McGirt one of the most significant Native American victories in a generation


Treaties and agreements entered into between the federal government and Native Americans cannot be ignored

Principal Chief David Hill of Muscogee (Creek) Nation
Chief Gary Batton of the Choctaw Nation
Chief Greg Chilcoat of the Seminole Nation

The Supreme Court’s July decision in McGirt vs. Oklahoma was one of the most significant Native American victories in a generation. In affirming that the reservation boundaries for the Creek Nation remain unchanged, the Court brought jurisdictional clarity to questions that have persisted for over a century. 

The decision also affirmed that all treaties and agreements entered into between the federal government and Native Americans cannot be ignored and remain in force unless altered explicitly by Congress.

Unfortunately, the historic decision also resulted in widespread misinformation regarding everything from public safety to land ownership. 

Almost immediately, efforts to contest the ruling began to emerge. Within days, a working group of lobbyists and business interests submitted ideas and proposals towards reversal. 

Likewise, Oklahoma Governor Kevin Stitt formed a commission to examine the implications of the ruling. The “solution” suggested by this esteemed body that included energy executives, but not tribal representatives, was to disestablish all reservations in Oklahoma.

Some in Oklahoma have embraced a different approach, suggesting federal legislation to authorize states and tribal nations to sign compacts relinquishing tribal jurisdiction over tribal lands regarding law enforcement matters. 

Supporters of this route seek to minimize the damage it would do by pointing out that the tribes’ decision to enter such a compact would be entirely voluntary. The reality is that such a law already exists, and it has been an abysmal failure.

Tribal nations already have a mechanism, through Public Law 280, for inviting the state to share concurrent jurisdiction in federal law by requesting a special election from the Department of Interior either through tribal council request or by referendum request of at least 20 percent of the tribe’s adult citizenry. 

After the Secretary receives the request, they shall call an election and a majority of enrolled citizens must vote to opt-in to sharing criminal jurisdiction with the state. Each tribal nation has the ability to invoke this opportunity and request to share jurisdiction with the state.  

That law has been in place since 1968. Therefore, no federal legislation is needed to achieve concurrent state jurisdiction.  

In short, PL280 already allows for state authority after an election of adult citizens of the tribe. Decisions about the future of tribal nations should remain in the hands of our citizens and not the U.S. Congress.     

All of the efforts to overturn the decision are based on the same premise that somehow it creates jurisdictional gaps. Such claims are false. Every crime has always fallen into either the state, tribal, or federal government jurisdiction in Oklahoma. 

That remains true today. The decision simply adjusted jurisdiction for Native American defendants in some areas, away from the state, consistent with treaty obligations, and shifted them to the federal government and tribal nations.

All of the efforts to “fix” this clarity also share the same goal—reducing or limiting tribes’ jurisdiction and authority over their lands. Rather than embrace the opportunities to improve public safety and grow economic prosperity, tribal sovereignty opponents seek to return to the status quo that was rendered illegal by the Supreme Court. Rather than lean into building up tribal capacity for self-determination, they seek to weaken and destroy it. 

The Tribal Law and Order Act, enacted in 2010, provides all necessary pathways for tribal nations to work sovereign to sovereign through intergovernmental measures to ensure that all needs of governance are met, and public safety and economic prosperity are protected. 

Rather than eliminating reservations or limit tribal sovereignty, leaders should be seeking ways to support and ensure public safety and prosperity by adjusting federal funding to reflect the distribution of caseloads to the federal government and tribal nations.

As the leaders of three proud nations, we stand united in opposition to all legislative efforts to weaken or undermine the Supreme Court’s decision and, by extension, the sovereignty of every tribal nation in America. 

There simply is no problem to be fixed, only opportunities that should be celebrated and nurtured to bring about a new era of public safety and economic prosperity for all Native nations and their neighbors. 

Native Americans everywhere should be very wary of the motives and intentions of those arguing otherwise.

Opinion-editorial submitted by Principal Chief David Hill of the Muscogee (Creek) Nation, Chief Gary Batton of the Choctaw Nation and Chief Greg Chilcoat of the Seminole Nation

Comments (2)
No. 1-1

For the former Indian Territory it is one of the biggest victories in over a century as to the east side's Five Tribes. The rapine allotment era (1893-1914), was followed by the oil boom. Nellie Johnston No. 1 came in on April 15, 1897. The first well in Indian Country. The boom became the basis for predatory guardianships that Oklahoma's most famous historian, Angie Debo called "an orgy of plunder and exploitation," one in which society "ceased to have a conscience." Oklahoma (which became a state in 1907 and had a disclaimer of jurisdiction over Indian lands in its Enabling Act as a pre-condition to statehood) "chose" to ignore the fact that the Major Crimes Act of 1885 was the first "general legislation" that intruded upon tribal sovereignty. It self-servingly exempted itself. McGirt was just Worcester v. Georgia (1832) re-decided on July 9, 2020. Oklahoma does do "due diligence" because it is not in the state's owners' (the oil industrial complex) interest to actually ascertain applicable law. Gorsuch should be bronzed. He is the antidote to the Rehnquist court's legacy of fabricated, novelty law like the bogus "Montana Rule." Tribes have all powers not expressly extinguished by Congress. See "Powers of Indian Tribes, 55 I.D. 14 (1934) and Martin Garbus's Courting Disaster. Rehnquist was said to only occasionally wander into the realm of factual accuracy. He routinely ascribed to cases holdings opposite of what they stood for. McGirt was the worm turning back to real Indian law. The "Montana Rule" and Worcester cannot live in the same legal universe. Worcester has never been withdrawn, discredited or overruled.