Landmark Victory: Congress Never Disestablished Eastern Okla. as Indian Reservation

The U.S. Supreme Court ruled 5-4 today that 19 million acres in eastern Oklahoma is Indian land. (Flickr/CC Geoff Livingston)

“The federal government promised the Creek a reservation in perpetuity. … Congress has never withdrawn the promised reservation.” —Justice Neil Gorsuch

With its ruling in McGirt v. Oklahoma, the Supreme Court has determined that the Creek Nation’s reservation was never disestablished. The treaty-defined lands of the Muscogee (Creek) Nation — encompassing much of eastern Oklahoma — remain Indian Country. That’s 19 million acres, home to 1.8 million people, of which an estimated 10–15% are Native American. 

“Today we are asked whether the land these 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,” Justice Neil Gorsuch wrote in the majority opinion. 

The 5-4 decision, in limbo for years, marks one of the most consequential legal victories in the history of Indian Country. 

“While there can be no question that Congress established a reservation for the Creek Nation, it’s equally clear that Congress has since broken more than a few of its promises to the Tribe,” Gorsuch continued in the opinion. “Not least, the land described in the parties’ treaties, once undivided and held by the Tribe, is now fractured into pieces.”

The determination impacts the criminal justice system by requiring major offenses involving Native Americans to supercede state authority and be prosecuted by the federal government in accordance with the Major Crimes Act. Now ambiguities regarding state law — zoning, taxation, family and environmental law — must be addressed, particularly as it relates to the 1.8 million residents, of whom most are not Native. As Gorsuch noted, “the Court has profoundly destabilized the governance of eastern Oklahoma,” and in turn rewrote the injustice of stripping Tribes of their sovereign rights to land. 

Sen. Tom Udall (D-New Mexico) praised the ruling: “This decision is a landmark victory for Indian Country, upholding the United States’ treaty obligations to the Creek Nation of Oklahoma and treaty Tribes across the country. The Supreme Court has affirmed that a promise is a promise: that treaties between the United States and Tribes are the law of the land — no matter how many times the federal government has violated those treaties in the past — and that lands reserved for Tribes remain Indian Country, now and in the future. While no court decision can correct centuries of injustice committed against Indigenous people, today’s ruling is a historic step forward to safeguard Tribal sovereignty for decades to come.”

The National Congress of American Indians (NCAI), the nation’s oldest, largest, and most representative organization comprised of American Indian and Alaska Native Tribal Nations and their citizens, released the following statement about this morning’s ruling: 

“Through two terms of the United States Supreme Court, and as many cases and fact patterns, this question has loomed over federal Indian law. This morning, NCAI joins the rest of Indian Country in congratulating the Muscogee (Creek) Nation and proudly asserting that its lands remain, and will forever be considered, Indian country — as guaranteed in their treaty relationship with the United States,” said NCAI President Fawn Sharp.

Meanwhile, Native American Rights Fund (NARF) Executive Director John Echohawk responded to the decision, “In this case, the Muscogee (Creek) Nation had to fight long and hard to protect their homelands, which were promised in their treaty agreements with the United States. In holding the federal government to its treaty obligations, the U.S. Supreme Court put to rest what never should have been at question. We congratulate the Nation on its success.”