensions between states and tribal governments across the country. There is often a contest between states and tribes, wherein states are often trying to sink their teeth into and take away some of the jurisdiction and sovereignty and space that tribes have to operate within. If any of your listeners have paid attention to some of the debates around Indian gaming, this is a prominent example of those tensions. The states where there are tribes participating in gaming often can be quite pushy in trying to infringe upon tribes’ ability to do what they want to do in order to pay for schools and education and roads on their land.

With respect to criminal jurisdiction, there is a line of argument (that I mostly agree with but also have some reservations about, because I have deep skepticism of law enforcement and policing) that essentially goes like this: Native women are far more likely to experience sexual violence in their lifetime than any other demographic in the United States, and because of the overlapping and complicated jurisdictional issues in Indian country, non-Native predators have been able to come onto reservation lands—where often there is an already quite vulnerable population for a number of historic and ongoing reasons—and been able to commit offenses against Native women. Then, because the tribe does not have jurisdiction over non-Native people on their own land and because the federal government is not always the most attentive to Native people, they go unpoliced and often unpunished.

For that reason, and for some others, tribes would like more attention paid to the enforcement of safety, enforcement of what everybody should be able to take for granted: their own personal protection from violence on their land. Because they don’t have jurisdiction over major crimes, often they need the federal government to be an active partner in law enforcement and prosecution—and unfortunately the federal government has not really done that. The result is a phenomenon that has not been quantified well but is quite widespread: Indigenous women, queer and two-spirit people going missing and getting murdered in Indian country. There is real need for these issues to be settled.

The hope is that clarifying the treaty rights of five major tribes in Oklahoma, and then other tribes across the country, can help in addressing that broader issue.

CM: I’m concerned that moneyed interests, financial interests, big oil are going to try to circumvent McGirt v. Oklahoma in some way. As the environmental writer Alleen Brown wrote at the Intercept last week, “Going back to the original treaty texts would make broad swathes of the nation Native territory. That means Indigenous people would have a stronger voice on environmental enforcement, more of a say on fossil fuel infrastructure construction, would be better able to control the fate of Native children removed from their parents’ home and less likely to be tried in local courts where district attorneys are elected using racist ‘tough-on-crime’ politics. Beyond control over the land itself, the treaties lay the groundwork of obligations requiring the federal government to provide adequate resources to support healthcare, safety, and education which have never been fulfilled.”

Does this mean that the United States energy policy is going to be affected by McGirt v. Oklahoma, and that we might see more of a pro-environmental policy coming out of Washington? Or could this just a matter of Native Americans wanting to see more oil being drilled because of the desperation and economic problems on reservations?

It’s not like suddenly tribes are waking up now and thinking the supreme court and the United States government are their best friends. There is still a lot of skepticism and antagonism directed towards government, congress, and a supreme court that has over the vast majority of its history primarily broken rather than followed the treaties.

JB: My understanding, having talked to a number of experts and attorneys on this issue, is that the McGirt decision will have specific implications for the five tribes that I named, but also signals a new alignment from the supreme court: one where it’s possible to get a 5-4 decision in favor of tribes. That does mean that tribes, more than in many decades past, can count on getting a fair day in court. I think if you game this out over decades, it bodes quite well for treaty rights and questions related to tribal rights more generally.

It is a real piece of leverage that tribes now have, which essentially amounts to people actually reading the treaties and paying attention to what they say. That could have quite wide-ranging consequences, and if we got a more favorable administration in place there could also be ways in which the federal government could pay more attention to questions of energy and siting and pipelines, could create a more rigorous standard for treaty rights and tribal consent in the construction of pipeline projects and a broad array of other kinds of economic development that impacts tribal lands.

Whether all tribes are going to leverage that in a pro-environmental and more progressive direction I think is probably unlikely. There’s a diversity of views in Indian country. Obviously Indian country is significantly left of the media and the broader United States community, but there are certainly tribes that participate in oil and gas extraction. But on balance I think this will bode very well for environmental outcomes and the well being of communities—and not just Native communities, everyone’s communities.

It’s a positive development, but these things change very slowly. As Mari told me, and I would tend to agree: it’s not like suddenly tribes are waking up now and thinking the supreme court and the United States government are their best friends. There is still a lot of skepticism, and a healthy amount of antagonism, directed towards government, congress, and a supreme court that has over the vast majority of its history primarily broken rather than followed the treaties.

CM: You write, “Mari Hulbutta can trace her own family story to the far end of the Trail of Tears.” You point out how her family still has land, 180 acres that were given to them following the treaty in eastern Oklahoma back in 1866, and you quote Mari saying, “We might not have many other resources, but we do have that land. Our ancestors worked very hard to get that land, and that was the promise on the other side that we should keep with us for time immemorial. That’s part of why this opinion is so important on a personal level.”

How are Mari’s family lands now more protected with this decision, more likely to stay in the family? I just want to drive home the point about why this decision is so important given its direct impact on individual lives.

JB: The contours of what this will mean for other areas of tribal rights and jurisdiction beyond criminal justice are going to be negotiated between the tribes, the state of Oklahoma, and then primarily the Oklahoma congressional delegation, and also among local jurisdictions. But one of the main outcomes of this is that it will be easier now for the Muscogee Creek and the other four tribes to bring their land back into trust.

In the broadest swathes of the United States, government policy towards Indian land, since the founding of this nation, has been to try to take as much of it away as possible. There was, after the treaty period, beginning in the late 1800s, an act of congress called the Dawes Act which tried to break up Indian land and give parcels to individual tribal citizens, with the idea that if they converted to Christianity and became farmers and owned their own plot of land, they would assimilate—and also, over a longer period of time, if the land was broken up and owned by individual tribal citizens, it could then be alienated—the tribe’s land base would be eroded, and the communal life of the tribe would also fall away.

Mari’s family was impacted by the Dawes Act. They have an allotment, as do many tribal members in Oklahoma and across the country. But contrary to the United States’ “intentions” for them to have that allotment, Mari’s family has always held that they need to protect it because that land was what they were promised for departing on the Trail of Tears. It is their land. It is supposed to be their land for time immemorial, and they’re going to hang onto that.

Luckily, one of the likely consequences of the McGirt case is that it will be easier for the Muscogee Creek and the four other tribes to protect their land. If they’re interested for example in reclaiming a plot of land and bringing it into trust, bringing it back into the tribe’s land base, it’s going to be much easier for them to do that than it would have been before this decision.

For a lot of Native people, what makes us Indigenous is our primary connection to this land and the fact that we are the First Peoples of this land—we trace our connection to the land either to the creation stories that we have maintained, or to the diaspora and relocation of our peoples after colonialism, which is the case with the five tribes in Oklahoma. Because it is what our ancestors often fought and died for and kept for us up until the present, that is a very important and powerful thing. This case means that for these five tribes, and hopefully soon for many others, it will be easier to protect land and it might even be possible to bring more land into the tribal land base. That’s our land, of course.

CM: The last time you were on our show, one of the articles that we talked about was a piece you had written for the Marshall Project called “Law Enforcement Is Still Used as a Colonial Tool in Indian Country.” How might McGirt v. Oklahoma change law enforcement from being used as a colonial tool in Indian country? How might this decision affect police-Native relations in Indian country?

JB: That’s a big question. I’ll hedge a little bit. First, data from the CDC suggests that Native people are per capita the most likely to be killed by law enforcement, which to me means that it’s essential for Native people to stand beside our Black relatives in the movement for Black lives, and also to defund and eventually abolish the police.

What this means for policing in Indian country: at the end of the day, a lot of the tensions will still exist between Native people and states, and also between Native people and law enforcement. What I think this decision might amount to is that now tribes have a little bit more leverage in the negotiations between congress, the state of Oklahoma, and local jurisdictions about issues related to law enforcement and policing. My assumption is that while that will not eliminate the problem, giving tribes more leverage in those kinds of negotiations (negotiations that really shape the contours of tribal jurisdiction and sovereignty) will lead to less colonial relationships and less harmful policing of Native communities. But it won’t eliminate those problems. They will persist.

I’m a little hopeful, but at the same time my view of most of these struggles is that they end up being primarily incremental and long, and we have to fight for every single inch. Tribes know that as well or better than anyone else in this country.

CM: Julian, thank you so much for being back on our show.

JB: Thanks so much for having me.

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