'Going to fail': Using McGirt to disestablish tribal nations

Indian Country Today

Attorney Mary Kathryn Nagle is on today's show to tell us why the current effort to disestablish tribal nations is going to fail. Plus national correspondent Joaqlin Estus talks about what caught her attention at this year's Alaska Federation of Natives convention.

When the U.S. Supreme Court ruled in the landmark McGirt v. Oklahoma case, it was seen as a victory for tribal sovereignty. However, not everyone is celebrating. Cherokee citizen and attorney Mary Kathryn Nagle, who is also a one-woman American Indian Studies course, joins us to breakdown the validity of concerns a conservative think tank has brought to the entire congressional delegation from Oklahoma.

Every fall for more than 50 years Alaska Natives get together for the statewide Alaska Federation of Natives convention. Our national correspondent Joaqlin Estus tells us how this year's all virtual conference went and what caught her eye.

Here are some quotes from today's show.

Mary Kathryn Nagle:

"First the ruling was very simple in its nature. The question before the Supreme Court was, does the Creek nation still have a reservation? And the way the Supreme Court has always answered that question since deciding it in 1909, until now it looks to see whether or not it was the reservation created by treaty. Yes, it was. If it is created by treaty, then only Congress has the authority to disestablish it. Courts actually do not have the authority to disestablish a reservation that Congress never has. And Oklahoma was actually asking the Supreme Court to change the law and to disestablish this reservation. And their argument was essentially, look, we know that Congress didn't get around to disestablishing Creek nations reservation at the time of Oklahoma statehood in 1906, but they meant to. And so Supreme Court, you should finish what they didn't quite finish. And Justice Gorsuch was very clear in writing the majority opinion that he was not going to do that."

"I think that's so important in this case because it means something right? Treaties under our US constitution the American constitution says that treaties are the supreme law of the land. That has to mean something. And that's what Justice Gorsuch was talking about. You can't sign a treaty with a tribal nation, have it signed by the president, ratified by the US Senate saying this is your reservation, and then take it away because in 2020 the state of Oklahoma thinks it's an inconvenient reality for them. And he said no, promises mean more than that. And he upheld it."

"Yeah, absolutely. And at the time of the US’ founding. One of the very first things president George Washington did after the new constitution was ratified, was he signed a treaty with Creek nation and that's the Treaty of New York. And at that time Creek nation Cherokee nation, Delaware nation, the Haudenosaunee and many other nations have been signing treaties with world powers all around the world, right? France, Spain, Britain, the US was a new country at that point, many questioned the sovereignty of the United States. They were the new kid on the block. And so George Washington strategically signed treaties with tribal nations. And I don't think it's a coincidence that one of the first treaty George Washington and the United States signed after the new US constitution was ratified, was with Creek nation and needed that to show the rest of the world, Hey, we're as legitimate as France as Spain, they signed treaties with Indian nations. So do we. And so in a real sense, the United States relied on the sovereignty of our nations to establish the legitimate sovereignty of the United States. And you see that in the US constitution, Indian tribes are mentioned. They’re one of three sovereigns mentioned in the constitution states, federal government, and Indian tribes. And the fact that treaties are considered to be the supreme law of the land also is a nod towards not just respect for tribal nations, but the absolute necessity that the United States would not have survived as a nation at that point, if they couldn't have counted on these treaties as remaining the law of the land."

"First of all. Yeah. It's not new, right? Non-Native private profiteering interests have been trying to remove, disestablish, exterminate tribal nations. Corporate interests have been trying to remove us since the United States came into existence. Now they've all failed. We're still here. And this effort is going to fail as well, but you do have to kind of remove the veil and see it for what it really is. Oil and gas, for reasons that I actually don't completely understand. See the Supreme court's decision in McGirt as a huge threat. They want to characterize it as a public safety threat when actually it is not. And so you'll notice if you read that letter, they say, well, there are all these problems created by the Supreme court's decision in McGirt. The Supreme court's decision in McGirt doesn't create a single problem. In fact, a giant problem made clear is that Oklahoma was unlawfully exercising jurisdiction it never had, for over a hundred years. That is very problematic if you believe in the constitution and the rule of law in this country and democracy, right? That Oklahoma didn't have that authority and yet they were exercising it. A lot of folks like these oil and gas folks who wrote this seven page letter that you refer to have been referring to these public safety jurisdictional gaps. That's also a red herring. There are no jurisdictional gaps. The simple fact of the matter is Oklahoma maintains the majority of its jurisdiction. It still has jurisdiction over crimes committed by non-Indians. The only crimes that it does not have jurisdiction over are crimes committed by Indians, against Indians, on tribal lands, on the reservation. If we had 30 minutes I could explain a few other scenarios that involve like a very tiny, tiny percentage where you can imagine a law school exam can make it a little bit more complex in terms of, is it victimless crime or is it, you know, it was biracial with Indian and non-Indian but one thing is very clear is that the state maintains criminal jurisdiction over non-Indian against non-Indian crime on reservation lands."

"And so when we deal with the crimes committed by an Indian, for instance, then that's the tribal nation or the federal government. So there's no safety issue here because you've got at least two sovereigns who will be prosecuting those crimes. And specifically as to Murphy and McGirt. Those two defendants have now been charged by the United States attorney's office. And I don't think there was ever a real threat that they were going to walk free. And of course, that's the rhetoric that Oklahoma's used. That's the rhetoric that oil and gas is using. Not because they care about public safety. I do not think they are that concerned with the high rates of violence against Native women within the state of Oklahoma. I think they're concerned with what they see as oil and gas profits. I think they've miscalculated, but they have fought tribal sovereignty, whether it's at Standing Rock or funding you know, Goldwater's attacks on the Indian Child Welfare Act. There's a lot of oil and gas money being used right now to fight tribal sovereignty. Because I guess the oil and gas companies think that's going to bring them more profits, and that's really what's at the heart of this."

Additional resources for this interview:
 ON THE FAR END OF THE TRAIL OF TEARS by Mary Kathryn Nagle
 McGirt v. Oklahoma (18-9526) - Native American Rights Fund

Joaqlin Estus:

"AFN is a huge social occasion, five to six thousand people attend. We're all watching the same speakers, listening to panel discussions, people rush out on the breaks to go have lunch or dinner, come back, watch traditional dance performances. So it's a huge social occasion. I didn't know what it was going to be like doing it virtually, but I was pleasantly surprised it turned out pretty well. And I think that's because of the familiarity. I think in these days, part of us is longing for, well, maybe a lot of us are longing for our normal routines. And so AFN gave us that. They had the agenda. It was just like they'd had it in years past with the president's report, legislators and congressional delegation experts. So it followed the same formula as in other years."

 "Missing and murdered women came up several times. There has been a new cold case office opened here in Anchorage. The session that really caught my attention was about the military. So Alaska is really important strategically for the military because we're at the top of the planet and you can fly from Anchorage in about the same flying time or distance to Europe, Asia, the West coast or the East coast. So if you need to go somewhere, this is a good point to start out from. A lot of the troops that are stationed here actually have been in Iraq and Afghanistan." 

"So there was a panel of army, air force, navy, US coast guard, and the national guard and the US army corps of engineers. And they all gave talks. They brought up climate change because the polar ice cap is melting and ships can now get across the top of Russia from the West coast of the United States over to Europe or to the East coast. It hasn't been used as often, but there have been a couple of ships that have made it over the top of Russia. So what countries are anticipating is that there's going to be a huge increase in traffic because this will cut trips instead of having to go down through the Panama canal, it'll really cut the distance. The other thing that'll happen is oil development in the Arctic and mining for precious metals, commercial fishing, all of those will become more accessible." 

"So what these military leaders said is that Russia and China are really kind of rushing to the front of the line to get in on this. And the general who was speaking said that Russia and China have both shown a willingness to just take territory with Russia, taking Crimea in China, taking the South China sea. And so he said, we have to be vigilant. Just as an example of what Russia is doing, they have 30 ice breakers. We have one, they are building a dozen or more bases across the Northern shore facing the Arctic. And so they're getting ready for some activity up here. And so what the military folks said was that we need to build infrastructure in the internet. We need more training, we need more military exercises. And they said, they need to partner with Alaska natives who know Alaska better than anyone. And so that should be good."

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Patty Talahongva, Hopi, is executive producer of Indian Country Today. She is also the anchor of the weekday newscast. Follow her on Twitter: @WiteSpider.

Joaqlin Estus, Tlingit, is a national correspondent for Indian Country Today. Based in Anchorage, Alaska, she is a longtime journalist. Follow her on Twitter @estus_m or email her at jestus@indiancountrytoday.com.

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Comments (2)
No. 1-1
ewelllonghorn
ewelllonghorn

The Creek decision contains premises (excerpts below) that may prove extremely important to Tribe's who were assigned lands or reservations by treaty and subsequently relocated under new treaties or agreements. However the subsequent treaties may not have fully diminished the Tribe's treaty rights under the original treaty nor were their reservations disestablished. My Absentee Shawnee Tribe may be in this class of Tribes with treaty rights and reservation lands that weren't specifically diminished or disestablished. I hope Tribe's may begin communicating with each other and coordinate time and resources to seek our treaty rights and restore our reservation lands status and/or compensate Tribe's accordingly. Neyiwa Thanks! Ewell Longhorn, member Absentee Shawnee Tribe of Oklahoma

(1)
Once a federal reservation is established, only Congress can
diminish or disestablish it. Doing so requires a clear expression of con-
gressional intent. Pp. 6–8.

(2)
Oklahoma claims that Congress ended the Creek Reservation
during the so-called “allotment era”—a period when Congress sought
to pressure many tribes to abandon their communal lifestyles and par
cel their lands into smaller lots owned by individual tribal members.
Missing from the allotment-era agreement with the Creek, see 31 Stat.
862–864, however, is any statute evincing anything like the “present
and total surrender of all tribal interests” in the affected lands. And
this Court has already rejected the argument that allotments automat
ically ended reservations. Pp. 8–13.


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