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Wednesday, August 05, 2020

Explained: How a rape convict’s appeal has resulted in big legal victory for native Americans

The 5-4 decision in McGirt vs Oklahoma is seen as a momentous victory of the native tribes of America who have for long been campaigning for their territorial sovereignty and treaty obligations for promises made by the white settlers of America two centuries ago.

Written by Adrija Roychowdhury , Edited by Explained Desk | New Delhi | Updated: July 13, 2020 6:29:15 pm
The Supreme Court building is photographed early Thursday, July 9, 2020, in Washington. (AP Photo/Andrew Harnik)

In a landmark judgment, with longstanding implications for the native American tribes of America, the Supreme Court of the United States last week confirmed that large parts of the state of Oklahoma are native Indian territory. The 5-4 decision in McGirt vs Oklahoma is seen as a momentous victory of the native tribes of America who have for long been campaigning for their territorial sovereignty and treaty obligations for promises made by the white settlers of America two centuries ago.

“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,” pointed out Justice Neil Gorusch, delivering the majority opinion of the court.

What is the McGirt vs Oklahoma case?

In 1997, Jimcy McGirt, a member of the Seminole Nation of Oklahoma, was convicted in state court of rape and other sexual offences. McGirt (71), has since been serving life imprisonment.

This Jan. 8, 2019 photo provided by the Oklahoma Department of Corrections shows Jimcy McGirt in Helena, Okla. (Oklahoma Department of Corrections via AP)

His petition to the Supreme Court, which was granted in December 2019, challenged his conviction on the ground that since his crime was committed on the land of the Muscogee (Creek) Nation, which is one among the five tribes of Oklahoma (the four others being Cherokee, Chickasaw, Choctaw, and Seminole), the state does not have the authority to prosecute him.

The Creek Nation joined McGirt in the petition as amicus curiae, not in the interests of shielding him, but because his personal interests have far-reaching implications for the tribe.

What is the basis of the judgment?

“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever,” said Justice Gorusch as he began delivering the majority opinion on the case.

The promise that the judgment upholds can be traced two centuries back when about 125,000 native Indians lived on millions of acres of land in Georgia, Tennessee, Alabama, North Carolina and Florida. This was land that was traditionally presided over by their ancestors for generations. By the 1830s, however, as white settlers kept flooding the territory, they desired this land for growing cotton. Consequently, they drove out the native American tribes from this land by force, looted livestock, committed mass murders and burned down houses. Moreover, the state government joined in the efforts to drive out the tribes.

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‘Trail of tears’ is the Cherokee designation given to the forced relocation of the five civilised tribes to a specially designated ‘Indian territory’ across the Mississippi River in the area comprising present-day Oklahoma. In the course of their journey, many lost their lives to deadly diseases and hardships.

“Not only did the Cherokees lose their ancestral home during the 1838-39 campaign, but many also lost their lives,” wrote Amy H Sturgis, a scholar of Native American studies in her book, ‘The Trail of Tears and Indian Removal’. “Traditional estimates suggest more than 4000 of 15000 Cherokees died during or as a result of removal; some recent calculations suggest a higher death toll of approximately 8000 out of 21,500,” she added.

By 1840, as tens of thousands of native Americans were relocated, the federal government promised to ensure that their new land would remain undisturbed. However, with the passage of time as white territory moved westward, ‘Indian territory’ shrank in size and finally in 1906, the Oklahoma Enabling Act enabled Oklahoma and the Indian territory to be merged together.

The appeal made by McGirt rests on the federal Major Crimes Act (MCA), passed in 1885 which says “all Indians committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny, within any territory of the United States, and either within or without the Indian reservation, shall be subject therefore to the laws of the said territory.” In other words, since McGirt as a native American committed a sexual offence in Indian territory, he appealed that he cannot, therefore, be tried by the Oklahoma state government.

The Supreme Court ruling emphasised that since the Congress did not de-establish the reservations in the Oklahoma Enabling Act, the land that was formerly reserved will have to be considered as ‘Indian territory’, subject to federal laws.

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What are the implications of the judgment?

The judgment is being celebrated not just by the Muscogee (Creek) Nation, but also by other native Indian tribes, since it upholds the historical legacy of the territorial sovereignty that was promised to them centuries back. The Congress has in the course of the last two centuries, ratified nearly 370 treaties with Native Americans to help the United States expand its territory. Almost each one of them has been broken. In that context, the recent judgment comes as a ray of hope to the tribes.

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However, the judgment also puts in doubt several other state convictions of native Americans and could change the way prosecutions are handled across 11 counties in Eastern Oklahoma. A lot though depends on the negotiations between the state of Oklahoma, the Muscogee (Creek) Nation and the other native Indian tribes.

The five tribes and the Oklahoma state released a joint statement following the verdict announcing that, “The State, the Muscogee, Cherokee, Chickasaw, Choctaw, and Seminole Nations are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused.” “We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma,” it said.

Currently, lawyers are also examining if the verdict can have broader implications in terms of taxing, zoning and other government functions.

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